ACCEPTED 04-15-00615-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 10/1/2015 2:06:54 AM KEITH HOTTLE CLERK 04-15-00615-CV NO.___________________
IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO
IN RE ESTATE OF MARIA L. RAYNES
FROM THE PROBATE COURT NO. 1 OF BEXAR COUNTY, TEXAS
RELATOR’S PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION
Per Hardy, SBN: 08986500 James E. Hoffman, SBN: 09781750 418 East Park Avenue San Antonio, TX 78212 Phone: (210) 226-8890 Facsimile: (210) 222-1891 perhardylawofc@sbcglobal.net
ATTORNEYS FOR RELATOR Arthur Raynes, Independent Executor
EMERGENCY RELIEF REQUESTED
ORAL ARGUMENT IS REQUESTED IDENTITY OF PARTIES AND COUNSEL Relator certifies that the following is a complete list of all parties, attorneys, and any other persons who have any interest in the outcome of this Petition for Writ of Mandamus and Writ of Prohibition regarding the trial court’s Final Judgment entered on August 17, 2015. PARTIES COUNSEL Relator: Arthur Raynes, Per Hardy, SBN: 08986500 Independent Executor James E. Hoffman, SBN: 09781750 418 East Park Avenue San Antonio, Texas 78212 Phone: (210) 226-8890 Fax: (210) 222-1891 perhardylawofc@sbcglobal.net
Respondent: Honorable Kelly Cross Judge of Probate Court No. 1 Bexar County Courthouse 100 Dolorosa San Antonio, Texas 78205 Phone: (210) 335-2670 Fax: (210) 335-3998
Real Parties in Interest: Defendant Leah Raynes Cecil Bain, SBN: 01550000 The Forum, Suite 600, 8000 IH 10 West San Antonio, Texas 78230 Phone: (210) 344-1700 Fax: (210) 344-1700 cecilbain@yahoo.com
Defendant Todd Barta pro se 6307 Handsome Lake Dr. Leon Valley, Texas 78238
Defendant Samuel Barta pro se 6307 Handsome Lake Dr. Leon Valley, Texas 78238
-II- TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . II
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII
RECORD REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IX
RELATOR’S PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. ENTITLEMENT TO MANDAMUS RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 1 The trial court abused its discretion by denying the Independent Executor’s constitutional right to a jury trial on material issues of fact.. . . . . . . . . . . . . 8
D. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 2 The trial court abused its discretion by limiting the subject of the hearings to the Requests for Injunction filed by the Independent Executor and Leah Raynes and the Petition for Eviction from the Estate’s real property filed by the Independent Executor and then entering a Final Judgment on all requests for relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
E. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 3 The trial court abused its discretion by finding that a letter written by an attorney for the Independent Executor on June 5, 2013, offering to sell the Estate’s real property was an enforceable Contract where the offer was not accepted by Leah Raynes and negotiations regarding essential terms continued after that date.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
-III- F. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 4 The trial court abused its discretion by entering a Judgment forcing the Independent Executor to sell the Estate’s real property to Leah Raynes for an amount well below fair market value based on a nonexistent Contract.. . . 16
G. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 5 The trial court abused its discretion by entering a Final Judgment not supported by the live pleadings before the Court, including the appointment of a receiver which was not requested by any party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
H. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 6 The trial court abused its discretion by denying the Independent Executor’s request for eviction of Leah Raynes and her adult sons from the Estate’s real property and injunctive relief to protect and preserve the Estate of Maria L. Raynes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
MANDAMUS CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A
VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A
-IV- INDEX OF AUTHORITIES
Cases
Estate of Casida, 13 S.W.3d. 519 (Tex. App.–Beaumont 2000)... . . . . . . . . . . . . 18
Estate of Eberling v. Fair, 546 S.W.2d 329 (Tex. Civ. App.–Dallas 1976, writ ref'd n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16
Gen. Motors Corp. v. Gayle, 951 S.W.2d 469 (Tex. 1997)... . . . . . . . . . . . . . . . . . 8
Guerra v. Alexander, 04-09-00004-CV (Tex App.—San Antonio May 26, 2010, no pet.) (mem. op.)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Guzman v. Acuna, 635 S.W.2d 315 (Tex. App.–San Antonio 1983, pet dism’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Halsell v. Dehoyos, 810 S.W.2d 371 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . 10
In Re Fallis, No. 04-08-00781-CV (Tex App.—San Antonio Feb. 4, 2009, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
In re M.G.N., 401 S.W.3d 677 (Tex.App.–San Antonio 2013), rev’d on other grounds, 441 S.W.3d 246 (Tex. 2014)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004). . . . . . . . . 8, 10
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985).. . . . . . . . . . . . 7
Mercedes-Benz Credit Corp. V. Rhyne, 925 S.W.2d 664 (Tex. 1996). .. . . . . . 9, 10
Oil Field Haulers Assoc. v. RR Comm’n, 381 S.W.2d 183 (Tex. 1964). . . . . . . . 18
Roman v. Roman, 193 S.W.3d 40 (Tex.App.–Houston [1st Dist.] 2006, pet. filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992). .. . . . . 12, 13, 16
-V- Vincent v. Bank of America, N.A., 109 S.W.3d 856 (Tex. App. –Dallas 2003, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
W. E. Grace Mfg. Co. v. Levin, 506 S.W.2d 580 (Tex.1974).. . . . . . . . . . . . . . . . 15
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548 (Tex.App.–Houston [14th Dist.] 2002, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Constitution
Tex. Const. art. I, § 15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Tex. Const. art. V, § 6... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII
Statutes
Tex. Bus. & Com. Code § 26.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Tex. Est. Code § 356.002.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Tex. Est. Code § 402.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tex. Est. Code § 402.052.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20
Tex. Est. Code § 55.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Gov’t Code § 22.221(a), (b)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII
Rules
Tex. R. Civ. P. 216.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. R. Civ. P. 220.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. R. Civ. P. 301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
-VI- STATEMENT OF THE CASE
The underlying proceeding: Request by the Independent Executor for Eviction and request by both parties for an Injunction. The Jury trial scheduled on the Independent Executor’s Petition for Preservation of the Estate, reimbursement, damages and attorneys fees was denied by the Final Judgment signed by the trial court.
