ACCEPTED 15-25-00152-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 10/6/2025 12:28 PM No. 15-25-____-CV CHRISTOPHER A. PRINE CLERK FILED IN IN THE COURT OF APPEALS 15th COURT OF APPEALS FOR THE FIFTEENTH DISTRICT AUSTIN, TEXAS 10/6/2025 12:28:00 PM AT AUSTIN CHRISTOPHER A. PRINE Clerk

IN RE FRANCES SPANOS SHELTON, Relator.

On Mandamus from the 414th District Court of McLennan County, Texas, Cause No. 2024-3035-5

PETITION FOR WRIT OF MANDAMUS

Kirk L. Pittard Craig D. Cherry State Bar No. 24010313 State Bar No. 24012419 [email protected] [email protected] Rick Thompson Ryan C. Johnson State Bar No. 00788537 State Bar No. 24048574 [email protected] [email protected] DURHAM, PITTARD & SPALDING, LLP Scott H. James P.O. Box 224626 State Bar No. 24037848 Dallas, Texas 75222 [email protected] (214) 946-8000 CHERRY JOHNSON SIEGMUND (214) 946-8433 (fax) JAMES, PLLC 7901 Fish Pond Road, 2nd Floor Waco, Texas 76710 (254) 732-2242 (866) 627-3509 (fax)

COUNSEL FOR RELATOR ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL As required by Texas Rule of Appellate Procedure 52.3(a), Relator hereby identifies all parties and their appellate and trial counsel as well as other parties to the trial court’s order: RELATOR APPELLATE COUNSEL Frances Spanos Shelton Kirk L. Pittard (“Fran”) State Bar No. 24010313 Rick Thompson State Bar No. 00788537 DURHAM, PITTARD & SPALDING, LLP P.O. Box 224626 Dallas, Texas 75222 (214) 946-8000 (214) 946-8433 (fax) TRIAL & APPELLATE COUNSEL Craig D. Cherry State Bar No. 24012419 [email protected] Ryan C. Johnson State Bar No. 24048574 [email protected] Scott H. James State Bar No. 24037848 [email protected] CHERRY JOHNSON SIEGMUND JAMES, PLLC 7901 Fish Pond Road, 2nd Floor Waco, Texas 76710 (254) 732-2242

ii IDENTITY OF PARTIES AND COUNSEL (CONT’D)

REAL PARTIES IN INTEREST TRIAL & APPELLATE COUNSEL Vernon Leuschner Andy McSwain State Bar No. 1361100 [email protected] Mark E. Firmin State Bar No. 24099614 [email protected] BEARD KULTGEN BROPHY BOSTWICK & DICKSON PLLC South 4th Street Waco, Texas 76701 (254) 776-5500 (254) 776-3591 (fax) Robert Spanos, Christopher Spanos, Jim Dunnam Katherine Leuschner, and State Bar No. 06258010 Katherine Nicole Lawrie [email protected] Andrea Mehta State Bar No. 24078992 [email protected] Mason Vance Dunnam State Bar No. 24108079 [email protected] DUNNAM & DUNNAM LLP 4125 West Waco Drive Waco, Texas 76710 (254) 753-6437 (254) 753-7434 (fax)

iii IDENTITY OF PARTIES AND COUNSEL (CONT’D) RESPONDENT Hon. Judge Ryan Luna 414th Judicial District Court of McLennan County Washington Avenue Suite 307 Waco, TX 76701 [email protected]

APPOINTED RECEIVER Aubrey R. Williams Law Office of Aubrey R. Williams P.O. Box 20156 Waco, Texas 76702 (254) 722-3331 [email protected]

