ACCEPTED
04-15-00615-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/1/2015 9:18:35 AM
KEITH HOTTLE
CLERK
NO. 04-15-00615-CV
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS 10/1/2015 9:18:35 AM
FOR THE FOURTH DISTRICT OF TEXAS KEITH E. HOTTLE
Clerk
AT SAN ANTONIO
IN RE ESTATE OF MARIA L. RAYNES
FROM PROBATE COURT NO. 1 OF BEXAR COUNTY, TEXAS
RELATOR’S MOTION FOR EMERGENCY STAY
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
TO THE HONORABLE COURT OF APPEALS:
Relator, Arthur Raynes, Independent Executor, requests the Court for an
emergency stay of all proceedings in the trial court and to prohibit the enforcement
of the trial court’s Final Judgment dated August 17, 2015, pending this Court’s action
on Relator’s Petition for Mandamus and Prohibition.
A. INTRODUCTION
1. 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 Motion for
Temporary Relief regarding the trial court’s Final Judgment entered on August 17,
2015. For clarity, Relator, Arthur Raynes, Independent Executor, will be referred to
as the “Independent Executor”; Respondent, the Honorable Kelly Cross, will be
referred to by name; and the Real Parties in Interest, Leah Raynes, Todd Barta, and
Samuel Barta will be referred to by name.
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
Bexar County, Texas 78205
Phone: (210) 335-2670
Fax: (210) 335-3998
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Real Parties in Interest:
Defendant Leah Raynes Cecil Bain, SBN: 015500
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
2. Relator, Arthur Raynes, Independent Executor, filed his Petition For Writ
of Mandamus and Writ of Prohibition on September 30, 2015.
3. Relator, Arthur Raynes, Independent Executor attaches a certificate of
compliance certifying that on September 30, 2015 and October 1, 2015, his attorneys
notified all parties that a Motion for Emergency Stay would be filed. Tex. R. App. P
52.10(a).
4. Supporting Facts
On June 16, 2015, and July 22, 2015, the probate trial court held hearings on
the Requests for Injunction filed by the Independent Executor and Leah Raynes and
the Petition for Eviction regarding the real property owned by the estate, located at
6307 Handsome Lake Drive, Leon Valley, Bexar County, Texas. A jury demand was
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made, the jury fee was paid, and the case was set for jury trial on the remaining issues
on October 12, 2015.
On August 17, 2015, the trial court signed a Final Judgment denying Arthur
Raynes, Independent Executor, the right to a jury trial on material issues of fact. In
this Final Judgment, the trial court ordered the sale of the property to Leah Defendant
Raynes on or before October 2, 2015, an amount far below market value, based on a
nonexistent contract.
On June 5, 2013, the Independent Executor’s previous attorney sent Leah
Raynes’ attorney a letter proposing general terms for the sale of the property to Leah
Raynes or that she and her two adult sons vacate the property within 25 days. The
letter also stated that if a final resolution was not reached within 25 days of the date
of the letter, then the Independent Executor was prepared to file a suit for partition.
Leah Raynes did not accept the proposal contained in this letter, but she and her two
adult sons refused to vacate the property. Leah Raynes and her adult sons have not
paid rent or expenses to the Estate for their use of the house. The expenses for the
property have been paid by loans to the Estate from the other heirs.
The trial court found that the proposal letter dated June 5, 2013 was accepted
by the Independent Executor and constituted an enforceable Contract for the sale the
Handsome Lake Drive property to Leah Raynes. Based on this finding, the trial court
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ordered the Independent Executor to sell the real property of the Estate to Leah
Raynes on or before October 2, 2015 for a price well below fair market value. If
there is no closing by October 2, 2015 at 5:00 p.m. or the parties do not agree to a
later date, then the Court will schedule a hearing for the appointment of a receiver.
On August 20, 2015, the Independent Executor filed a Request for Findings of
Fact and Conclusions of Law and sent a Notice of Past Due Findings of Fact and
Conclusions of Law on September 10, 2015.
The Independent Executor filed his Writ of Mandamus and Writ of Prohibition
contemporaneously with this Motion.
B. ARGUMENT AND AUTHORITY
The Court may grant temporary relief pending its determination of an original
proceeding. Tex. R. App. P. 52.10(b).
The emergency stay is appropriate in order 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 Independent Executor requests this Court to issue an emergency stay
preventing the trial court from enforcing the Final Judgment to sell the property to
Leah Raynes or from appointing a Receiver to liquidate the property pending this
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Court’s determination on the Independent Executor’s Writ of Mandamus and Writ of
Prohibition. The real property located at 6307 Handsome Lake Drive, Leon Valley,
Bexar County, Texas is the only asset of the Estate. The emergency stay is necessary
to preserve the status quo of the parties and the only asset of the Estate for the
payment of debts of the Estate and distribution to the heirs of the Estate.