The Respondent: The Respondent is the Honorable Kelly Cross, Judge of Probate Court No. 1 Bexar County, Texas.
Order from which Relief is Sought: Final Judgment signed on August 17, 2015, denying Arthur Raynes, Independent Executor, the right to a jury trial on material issues of fact and ordering a forced sale of real property for an amount far below market value based on a nonexistent contract.
-VII- STATEMENT OF JURISDICTION
This Court has jurisdiction to issue a Writ of Mandamus and Prohibition under
Texas Constitution Article V, § 6, and under Texas Government Code § 22.221(a),
(b).
RECORD REFERENCES
RR 1 - Reporter’s Record, Hearing on June 16, 2015, attached and the original will be filed with the Fourth Court of Appeals.
RR 2 - Reporter’s Record, Hearing on July 22, 2015, attached and the original will be filed with the Fourth Court of Appeals.
P-Ex - Petitioner’s Exhibits
R-Ex - Defendant’s Exhibits
-VIII- ISSUES PRESENTED
1. The trial court abused its discretion by denying the Independent Executor’s constitutional right to a jury trial on material issues of fact.
2. The trial court abused its discretion by limiting the subject of the hearings to the Requests for Injunction filed by the Independent Executor and Leah Raynes and the Petition for Eviction from the Estate’s real property filed by the Independent Executor and then entering a Final Judgment on all requests for relief.
3. The trial court abused its discretion by finding that a letter written by an attorney for the Independent Executor on June 5, 2013, offering to sell the Estate’s real property was an enforceable Contract where the offer was not accepted by Leah Raynes and negotiations regarding essential terms continued after that date.
4. The trial court abused its discretion by entering a Judgment forcing the Independent Executor to sell the Estate’s real property to Leah Raynes for an amount well below fair market value based on a nonexistent Contract.
5. The trial court abused its discretion by entering a Final Judgment not supported by the live pleadings before the Court, including the appointment of a receiver which was not requested by any party.
6. The trial court abused its discretion by denying the Independent Executor’s request for eviction of Leah Raynes and her adult sons from the Estate’s real property and injunctive relief to protect and preserve the Estate of Maria L. Raynes.
-IX- RELATOR’S PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION
TO THE HONORABLE COURT OF APPEALS:
Relator, ARTHUR RAYNES, INDEPENDENT EXECUTOR, submits this
Petition for Writ of Mandamus and Prohibition complaining of the Final Judgment of
the Honorable Kelly Cross, Judge of the Probate Court No. 1 of Bexar County, Texas.
For clarity, Relator, Arthur Raynes, Independent Executor, will be referred to as
Independent Executor; Respondent, the Honorable Kelly Cross, will be referred to by
name; and the Real Parties in Interest, Defendants, Leah Raynes, Todd Barta and
Samuel Barta will be referred to by name.
A. STATEMENT OF FACTS
On January 27, 2013, Maria L. Raynes died and left a Will appointing Relator,
Arthur Raynes, as Independent Executor. (RR 1:7; Tab 2). Leah Raynes is one of five
heirs under the Will. (RR 1:8). No one contested the Will or the appointment of
Arthur Raynes as Independent Executor. (RR 1:8; RR 2:117-118). On July 4, 2013,
the trial court approved the Inventory, Appraisement, and List of Claims of the Estate
filed by the Independent Executor. (RR 1:8).
The major asset of the Estate is the real property located at 6307 Handsome
Lake Dr., Leon Valley, Texas 78238. (RR 1:9). The Estate has no cash assets and has
-1- been funded by loans from the Independent Executor and another heir. (RR 2:1, 90-
91; P-Ex 1).
