Estate of Lee Roy Hoskins Sr.

ACCEPTED
13-15-00487-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/30/2015 11:16:02 AM
Dorian E. Ramirez
CLERK

No. 13-15-00487-CV
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
In the Court of Appeals for the 12/30/2015 11:16:02 AM
DORIAN E. RAMIREZ
Thirteenth Court of Appeals District Clerk
Corpus Christi, Texas

ESTATE OF LEE ROY HOSKINS, SR., Deceased,

ON APPEAL FROM THE COUNTY COURT, LIVE OAK COUNTY, TEXAS

REPLY BRIEF OF APPELLANTS
COLONEL CLIFTON HOSKINS and HOSKINS, INC.

DYKEMA COX SMITH
Ellen B. Mitchell
State Bar No. 14208875
emitchell@dykema.com
C. David Kinder
State Bar No. 11432550
dkinder@dykema.com
Melanie L. Fry
State Bar No. 24069741
mfry@dykema.com
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205-1521
Telephone: (210) 554-5500
Facsimile: (210) 226-8395
Attorneys for Appellants
Colonel Clifton Hoskins and Hoskins, Inc.

APPELLANTS REQUEST ORAL ARGUMENT
 TABLE OF CONTENTS
Page(s)

INDEX OF AUTHORITIES.....................................................................................iv

RESPONSE TO MOVANTS’ RESTATED ISSUES ..............................................vi

CITATIONS TO SUPPLEMENTAL CLERK’S RECORD.....................................1

OBJECTION TO SUPPLEMENTAL REPORTER’S RECORDS...........................2

RESPONSE TO MOVANTS’ STATEMENT REGARDING
JURISDICTION.........................................................................................................3

RESPONSE TO MOVANTS’ STATEMENT OF FACTS.......................................4

ARGUMENT AND AUTHORITIES........................................................................5

I. The trial court appointed a receiver; it did not confirm a prior
appointment .....................................................................................................5

II. The trial court could, and did, abuse its discretion..........................................7

III. Movants’ failure to present evidence mandates reversing the
order appointing the receiver.........................................................................10

A. Cliff and Hoskins, Inc. did not waive their right to
challenge the appointment...................................................................10

B. Cliff and Hoskins, Inc. have standing to appeal..................................12

C. The record contains no support for the trial court’s order ..................14

IV. Movants did not establish any legal or equitable grounds for
appointing a receiver......................................................................................16

V. Marcus Rogers’ disqualification to serve as receiver is not moot.................16

ii
CONCLUSION AND PRAYER .............................................................................16

CERTIFICATE OF COMPLIANCE...................................................................... 19

CERTIFICATE OF SERVICE ................................................................................20

iii
 INDEX OF AUTHORITIES
Page(s)

Cases
Alcantar v. Oklahoma Nat’l Bank,
47 S.W.3d 815 (Tex. App.—Fort Worth 2001, no pet.).....................................15

Austin Nursing Ctr., Inc. v. Lovato,
171 S.W.3d 845 (Tex. 2005) ..............................................................................12

Elliott v. Weatherman,
396 S.W.3d 224 (Tex. App.—Austin 2013, no pet.)..........................................11

Estate of Benson,
No. 04-15-00087-CV, 2015 WL 5258702 (Tex. App.—San
Antonio Sept. 9, 2015, no pet.)...........................................................................10

Estate of Trevino,
195 S.W.3d 223 (Tex. App.—San Antonio 2006, no pet.) ..................................8

Gonzalez v. Gonzalez,
469 S.W.2d 624 (Tex. Civ. App.—Corpus Christi 1971, writ ref’d
n.r.e.) ...............................................................................................................9, 15

Grinnell v. Munson,
137 S.W.3d 706 (Tex. App.—San Antonio 2004, no pet.) ..........................13, 14

Interfirst Bank-Houston, N.A. v. Quintana Petro. Corp.,
699 S.W.2d 864 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d
n.r.e.) .............................................................................................................13, 14

Krumnow v. Krumnow,
174 S.W.3d 820 (Tex. App.—Waco 2005, pet. denied) ......................................9