iv TABLE OF CONTENTS Page(s) Identity of Parties and Counsel............................................................................ ii Table of Authorities ............................................................................................ viii Statement of the Case ........................................................................................ xvii Statement of Jurisdiction ......................................................................................xx Statement Regarding Oral Argument .............................................................. xxi Issues Presented ................................................................................................. xxii Statement of the Record ................................................................................... xxiii Introduction ............................................................................................................. 1 Statement of Facts ................................................................................................... 2 Summary of the Argument .................................................................................... 9 Argument and Authorities .................................................................................. 10 I. The District Court’s Order Appointing Receiver Is Void Because It Enforces Aspects of Orders Issued by County Court at Law No. 1, Which Had No Jurisdiction Over Trust Disputes ........................................................................................................13 A. County Court at Law No. 1 Had No Jurisdiction Over the Administration of a Trust in 2022 ................................. 13 1. Section 25.1572 of the Texas Government Code Did Not Confer Jurisdiction on County Court at Law No. 1 to Exercise Jurisdiction Over Disputes Involving the Trust ................................................................... 14 2. County Court at Law No. 1 Did Not Have Original Probate Jurisdiction Over the Trust Claims............................. 14

v TABLE OF CONTENTS (CONT’D) Page(s) 3. The County Court at Law No. 1 Did Not Have Pendent or Ancillary Jurisdiction Over the Trust Claims ....................................................................................... 16 B. Assuming Arguendo the County Court at Law No. 1 Had Some Sort of Ancillary Jurisdiction Over the Trust Claims, the County Court Lost That Jurisdiction No Later Than May 18, 2022 ..................................... 19 II. The Real Parties in Interest Failed to Present Any Evidence to Support the Appointment of a Receiver Under Texas Law ................................................................................................................21 A. The Appointment of a Receiver Under Texas Civil Practice and Remedies Code § 64.001 Was an Abuse of Discretion Because the Appointment Was Not Supported by Any Evidence ........................................................... 22 1. Section 64.001(a)(2) does not apply here ....................... 23 2. Section 64.001(a)(3) does not authorize the district court’s appointment of the receiver.................... 25 3. Section 64.001(a)(6) does not authorize the district court’s appointment of the receiver either ............................................................................... 29 B. The Appointment of a Receiver Under Texas Property Code § 114.008 Was an Abuse of Discretion as Well ................................................................................................ 33 C. The “Rules of Equity” Did Not Justify the Appointment of the Receiver.......................................................... 36 D. Mandamus Relief Is Proper Because the Benefits of Review at This Time Outweigh Any Detriments of Immediate Review............................................................................ 38 vi TABLE OF CONTENTS (CONT’D) Page(s) III. The Order Appointing Receiver Requires Fran to Pay the Bills of the Trust, Which Violates Texas Law and Results in an Unconstitutional Taking of Fran’s Property ..................................... 39 IV. The Order Appointing Receiver Also Improperly Enjoins any Beneficiary from Directly or Indirectly Taking Any Actions That Would Hinder the Receiver from Selling Trust Property ............................................................................................. 41 V. Mandamus Relief Is Not Barred by Principles of Equity ..................... 42 Conclusion and Prayer ......................................................................................... 44 Texas Rule of Appellate Procedure 52.3(j) Certification ................................. 46 Certificate of Compliance .................................................................................... 46 Certificate of Service ............................................................................................. 47

vii TABLE OF AUTHORITIES Cases Page(s) Abila v. Miller, 683 S.W.3d 842 (Tex. App.—Austin 2023, no pet.).................25 Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) ..............................12 Benefield v. State, 266 S.W.3d 25 (Tex. App.—Houston [1st Dist.] 2008, no pet.) ...................................... 32, 38 Bridas Corp. v. Unocal Corp., 16 S.W.3d 887 (Tex. App.—Houston [14th Dist.] 2000, writ dism’d w.o.j.) ........................42 Brown v. Peters, 94 S.W.2d 129 (Tex. Comm’n App. 1936) ..............................13 Castaneda v. Chapa, No. 13-22-00537-CV, 2024 WL 2197216 (Tex. App.—Corpus Christi-Edinburg May 16, 2024, pet. denied) ............17 City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014) .....................................40 Commons of Lake Houston, Ltd. v. City of Houston, 711 S.W.3d 666 (Tex. 2025) ................................................................................40 CSR Ltd. v. Link, 925 S.W.2d 591 (Tex. 1996) .....................................................39 Elliott v. Weatherman, 396 S.W.3d 224 (Tex. App.—Austin 2013, no pet.) ............................................................ 12, 22 Estate of Benson, No. 04-15-00087-CV, 2015 WL 5258702 (Tex. App.—San Antonio Sept. 9, 2015, pet. dism’d) ...................................22 Estate of Hoskins, 501 S.W.3d 295 (Tex. App.—Corpus Christi-Edinburg 2016, orig. proceeding) ..................34 Estate of Martinez, No. 01-18-00217-CV, 2019 WL 1442100 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.).................................23