Since January 27, 2013, Leah Raynes and her adult sons, Todd Barta and
Samuel Barta, have resided in the Handsome Lake property without paying rent to the
Estate. (RR 1:21; RR 2:26, 80, 114-115). Todd Barta and Samuel Barta have no
ownership interest in the property and they did not pay any rent or expenses for use
of the house. (RR 1:27; RR 2:100, 118). Since 2013, the Estate has paid most of the
expenses for the house. (P-Ex 1).
In April 2013, the Independent Executor requested Leah Raynes and her adult
sons to vacate the property by May 6, 2013, so that he could list it for sale. (RR 1:9,
11; RR 2:122-123). Instead of moving out of the house as requested, Leah Raynes
hired an attorney who accused the Independent Executor of harassment. (RR 1:10; RR
2:102-103; RR 2:123-124). On May 9, 2013, Leah Raynes’ attorney sent a letter to
the Independent Executor’s attorney proposing that his client have exclusive
possession of the house, but this letter did not mention purchasing the house. (RR
1:33-34; R-Ex 2). The Independent Executor did not agree to allow Leah Raynes and
her adult sons to remain in the house because he wanted to sell it in order to distribute
the proceeds equally to all of the heirs. (RR 1:10-11, 35, 37; RR 2:88, 102-103).
On June 5, 2013, the Independent Executor’s attorney sent a letter to Leah
Raynes’ attorney, offering to sell the house to Leah Raynes “as is” for $121,000.00
-2- to close within 25 days or she and her two adult sons should vacate the property so it
could be listed with a real estate agent and sold for fair market value. (RR 1:11, 13;
R-Ex 4; Tab 5). Leah Raynes rejected this offer, and after 25 days the offer expired,
on June 30, 2013. (RR 1:13; 47, 60; RR 2:88).
In October 2013, Leah Raynes made her first offer to purchase the house for
$122,000.00, which was rejected by the Independent Executor. (RR 1:14-15, 57).
Thereafter, a series of letters were exchanged between the Independent Executor and
Leah Raynes’ representatives with negotiations regarding the sale of the property to
her, including her offers of various purchase prices, but none of these letters extended
the deadline for expiration of the offer in the June 5, 2013 letter. (RR 1:53-54, 76, 78;
RR 2:20, 109-111; R-Ex 35; R-Ex 11). In his response letters, the Independent
Executor demanded payment for expenses and rent, but did not accept any of the
proposals from Leah Raynes. (RR 2:4-5, 19, 63).
The Independent Executor wrote “proposed” on the Contract submitted by Leah
Raynes and he never signed any contract to sell the house to Leah Raynes. (RR 1:75,
77; RR 2:7, 21, 25; 35, 101; R-Ex 11). Since 2013, the Independent Executor and
Leah Raynes never reached an agreement for the sale of the house because there was
no agreed price, her offers did not treat all of the heirs equally and fairly, and there
was no reimbursement to the Estate for expenses and rental value. (RR 1:17-18; RR
2:27-28, 94-95).
-3- During this time, Leah Raynes and her attorney interfered with the Independent
Executor’s efforts to maintain the house and prepare it for sale and accused him of
harassment whenever he attempted to have access to the property. (RR 1:22, 24; RR
2:97, 137; RR 2:90, 103, 137).
On February 12, 2015, the Independent Executor sent a “Ten Days Notice to
Vacate” by certified mail to Leah Raynes and her adult sons, but they did not vacate
the property. (RR 1:24; RR 2:83; RR 2:127).
In February 2015, the Independent Executor notified Leah Raynes that he and
a Real Estate Appraiser would inspect the house on February 23, 2015, but they were
unable to obtain access because his key did not work and no one answered the door.
(RR 1:25-26). The Independent Executor requested a key from Leah Raynes, but that
request was denied. (RR 1:26-27; RR 2:143, 146).
On March 12, 2015, the Independent Executor filed a Petition for Preservation
of the Estate, for Damages and Other Relief against Defendants Leah Raynes and her
two adult sons, Todd Barta and Samuel Barta. (Tab 6). On March 30, 2015, Leah
Raynes filed a verified Defendant’s Original Answer, Counter-Petition for Recovery
of Property of Estate, For Sale of Estate Real Property, and for Declaratory Judgment,
Temporary Injunction and For Show Cause Order for Removal and demanded a jury.
(Tab 7). On April 16, 2015, the Court signed a Docket Control Order scheduling a
jury trial for October 12, 2015. (Tab 4). On April 27, 2015, Leah Raynes paid the jury
-4- fee. (Tab 3).
On April 24, 2015, a licensed real estate appraiser conducted an inspection and
evaluation of the house and determined its value to be $151,000 because of deferred
maintenance, which if addressed would increase the value to $161,000. (RR 2:61, 95-
96; P-Ex 2).
