In Re Frances Spanos Shelton v. the State of Texas

Court of Appeals of Texas·Decided October 8, 2025·No. 15-25-00152-CV·Published

Opinion

ACCEPTED 15-25-00152-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 10/8/2025 4:53 PM NO. 15-25-00152-CV CHRISTOPHER A. PRINE CLERK

IN THE COURT OF APPEALS FILED IN 15th COURT OF APPEALS FOR THE FIFTEENTH DISTRICT OF TEXAS AUSTIN, TEXAS AUSTIN, TEXAS 10/8/2025 4:53:11 PM CHRISTOPHER A. PRINE Clerk

IN RE FRANCES SPANOS SHELTON, Relator.

On Petition for Writ of Mandamus from the 414th Judicial District Court, McLennan County, Texas, Cause No. 2024-3035-5, Hon. Judge Ryan Luna Presiding

REAL PARTY IN INTEREST VERNON LEUSCHNER’S, AS DURABLE POWER OF ATTORNEY FOR KATHERINE LEUSCHNER, MOTION TO STAY THE PETITION FOR WRIT OF MANDAMUS

Andy McSwain State Bar No. 13861100 Mark E. Firmin State Bar No. 4099614 Sameer Hashmi State Bar No. 24101877 BEARD KULTGEN BROPHY BOSTWICK & DICKSON, PLLC 220 South Fourth Street Waco, Texas 76701 Tel (254) 776-5500 Fax (254) 776-3591 mcswain@thetexasfirm.com firmin@thetexasfirm.com hashmi@thetexasfirm.com COUNSEL FOR REAL PARTY IN INTEREST VERNON LEUSCHNER, AS DURABLE POWER OF ATTORNEY FOR KATHERINE LEUSCHNER NO. 15-25-00152-CV

IN THE COURT OF APPEALS FOR THE FIFTEENTH DISTRICT OF TEXAS AUSTIN, TEXAS

IN RE FRANCES SPANOS SHELTON, Relator.

REAL PARTY IN INTEREST VERNON LEUSCHNER’S, AS DURABLE POWER OF ATTORNEY FOR KATHERINE LEUSCHNER, MOTION TO STAY THE PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT OF APPEALS:

Comes now, Vernon Leuschner, as durable power of attorney for

Katherine Leuschner (“Leuschner” or “Real Party In Interest”), and files this Motion

to Stay the Petition for Writ of Mandamus (“Petition”) filed by Relator Frances

Spanos Shelton (“Fran” or “Relator”), and in furtherance thereof would respectfully

show unto the Court as follows:

I. ARGUMENT

Relator originally sought mandamus relief in the 10th Court of Appeals in

what clearly appeared to be a case of forum shopping, since it was filed there after

1 the Texas Supreme Court had transferred Relator’s interlocutory appeal to this

Court.1

Relator has now filed the Petition in this Court raising the same issues as her

interlocutory appeal. To avoid unnecessary legal costs and duplication of effort, the

Court should stay the Petition, pending the Court’s ruling on the interlocutory

appeal. In any event—it is likely that mandamus relief is inappropriate here, for

fairly obvious reasons.

First, Relator’s interlocutory appeal was an adequate remedy at law, therefore

rendering mandamus relief inappropriate. A quick comparison of Relator’s

Appellant’s brief and this Petition confirms that the issues raised in the Petition are

substantially identical. Relator even admits that the interlocutory appeal provides her

with an adequate remedy to reverse the District Court’s order appointing a receiver.2

Petition at 38–39 (admitting that “the Court can reverse the Order Appointing

Receiver [through the interlocutory appeal] for want of evidentiary support…”).

Further—Relator seeks to complain (improperly) about matters the District

Court has not yet ruled upon. To the extent that Relator argues her Petition is needed

to “declare the orders void, and end the [District Court’s] use of the county court at

1 After filing the original petition for writ of mandamus, Relator immediately sought to transfer her interlocutory appeal back to the 10th Court of Appeals, strongly suggesting the original petition for writ of mandamus was simply a pretext for getting her appeal out of this Court and back before the 10th Court of Appeals. 2 Assuming the District Court abused its discretion, which it did not.

2 law’s void orders in the future administration of the Trust”: (1) the District Court

has not yet ruled on Relator’s motion to declare the County Court at law’s orders

void; (2) Relator has not sought mandamus relief ordering the District Court to rule

on Relator’s pending motion; and (3) mandamus relief is improper to provide

guidance on incidental issues that can be heard through an appeal. In re Prudential

Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). As the Texas Supreme Court has

held:

Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation.

Id. Nor would mandamus relief provide “needed and helpful direction to the law that

would otherwise prove elusive in appeals from final judgments.” In re Bertucci,

590 S.W.3d 113, 116 (Tex. App.—Austin 2019, no pet.) (mandamus review of a

motion to exclude a court-appointed auditor’s report “would not avoid an enormous

waste of judicial and public resources,” would not provide “needed and helpful

direction to the law that would otherwise be elusive in appeals from final

judgments,” and “was not essential to preserve executor’s rights from impairment or

loss”).

3 As such, Leuschner hereby moves the Court to stay Relator’s Petition to avoid

further unnecessary legal costs and unnecessary effort from this Court.3 In the

alternative, Leuschner requests that the Court advise if and to the extent Leuschner

should file a response to the Petition.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Real Party In Interest

Vernon Leuschner, as durable power of attorney for Katherine Leuschner,

respectfully requests that the Court stay the Petition and that the Court grant any

such other and further relief, in law or in equity, to which Leuschner may be justly

entitled.

/s/ Mark E. Firmin Andy McSwain State Bar No. 13861100 Mark E. Firmin State Bar No. 24099614 Sameer Hashmi State Bar No. 24101877 BEARD KULTGEN BROPHY BOSTWICK & DICKSON, PLLC 220 South Fourth Street Waco, Texas 76701 Tel (254) 776-5500

3 Relator cites CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) for the proposition that the Court should entertain both the Petition and the interlocutory appeal. However, Link is irrelevant to this Petition. In Link, the Court held that mandamus relief for the denial of a special appearance is ordinarily improper because the defendant has an adequate remedy by appeal. Id. However, because Link was a mass tort asbestos case, there would be tremendous pressure for the defendant to settle before an appeal could be heard. Id. So the Court held that in this rare circumstance, mandamus relief was proper. Link is simply irrelevant to this Petition.

4 Fax (254) 776-3591 mcswain@thetexasfirm.com firmin@thetexasfirm.com hashmi@thetexasfirm.com

COUNSEL FOR REAL PARTY IN INTEREST VERNON LEUSCHNER, AS DURABLE POWER OF ATTORNEY FOR KATHERINE LEUSCHNER

CERTIFICATE OF CONFERENCE

I, Andy McSwain, conferenced with counsel for Relator Frances Spanos Shelton on October 8, 2025, concerning this motion to stay and counsel for Relator is opposed to this motion.

/s/ Andy McSwain Andy McSwain

5 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was sent to the person(s) named below, in accordance with the Rules of Appellate Procedure on October 8, 2025.

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