new petition for writ of mandamus - corpus · 2019. 1. 2. · case no. 1/8/2018 3:21 pm . in the...

CASE NO.

IN THE COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

Petition For Writ of Mandamus

IN RE: ROSE CRAGO AND JOHN CRAGO, INDEPENDENT EXECUTOR OF THE ESTATE

OF DAVID CRAGO

Bradford M. Condit, Attorney for Relators John Crago, Independent

Executor of the Estate of David Crago and Rose Crago

State Bar No. 04656525 Federal I.D. No. 5591

401 North Tancahua Corpus Christi, Texas 78401

Voice: 361-884-2075 Fax: 361-884-2077

13-18-00016-CV

ACCEPTED13-18-00016-CV

THIRTEENTH COURT OF APPEALSCORPUS CHRISTI, TEXAS

1/8/2018 3:21 PMDorian E. Ramirez

CLERK

I. Identity of Parties and Counsel

Relators:

John Crago, Independent Administrator of the Estate of David Crago

Rose Crago

Counsel:

Bradford M. Condit State Bar No. 04656525 401 North Tancahua Corpus Christi, Texas 78401 Voice: 361-884-2075 Fax: 361-884-2077 [email protected]

Respondent:

Hon. Mark Woerner Presiding Judge Nueces County Court at Law No. Four 901 Leopard Corpus Christi, Texas 78401 Voice: 361-888-0237 Fax: 361-888-0253

Real-Party-In-Interest:

Nueces County

Counsel:

Jeffery Pruitt Assistant Nueces County Attorney State Bar No. 24070453 901 Leopard, Room 207 Corpus Christi, Texas 78401 Voice: 361-888-0391 [email protected]

i.

mailto:[email protected]


II. TABLE OF CONTENTS I. Identity of Parties and Counsel ……………………………………………... i

II. Table of Contents …………………………………………………………… ii

IIII. Index of Authorities .……………………………………………………… iv

IV. Statement of the Case .…………………………………………………….. v

V. Statement of Jurisdiction …………………………………………………. vii

VI. Issues Presented ………………………………………………………….. vii

VII. Statement of Facts ………………………………………………………… 1

VIII. Argument and Authorities for Issue One ………………………………… 5 Issue One: The trial court had no jurisdiction because pursuant to Tex.Estates Code sec. 22.05 Nueces County’s potential subrogation interest does not come within the definition of a claim that could be made against the estate thus Nueces County does not have any standing to participate in the probate proceedings.

IX. Argument and Authorities for Issue Two ………………………………… 6 Issue Two: The trial court lacked subject matter jurisdiction for the reason that Nueces County is not an interested person as defined by Tex.Estates Code sec. 22.018.

X. Argument and Authorities for Issue Three …………………………………8 Issue Three: The trial court abused its discretion in issuing a Temporary Injunction because Nueces County failed to plead or prove any one of the three elements necessary to support its issuance.

ii.

XI. Argument and Authorities for Issue Four ………………………………….. 9 Issue Four: Because Respondent’s potential subrogation claim as a creditor could only be a Class 8 claim the trial court erred in failing to modify its order to only include the proceeds of the sale of the property be held back for Class 8 claims. XII. Requested Relief ..…………………………………………………… 10

XIII. Certification ……………………………………………………………… 11

XIV. Certificate of Word Compliance ………………………………………11

XV. Certificate of Service ………………………………………………… 12

XVI. Appendix…………………………………………………………………..13

Ex. A – Order Probating Will and For Letters of Administration Ex. B – Original Petition for Declaratory Judgment and Application for Temporary Injunction Ex. C – Defendant John Crago’s Original Answer Ex. D – Defendant Rose Crago’s Original Answer Ex. E - Defendants’ Brief To The Court Ex. F - Defendants’ 2nd Brief To The Court Ex. G - Order Granting Application for Temporary Injunction Ex. H – 13th Court of Appeals Order denying Petition for Mandamus Ex. I – John and Rose Crago’s Motion to Withdraw and/or Modify Temporary Order Ex. J – John and Rose Crago’s 1st Supplement to Their Motion to Withdraw and/or Modify Temporary Order Ex. K - John and Rose Crago’s 2nd Supplement to Their Motion to Withdraw and/or Modify Temporary Order Ex. L – Order Denying Motion to Withdraw or Modify Temporary Order

iii.

III. INDEX OF AUTHORITIES

Case Law Authority

Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.) ………………………………………………………… 4 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)………………… 6 Environmental Services, LP vs. John Atkinson, et al, 17-00190 Tex.App. Corpus Christi, - Edinburg, 12-14-2017 …………………………………………………… Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012)……………………………… 4 Heckman v. Williamson County, 369 S.W.3d 137, 150-51 (Tex. 2012)…………………… 6 In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016)…………………. 3 In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014)…………………………………….. 4 In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) ………………………………. 3 In re McDonald, 424 S.W.3d 774, 778-79 (Tex.App. Beaumont, 2014) …………………… 7 In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016)………………………. 4 In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004)………………………… 4 In re SW. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) ………………………………….. 4 Jefferson County Constables Association v. Jefferson County, 512 S.W.3d 434, (Tex.App. – Corpus Christi-Edinburg, 2016)……………………………………………….. 6 State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015)………………………………………….. 7 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993)………… 6 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)……………..4 Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) ………………………………………. 4

Statutes Texas Estates Code sec. 22.005 ……………………………………………………………………. 5 Tex.Estates Code sec. 22.018 ………………………………………………………………………. 7 Tex.Estates Code sec. 355.102 ……………………………………………………………………… 7 Tex. Estates Code sec. 402.001 ………………………………………………………………………9

iv.

IV. STATEMENT OF THE CASE

This case was filed as a declaratory action by Real-Party-In-Interest Nueces County against

Relators Rose Crago and John Crago as the Independent Administrator of the Estate of David

Crago requesting the trial court establish a possible claimed subrogation interest in the possible

proceeds of the sale of real property. (Appendix A & B) In this action Nueces County sought to

have the trial court declare the possible amount of a potential subrogation interest and the

possible class of its claim in the related probate matter.