viii TABLE OF AUTHORITIES (CONT'D) Cases (cont'd) Page(s) Estate of Price, 528 S.W.3d 591 (Tex. App.—Texarkana 2017, no pet.) ...........31 Estate of Vines, No. 01-21-00003-CV, 2022 WL 1085624 (Tex. App.—Houston [1st Dist.] Apr. 12, 2022, no pet.)...............................22 Ex parte Fernandez, 645 S.W.2d 636 (Tex. App.—El Paso 1983, no writ) .......11 Fallon v. MD Anderson Physicians Network, 586 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) ......................................25 Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813 (Tex. App.—Fort Worth 2008, no pet.) ................................27 Floyd v. MMWKM Advisors, LLC, No. 05-23-00638-CV, 2024 WL 549036 (Tex. App.—Dallas Feb. 12, 2024, no pet.) ........................23 Fortis Benefits v. Cantu, 234 S.W.3d 642 (Tex. 2007) ..........................................31 Franks v. Hovey, No. 10-18-00218-CV, 2022 WL 395228 (Tex. App.—Waco Feb. 9, 2022, pet. denied) .................................................12 Gilbreath v. Horan, 682 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2023, pet. denied) ......................................38 Goodman v. Summit at West Rim, Ltd., 952 S.W.2d 930 (Tex. App.—Austin 1997, no pet.) ............................................................ 19, 20 Greiner v. Jameson, 865 S.W.2d 493 (Tex. App.—Dallas 1993, writ denied)............................................................42 Guardianship of Fairley, 650 S.W.3d 372 (Tex. 2022) ..........................................20 In re AutoZoners, LLC, 694 S.W.3d 219 (Tex. 2024) .................................... 11, 21

ix TABLE OF AUTHORITIES (CONT'D) Cases (cont'd) Page(s) In re Bent, 487 S.W.3d 170 (Tex. 2016).................................................................10 In re Breviloba, LLC, 650 S.W.3d 508 (Tex. 2022) ................................................13 In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) ................................................................................10 In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (per curiam)........................................................................11 In re Estate of Hallmark, 629 S.W.3d 433 (Tex. App.—Eastland 2020, no pet.) ................................................................17 In re Estate of Martinez, No. 01-18-00217-CV, 2019 WL 1442100 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.).................................30 In re Giles, 675 S.W.3d 37 (Tex. App.—Corpus Christi-Edinburg 2023, orig. proceeding) ..................43 In re Harrison, No. 14–15–00370–CV, 2015 WL 5935816 (Tex. App.—Houston [14th Dist.] Oct. 13, 2015, orig. proceeding) ............11 In re Int’l Profit Assocs., Inc., 274 S.W.3d 672 (Tex. 2009) .................................42 In re Kelly, 399 S.W.3d 282 (Tex. App.—San Antonio 2012, orig. proceeding) ........................................42 In re McCray, No. 05–13–01195–CV, 2013 WL 5969581 (Tex. App.—Dallas Nov. 7, 2013, orig. proceeding) .....................................11 In re Panchakarla, 602 S.W.3d 536 (Tex. 2020) (orig. proceeding) (per curiam)........................................................................11