Marlow v. Palm Harbor Homes, Inc.
No. 14-00-00683-CV, 2002 WL 1988249 (Tex. App.—Houston
[14th Dist.] Aug. 29, 2002, no pet.) (not designated for
publication) ...................................................................................................11, 12

iv
Parks v. Developers Sur. & Indem. Co.,
302 S.W.3d 920 (Tex. App.—Dallas 2010, no pet.) ..........................................14

Torrington Co. v. Stutzman,
46 S.W.3d 829 (Tex. 2000).................................................................................13

Tugman v. Tugman,
No. 13-08-00194-CV, 2008 WL 2151451 (Tex. App.—Corpus
Christi May 22, 2008, no pet.)......................................................................15, 16

Wiley v. Sclafani,
943 S.W.2d 107 (Tex. App.—Houston [1st Dist.] 1997, no pet.)......................16

Statutes
TEX. CIV. PRAC. & REM. CODE 51.014(a)(1).............................................. vi, 4, 7, 14

Rules
TEX. R. APP. P. 9.4 ...................................................................................................19

TEX. R. APP. P. 47.7(b).............................................................................................11

v
 RESPONSE TO MOVANTS’ RESTATED ISSUES
1. The trial court appointed a receiver in this case; it did not merely confirm the

prior appointment of a receiver by an arbitrator in an independent proceeding.

This Court thus has jurisdiction pursuant to section 51.014(a)(1) of the Texas Civil

Practice and Remedies Code.

2. Cliff and Hoskins, Inc. did not waive their right to appeal the order

appointing a receiver by not appealing prior orders that (a) were not appealable,

and (2) were entered before Cliff and Hoskins, Inc. were even parties to this

litigation.

3. The trial court abused its discretion by appointing a receiver despite

Movants’ failure to present any evidence to establish a legal or equitable ground

for such an appointment.

vi
 No. 13-15-00487-CV

In the Court of Appeals for the
Thirteenth Court of Appeals District
Corpus Christi, Texas

ESTATE OF LEE ROY HOSKINS, SR., Deceased,

ON APPEAL FROM THE COUNTY COURT, LIVE OAK COUNTY, TEXAS

REPLY BRIEF OF APPELLANTS
COLONEL CLIFTON HOSKINS and HOSKINS, INC.

TO THE HONORABLE JUSTICES OF THE COURT:

NOW COME Colonel Clifton Hoskins (“Cliff”) and Hoskins, Inc., and

present their Reply Brief of Appellants, demonstrating that this Court has

jurisdiction over this appeal and that the trial court abused its discretion by

granting a motion to appoint a receiver that was not supported by any evidence or

authorized by any law.

CITATIONS TO SUPPLEMENTAL CLERK’S RECORD
The following are citations to the supplemental clerk’s record filed on

November 16, 2015, for documents that were referred to in Cliff and Hoskins,
Inc.’s opening brief, but were not yet contained in the appellate record:

Last Will and Testament of Lee Roy Hoskins, Sr..................... Supp. CR 4-19

Order Appointing Trustees ........................................................... Supp. CR 20

OBJECTION TO SUPPLEMENTAL
REPORTER’S RECORDS
This is an appeal from the trial court’s order appointing a receiver following

a July 15, 2015 hearing on a Motion by Lee Roy Hoskins, III, Andrea Clare Jurica,

Lee Ann Hoskins Kulka for Order Appointing Marcus Rogers as Receiver

(“Receivership Motion”). CR 373. Appellees Lee Roy Hoskins, Jr., Leonard

Hoskins, Daniel Kenton Hoskins, and William Rex Hoskins later joined this

motion. All appellees are referred to collectively as “Movants.”1

Movants have supplemented the appellate record in this case with reporter’s

records from hearings conducted on May 6, 2014 and July 3, 2014, almost a year

before the Receivership Motion was even filed. No part of those records can

properly be considered evidence to support the trial court’s order granting relief on

the April 2015 motion here at issue. In the alternative, only those portions of the