If Handsome Lake Drive property is sold to Leah Raynes at the price ordered
by the trial court, the Estate will be deprived of the benefit of its only asset. In
addition, the heirs of the Estate will be deprived of the fair market value of the
property and of reimbursements and damages from Leah Raynes and her adult sons
for rent and expenses incurred since decedent’s death on January 27, 2013. The
Independent Executor will be deprived of his right and duty to manage the property
of the Estate and to obtain the fair market value of the property for the Estate and
heirs. Further, the Independent Executor, on behalf of the Estate will have been
denied the right to a jury trial on the material issues of fact. In re Prudential Ins. Co.
of America, 148 S.W.3d 124, 139 (Tex. 2004); Accord In Re Fallis, No.
04-08-00781-CV (Tex App.—San Antonio Feb. 4, 2009, no pet.) (mem. op.).
The Final Judgment must be stayed to preserve these rights and to maintain the
status quo and jurisdiction of this Court to consider the merits of the Petition for writ
of Mandamus.
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C. CONCLUSION
As of the time of filing of the Motion for Emergency Stay, the Independent
Executor has been ordered to sell the property located at 6307 Handsome Lake Drive,
Leon Valley, Bexar County, Texas for a price far below the fair market value on or
before October 2, 2015, and if that sale is not accomplished, the Court will appoint
a Receiver to liquidate the property. Both alternatives defeat the lawful authority of
the Independent Executor and are irreparably harmful to the Estate and the heirs
because the forced sale will deplete the Estate of the only asset available to pay
expenses and distribute proceeds to the heirs. As a result, the Estate will be denied
the ability to recover damages.
The Independent Executor requests this Court to issue an emergency stay
preventing the trial court from appointing a Receiver pending this Court’s
determination on the Independent Executor’s Writ of Mandamus and Writ of
Prohibition.
D. PRAYER
For the reasons stated in this Motion, Relator asks this Court for an emergency
stay of the Final Judgment dated August 17, 2015, and all further proceedings in the
trial court in order to maintain this status quo of the parties and to preserve this
Court’s jurisdiction to consider the merits of Relator’s original proceedings.
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Respectfully submitted,
/s/Per Hardy
PER ANN HARDY,
JAMES E. HOFFMAN
Attorneys for Relator,
Arthur Raynes, Independent Executor
CERTIFICATE OF COMPLIANCE
Under Texas Rule of Appellate Procedure 52.10(a), I certify that on September
30, 2015 and October 1, 2015, we made a diligent effort to notify Respondent and
Real Parties in interest that a motion for emergency stay would be filed:
1. Kelly Cross, Judge of Probate Court No. 1, Bexar County, Texas, Bexar County
Court House, 100 Dolorosa, San Antonio, Texas 78205 by email.
2. Cecil Bain, Attorney for Leah Raynes, The Forum, Suite 600, 8000 I.H. 10 West
San Antonio, Texas 78230 78209 by email.
3. Todd Barta, Pro Se, 6307 Handsome Lake Drive, Leon Valley, Texas 78238 by
regular mail – Todd Barta has not provided a telephone number, e-mail address or fax
number as required by Tex. R. Civ. P. 57.
4. Samuel Barta, Pro Se, 6307 Handsome Lake Drive, Leon Valley, Texas 78238 by
regular mail – Todd Barta has not provided a telephone number, e-mail address or fax
number as required by Tex. R. Civ. P. 57.
/s/Per Hardy and /s/James Hoffman
Per Hardy/James Hoffman
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Petition for Emergency Stay
filed on October 1, 2015, has been served on October 1, 2015 to the following:
1. Kelly Cross, Judge of Probate Court No. 1, Bexar County, Texas, Bexar County
Court House, 100 Dolorosa, San Antonio, Texas 78205 by email.
2. Cecil Bain, Attorney for Leah Raynes, The Forum, Suite 600, 8000 I.H. 10 West
San Antonio, Texas 78230 78209 by email.
3. Todd Barta, Pro Se, 6307 Handsome Lake Drive, Leon Valley, Texas 78238 by
mail.
4. Samuel Barta, Pro Se, 6307 Handsome Lake Drive, Leon Valley, Texas 78238 by
mail.
/s/Per Hardy________________
PER HARDY, Attorney for Relator
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