x TABLE OF AUTHORITIES (CONT'D) Cases (cont'd) Page(s) In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) .............................10 In re Southwestern Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000) (orig. proceeding) (per curiam)................................................................. 11, 18 In re Tex. Conference of Seventh-Day Adventists, 652 S.W.3d 136 (Tex. App.—Fort Worth 2022, orig. proceeding) ..........................................18 In re Toyota Motor Corp., No. 10–11–00050–CV, 2011 WL 5830468 (Tex. App.—Waco Nov. 16, 2011, orig. proceeding) ....................................19 In re Vaishangi, Inc., 442 S.W.3d 256 (Tex. 2014) (orig. proceeding) (per curiam)........................................................................11 In re Valliance Bank, 422 S.W.3d 722 (Tex. App.—Fort Worth 2012, orig. proceeding) ..........................................43 Interest of J.S., 670 S.W.3d 591 (Tex. 2023) ..........................................................29 Jay & VMK, Corp. v. Lopez, 572 S.W.3d 698 (Tex. App.—Houston [14th Dist.] 2019, no pet.) ...........................................24 Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) ....................27 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1995) .......................10 Junkin v. Sterchi Furniture Co., 92 S.W.2d 1098 (Tex. Civ. App.—San Antonio 1936, no writ) ................................................24 Krumnow v. Krumnow, 174 S.W.3d 820 (Tex. App.—Waco 2004, pet. denied) .............................................................21

xi TABLE OF AUTHORITIES (CONT'D) Cases (cont'd) Page(s) Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995) ................................................................................31 Lawton v. Lawton, No. 01–12–00932–CV, 2014 WL 3408699 (Tex. App.—Houston [1st Dist.] Jul. 10, 2014, no pet.) .................................20 Matter of Bumstead Family Irrevocable Trust, No. 13-20-00350-CV, 2022 WL 710159 (Tex. App.—Corpus Christi-Edinburg Mar. 10, 2022, pet. denied) ................................................................................32 Matter of Marriage of Pinkston and Smith, No. 12-24-00185-CV, 2024 WL 3858474 (Tex. App.—Tyler Aug. 15, 2024, no pet.) ......................21 Mexico Foods Holdings, LLC v. Nafal, No. 05-23-00108-CV, 2023 WL 6284705 (Tex. App.—Dallas 2023, no pet.) ....................................12 Moody Nat’l Bank v. Moody, No. 14-21-00096-CV, 2022 WL 14205534 (Tex. App.—Houston [14th Dist.] Oct. 25, 2022, pet. denied) .....................34 Mueller v. Beamalloy, Inc., 994 S.W.2d 855 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ....................................... 12, 30 Pajooh v. Royal West Invs. LLC, Series E, 518 S.W.3d 557 (Tex. App.—Houston [1st Dist.] Mar. 30, 2017, no pet.) ..............................33 Peek v. Mayfield, No. 02-22-00492-CV, 2023 WL 5967886 (Tex. App.—Fort Worth Sept. 14, 2023, pet. denied) ....................................34 Rivercenter Assocs. v. Rivera, 858 S.W.2d 366 (Tex. 1993) (orig. proceeding) ..........................................................................42 Rogers v. Daniel Oil & Royalty Co., 110 S.W.2d 891 (Tex. 1937) .......................37 xii TABLE OF AUTHORITIES (CONT'D) Cases (cont'd) Page(s) Safeco Ins. Co. of Am. v. Clear Vision Windshield Repair, LLC, 564 S.W.3d 913 (Tex. App—Houston [14th Dist.] 2018, no pet.) ................12 San Antonio River Auth. v. Austin Bridge & Road, L.P., 601 S.W.3d 616 (Tex. 2020) ................................................................................20 Schuchmann v. Schuchmann, 193 S.W.3d 598 (Tex. App.—Fort Worth 2006, pet. denied) ....................................................17 Schuld v. Dembrinski, 12 S.W.3d 485 (Tex. App.—Dallas 2000, no pet.) ........20 Spiritas v. Davidoff, 459 S.W.3d 224 (Tex. App.—Dallas 2015, no pet.) ..........21 TC & C Real Estate Holdings, Inc. v. ETC Katy Pipeline, Ltd., No. 10–16–00134–CV, 2017 WL 7048923 (Tex. App.—Waco Dec. 20, 2017, pet. denied)...............................................12 Tex. Unemployment Comp. Comm’n v. Metropolitan Bldg. & Loan Ass’n, 139 S.W.2d 309 (Tex. Civ. App.—Austin 1940, writ ref’d)...........................37 Thompson v. Consolidated Gas Util. Corp., 300 U.S. 55 (1937) ............................40 Thompson v. Winkelmann, No. 01-06-00457-CV, 2008 WL 921041 (Tex. App.—Houston [1st Dist.] Apr. 3, 2008, no pet.).................................40 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) .....................................................11 Welch v. Milton, 185 S.W.3d 586 (Tex. App.—Dallas 2006, pet. denied) ............................................................27 Zimmerman v. Ottis, 941 S.W.2d 259 (Tex. App.—Corpus Christi 1996, orig. proceeding) ....................................43