On May 15 and 18, 2015, the other heirs filed Affidavits stating their support
of the Independent Executor’s efforts to evict Leah Raynes and list the property for
sale on the market. (Tab 10).
On May 19, 2015, Leah Raynes filed a Motion to Withdraw and Dismiss the
Application for Sale of Property and an Amended Answer and Counter-Petition. (RR
1:4; Tab 9).
On June 16, 2015, and July 22, 2015, hearings were held on the Requests for
Injunction filed by the Independent Executor and Leah Raynes and the Petition for
Eviction filed by the Independent Executor. (RR 1:4-6). The Court repeatedly stated
that those were the only two issues before the Court during these two hearings and
that hearings were “not a trial on the merits.” (RR 2:43-44, 77, 89-90, 106, 108, 112,
135, 143, 169-170).
At these hearings, Leah Raynes and her attorney admitted that there is no
Contract signed by both parties, but only proposed Contracts submitted by her, but
never “finalized.” (RR 1:5-6; RR 2:165).
-5- On August 17, 2015, the Court entered a Final Judgment. (Tab 1). In this
Judgment, the Court found that the letter dated June 5, 2013, from the Independent
Executor’s attorney with an offer for sale of the property to Leah Raynes was accepted
by the Independent Executor. Based on this finding, the Court ordered the
Independent Executor to sell the property to Leah Raynes for $121,000.00 on or
before October 2, 2015. The Court also made provisions for appointment of a receiver
and made rulings regarding payment of expenses. The Judgment denied all other relief
not specifically granted.
On August 20, 2015, the Independent Executor filed a Request for Findings of
Fact and Conclusions of Law. On September 10, 2015, the Independent Executor filed
a Notice of Past Due Findings of Fact and Conclusions of Law.
Undisputed and Uncontroverted Facts
It is undisputed that a jury demand was made, the jury fee was paid, and the case was set for jury trial on October 12, 2015. (TAB 3) (RR 2:210, 212).
It is undisputed that the major asset of the Estate of Maria L. Raynes was her residence located at 6307 Handsome Lake Drive, San Antonio, Texas. (RR 1: 9).
It is undisputed that Leah Raynes and her two adult sons, Samuel Barta and Todd Barta, resided without paying rent at 6307 Handsome Lake Drive, San Antonio, Texas since the death of Maria L. Raynes on January 27, 2013. (RR 1:9, 20, 21, 25, 27; RR 2:114-115).
It is undisputed that Leah Raynes and her two adult sons, Samuel Barta and Todd Barta, refused to vacate the house located at 6307 Handsome Lake Drive, San Antonio, Texas as requested by the Independent Executor. (RR 1:11, 24, 29; RR 2:123-124, 125, 127).
-6- It is undisputed that Samuel Barta and Todd Barta did not pay to the Estate any rent or any of the ongoing expenses for the house located at 6307 Handsome Lake Dr., Leon Valley, Texas 78238. (RR 1:1:20, 21, 25,27; RR 2:135-136).
It is undisputed that Leah Raynes did not pay to the Estate any rent and did not pay most of the ongoing expenses while living in the house located at 6307 Handsome Lake Dr., Leon Valley, Texas 78238. (RR 1:20, 21, 25, 27, 38-40; RR 2:128, 133; P-Ex1).
It is uncontroverted that there is no written Contract of Sale signed by both parties for sale of the real property located at 6307 Handsome Lake Dr., Leon Valley, Texas 78238 to Defendant Leah Raynes. (RR 1:5-6, 13-15, 18; RR 2:5, 165).
B. ENTITLEMENT TO MANDAMUS RELIEF
Mandamus issues to correct a violation of duty imposed by law or a clear abuse
of discretion when there is no adequate remedy by appeal. Johnson v. Fourth Court
of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A trial court has no discretion in
determining what the law is, or in applying the law to the facts. A failure by the trial
court to analyze or apply the law correctly will constitute an abuse of discretion.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
In the Final Judgment, the trial court made rulings that are prohibited by
Constitutional provisions regarding jury trials, due process, Texas Business &
Commerce Code §§ 26.01 and 26.02(b), fundamental contract law regarding the sale
of real property, and provisions of the Estates Code. In addition, the trial court failed
to correctly analyze or apply the law by: (1) denying the right to a jury trial on
material issues of fact; (2) determining that a Contract existed; (3) ordering the
-7- Independent Executor to sell the house for an amount below fair market value to Leah
Raynes based on a nonexistent contract; (4) appointing a Receiver if the sale is not
concluded by October 2, 2015; and (5) rendering a Final Judgment not supported by
the pleadings.
C. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 1
The trial court abused its discretion by denying the Independent Executor’s constitutional right to a jury trial on material issues of fact.