In addition, it requested the trial court enter a temporary injunction ordering John Crago as

the Independent Administrator of the Estate of David Crago and Rose Crago to deposit any

proceeds from the sale of real property into the registry of the court for the court to order

distributions.

Relators responded challenging the trial court’s authority and jurisdiction. (Appendix C,

D, E & F)

The trial court granted the temporary injunction. (Appendix G)

In response Relators sought relief from this court in a Petition for Writ of Mandamus filed

on October 18, 2017 and on November 16, 2017 the court denied the petition without

explanation. (Appendix H)

Thereafter Relators moved the trial court to withdraw the offending order

and/or to modify it. (Appendix I, J & K) After a hearing the trial court refused to do

either. (Appendix L)

Relators seek an order from this court ordering the trial court to withdraw or

v.

modify the Order Granting Application For Temporary Injunction.

Trial court judge:

Hon. Mark Woerner, Presiding Judge Nueces County Court at Law No. Four 901 Leopard, Corpus Christi, Texas 78401 Voice: 361-888-0237 Fax: 361-888-0253

V. STATEMENT OF JURISIDICTION

TEX. GOV'T CODE § 22.221(b).

VI. ISSUES PRESENTED

Issue One: The trial court had no jurisdiction because Nueces County’s potential subrogation interest, pursuant to Tex.Estates Code sec. 22.05, does not come within the definition of a claim that could be made against the estate thus Nueces County does not have any standing to participate in the probate proceedings.

Issue Two: The trial court lacked subject matter jurisdiction for the reason that Nueces County

is not an interested person as defined by the Tex.Estates Code sec. 22.018.

Issue Three: The trial court abused its discretion in issuing a Temporary Injunction because

Nueces County failed to plead or prove any one of the three elements necessary

to support its issuance. Issue Four: Because Respondent’s potential subrogation claim as a creditor could only be a Class 8 claim the trial court erred in failing to modify its order to only include the proceeds of the sale of the property be held back for Class 8 claims.

vi.

VII. STATEMENT OF FACTS

Ten years ago in 2007 Rose Crago obtained a money judgment issued from out of the 28th

Judicial District Court against David Crago for $120,000.00 plus post-judgment interest. (RR

Vol. 3, Ex. 4) This judgment was abstracted with the county clerk in May 2008.

On March 31, 2016 Rose Crago obtained another money judgment issued from out of the

117th Judicial District Court against Jim Kaelin in the amount of $159,011.56. This judgment is

pending petition for review before the Texas Supreme Court.1

On September 29, 2016 David Crago died and on November 29, 2016 David Crago’s Will

was admitted to probate and John Crago was granted Letters Testamentary for an Independent

Administration of the estate. (Appendix A)

There is no evidence Nueces County paid even one dime on the Kaelin judgment which if

it did would confer subrogation rights against the estate.2

On August 30, 2017 Nueces County filed an Original Petition for Declaratory Judgment

and Application for Temporary Injunction requesting the trial court do the following:

a. “. . . establish its claim against the Estate of David Crago . . .”

b. establish the amount of its claim;

c. establish the class of its claim;

d. establish the payment if the estate’s debts exceed the value

of the estate;

1.

1 Pending as case No. 17-0470. The Texas Supreme Court has called for full briefing -- Kaelin’s brief is due on January 8, 2018.

2 See, Tex.Civ.Prac. & Rem. Code sec. Sec. 34.069 & 34.070.

e. temporarily enjoin the Independent Administrator to place the proceeds

from the sale of real property into the court’s registry.

(Appendix B, pg. 1, para. 2)

In response Relators filed their Original Answers and Briefs and plead:

a. Nueces County lacks standing,

b. There is no justiciable interest,

c. There is no statutory authority for the court to act pursuant to

Tex.Estates Code sec. 402.001.

d. Denied Nueces County has any right to a subrogation interest

under Tex.Civ.Prac.& Rem. Code sec. 34.070 because it has not

paid one dime on the judgment against Kaelin, and

e. Denied Nueces was a creditor of the estate,

f. Denied irreparable injury,

g. Issuing an injunction changes the status quo,

h. The court could not prohibit the collection of a valid and subsisting

judgment issued from a sister court (28th Judicial District),

i. The court cannot deny or interfere with a judgment creditor’s right

to satisfy a judgment.

(Appendix C, D; RR Vol. 3, pp. 6 & 7)

Relators also filed their Brief To The Court, a 2nd Brief To The Court and made oral

2.

objections justifying each defense with statutory and case law authority. (Appendix E & F, RR

Vol. 1 & 2)

A hearing was held on September 21, 2017 and at the conclusion, and over Relators’

objections, the court granted Nueces County’s Application for Temporary Injunction ordering

the Independent Administrator to “. . . place the net proceeds from the sale of the Fortuna Bay

property into the registry of the court until further order. Net proceeds is defined as the proceeds

that remain after paying the balance on the mortgage and the closing costs.” (Appendix G)(RR.

Vol. 1, pg. 22 line 24 to pg. 28; Vol. 2, pp. 2-13)

After this court denied Relator’s Petition for Writ of Mandamus1 they moved the trial

to withdraw the offending order or to modify its scope.2

The trial court refused to do either. (Appendix L)

Mandamus Relief Is Proper

Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300,

302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a

clear abuse of discretion when there is no adequate remedy by appeal. In re Christus Santa

Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator bears the

burden of proving both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d at

302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). An abuse

of discretion occurs when a trial court’s ruling is arbitrary and unreasonable, or is made

3.

1 See 13-17-00586-CV. 2 See, Def’s Mtn To Modify and/or Modify Order (Appendix I); 1st Supplement (Appendix J) and 2nd Supplement (Appendix K)

without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). The adequacy of an appellate remedy is determined by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). Relators maintain that the trial court’s order is void. Mandamus relief is proper when a trial

court issues a void order. In that event a relator need not demonstrate that there is no adequate

remedy by appeal. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig.proceeding);

In re Flores, 111 S.W.3d 817, 818 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (per

curiam).