July 3, 2014 reporter’s record that were actually appended to the post-hearing

1
It is uncontested that Hazel Hoskins has died and that each of her sons (Cliff, Len, and Lee
Roy, Jr.) survived her. By the terms of the Residuary Trust and the Marital Deduction Trust that
are the subject of the receivership, Lee Roy Hoskins, Sr.’s grandchildren no longer have any
interest in or claim to Trust assets. Supp. CR 6, 8. Therefore, Lee Roy Hoskins, III, Andrea
Clare Jurica, Lee Ann Hoskins Kulka, Daniel Kenton Hoskins, William Rex Hoskins, Brent C.
Hoskins, and Blake Hoskins are no longer proper parties to this appeal as they have no
justiciable interest in its outcome.
2
bench brief submitted by Hazel Q. Hoskins, C. Clifton Hoskins, Hoskins, Inc.,

Blake C. Hoskins, and Brent Hoskins may even arguably be considered as

evidence.

Cliff and Hoskins, Inc. object to the Court considering the reporter’s records

dated May 6, 2014 and July 3, 2014, and ask that those records be stricken. In the

alternative, Cliff and Hoskins, Inc. ask that the Court strike all portions of those

records other than those actually appended to the post-hearing brief referenced

above.

RESPONSE TO MOVANTS’ STATEMENT
REGARDING JURISDICTION
The motion resulting in the order appealed from in this case is entitled

“Motion . . . for Order Appointing Marcus Rogers as Receiver.” CR 373 (emphasis

added). At the hearing on this motion, Movants argued that statutory grounds for

appointing a receiver applied. See, e.g., RR 67, 119. The trial court characterized

the hearing as a “hearing relative to the issue of the appointment of – by this Court

a Receiver.” RR 90 (emphasis added). The court then asked, “am I wrong about

that?” and Movants’ counsel replied, “That is the motion.” RR 90-91.

After the hearing, Movants filed a letter brief addressing “whether the Court

could appoint Marcus Rogers to serve as Receiver.” CR 463 (emphasis added).

The trial court ultimately signed an order entitled “Order Appointing Receiver.”

CR 483 (emphasis added). The text of that order states, “IT IS THEREFORE
3
ORDERED THAT: Marcus Rogers is appointed as Receiver for the Marital

Deduction Trust and the Residuary Trust created under the will of Lee Roy

Hoskins, Sr. dated July 20, 1982 . . . .” CR 483 (emphasis added).

Texas law expressly permits an appeal from an order appointing a receiver.

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1). The order here appealed from

appoints a receiver. CR 483. This Court has jurisdiction.

RESPONSE TO MOVANTS’ STATEMENT OF FACTS
For the reasons stated in their objection above, Cliff and Hoskins, Inc.

request that the Court disregard those portions of Movants’ statement of facts that

rely on the May 6, 2014 and July 3, 2014 reporter’s records.

In addition, much of Movants’ statement of facts is devoted to allegations of

wrongdoing against Hazel Hoskins in her former capacities as executrix of Lee

Roy Hoskins’ Sr.’s estate and trustee of the Residuary Trust and the Marital

Deduction Trust. Hazel resigned these positions in May 2014 and was replaced by

the current Dependent Administratrix and by Successor Trustees. CR 201, 203,

213; Supp. CR 20. As explained in Cliff and Hoskins, Inc.’s opening brief,

because Hazel was no longer a trustee at the time the Receivership Motion was

heard, appointing a receiver cannot have been based on the need to remedy a

breach of trust. Successor Trustees were already in place to accomplish that result

4
(if any breach of trust existed that required remedying) and Hazel had no capacity

to engage in any future breach of trust.

Movants’ extended discussion of what they perceive to be inadequacies in

Hazel’s performance of her duties is largely immaterial to this appeal.

Movants also recite in their statement of facts that they asked the trial court

to “confirm” an arbitrator’s prior appointment of Marcus Rogers as receiver over

the Residuary Trust and the Marital Deduction Trust. This is a mischaracterization

of the record. As discussed in further detail below, Movants requested that the trial

court appoint Rogers as receiver, and that is precisely what the court did. See CR

373, 483.