xiii TABLE OF AUTHORITIES (CONT'D) Statutes Page(s) TEX. CIV. PRAC. & REM. CODE § 51.014(a) ............................................................41 TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1) .........................................................7 TEX. CIV. PRAC. & REM. CODE § 64.001 ......................................................... 22, 33 TEX. CIV. PRAC. & REM. CODE § 64.001(a) ............................................................30 TEX. CIV. PRAC. & REM. CODE § 64.001(a)(2) ................................................ 23, 24 TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3) .......................................... 23, 25, 30 TEX. CIV. PRAC. & REM. CODE § 64.001(a)(6) .......................................... 23, 29, 30 TEX. CIV. PRAC. & REM. CODE § 64.001(b) ............................................... 23-25, 30 TEX. ESTATES CODE § 31.002(a) .............................................................................15 TEX. ESTATES CODE § 32.001(b) ...................................................................... 16, 19 TEX. ESTATES CODE § 31.002(b)(2) ........................................................................15 TEX. ESTATES CODE § 31.002(b)(3) ........................................................................15 TEX. ESTATES CODE § 31.002 ..................................................................................14 TEX. ESTATES CODE § 32.001(a) .............................................................................14 TEX. GOV’T CODE § 22.220(d) ................................................................. xiii, xiv, 8 TEX. GOV’T CODE § 22.221(c)............................................................................... xiii TEX. GOV’T CODE § 22.221(c-1) ............................................................... xiii, xiv, 8 xiv TABLE OF AUTHORITIES (CONT'D) Statutes (cont'd) Page(s) TEX. GOV’T CODE § 22.201(p) .............................................................................. xiii TEX. GOV’T CODE § 25.003 ............................................................................... 9, 14 TEX. GOV’T CODE § 25.0003(e) ................................................................................1 TEX. GOV’T CODE § 25.0003(d) ................................................................................1 TEX. GOV’T CODE §§ 25.0041-.2512.......................................................................13 TEX. GOV’T CODE §§ 25.1571-.1572.......................................................................14 TEX. GOV’T CODE § 25.1572 ....................................................................................9 TEX. GOV’T CODE § 73.001(a)...................................................................................8 TEX. GOV’T CODE § 311.011(a) ..............................................................................29 TEX. GOV’T CODE § 311.021(2) ..............................................................................29 TEX. GOV’T CODE § 312.005 ...................................................................................29 TEX. PROP. CODE § 114.008(a)(5).............................................................. 22, 33, 34 Other Authorities BLACK’S LAW DICTIONARY (12th ed. 2024) ................................................... 18, 36 TEX. CONST. art. 1, § 17(a) .....................................................................................40 Rules TEX. R. APP. P. 28.1 ...................................................................................................7 xv TABLE OF AUTHORITIES (CONT'D) Rules (cont'd) Page(s) TEX. R. APP. P. 29.3 ...................................................................................................7 TEX. R. APP. P. 52.3(k) ......................................................................................... xvii TEX. R. APP. P. 52.7 .............................................................................................. xvii

xvi STATEMENT OF THE CASE Nature of the Case: This case arises from a dispute regarding administration of the Dorothy Spanos Living Trust (“Trust”) (Tab B) (CR 460- 552).

This mandamus arises from the district court’s order appointing a receiver, which gives effect to earlier void orders issued by the County Court at Law No. 1 of McLennan County. Those orders appointed former Judge Robert Stem as trust advisor, who then removed Ms. Frances Spanos Shelton (“Fran”) as trustee of the Trust.