A jurisdictional analysis begins with the plaintiff’s live pleadings and determine whether

the facts alleged affirmatively demonstrate the trial court’s jurisdiction to hear the cause.

Tex.Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plaintiff’s

pleadings are construed liberally, taking all factual assertions as true, and look to the plaintiff’s

intent. Id

If the pleadings affirmatively negate the existence of jurisdiction, then there is no

jurisdiction for a court to act. The ultimate inquiry is whether the particular facts presented

affirmatively demonstrate a claim within the trial court’s subject matter jurisdiction. Bacon v.

Tex. Historical Comm’n, 411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.).

4.

In this case Nueces County plead only theoretical possibilities.

IF the Administrator sells real property, and

IF there is a final enforceable judgment against Kaelin, and

IF the property sells for less than enough to pay all the claims against the estate, and

IF Nueces County pays the judgment then it has a subrogation interest, and

IF the Estate’s Administrator does not follow the claim classification process then Nueces County would have a claim.

But even assuming all these IF’s there is no dispute about how the assets of an estate are

distributed – Nueces County did not plead any facts upon which a court is called upon to rule on

any dispute – no facts are disputed and no law is disputed. Hence the trial court lacks any

jurisdiction to rule on any dispute solely based on Nueces County’s pleading.

VIII. ARGUMENT AND AUTHORITIES FOR ISSUE ONE Issue One: The trial court had no jurisdiction because pursuant to Tex.Estates Code sec. 22.05 Nueces County’s potential subrogation interest does not come within the definition of a claim that could be made against the estate thus Nueces County does not have any standing to participate in the probate proceedings. Texas Estates Code sec. 22.005, Claims, states this:

22.005 CLAIMS. "Claims" includes:

(1) liabilities of a decedent that survive the decedent's death, including taxes, regardless of whether the liabilities arise in contract or tort or otherwise;

(2) funeral expenses;

(3) the expense of a tombstone;

(4) expenses of administration;

5.

(5) estate and inheritance taxes; and

(6) debts due such estates.

[emphasis supplied]

Thus, because Nueces County’s potential subrogation claim did not exist before David

Crago’s death (and in fact does not even exist now) it could not survive David Crago’s death – it

does not have a claim as defined by Estates Code sec. 22.005(1) and so therefore the trial court

should have accepted the fact that does not have jurisdiction over any potential claim and should

have withdrawn its order for want of jurisdiction.

IX. ARGUMENT AND AUTHORITIES FOR ISSUE TWO

Issue Two: The trial court lacked subject matter jurisdiction for the reason that Nueces County is not an interested person as defined by Tex.Estates Code sec. 22.018.

The court lacked subject matter jurisdiction.

Subject matter jurisdiction is essential to “a court’s power to decide a case.” Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). A court acting without such power

commits fundamental error. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44

(Tex. 1993).

Subject matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass'n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is implicit in the

concept of subject matter jurisdiction. Id. at 443. "A court has no jurisdiction over a claim made

by a plaintiff who lacks standing to assert it." Heckman v. Williamson County, 369 S.W.3d 137,

150-51 (Tex. 2012). Jefferson County Constables Association v. Jefferson County, 512 S.W.3d

6.

434, (Tex.App. – Corpus Christi-Edinburg, 2016)

Nueces County cannot assert any claim against the Administrator or Rose Crago because it lacks standing to assert any, and standing is an essential component of subject matter jurisdiction. State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015). As is stated in In re McDonald, 424 S.W.3d 774, 778-79 (Tex.App. Beaumont, 2014):

“Resolving whether Johnsye has standing to participate in the probate proceedings turns on whether Johnsye is an "interested person" with respect to Chad's estate.

The Estates Code defines an interested person or person interested as: (1) an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered; and

(2) anyone interested in the welfare of an incapacitated person, including a minor.

Tex. Est. Code Ann. § 22.018.

**************************

With respect to the priority given to claims against an estate, the Estates Code give funeral expenses the highest priority in an estate's administration. See id . § 355.102 (West Pamph. 2013). Significantly, as an interested person in the estate, the Estates Code provided Johnsye with the right, before the probate court decided the issue, to file a written opposition to any issue pertaining to the probate proceedings before the court. See id . § 55.001; see also id . § 31.001(3) (providing that heirship determinations are under the scope of probate proceedings) (West Pamph. 2013). Because Johnsye demonstrated that he is a creditor, he has standing to participate in the probate proceedings before the probate court.”

7.

The law is clear -- because Nueces County is not a creditor it does not have standing

to participate in this probate proceeding and the trial court’s order should be withdrawn.

X. ARGUMENT AND AUTHORITIES FOR ISSUE THREE

Issue Three: The trial court abused its discretion in issuing a Temporary Injunction because Nueces County failed to plead or prove

any one of the three elements necessary to support its issuance.

This court recently ruled in Environmental Services, LP vs. John Atkinson, et al, 17-

00190 (Tex.App. Corpus Christi, - Edinburg, 12-14-2017):

“A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). Its purpose is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. Id. (citing Walling, 863 S.W.2d at 57). To obtain a temporary injunction, the applicant must plead and prove three specific elements:

(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the

interim.

Id. (citing Walling, 863 S.W.2d at 57; Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968)).”

Respondent has not plead any recognized cause of action.

Respondent does not have a probable right to the relief sought for the simple reason

that the court is not being called upon to determine any opposition to a potential subrogation right

– this is not contested by any party,

There is no probable, imminent and irreparable injury – any funds resulting from the

8.

sale of the property will be distributed according to the probate code’s claim classification scheme. And, more specifically Plaintiff’s potential subrogation claim could be paid as a Class 8 claim3.