ARGUMENT AND AUTHORITIES

I. The trial court appointed a receiver; it did not confirm a prior
appointment.
Movants filed a motion requesting that the trial court appoint Marcus Rogers

as a receiver. CR 373. They presented argument to the trial court asserting

statutory grounds for appointing a receiver. See, e.g., RR 67, 119. They filed a

post-hearing letter brief urging the court to appoint a receiver. CR 463. They

obtained an order appointing Rogers as receiver. CR 483. They now tell this

Court that the trial court did not really appoint a receiver. They urge instead that

the court merely confirmed the appointment of a receiver by an arbitrator in a

completely independent arbitration proceeding arising from a completely
5
independent lawsuit to which no Movant except Leonard Hoskins is or ever was a

party.2 Not only is this suggestion contrary to both the Receivership Motion and

the trial court’s order, it is contrary to the trial court’s own explanation of his

authority concerning the arbitration order.

As they do in this appeal, Movants asserted in the trial court that the court

had already recognized Rogers as receiver by denying Hazel Hoskins’ plea to the

jurisdiction and plea in abatement.3 See, e.g., RR 68. The trial court rejected that

assertion:

[T]he basis of that was that I had not had any jurisdiction over him
and therefore I could not grant as to that. It was not that I was
passively admitting anything and so – and I only point that out to say
that I have recognized Mr. Rogers as the Receiver.4 What I
recognized was that it was up to the – that that was something that
was derivative out of the bankruptcy court over which I had no right
to get involved in anyway, so that was the basis for it. But I wanted to
be sure that that was clarified as to why. It has nothing to do
realistically with the request that I go forward with recognizing it, but
as to that order itself, it did not delineate the basis for this decision
that I was denying that as to Mr. Rogers.

RR 69.

2
It should be noted that this arbitration has been abated since November 12, 2013. CR 90.
3
Movants argue that Cliff and Hoskins, Inc. waived any right to challenge the trial court’s order
appointing a receiver because they did not appeal these prior orders, which were signed on May
6, 2014. CR 197, 198. But neither of these orders purports to appoint a receiver. See id. In
addition, Cliff and Hoskins, Inc. were not parties to this litigation until December 9, 2014, when
they filed their original answer to the Dependent Administratrix’s petition for declaratory
judgment. CR 332.
4
Movants quote this single sentence out of context. See Appellees’ Brf. at 13.
6
 When Movants again urged that the court had previously recognized Rogers

as receiver, the court was more direct:

No, I did not recognize him. I said I had no authority to go into the
appointment. . . . I was always very careful to state that I had no
authority to go into what the district courts said in this country [sic];
what the appellate courts said; or what the federal courts said. I have
never crossed that bridge.

RR 76.

The trial court clearly separated the arbitrator’s appointment of a receiver

from Movants’ request that the court appoint a receiver. Indeed, the trial court

clearly and repeatedly expressed its position that it had no authority to take any

action whatsoever concerning the arbitrator’s appointment. See RR 69, 76. The

court’s explanation, coupled with the clear and unequivocal language of both the

Receivership Motion and the court’s order appointing a receiver, leaves no room

for debate—the trial court did not confirm a previous appointment, it

independently appointed Marcus Rogers as receiver. See CR 483.

The trial court’s order is appealable; this Court has jurisdiction. See TEX.

CIV. PRAC. & REM. CODE § 51.014(a)(1).

II. The trial court could, and did, abuse its discretion.
Movants state that “[a] probate court cannot abuse its discretion in ordering

a court-supervised professional to account for the assets of a testamentary trust in

the process of a dependent administration . . . .” Appellees’ Brf. at 15 (emphasis

7
added). This remarkable assertion is not supported by the authority Movants cite

or by any other authority known to Cliff and Hoskins, Inc. Indeed, Estate of

Trevino, 195 S.W.3d 223 (Tex. App.—San Antonio 2006, no pet.), on which

Movants rely, involved neither a testamentary trust nor a dependent administration.

The substance of the court’s holding in that case is that a statutory probate court

has the authority to appoint a receiver and that such appointment does not

impermissibly interfere with the independent administration of an estate. See id. at

228-29.

The Trevino court certainly did not say that a probate court can never abuse

its discretion by appointing a receiver. On the contrary, the court expressly

recognized that an order appointing a receiver—even one signed by a probate

court—“is reviewed under an abuse of discretion standard.” Id. at 231. This

standard would never have any application if the probate court could not abuse its

discretion by appointing a receiver.