“The right to jury trial is one of our most precious rights, holding ‘a sacred
place in English and American history.’” Gen. Motors Corp. v. Gayle, 951 S.W.2d
469, 476 (Tex. 1997); Accord In re M.G.N., 401 S.W.3d 677, 679 (Tex.App.–San
Antonio 2013), rev’d on other grounds, 441 S.W.3d 246 (Tex. 2014); Accord Guerra
v. Alexander, 04-09-00004-CV (Tex App.—San Antonio May 26, 2010, no pet.)
(mem. op.). The denial of a trial by jury has been determined by the Texas Supreme
Court to be reviewable by mandamus. In re Prudential Ins. Co. of America, 148
S.W.3d 124, 139 (Tex. 2004) (holding “[t]he denial of trial by jury is also reviewable
by mandamus.”); Accord In Re Fallis, No. 04-08-00781-CV (Tex App.—San Antonio
Feb. 4, 2009, no pet.) (mem. op.).
The Texas Constitution provides that “[t]he right of trial by jury shall remain
inviolate.” Tex. Const. art. I, § 15. The Texas Constitution and Texas Rules of Civil
Procedure require that when a jury demand has been made and the jury fee paid,
-8- questions of facts must be submitted to the Jury. Tex. Const. art. I, § 15; Tex. Est.
Code § 55.002; Tex. R. Civ. P. 216 and 220.
In the present case, Defendant Leah Raynes filed a jury demand and paid the
jury fee. (Tab 3). Samuel Barta and Todd Barta also filed a jury demands in their
Original Answers. (Tab 8). On April 16, 2015, the Court entered a Docket Control
Order scheduling a jury trial for October 12, 2015. (Tab 4). The Independent Executor
was entitled to rely on the jury demands and payment of the jury fee. Tex. R. Civ. P.
220; Mercedes-Benz Credit Corp. V. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).
On June 16, 2015, at the request of the parties, the trial judge held a hearing
on the Independent Executor’s Motion for Eviction and Request for Injunction and
Leah Raynes’ Request for Injunction. Because of time limitations, the trial court
continued the matter until July 22, 2015, at which time it concluded the hearing on
these matters. During the two hearings on these preliminary matters, the trial court
repeatedly stated that only the requests for Injunction and Eviction were before the
Court and that the other issues would be decided at the jury trial on the merits. (RR
1:4-6; RR 2:43-44, 77, 89-90, 106, 108, 112, 135, 143, 169-170). During these
hearings, both attorneys acknowledged that damages and other issues would be
presented at the jury trial. (RR 2:210, 212). On July 22, 2015, in closing argument,
Leah Raynes attorney stated, “We’ve got a jury demand. And I believe in an eviction
suit, since there’s no contract, it’s either got to be determined by summary judgment
-9- or before a jury.” (RR 2:210). Under these circumstances, the trial court may not take
the case from the jury where there are material fact issues over the objection of the
opposing party. Mercedes-Benz Credit Corp. V. Rhyne, at 666 (Tex. 1996).
Nevertheless, on August 17, 2015, the trial court arbitrarily entered a Final
Judgment disposing of all issues and parties. (Tab 1). The Independent Executor was
not aware that the trial court intended to remove the case from the jury and rule on all
of the issues until he received the Final Judgment.
It is well established that the denial of trial by jury is harmless error only if
there are no material fact issues to submit to a jury and an instructed verdict would
have been justified. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 138 (Tex.
2004); Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991). The Independent
Executor’s pleadings present several causes of action and requests for damages that
contain material issues of fact to be submitted to the jury. Halsell at 372 (Tex. 1991).
In the present case, the following material fact issues were required to be submitted
to the jury: (1) the existence of a contract for sale of the real property if not determined
by Summary Judgment; (2) the fair market value of the house; (3) the amount of
damages to the Estate caused by Defendants’ failure to properly maintain the property;
(4) reimbursements for rental value and expenses from Defendants for the more than
two years they occupied the Handsome Lake Dr. property without consent of the
Independent Executor and other heirs; (5) fraud by Leah Raynes against the Estate;
-10- and (6) the award of attorneys fees to the Estate.
The Final Judgment entered on August 17, 2015, arbitrarily denied the
Independent Executor’s right to a jury trial on the material issues of fact. In depriving
the Independent Executor of the constitutional right to a jury trial on these issues, the
trial court clearly abused its discretion.
D. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 2
The trial court abused its discretion by limiting the subject of the hearings to the Requests for Injunction filed by the Independent Executor and Leah Raynes and the Petition for Eviction from the Estate’s real property filed by the Independent Executor and then entering a Final Judgment on all requests for relief.
The trial court abused its discretion by entering a Final Judgment which
disposed of all issues after limiting the scope of two hearings on June 16, 2015, and
July 22, 2015, to only three issues: (1) the eviction of Leah Raynes, Samuel Barta, and
Todd Barta; (2) the Independent Executor’s request for an injunction; and (3) Leah
Raynes’ request for an injunction. (RR: 1:4-6). The trial court repeatedly confirmed
that the requests for an injunction and the request for an eviction were the only two
issues before the court and that the hearings were not a “trial on the merits.” (RR 1:4-
6; RR 2:1, 43-44, 77, 89-90, 106, 108, 112, 135, 143, 169-170). The Independent
Executor relied upon the court’s directive to confine the evidence and testimony to the
need for an eviction and injunction. (RR 1:6; RR 2:89-90, 149, 195-196).