XI. ARGUMENT AND AUTHORITIES FOR ISSUE FOUR

Issue Four: Because Respondent’s potential subrogation claim as a creditor could only be a Class 8 claim the trial court erred in failing to modify its order to only include the proceeds of the sale of the property be held back for Class 8 claims. The scope of the trial court’s order goes far beyond meeting the objective of protecting

proceeds of the sale of an estate asset so it might be able to assert a subrogation claim. The order

states every dime of the proceeds cannot be used to pay any Class 1 through 7 claims of the estate

even though Respondent’s claim could only be a Class 8 claim4.

The trial court abused its discretion in judicially nullifying the Independent Executor’s

statutory authority to administer the estate without judicial interference. Tex.Estates Code sec.

Tex. Estates Code sec. 402.001, General Scope And Exercise Of Powers reads:

“When an independent administration has been created, and the order appointing an independent executor has been entered by the probate court, and the inventory, appraisement, and list of claims has been filed by the independent executor and approved by the court or an affidavit in lieu of the inventory, appraisement, and list of claims has been filed by the independent executor, as long as the estate is represented by an independent executor,

9.

3 See, Tex.Estates Code sec. 355.102 which describes what classification claims as being 1 through 8 in priority. 4 A Class 8 claim is defined as, “Class 8 claims are composed of any other claims not described by Subsections (b)-(h). Tex.Estates Code sec. 355.102(i). .

further action of any nature may not be had in the probate court except where this title specifically and explicitly provides for some action in the court.” [emphasis added]

The trial court’s order also judicially revokes Tex.Estates Code sec. 355.102 which

describes what claims are classified as being 1 through 8 in priority.

The trial court’s order violates this court’s ruling in in Environmental Services, LP

vs. John Atkinson, et al, 17-00190 (Tex.App. Corpus Christi, - Edinburg, 12-14-2017),

Supra, in that prohibiting the Independent Executor from paying Class 1 through 7 does not

establish any (2) probable right to the relief sought; or (3) a probable, imminent, and

irreparable injury in the interim.

XII. REQUESTED RELIEF

Relators request this court issue a writ of mandamus compelling the trial court

to withdraw its Temporary Injunction or alternatively to order the trial court to

modify its order to only prohibit the payment of Class 8 claims.

Respectfully Submitted,

By: Bradford M. Condit [email protected] State Bar No. 04656525 Federal I.D. No. 5591 401 North Tancahua Corpus Christi, Texas 78401 Voice: 361-884-2075 Fax: 361-884-2077

10.

XIII. CERTIFICATION

I certify that I have reviewed this petition and conclude that every factual statement in the petition is supported by competent evidence including in the appendix or record.

_ Bradford M. Condit

XIV. CERTIFICATE OF WORD COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this petition for writ of mandamus contains 2,890 words. This is a computer-generated document created in Microsoft Word, using 14-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.

/s/ Bradford M. Condit Bradford M. Condit

11.

bcond

Stamp

XV. CERTIFICATE OF SERVICE

By affixing my signature below, I certify that a true copy of the foregoing document was delivered to the following attorneys in accordance with the Texas Rules of Civil Procedure, e- filing, on January 8, 2018:

Ms. Jenny Cron Mr. Jeffrey Pruitt

Attorney for Nueces County 901 Leopard, Room 207

Corpus Christi, Texas 78401 Voice: 361/888-0391 Fax: 361/888-0577

[email protected] [email protected]

and on January 8, 2018 hand-delivered to:

Hon. Mark Woerner Presiding Judge

Nueces County Court at Law No. Four 901 Leopard

Corpus Christi, Texas 78401

/s/ Bradford M. Condit Bradford M. Condit

12.



XVI. APPENDIX

Ex. A – Order Probating Will and For Letters of Administration Ex. B – Original Petition for Declaratory Judgment and Application for Temporary Injunction Ex. C – Defendant John Crago’s Original Answer Ex. D – Defendant Rose Crago’s Original Answer Ex. E - Defendants’ Brief To The Court Ex. F - Defendants’ 2nd Brief To The Court Ex. G - Order Granting Application for Temporary Injunction Ex. H – 13th Court of Appeals Order denying Petition for Mandamus Ex. I – John and Rose Crago’s Motion to Withdraw and/or Modify Temporary Order Ex. J – John and Rose Crago’s 1st Supplement to Their Motion to Withdraw and/or Modify Temporary Order Ex. K - John and Rose Crago’s 2nd Supplement to Their Motion to Withdraw and/or Modify Temporary Order Ex. L – Order Denying Motion to Withdraw or Modify Temporary Order

13.

NUMBER 13-17-00586-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE ROSE CRAGO AND JOHN CRAGO, INDEPENDENT EXECUTOR OF THE ESTATE OF DAVID CRAGO

On Petition for Writ of Mandamus.

MEMORANDUM OPINIONBefore Justices Rodriguez, Benavides, and Longoria

Memorandum Opinion Per Curiam1

Relators Rose Crago and John Crago, independent executor of the estate of David

Crago, filed a petition for writ of mandamus in the above cause on October 18, 2017.

Through this original proceeding, relators seek a writ of mandamus compelling the

respondent to withdraw a temporary injunction granted on September 22, 2017 on

1 See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in any other case,” but when “denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).

Ex. H

2

grounds that the trial court lacked jurisdiction over the case. This Court requested and

received a response to the petition from the real party in interest, Nueces County, and

also received a reply thereto from relators. See TEX. R. APP. P. 52.2, 52.4, 52.8.

Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300,

302 (Tex. 2016) (orig. proceeding) (per curiam). To obtain mandamus relief, a relator

must show that the underlying order is void or that the order represents a clear abuse of

discretion and that no adequate appellate remedy exists. See In re Nationwide Ins. Co.,

494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833,

840 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when a trial court's

ruling is arbitrary and unreasonable or is made without regard for guiding legal principles

or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d at 712; Ford Motor

Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an

appellate remedy by balancing the benefits of mandamus review against the detriments.

In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential

Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). However, when an

order is void, “the relator need not show it did not have an adequate appellate remedy,

and mandamus relief is appropriate.” In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.