Movants also contend that courts often appoint receivers to manage

“protracted litigation involving family disputes.” Appellees’ Brf. at 15-16. This

observation is of no consequence, however, in this case. While other litigants in

other cases involving family disputes may well have satisfied the legal and

evidentiary requirements for appointing a receiver, Movants in this case did not.

See Estate of Trevino, 195 S.W.3d at 230-31 (describing evidence and legal

8
grounds supporting appointment); Gonzalez v. Gonzalez, 469 S.W.2d 624, 632-33

(Tex. Civ. App.—Corpus Christi 1971, writ ref’d n.r.e.) (describing bill of

exception evidence and legal grounds supporting appointment).

Movants now attempt to support the trial court’s appointment of a receiver

in this case by arguing that it is not really “harsh” because the receiver is not

authorized “to take control and management from the owners or managers of

privately owned businesses or revenue-generating assets.” See Appellees’ Brf. at

16. Movants identify no authority limiting the drastic nature of receivership—or

the court’s disfavor of that remedy—to situations involving the management or

control of private businesses or revenue-generating assets. On the contrary, Texas

law is clear that appointing a receiver, in and of itself, is “an extraordinarily harsh

remedy” that “courts are particularly loathe to utilize.” Krumnow v. Krumnow, 174

S.W.3d 820, 828 (Tex. App.—Waco 2005, pet. denied).

It is beyond question that a probate court can abuse its discretion by

appointing a receiver. For all of the reasons stated in Cliff and Hoskins, Inc.’s

opening brief, the trial court in this case did abuse its discretion. And that abuse of

discretion is not excused by Movants’ perception that appointing a receiver in this

case may not be as harsh as in some other cases.

9
III. Movants’ failure to present evidence mandates reversing the order
appointing the receiver.

A. Cliff and Hoskins, Inc. did not waive their right to challenge the
appointment.
Movants urge that Cliff and Hoskins, Inc. waived their right to challenge the

appointment of Marcus Rogers as receiver because they did not appeal from the

trial court’s July 3, 2014, order to Hazel to render an accounting or from “any

implicit ruling appointing Mr. Rogers as Receiver in May or August 2014.”

Appellees’ Brf. at 19-20. This argument fails because (1) none of these orders

purported to appoint Rogers as receiver, CR 197, 198, (2) Cliff and Hoskins, Inc.

were not parties to this litigation at the time those orders were made, CR 332, and

(3) Movants do not explain how an “implicit ruling” would be appealable in any

event.

Cliff and Hoskins, Inc. did not waive their right to appeal from the July 15,

2015 order appointing a receiver by not appealing from unappealable orders

entered at a time when they were not parties in this case.

Movants next urge that Cliff and Hoskins, Inc. waived their right to appeal

by not filing a written response to the Receivership Motion and not “speaking a

single word” at the hearing on that motion. But the burden to establish, by

competent evidence, legal grounds for appointing a receiver rested solely on

Movants. See Estate of Benson, No. 04-15-00087-CV, 2015 WL 5258702, at *5

10
(Tex. App.—San Antonio Sept. 9, 2015, no pet.); Elliott v. Weatherman, 396

S.W.3d 224, 228 (Tex. App.—Austin 2013, no pet.). Cliff and Hoskins, Inc. had

no burden to file any response to Movants’ motion, to “speak” at the hearing, or to

inform Movants of Movants’ own evidentiary burden.

In any event, the record as a whole demonstrates Cliff and Hoskins, Inc.’s

alignment with Hazel Hoskins in opposing the appointment of a receiver. See, e.g.,

CR 444 (bench brief opposing appointment filed on behalf of Cliff and Hoskins,

Inc., among others). It also demonstrates that Movants were repeatedly alerted to

the fact that they were not supporting their motion with evidence but repeatedly

disavowed any intention to offer any evidence. See, e.g., RR 63-64, 66, 88-89,

115-16.

Movants offer this Court no authority to support the proposition that Cliff

and Hoskins, Inc. were required to inform either Movants or the trial court that

Movants were required to prove their entitlement to the relief they requested. The

only authority they do offer is inapposite. See Marlow v. Palm Harbor Homes,

Inc. No. 14-00-00683-CV, 2002 WL 1988249 (Tex. App.—Houston [14th Dist.]

