in Re Todd A. Prins

• Court: Court of Appeals of Texas
• Decided: August 30, 2016
• Docket: 04-16-00550-CV
• Status: Published

Opinion

ACCEPTED 04-16-00550-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/30/2016 1:36:29 PM KEITH HOTTLE CLERK

No. 4-16-00550-CV

IN RE TODD A. PRINS, § IN THE 4TH FILED IN Relator. § 4th COURT OF APPEALS SAN ANTONIO, TEXAS § 8/30/2016 1:36:29 PM § COURT OF APPEALS KEITH E. HOTTLE § Clerk § § SAN ANTONIO, TEXAS RELATOR’S UNOPPOSED MOTION FOR EMERGENCYFILED STAYIN 4th COURT OF APPEALS SAN ANTONIO, TEXAS Relator asks the Court for an emergency stay. 08/30/2016 1:36:29 PM KEITH E. HOTTLE A. INTRODUCTION Clerk

1. Relator is Todd A. Prins; real party in interest is The Estate of Jose

Oleszcovski Wasserteil, Deceased; respondent is the Honorable Kelly M. Cross,

Presiding Judge of Probate Court No. 1, Bexar County, Texas.

2. Relator filed his petition for writ of mandamus on August 29, 2016.

3. Relator attaches a certificate of compliance certifying that on August 30,

2016, notified respondent and real party in interest by facsimile that a motion for

temporary relief would be filed. Tex. R. App. P. 52.10(a).

4. On August 26, 2016, the honorable Judge Kelly M. Cross entered an Order

requiring Relator, Todd A. Prins, to deposit certain funds within the registry of

the Court, and to register the funds as belonging to the Estate, along with Relator

and the Estate's attorneys. Relator's application for writ of mandamus challenges

the validity of this Order, and requests an emergency stay from compliance with the Order until the Court of Appeals determines whether mandamus is

appropriate.

B. ARGUMENT & AUTHORITIES

5. The Court may grant temporary relief pending its determination of an

original proceeding. Tex. R. App. P. 52.10(b).

6. This emergency stay is necessary to maintain the status quo of the parties

and to preserve the Court’s jurisdiction to consider the merits of the original

proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.—San Antonio 1995,

orig. proceeding). The Estate believes that the funds should be included as a part

of the probate of Decedent's estate, and there is a genuine dispute as to whether

Relator is entitled to the funds as a distribution through a partnership between

Decedent and Relator. The Estate owes a substantial amount of taxes to the

United States Government, and it is possible that the Internal Revenue Service

would be allowed to file a lien on the funds when they are put into the registry,

regardless of the ultimate outcome of the underlying litigation. The status quo

must be preserved to determine whether Relator is entitled to the funds outside of

probate.

7. Relator attaches the decalration of Todd A. Prins and the affidavit of Darin

N. Digby to establish facts that are not included in the appellate record, are not known to the Court in its official capacity, and are not within the personal

knowledge of the attorney signing this motion.

C. CONCLUSION

8. An emergency stay is necessary to preserve the status quo because

compliance with the Court's order may result in Relator losing his claim to the

contested funds without an determination of the underlying lawsuit.

D. PRAYER

9. For the reasons stated in this motion, Relator, Todd A. Prins asks the Court

for an emergency stay to maintain the status quo of the parties and preserve the

Court’s jurisdiction to consider the merits of relator’s original proceeding.

Respectfully submitted,

Prins Law Firm 4940 Broadway, Suite 108 San Antonio, TX 78209 Telephone: (210) 820-0833 Facsimile: (210) 820-0929

By: /s/ Travis M. Parks TRAVIS M. PARKS State Bar No. 24070384 ATTORNEY FOR TODD A. PRINS CERTIFICATE OF SERVICE

On August 30, 2016, the foregoing document was served on the following counsel of record in accordance with the Texas Rules of Appellate Procedure.

FLUME LAW FIRM, LLP 1020 N. E. Loop 410, Suite 200 San Antonio, Texas 78209 (210) 828-5641 (210) 821-6069 Facsimile MICHAEL FLUME State Bar No. 07188480 mfllume@flumelaw.net GUILLERMO S. DEKAT State Bar No. 24069599 gdekat@flumelaw.net

ATTORNEYS FOR THE ESTATE OF JOSE OLESZCOVSKI WASSERTEIL

/s/ Travis M. Parks Travis M. Parks

CERTIFICATE OF CONFERENCE I certify that I have conferred with Michael Flume by telephone, and he has agreed and is unopposed to the motion for emergency stay.

/s/ Travis M. Parks Travis M. Parks CERTIFICATE OF COMPLIANCE

Under Texas Rule of Appellate Procedure 52.10(a), I certify that on August 30, 2016, I notified the following parties via telephone or fax that a motion for temporary relief would be filed.

Real Parties in Interest:

The Estate of Jose Oleszcovski Wasserteil, Deceased

FLUME LAW FIRM, LLP 1020 N. E. Loop 410, Suite 200 San Antonio, Texas 78209 (210) 828-5641 (210) 821-6069 Facsimile MICHAEL FLUME State Bar No. 07188480 mfllume@flumelaw.net GUILLERMO S. DEKAT State Bar No. 24069599 gdekat@flumelaw.net Counsel for Ind. Executor/Plaintiff

Respondent/Trial Court Judge via facsimile: The Honorable Kelly M. Cross Probate Court No. 1 100 Dolorosa, 1st floor, Room 123 San Antonio, Texas 78205 (210)335-3998 fax