2000) (orig. proceeding); In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig.

proceeding).

The Court, having examined and fully considered the petition for writ of mandamus,

the response, the reply, and the applicable law, is of the opinion that relators have not

shown themselves entitled to the relief sought. See, e.g., Robinson v. Parker, 353 S.W.3d

3

753, 755 (Tex. 2011). Accordingly, we DENY the petition for writ of mandamus. See

TEX. R. APP. P. 52.8(a).

PER CURIAM

Delivered and filed the 16th day of November, 2017.

P1

NUECES COlJl'..'TY

VS

JOHN TIIOMAS CRAGO, Independent Executor of the Estate of David Crago and ROSE CRAGO

Cause No: 2016-PR-00689-4A

)( )( )( )( )( )( )( )(

IN THE COU1'.'TY COURT AT

LA WNO.FOUR

NUECES COUNTY, TEXAS

Defendants' Motion to Withdraw and/or Modify Order

Lack of Standing (Jusidictional)

Filed 12112/2017 4:51 PM

Anne Lorentzen DistrictClenc:

Nueces County, Texas

l. Plaintiff county has paid nothing, thus is does not have any right to a claim of subrogation and it does not have any standing - no justiciable interest.

TCPRC § 34.069. Payment OfDamages:

A county, at the discretion of the commissioners court, may pay any judgment taken against an officer under Section 7.001, 34.061, 34.063, 34.064, 34.065, 34.066, or 34.067 or under Section 86.023, Local Government Code, provided that this section does not apply if the officer is finally convicted under Section 39.0'.? or 39.03, Penal Code.

TCPRC § 34.070. Right Of Subrogation:

iw officer against whom a judgment has been taken under Section 7 .OOL 7 .002, 34.061, 34.063, 34.064, 34.065, 34.066, or 34.067 or under Section 86.023, Local Government Code, or

a county that has paid the judgment on behalf of the officer under Section 34.069, has

a right of subrogation against the debtor or person against whom the writ was

issued.

"Subject matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties. Id. at 44 5. Standing is implicit in the concept of subject matter jurisdiction. Id. at 443. " A court has no jurisdiction over a claim

STATE OF TEXAS COUNTY OF NUECES

THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS Or NUECES COUNTY, TEXAS.

ANN LORENTZEN NUECES COUNTY DISTRICT CLERK CLERK OF THE DISTRICT & COUNTY COURTS AT LAW

Ex. I

P2

made by a plaintiff who lacks standing to assert it. " Heckman v. Williamson County., 369 S.W.3d 137, 150-51 (Tex. 2012)."

Jefferson County Constables Association v. Jefferson County, 512 S.W.3d 434, (Tex.App. -Corpus Christi-Edinburg, 2016)

2. The liability basis of the judgment is based on not only TRCP Chapter 34, but also Tex.Local Gov't Code sec. 85.021.

There is no right of subrogation under sec. 85.021.

Local Gov't Code. Sec. 85.021. EXECUTION OF PROCESS: PENi\LTY.

(a) The sheriff shall execute all process and precepts directed to the sheriff by legal authority and shall return the process or precept to the proper court on or before the date the process or precept is returnable.

(b) The sheriff commits an offense if the sheriff:

(I) fails to return a process or precept as required by Subsection (a); or

(2) makes a false return.

( c) An offense under this section is punishable by the coun to

which the process is returnable, as for contempt, by a fine of not more than $ 100. A fine collected under this section shall be deposited in the county treasury.

(d) The sheriff is liable for all damages sustained by a person by reason of an offense committed by the sheriff under this section.

Acts 1987, 70thLeg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Plaintiff seeks to sequester potential Estate funds based on a right of subrogation that does not exist.

3. The Law of Justiciable Controversy (Lack of Standing)

"To constitute a justiciable controversy, there must exist a real and substantial controversy involving a genuine conflict of tangible interests

~£' \ iciJ!ji b~~~ECES ·f-1' ~

"Z __ :t:--' THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS OF NUECES COUNn'. TEXAS

ANN LORENTZEN NUECES COUNTY DISTRICT CLERK CLERK OF THE DISTRICT & COUNTY COURTS AT lJW>I

P3

and not mere(v a theoretical dispute. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Under the ripeness doctrine, courts should consider whether, at the time a lawsuit is filed, the facts are sufficiently developed so that an injury has occurred or is likely to occur, rather than being contingent or remote. Tex. Quarter Horse Ass'n, 496 S.W.3d at 179-80; see Waco lndep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000)." [emphasis supplied]

In re PlainsCapital Bank, 13-16-00592-CV, March 27, 2017 (Tex.App. -Corpus Chirist-Edinberg)

4. There is no statutory authority for the court to act pursuant to Tex. Estates Code sec. 402.001. General Scope and Exercise Of Powers:

When an independent administration has been created, and the order appointing an independent executor has been entered by the probate court, and the inventory, appraisement, and list of claims has been filed by the independent executor and approved by the court or an affidavit in lieu of the inventory, appraisement, and list of claims has been filed by the independent executor, as long as the estate is represented by an independent executor, further action of any nature may not be had in the probate court except where this title specifically and explicitly provides for some action in the court.

5. Tne Declaratory Judgments Act Civil Practice and Remedies Code section 3 7 .005(2) provides:

A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the estate of a decedent, an infant, mentally incapacitated person, or insolvent may have a declaration of rights or legai relations in respect to the trust or estate:

(2) to direct the executor ... to do or abstain from doing any particular act ... '~

Plaintiff is not a creditor.

k~ _ /''' STATE OF TEXAS ,. \'i " COUNTY OF NUECES ''<-t..Q.t.~~-·

THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS OF NUECES COUNTY, TEXAS.