Aug. 29, 2002, no pet.) (not designated for publication).5 The appellate complaint

in Marlow was that the trial court failed to conduct a formal evidentiary hearing

before deciding the validity of an arbitration agreement. Id. at *2. It was

5
This unpublished opinion, having issued prior to January 1, 2003, has no precedential value.
See TEX. R. APP. P. 47.7(b).
11
specifically in the context of compelling arbitration that the court noted that an

evidentiary hearing is required if material facts are controverted by admissible

evidence. Id. The present case does not involve the issue of whether arbitration

should be compelled.

In addition, the situation in Marlow was the opposite of the situation in this

case. The movants in Marlow sought to compel arbitration and presented the trial

court with a copy of the contract containing an arbitration agreement (i.e.,

evidence). Id. Movants in this case did not present any evidence.

The non-movants’ complaint on appeal in Marlow was that the trial court

did not hear evidence opposing the motion to compel. Id. Non-movants Cliff and

Hoskins, Inc. do not contend that the trial court prevented them from introducing

evidence at the hearing on the Receivership Motion. They contend only that

Movants had the burden to introduce evidence and wholly failed to sustain that

burden. The consequence of that failure falls on Movants, not on Cliff and

Hoskins, Inc.

B. Cliff and Hoskins, Inc. have standing to appeal.
“The issue of standing focuses on whether a party has a sufficient

relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome.”

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). And “a

12
party whose own interest is prejudiced by an error has standing to appeal.”

Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000).

Cliff and Hoskins, Inc. have standing to appeal the order appointing a

receiver because they have a justiciable interest in the assets of the Trusts and,

consequently, in the actions of the receiver. It is uncontroverted that Cliff and

Hoskins, Inc. have both been named as defendants in this action, Cliff is a trust

beneficiary, and shares of Hoskins, Inc. are alleged to be assets of either the

Residuary Trust or the Marital Deduction Trust. See Appellees’ Brf. at 1. Cliff and

Hoskins, Inc.’s interests are therefore prejudiced by the trial court’s error in

appointing a receiver.

Movants contend, though, that Cliff lacks standing as a trust beneficiary

because only the Trustees can act for the trusts. Movants rely on a general rule but

overlook the applicable exception: “A beneficiary is authorized to enforce an

action when the trustee cannot or will not enforce it.” Grinnell v. Munson, 137

S.W.3d 706, 714 (Tex. App.—San Antonio 2004, no pet.) (citing Interfirst Bank-

Houston, N.A. v. Quintana Petro. Corp., 699 S.W.2d 864, 874 (Tex. App.—

Houston [1st Dist.] 1985, writ ref’d n.r.e.)). As Movants note, the Trustees in this

case not only have declined to appeal the order appointing a receiver, they have

embraced that order. See Appellees’ Brf. at 22.

13
 Cliff is a beneficiary of the Residuary Trust. Supp. CR 8. The Residuary

Trustee has refused to challenge the order appointing a receiver. Cliff therefore

has standing to appeal that order himself. See Grinnell, 137 S.W.3d at 714;

Interfirst Bank, 699 S.W.2d at 874.

C. The record contains no support for the trial court’s order.
Movants again attempt to avoid the consequences of presenting no evidence

to support appointing a receiver by asserting that this Court can simply review the

history of this litigation and then conclude that “[t]he need for the Receiver to

report on the assets of the Trusts is obvious . . . .” Appellees’ Brf. at 22. Cliff and

Hoskins, Inc. disagree.

First, the jurisdiction of this Court over this interlocutory appeal is very

narrow. The only issue properly before the Court is whether the trial court abused

its discretion by appointing a receiver. See TEX. CIV. PRAC. & REM. CODE §

51.014(a)(1). And the only record properly before the Court by which to measure

the trial court’s exercise of discretion is the record of proceedings on the

Receivership Motion.