Because the trial court ruled on all issues in the Final Judgment, the
-11- Independent Executor, on behalf of the Estate, was denied due process to present his
evidence on all the issues at two hearings. Further, the record for any appeal in this
case is incomplete and inadequate because the Independent Executor was not allowed
to present his entire case and witnesses at the jury trial which was scheduled for
October 12, 2015.
E. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 3
The trial court abused its discretion by finding that a letter written by an attorney for the Independent Executor on June 5, 2013, offering to sell the Estate’s real property was an enforceable Contract where the offer was not accepted by Leah Raynes and negotiations regarding essential terms continued after that date.
Mutual assent concerning material terms is a prerequisite to the formation of a
binding, enforceable contract. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d
218, 221 (Tex. 1992) (where essential term is open for future negotiation, no binding
contract exists). To form a binding contract, the following elements must be present:
(1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a
meeting of the minds; (4) each party's consent to the terms; and (5) execution and
delivery of the contract with the intent that it be mutual and binding. Roman v.
Roman, 193 S.W.3d 40, 50 (Tex.App.–Houston [1st Dist.] 2006, pet. filed); citing
Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex.App.–Houston [14th
Dist.] 2002, no pet.).
A Contract for sale of real property must be in writing and signed by the person
-12- to be charged with the promise or agreement or by someone lawfully authorized to
sign for him. Tex. Bus. & Com. Code § 26.01. The written Contract must contain all
material and essential terms of the agreement.1 T.O. Stanley Boot Co. at 221. The
Independent Executor never signed a contract to sell the house to Leah Raynes. (RR
2:7). At the hearings on June 16, 2015, and July 22, 2015, Leah Raynes and her
attorney admitted that there is no Contract signed by both parties, but only proposed
Contracts submitted by her. (RR 1:5-6; RR 2:165). In response to a question from the
trial court regarding whether there is written documentation of an agreement to sell
the property to Leah Raynes, her attorney replied, “No. There is no actual written
contract, that’s correct.” (RR 1:5-6).
On June 5, 2013, the Independent Executor’s previous attorney sent a letter to
Leah Raynes’ attorney offering to sell the house to Leah Raynes “as is” for
$121,000.00 to close within 25 days or she was to vacate the property within 25 days,
pay for all utilities/bills incurred on her behalf and her two adult children living there,
and “no longer hinder the sale of such property that will be under contract with a real
estate agent and sold for fair market value.” (RR 1:11; R-Ex 4, Tab 5).
Leah Raynes did not accept this proposal and it expired 25 days later on June
1 During the hearing on June 16, 2015, Judge Kelly seemed to recognize these requirements when she asked Leah Raynes’ attorney, “If there is no written agreement that was signed by both sides, why are you wasting all of our time? Do you have a letter where you have made an offer and they have accepted? I asked you about the June 5th 2013 agreement to sell the house for 121,000 as what was in your pleading. And you said there was no written agreement, right?” (RR 1:33).
-13- 30, 2014. (RR 1:13, 60; RR 2:88). During the hearing on June 16, 2015, the trial
court acknowledged that the Defendant Leah Raynes “didn’t do her part” in response
to the offer in the letter dated June 5, 2013. (RR 1:49). In this regard, the trial court
stated, “Now, it does not look—cause it’s June 2015–that, A, your client bought this
property; and B, it does not look like this offer was accepted because the terms were
not completed...it does not look like your client accepted and did her part.” (RR 1:49-
50). Therefore, the Final Judgment finding that the June 5, 2013 letter was a Contract
was not supported by the trial court’s own assessment of the evidence.
After the offer in the June 5, 2013 letter was not accepted, the Independent
Executor did not make any other proposals to sell the property to Leah Raynes (RR
1:17, 50-52), but a series of letters were exchanged between the Independent Executor
and her attorney with negotiations regarding the sale of the property to her. In his
letters to Leah Raynes’ attorney, the Independent Executor demanded payment to the
Estate for expenses and rent, but never agreed to extend the deadline for the offer
contained in the June 5, 2013 letter and never agreed to a price for the sale of the
house. (RR 1:18, 53; RR 2: 4-5, 19, 94-95). Negotiations do not constitute agreement.
Consider Estate of Eberling v. Fair, 546 S.W.2d 329 (Tex. Civ. App.–Dallas 1976,
writ ref'd n.r.e.) (holding four letters not a binding contract because essential terms not
agreed and letters did not satisfy the Statute of Frauds and Tex. Bus. & Comm. Code
Ann. § 26.01(b)(4)). Even though the parties engaged in negotiations, they never
-14- reached agreement on the essential terms, including price, of this real estate
transaction and “thus never concluded an agreement.”Id at 331.