ANN LORENTZEN NUECES COUNTY DISTRICT CLERK CLERK OF THE DISTRICT & COUNTY COURTS Ai LAW

P4

6. Texas Estates Code sec. 22.005, Claims states this:

22.005 CLAIMS. "Claims" includes:

(1) liabilities of a decedent that survive the decedent's death. including taxes. regardless of whether the liabilities anse in contract or tort or otherwise:

(2) funeral expenses:

(3) the expense of a tombstone:

(4) expenses of administration:

(5) estate and mheritance taxes: and


Added by Acts 2009. 81 st Leg., R.S., Ch. 680 (H.B. 2502). Sec. 1, eff. January 1, 2014.

Thus, Plaintiff does not have a claim as defined by the Estates Code and so therefore the

court should accepr the fact that it does not have jurisdiction over any potential claim and

withdraw its order for want of jurisdiction.

7. Alternatively, because admittedly Plaintiffs only potential subrogation claim as a

creditor could only be a Class 8 claim the order should be modified to only include the proceeds

of the sale of the property be held back for Class 8 claims, less $30,000.00 which represents the

bond of the Judgment debtor's office. (See attached)

8. It is true that by clearly established case law and by statute only the court that has issued

a judgment has exclusive jurisdiction overall post-judgment collection procedures of that

judgment.

"Tex.Civ.Prac. & Rem. Code§ 65.023, Place For Trial, grants exclusive jurisdiction over the execution of a judgment to the court that rendered the judgment. It states:

(a) Except as provided by Subsection (b ), a writ of injunction against a party who is a resident of this state shall be tried in a district or county court in the county in which the party is domiciled. If the writ is granted against more than one party, it may be tried in the proper court of the county in which either party is domiciled.

STATE OF TEXAS. COUNTY OF NUECES

THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS OF NUECES COUNTY. TEXAS


PS

(b) A writ of injunction granted to stay proceedings in a suit or execution on a judgment must be tried in the court in which the suit is pending or the judgment was rendered.

History. Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

"Tnis issue of whether one court can interfere with another court's judgment was raised in Shor v. Pelican Oil & Gas Mgmt .. LLC, 405 S.W.3d 737, 749 (Tex. App.-Houston [1st Dist.] 2013, no pet.) and that court ruled:

"We have previously held that this section "is intended to ensure that comity prevails among the various trial courts of Texas'' because " [ o )rderly procedure and proper respect for the courts will require that ... attacks upon their judgment should be made in the court rendering such judgment, rather than in other courts indiscriminately." McVeigh, 849 S.W.2d at 914 (quoting Lloyds Alliance v. Cook. 290 S.W.2d 716, 718 (Tex.Civ.App.-Waco 1956, no writ)).

Wefurther held that not only does section 65.023(b) control venue in a suit for an injunction seeking to stay execution on a judgment. it also controls ''jurisdiction as well, so long as the judgment in question is valid on its face." Id. (citing int'! Sec Life ins. Co. r. Riley, 467 S..W.2d 213, 214 (Tex.Civ.App.Amarillo 1971, writ refd n.r.e.)): see also Butron, 960 S.W.2d at 94 (" This requirement that an action to enjoin execution on a judgment must be brought in the court in which the judgment was rendered is jurisdictional, and does not relate merely to venue."). The requirement of facial validity is a requirement that the underlying judgment is not void. Butron, 960 S.W.2d at 95; McVeigh, 849 S.W.2d at 914.

In McVeigh, the 6lst District Court of Harris County rendered a judgment in favor of Mc Veigh, and after Lerner, the judgment debtor, failed to satisfy the judgment, a writ of execution issued. 849 S.W.2d at 912-13. Lerner then filed an action in the 15lst District Court of Harris County, seeking an injunction prohibiting the distribution of funds that Lerner had paid under protest and a declaration of the amount that she owed. id at 913.

-;-. ·~ \0

STATEOF.TEXA5- __ COUNTY OF NUECES

\:_~_..:-THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS Oi' NUECES COUNTY, TEXAS


P6

The 151 st District Court granted a temporary restraining order and, subsequently, summary judgment in favor of Lerner. Id. On appeal, Mc V eigh argued that the summary judgment was "outside the scope of the 151 st District Court's jurisdictional authority under [section] 65.023." Id. In determining whether the 151 st District Court had jurisdiction to enter the injunction, we held that the fact that Lerner's suit was not on its face, a claim for an injunction to stay execution on the original judgment but was, instead, a claim to enjoin the distribution of funds paid under protest to prevent execution was an '' immaterial" distinction. Id. at 915. We held:

We construe section 65.023 to preclude a court from interj ering in the execution of a judgment rendered by a sister court of this state .... We conclude section 65.023 barred the bringing of a claim for injunctive relief to stay execution of the 1987 legal malpractice judgment in any court but the 6lst District Court of Harris County. Id.

We therefore concluded that section 65.023 deprived the 151st District Court of "subject matter jurisdiction on Lerner's claim for injunctive relief because that court did not render the underlying judgment. Id.; see also Butron, 960 S.W.2d at 95 ("In the instant case, the 138th District Court rendered the $1,019,840.53 judgment against Mark Cantu .... Accordingly, Cantu had to bring his application for writ of in_iunction in the 138th District Court because that court had rendered the judgment. No other court had jurisdiction over that issue." [emphasis supplied]

A trial court cannot interfere with the execution of a judgment rendered by the 28th

Judicial District Court. a sister court of this state - it has no jurisdiction to do so.

STATE OF TEXAS -- -----;.