In this regard, the trial court’s order expressly states that the court

“considered the motion, the responses thereto, and the argument of counsel.” CR

483. Nothing in the record indicates that the court considered any other pleading,

document, or hearing transcript. See Parks v. Developers Sur. & Indem. Co., 302

14
S.W.3d 920, 923 (Tex. App.—Dallas 2010, no pet.) (recitals contained in judgment

are presumed true unless there is a conflict between the judgment and record);

Alcantar v. Oklahoma Nat’l Bank, 47 S.W.3d 815, 823 (Tex. App.—Fort Worth

2001, no pet.) (same). This Court’s consideration should be similarly limited to

the Receivership Motion, responses, and the reporter’s record of the July 15, 2015

hearing.

In addition, the cases on which Movants rely to justify overlooking their

failure to present evidence are distinguishable. For example, the trial court in

Gonzalez refused to hear evidence supporting appointment of a receiver and denied

the application for a receiver. 469 S.W.2d at 631. This is the polar opposite of the

present case and provides no support for the proposition that a court may grant an

application to appoint a receiver without hearing evidence. Further, the parties

requesting appointment of a receiver in Gonzalez made a bill of exception

containing appropriate evidence in support of their application. Id. The appellate

court therefore had the necessary evidence before it. In this case, Movants did not

provide either this Court or the trial court with the necessary evidence.

Similarly, the court in Tugman v. Tugman, No. 13-08-00194-CV, 2008 WL

2151451 (Tex. App.—Corpus Christi May 22, 2008, no pet.), identified “sufficient

evidence” in the record—affidavit testimony, a stipulation by the parties, and

“sworn testimony offered by appellant himself.” Id. at *5. Again, there is no such

15
evidence in this case. Unlike the order in Tugman, the order in this case is “devoid

of evidentiary support.” Id.

IV. Movants did not establish any legal or equitable grounds for appointing
a receiver.
Cliff and Hoskins, Inc. demonstrate in their opening brief that Movants did

not sustain their burden of establishing any legal or equitable grounds to support

the order appointing a receiver. That discussion need not be repeated here.

V. Marcus Rogers’ disqualification to serve as receiver is not moot.
Marcus Rogers’ fees, as receiver appointed by the arbitrator, have been paid

by Len Hoskins, one of the parties to this litigation. Cliff and Hoskins, Inc. assert

that this financial connection evidences a bias that disqualifies Rogers from being

appointed as receiver by the court in this case. Movants contend that this issue is

moot because Rogers is no longer being paid by Len. But the taint of Rogers’

financial connection to Len remains. Rogers is not “indifferent” or “disinterested”

in these proceedings and is disqualified to be appointed as receiver. See Wiley v.

Sclafani, 943 S.W.2d 107, 110 (Tex. App.—Houston [1st Dist.] 1997, no pet.).

CONCLUSION AND PRAYER
The trial court abused its discretion by granting a motion to appoint a

receiver despite Movants’ failure to present any evidence to support that motion

and consequent failure to establish any legal or equitable grounds for appointing a

receiver.

16
 Movants attempt to divert this Court’s attention from this relatively simple

issue by arguing that the Court lacks jurisdiction because the order appointing a

receiver is not really an order appointing a receiver, and that Cliff and Hoskins,

Inc. waived their right to appeal because they did not appeal prior unappealable

orders at a time when they were not parties to the lawsuit. Movants also attempt to

divert attention from the lack of evidence by inviting the Court to comb through

the history of this litigation, even though the trial court clearly considered only the

pleadings and hearing arguments directly related to the Receivership Motion.

Once these diversionary arguments are discarded, it becomes apparent that

Movants have not given this Court any evidentiary, legal, or equitable basis to

refute Cliff and Hoskins, Inc.’s arguments showing that the trial court’s order

appointing a receiver is an abuse of discretion.

At its heart, Movants’ argument on appeal is that the history of this litigation

demonstrates that someone should do something to end it. What is lacking,

however, is any law or evidence establishing that a receiver, rather than the current

Dependent Administratrix or a current Trustee, is that someone.

WHEREFORE, Colonel Clifton Hoskins and Hoskins, Inc. respectfully

request that this Court vacate the trial court’s “Order Appointing Receiver” and

that they have such further relief to which they are entitled.