Mutual assent or agreement is the essence of a contract. W. E. Grace Mfg. Co.
v. Levin, 506 S.W.2d 580, 584 (Tex.1974). There was obviously no mutual agreement
in this case. After the June 2013 deadline expired, Leah Raynes made several offers
to purchase the property for prices ranging from $116,000 to $130,000, but none of
these offers were accepted by the Independent Executor. (RR 1:78, 81; RR 2:20, 25,
63, 94-95, 109-111; R-Ex 11; R-Ex 35). Leah Raynes’ first offer to purchase the
house was made in October 2013, three months after the June 5th offer had expired.
Subsequently, she made several additional offers, all of which were rejected by the
Independent Executor. (RR 1:14-15; 16, 57; RR 2:63-64, 94-95, 109-111). Some of
the proposals were “as is” and others contained special provisions. (RR 2:42-43, 45).
At the hearing on July 22, 2015, Leah Raynes testified that her proposed Contracts
were never “finalized.” (RR 2:165).
The June 5, 2013 letter is not an enforceable Contract because:
1. Leah Raynes did not consent to the initial terms proposed by the attorney for the Independent Executor in the June 5, 2013 letter, but subsequently rejected that proposal and instead made other offers to purchase the property which were not accepted. (RR 1:13; RR 2:20, 21, 25, 94-95, 109-111).
2. There was clearly no meeting of the minds or mutual assent. Negotiations regarding essential terms of the sale, including price, continued after the proposal in the June 5, 2013 letter was not accepted
-15- by the deadline on June 30, 2013. Estate of Eberling at 331;T.O. Stanley Boot Co. at 221. (RR 2:25)
3. It is uncontroverted that there no written Contract signed by the parties for sale of the real property to Defendant Leah Raynes. (RR 1:5-6).
The trial court cannot thwart the mandatory requirements for a written Contract
for the sale of real property by declaring that the Independent Executor accepted his
own offer contained in the letter from his attorney dated June 5, 2013. (Tab 1). Courts
cannot make contracts for the parties. Guzman v. Acuna, 635 S.W.2d 315, 319 (Tex.
App.–San Antonio 1983, pet dism’d); citing Estate of Eberling v. Fair, 546 S.W.2d
329, 334 (Tex. Civ. App.–Dallas 1976, writ ref'd n.r.e.).
F. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 4
The trial court abused its discretion by entering a Judgment forcing the Independent Executor to sell the Estate’s real property to Leah Raynes for an amount well below fair market value based on a nonexistent Contract.
The trial court abused its discretion by ordering the Independent Executor to
sell the house to Leah Raynes for $121,000, which is below the appraised value of
$151,000. (RR 2:96; P-Ex 2).
The trial court did not have authority to order the sale of the real property to
Leah Raynes because the sale is not authorized by statute or a contractual agreement
of the parties. Tex. Est. Code § 356.002; see Section E, supra.
The Will in this case was admitted to Probate and no Contest was filed. (RR
1:8; RR 2:117-118). The Will granted the Independent Executor full authority to
-16- administer the estate, including “the power to sell, manage, handle, trade, exchange,
mortgage, invest, reinvest, pledge, transfer or assign all property: real, personal, or
mixed on such terms and for such consideration as my Executor may see fit...” (TAB
2). Therefore, the Independent Executor was authorized to sell the real property in
whatever manner he deemed would be in the best interest of the Estate. Tex. Est. Code
§ 356.002. In this case, the Independent Executor determined that listing the house
on the market to obtain the highest price was in the best interest of the Estate and in
her testimony, Leah Raynes agreed. (RR 2:101, 162).
“If a Will authorizes the executor to sell the testator’s property: (1) A court
order is not required to authorize the executor to sell the property, (2) The executor
may sell the property: A. at public auction or privately as the executor considers to be
in the best interest of the estate; and B. For cash or on credit terms determined by the
executor.” Tex. Est. Code § 356.002.
As Independent Executor with full unlimited powers, Arthur Raynes has the
authority to list and sell the real property located at 6307 Handsome Lake Dr., Leon
Valley, Texas 78238 for fair market value to a willing buyer without court approval.
Tex. Est. Code §§ 356.002, 402.002 and 402.052.
Therefore, the trial court exceeded its authority and abused its discretion by
ordering the Independent Executor to sell the property to Leah Raynes at a price below
fair market value.
-17- G. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 5
The trial court abused its discretion by entering a Final Judgment not supported by the live pleadings before the Court, including the appointment of a receiver which was not requested by any party.
There were no live pleadings to support the trial court’s Final Judgment
ordering a forced sale of the house. Prior to the hearings, Leah Raynes’ attorney had
withdrawn her pleadings that requested a court-ordered sale of the house. (RR 1:4;
Tab 9). “A party may not obtain a judgment based on a theory not plead.” Vincent v.