'f " COUNTY OF NUECES \;_"-(._~~,,·

THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS OF NUECES COUNTY TEXAS


P7


By: 8~,,d)Ji. 0~ Bradford M. Condit [email protected] State Bar No. 04656525 Federal l.D. No. 5591 401 North Tancahua Corpus Christi, Texas 78401 Voice: 361-884-2075 Fax: 361-884-2077

Cenificate of Service

On December 12, 2017 the foregoing document was hand-delivered to:

Jeffrey Pruitt Plaintiffs Lawyer

J efferv [email protected]

Bradford M. Condit

Notice ofHearing

This motion will be presented to the court on December 19, 2017 at 1:30 pm

Bradford M. Condit


THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS OF NUECES COUNTY, TEXAS


PB

Texas

~w Western Surety Company

OFFICIAL BOND AND OATH

THE STATE OF TEXAS >a.! Counr.yo: ___ ~N=ue=c~~~·~---'

KNOW ALL PERSONS BY ':'HESE PRESENTS· BOND No. -~'~5.,B,_.,O"'l'-'7_.l"'C ___ _

That we, Jl.t!' Kaelin , aa Prmci.pa:.. anC. WESTERN SURETY COMPANY. a corporation duly licensed to do business in tne. Stat.e of' Texas, as Surety,

are held and bounri untc' l_,,G~o_,_v=oe=.rn~a"'r'--'a"":~'.l'"'e"'x~a"'e _____________ , his successors m office,

in the aum oe Thirt:Y TnousanC and 00/J.O(' DOLLARS ( $3C. ooc. QC

for the payment of whicD we here'oy bmti ourselves and our heirs. ex.ecutors ami adm1rustraton., Jointly anC. severall}', by these presents

Dated thu; -~"=2~n=d __ dayof ___ ~A~u~q~u~•='------------- 2012

THE CONDITIOJ\ OF THE ABOVE OBLlGATION IS SUCE. That whereas. tiie above i>ouncier. Principal was on the day of----------------- ____ ,ciuly

"" l .... cceC to the office oI ~s~n=e"'r"'i"'f~=------- in and fo:- 3~N~"u"'e='c"'e"'s~-------CEwr.CUK>-ApPOJ~ted)

Count)', State o:Texas, for a term of four- yearL- commencing on the 3ls~ ciayo!" :Decembe.,.. ___l.Q.11__

N~~t~~ .. FORE ii tne sa1c. Prin.croru Shall well ana.. Ia1thiuU" perform ana ciiscnarge nll tne autJ.ei: req~~~~~ ... w as the aforesa1a office!, ana snal: ~ .::;;~~8H-A -~~rtt. the auties o:: office estaoll.snec by .J.aw, accoun~ :t.o::c anc pay :=:t_t, ~ ""h'ei1P'2i2-GIS1thorized b} law to receive tnern tne fines torteiture:s and ~:f~l"C.ies i-~)~}le:cts to:::- ::he use of the. s::ate a:::- a count:y; execute anc returr. S,"'~e~ue ~ej~c:ess anc precepts lawtully dirt'!cteC tc him, an..=. pay to 'Y:.~ .. ~b'-~.~·~~~orr. t.hey are due or tc tne pe!"SOD 's attor:ne:y tne. funds , ~~'it~~:'1-i:::tue of the process o::- precept, and ~ay cc the county ariy fuif~,.,~ally !;)aid., volunta!::"ily or othennse., to nirn f:rorr, county funds..

tnen Hua obb.gation to be voic:L otherwise to rem.B.lll m full force anh efiec' ..

PROVIDED. HOWEV"ER, that regardless. a: the numoer of years t'ru.s bonci. ·may remain m force· and the number of clauns which may be made against tius DonC., the liability of tne Surety shall not be cumulative and the aggregate habiluy of the Surety io; any and. ali. claim.a, suits. a:: a:.b.ons uncie:- this OonC. s"nall not exceed the amoun:. stated abov.e_ Any revunon of the bond amount. shall not be cumulaove.

PROVIDED, FURTHER.. th.at this oonC. may be cancelled by the Surety 'oy senchng- written nouce to tile party_ tc whom. this bond is payable stating tha:., no.t iess t0al': thirty (30) ~ thereaiter. tht Surety-~ hability here1maeo shall terminate as to subsequent acts of the Pnnci~.

-------"<"""--"-------P~n-n_a_p_a_i

By--'--'=-'--'-~_..."""--'-""----a::- Vice Pre:uden':.

ACKNOWLEDGMENT OF PRINCIP~

TIIE STATE or TEXAS

Cc.·..:n<::,· ::J ---------

Before me, ----------------------on th.ts day, personally appeareC ------------------,known to me to he the person whose name is subscribed tc the foregom6 mstrument anC acknowledgei considerab.on therein expressed.

tc me thar he- executeci the same io:- the purposes ant.

GlVen undel" my hand anci seal of office a:. --------------------· Texa~ thi.B ciay of---------, ----

SEAL ------------ County, TexaE

hrelof4



ANN LORENTZEN NUECES COUNTY DISTRICT CLERK CLERK OF THE OISTRICT & COUNTY COURTS AT LAW

'C If

pg

NUECES COU!\TTY

vs

JOHN THOMAS CRAGO, Independent Executor of the Estate of David Crago and ROSE CRAGO

Cause No: 2016-PR-00689-4A

)( )( )( )( )( )( )( )(

IN THE COUNTY COURT AT

LA WNO. FOlJR

NlJECESCOlJNTY,TEXAS

Filed 1211312017 1225 PM

Anne Lorentzen Disinct Cien<

Nueces County. Texas

1st Suoplement to Defendants' Motion to Withdraw and/or Modifv Order

1. Texas Estates Code sec. 22.005, Claims states this:

22.005 CLAIMS. "Claims'' inciudes:

(1) liabilities of a decedent tnat survive the aecedent's death. inciud1ng

taxes, regardless of whether the liabilities arise in contract or tort or

otherwise:

(2) funeral expenses:

(3) the exoense of a tombstone;

!4) expenses of administration:

15) estate and inheritance taxes: and


Added by Acts 2009. 81 st Leg., R.S., Ch. 680 (H.B. 2502). Sec. 't, eff. January 1, 2014.

2. "Resolving whether Johnsye has standing to participate in the probate proceedings turns on

whether Johnsye is an " interested person" with respect to Chad's estate.

The Estates Code defines an " 'interested person"' or " 'person interested"' as

(I) an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered; and

(2) anyone interested in the welfare of an incapacitated person, including a minor.