17
 Respectfully submitted,

DYKEMA COX SMITH
Ellen B. Mitchell
State Bar No. 14208875
emitchell@dykema.com
C. David Kinder
State Bar No. 11432550
dkinder@dykema.com
Melanie L. Fry
State Bar No. 24069741
mfry@dykema.com
112 East Pecan Street, Suite 1800
San Antonio, Texas 78205
Telephone: (210) 554-5500
Facsimile: (210) 226-8395

By: /s/ Ellen B. Mitchell
Ellen B. Mitchell
Attorneys for Colonel Clifton Hoskins
and Hoskins, Inc.

18
 CERTIFICATE OF COMPLIANCE
The undersigned certifies this brief complies with the type-face and length

requirements of amended rule 9.4 of the Texas Rules of Appellate Procedure.

Exclusive of the exempted portions stated in amended rule 9.4(i)(1), the brief

contains 3,970 words, as calculated by Microsoft Word 2010, the program used to

prepare this document.

/s/ Ellen B. Mitchell
Ellen B. Mitchell

19
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Reply Brief of
Appellants Colonel Clifton Hoskins and Hoskins, Inc. has been forwarded to all
counsel and parties of record, listed below, by U.S. Mail, on this 30th day of
December, 2015.

David C. Bakutis/R. Dyann McCully
BAKUTIS, MCCULLY & SAWYER, P.C.
500 West Seventh Street, Suite 725
Fort Worth, Texas 76102
dbakutis@lawbms.com
dmccully@lawbms.com
Attorneys for Dependent Administratrix With Will Annexed
of the Estate of Lee Roy Hoskins, Sr., Deceased

Michael C. Sartori
502A Houston Street
P.O. Box 1222
George West, Texas 78022
Michael@msartori.com
Attorney for C. Clifton Hoskins, Independent Executor of the Estate of Hazel
Q. Hoskins, Deceased

David L. Ylitalo
YLITALO LAW FIRM
319 Maverick Street
San Antonio, Texas 78212
d.ylitalo@ylitalolaw.com
Attorneys for Leonard K. Hoskins, William Rex Hoskins, and Daniel Kenton
Hoskins

Marcus P. Rogers
LAW OFFICES OF MARCUS P. ROGERS, P.C.
2135 East Hildebrand Avenue
San Antonio, Texas 78209
mpr2222@aol.com
Receiver

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Glen A. Yale
YALE LAW FIRM, P.C.
2135 East Hildebrand Avenue
San Antonio, Texas 78209
glenyale@yalelawfirm.com
r.robichaux.yalelawfirm@gmail.com
Attorneys for Marcus P. Rogers, Receiver

James Hartnett, Jr.
THE HARTNETT LAW FIRM
220 North Pearl Street
Dallas, Texas 75201-7315
jim@hartnettlawfirm.com
Attorneys for Marcus P. Rogers, Receiver

George P. “Trace” Morrill, III
MORRILL & MORRILL, PLLC
309 North Washington Street
Beeville, Texas 78102
trace_morrill@me.com
Trustee of the Residuary Trust

Royal B. Lea, III
BINGHAM & LEA, P.C.
319 Maverick Street
San Antonio, Texas 78212
royal@binghamandlea.com
Attorneys for Southwest Ranching, Inc., Lee Roy Hoskins, Jr., Lee Roy
Hoskins, III, Andrea Clare Jurica, and Lee Ann Hoskins Kulka

Brendan C. Holm
David W. Navarro
HORNBERGER FULLER & GARZA
The Quarry Heights Building
7373 Broadway, Suite 300
San Antonio, Texas 78209
bholm@hfgtx.com
dnavarro@hfgtx.com
Attorneys for Brent C. Hoskins

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 Ezra A. Johnson
UHL, FITZSIMONS, JEWETT & BURTON, PLLC
4040 Broadway, Suite 430
San Antonio, Texas 78209
ejohnson@ufjblaw.com
Attorneys for Blake Hoskins

Joe L. Carter, Jr.
The Petroleum Center
4657-C1 Business 181-N
Beeville, Texas 78102
joe@joecarter.biz
Trustee of the Marital Trust

Kevin P. Kennedy
ATTORNEY AT LAW
1920 Nacogdoches Road, Suite 100
San Antonio, Texas 78209-2241
kpk@texas.net
Attorney for Joe Carter, Trustee of the Marital Trust

/s/ Ellen B. Mitchell
Ellen B. Mitchell

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