Bank of America, N.A., 109 S.W.3d 856, 863 (Tex. App. –Dallas 2003, pet. denied).
Tex. R. Civ. P. 301. A judgment not supported by pleadings must be reversed. Vincent
at 863, citing Oil Field Haulers Assoc. v. RR Comm’n, 381 S.W.2d 183, 191 (Tex.
1964).
The appointment of a receiver was not requested by any party or discussed at
the hearings on June 16, 2015, and July 22, 2015.
H. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 6
The trial court abused its discretion by denying the Independent Executor’s request for eviction of Leah Raynes and her adult sons from the Estate’s real property and injunctive relief to protect and preserve the Estate of Maria L. Raynes.
As soon as the Independent Executor or any of the other Devisees objected to
Leah Raynes’ occupancy of the property, she no longer had a right to continue living
there and should have been evicted. Estate of Casida, 13 S.W.3d. 519, 523, 525 (Tex.
App.–Beaumont 2000).
-18- In April 2013, the Independent Executor requested Leah Raynes and her adult
sons to vacate the property by May 6, 2013, so that he could list it for sale. (RR 1:9,
11-13; RR 2:122-123). Instead of moving out of the house as requested, Leah Raynes
hired an attorney who accused the Independent Executor of harassment. (RR 1:10; RR
2:102-103; RR 2:123-124). The Independent Executor did not accept the proposal
from Leah Raynes’ attorney made in May 2013 that she have exclusive possession of
the house because he intended to sell the property in order to distribute the proceeds
to the heirs equally. (RR 1:10-11; RR 2:102-103). Prior to filing this lawsuit, the
Independent Executor had requested that Leah Raynes and her adult sons vacate the
house on three different occasions, but they refused. (RR 2:87, 102). The Independent
Executor notified the other heirs of this request. (RR 1:9-10). On May 15 and 18,
2015, the other heirs filed sworn Affidavits stating their support of the Independent
Executors’s efforts to evict Leah Raynes and her adult sons. (Tab 10).
As a result of Leah Raynes and her sons’ failure to vacate the premises, the
Estate suffered loss of rental income between $1,360 and $1,400 per month (RR 1:45;
RR 2:99; P-Ex 2) and damages for deferred maintenance because of the failure to
maintain the property. (RR 2:90). The Independent Executor requested the eviction
and Injunction to preserve the Estate and prevent further damages and losses. (RR
1:28-29; RR 2:90).
As Independent Executor with full authority, Arthur Raynes has the right to
-19- access and the exclusive possession of the property in order to carry out his duties to
preserve, maintain, and sell the property at the best price for distribution to the
Devisees. Tex. Est. Code §402.052.
Therefore, the trial court exceeded its authority and abused its discretion by
denying the Independent Executor’s request for eviction of Leah Raynes and her adult
sons from the Estate’s real property and injunctive relief to protect and preserve the
Estate of Maria L. Raynes.
PRAYER
For these reasons the Independent Executor requests this Court to grant a Writ
of Mandamus to Judge Kelly Cross, Judge of the Probate Court No. 1 of Bexar
County, Texas, requiring her to vacate the Final Judgment and to grant a Writ of
Prohibition to preclude any further action by the trial court regarding the sale of the
house until the case is presented to a jury. The Independent Executor requests this
Court to issue an injunction for the protection of the property of the Estate.
Respectfully submitted,
/s/ Per Hardy Per Hardy, SBN: 08986500 James E. Hoffman, SBN: 09781750 418 East Park Avenue San Antonio, TX 78212 Phone: (210) 226-8890 Facsimile: (210) 222-1891 perhardylawofc@sbcglobal.net
-20- MANDAMUS CERTIFICATION
Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I have reviewed this Petition and that every factual statement in the Petition is supported by competent evidence included in the appendix or record. Pursuant to Rule 52.3(k)(l)(A), I certify that every document contained in the appendix is a true and correct copy.
/s/ Per Hardy PER HARDY Attorney for Relator Arthur Raynes
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Petition for Writ of Mandamus filed on October 1, 2015, has been served on October 1, 2015, to the following:
1. Judge Kelly Cross, Judge of the Probate Court No. 1, Bexar County Court House, 100 Dolorosa, San Antonio, Texas 78205;
2.Cecil Bain, Attorney for Defendant Leah Raynes, The Forum, Suite 600, 8000 IH 10 West, San Antonio, Texas 78230, cecilbain@yahoo.com
3. Defendant Todd Barta, pro se, 6307 Handsome Lake Dr., Leon Valley, Texas 78238
4. Defendant Samuel Barta, pro se, 6307 Handsome Lake Dr., Leon Valley, Texas 78238
-21- CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using WordPerfect X5 and contains 5,233 words, as determined by WordPerfect’s word-count function, excluding the sections of the document listed in Texas Rules of Appellate Procedure 9.4(i)(1).
-22-