Tex. Est. Code Ann.§ 22.018.




Ex. J

P10

**************************

\Vith respect to the priority given to claims against an estate, the Estates Code give funeral expenses the highest priority in an estate's administration. See id . § 355.102 (West Pamph. 2013). Significantly, as an interested person in the estate, the Estates Code provided Johnsye with the right, before the probate court decided the issue, to file a written opposition to any issue pertaining to the probate proceedings before the court. See id . § 55.001; see also id . § 31.001 (3) (providing that heirship determinations are under the scope of probate proceedings) (West Pamph. 2013). Because Johnsye demonstrated that he is a creditor, he has standing to participate in the probate proceedings before the probate court. "

In re McDonald, 424 S.W.::.d 774, 778-79 (Tex.App. Beaumont, 2014)

The iaw is clear -- because Nueces County is not a creditor it does not have standing to

panicipate in this probate proceeding.

Defendants move the court to:

l. Withdraw its order dated September 22, 20117: 2. Aiternatively, because admittedly Plaintiffs oniy potential subrogation

claim as a creditor could only be a Class 8 claim the order should be modified to oniy include the proceeds of the sale of the property be held back for Class 8 claims, less $30,000.00 which represents the performance bond of the Judgment debtor.


By: :3~uim. {!e~ Bradford M. Condit [email protected] State Bar No. 04656525 Federal I.D. No. 5591 401 North Tancahua Corpus Christi, Texas 78401 Voice: 361-884-2075 Fax: 361-88.1.-2077

STATEOFTEXAS -COUNTY OF NUECES

THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAM:O APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS OF NUECES COUNTY, TEXAS

ANN LORENTZEN NUECES COUNTY DISTRICT CLERK CLERK OF THE DISTRICT & COUN1Y COURTS AT LAW

P11

Certificate of Service

On December 13, 201 7 the foregoing document was electronically served on:


J efferv .pruitnmnuecesco .com

Bradford M. Condit


P12

Cause No: 2016-PR-00689-4A

Filed 12/14/2017 4:40 PM

Anne Lorentzen D1stnct Clen<

Nueces County. !exas

NUECES COUNTY )( )( )( )( )( )( )( )(

IN THE COilltfY COURT AT

vs LAW NO.FOUR

JOHN THOMAS CR.t\GO, Independent Executor of the Estate of David Crago and ROSE CR.A.GO NUECESCOlTh-TTY.TEXAS

1.

2no Suoplement to Defendants' Motion to Withdraw and/or Modifv Order

'·A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). Its purpose is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Id. (citing Walling, 863 S.W.2d at 57). To obtain a temporary injunction, the applicant must plead and prove three specific elements:

( 1) a cause of action against the defendant: (2) a probable right to the relief sought; and (3) a probable, imminent. and irreparable injury in the interim.

Id. (citing Walling, 863 S.W.2d at 57; Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968))."

Environmental Services, LP vs. John Atkinson, et al, 17-00190 (Tex.App. Corpus Christi, -Edinburg, 12-14-2017)

2. Plaintiff has not plead any recognized cause of action.

3. Plaintiff does not have a probable right to the relief sought for the simple reason that

the court is not being called upon to determine any opposition to a potential subrogation

right - this is not contested by any party,

4. Tnere is no probable, imminent and irreparable injury - any funds resulting from the sale

THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS Or NUECES COUNTY, TEXAS.


Ex. K

P13

of the property will be distributed according to the probate code's claim classification scheme.

And, more specificaliy Plaintiffs potential claim could be paid as a Class 8 claim.

Defendants move the coun to:

l. Withdraw its order dated September 22, 20117: 2. Alternatively, because admittedly Plaintiffs only potential subrogation

claim as a creditor could only be a Class 8 claim the order should be modified to only include the proceeds of the sale of the property be held back for Class 8 claims, less $30,000.00 which represents the performance bond of the Judgment debtor.


By: 3~dm 6-na!d;Bradford M. Condit [email protected] State Bar No. 04656525 Federal I.D. No. 5591 401 North Tancahua Corpus Christi, Texas 78401 Voice: 361-884-2075 Fax: 361-884-2077

Certificate of Service

On December 14, 201 7 the foregoing document was electronically served on:


J efferv. oruitt1mnuecesco .com

Bradford M. Condit


THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS OF NUECES COUNTY. TEXAS

ANN LOREN1ZEN NUECES COUNTY DISTRICT CLERK CLERK OF THE DISTRICT & COUN1Y COURTS AT UVN

P14

COU1'1TY COURT AT LA WNO. 4 NUECES COU1'ilY, TEXAS

NUECES COUNTY, 1.t:XAS

VS.

JOHN THOMAS CRAGO, as Independent Executor of the Estate of David Hughes Crago, deceased, and ROSE CRAGO, individualiy

§ § § § § § § §

CAUSE NO. 2016-PR-689-4-A

ORDER

t=iled 12113/2017 10:49 /W;

Anne Lorentzen District Cieri<

Nueces County, Texas

On December 19, 2017, came to be heard John and Rose Crago's Motion to Witb.d...-aw

and/or Modify. Upon consideration of the motion., any response thereto, and the arguments of

counsel, the motion is hereby DENIED.

SIGNED: t?c:c I q -~_o..--.... __ H-_·lv ...______ JUDGE PRESIDING ---.......,

-/fi'--. STATE OF-TEXAS \~l- COUNTY OF NUECES

"''!',._!._~~-· THE ABOVE AND FOREGOING IS A TRUE AND CORRECT co~ AS THE SAME APPEARS ON FILE/OR RECORDED IN THE APPROPRIATE RECORDS OF NUECES COUNTY, TEXAS

ANN LORENTZEN NUECES COUNTY DISTRICT CLERK CLERK OF THE DISTRICT & COUNTY COURTS AT lAW

FILED DEC l .9 2017

Ex. L

new petition for writ of mandamus - corpus · 2019. 1. 2. · case no. 1/8/2018 3:21 pm . in the...

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