Respondent District Court: Hon. Judge Ryan Luna, 414th Judicial District Court of McLennan County Course of Proceedings: Fran, the original trustee following the death of Ms. Spanos, sued for the removal of her successor trustee, Mr. John Malone, due to his alleged breaches of fiduciary duties and moved to reinstate herself as trustee. In turn, Real Parties in Interest sued Fran for alleged breaches of trust during her prior tenure as trustee.

Mr. Malone resigned as trustee. The Real Parties moved for the appointment of a receiver over the Trust.

Disposition: On March 2, 2025, following a hearing on the motions, the district court issued its Order Appointing Receiver. See Tab A (CR 1291-99). xvii STATEMENT OF THE CASE (CONT’D) Fran filed an interlocutory appeal in the Waco Court of Appeals and sought temporary emergency relief from the Order Appointing Receiver, pending resolution of the appeal. The court granted the requested relief.

The Texas Supreme Court transferred the case from the Waco Court to this Court for purposes of docket equalization on May 1, 2025.

Although it has statewide jurisdiction, the Court’s authority to issue mandamus relief in cases over which it does not have exclusive appellate jurisdiction is not as clear. See TEX. GOV’T CODE §§ 22.201(p), 22.221(c), (c-1), 22.220(d).

Consequently, Fran filed her petition for writ of mandamus in the Waco Court and filed a motion to transfer this appeal back to the Waco Court for resolution of the related issues in a single forum. In its correspondence to the Supreme Court, the Court noted its belief that it may have jurisdiction to issue mandamus relief in a transferred case. The Supreme Court denied Fran’s motion to transfer and consolidate.

Given the Court’s belief that it may have jurisdiction to issue mandamus relief

xviii STATEMENT OF THE CASE (CONT’D) and the Supreme Court’s ruling, Fran, out of an abundance of caution, is filing this largely identical petition for writ of mandamus in this Court as well.

xix STATEMENT OF JURISDICTION Section 22.221(c-1) of the Texas Government Code provides that this Court’s jurisdiction “to issue writs is limited to writs arising out of matters over which the court has exclusive intermediate appellate jurisdiction under Section 22.220(d).” Section 22.220(d) does not expressly state that a case transferred for docket equalization purposes is part of the Court’s exclusive intermediate appellate jurisdiction. Thus, Relator filed her mandamus petition in the Waco Court along with a motion to transfer and consolidate the case in a single forum with jurisdiction to grant all of the relief sought— i.e., the Waco Court.

This Court corresponded with the Supreme Court and noted its belief that the Court may indeed have jurisdiction to grant mandamus relief in a case transferred for docket equalization purposes. Thereafter, the Supreme Court denied Fran’s motion to transfer and consolidate. Given the denial of the motion and this Court’s belief that it may possess jurisdiction to grant mandamus relief, Fran is filing her petition for writ of mandamus in this Court as well. The issues presented in this petition largely overlap with the issues presented in the interlocutory appeal already pending before this

xx Court and are identical to the issues in the mandamus action pending in the Waco Court.

STATEMENT REGARDING ORAL ARGUMENT Given the many moving parts and complex jurisdictional provisions at play in this case, Fran believes that oral argument will materially assist the Court in sorting through the underlying void orders that were issued years earlier by McLennan County Court of Law No. 1 and were given effect by the district court’s Order Appointing Receiver.

xxi ISSUES PRESENTED 1. Whether County Court of Law No. 1 had jurisdiction to issue orders in the case regarding the administration of Ms. Spanos’s Trust.

2. Whether the County Court at Law’s earlier orders are void.

3. If the County Court at Law’s orders are void, including the orders appointing Judge Stem as the trust advisor, the issue becomes whether all actions taken by Judge Stem as trust advisor, including the removal of Fran as trustee, are also void.

4. Whether Respondent’s Order Appointing Receiver, which gives effect to the void orders issued by the County Court at Law No. 1, is therefore void as well.

5. Whether the district court’s findings and conclusions in the Order Appointing Receiver are supported by any legally sufficient evidence, whether the district court abused its discretion by so ruling, and whether Fran has an adequate remedy by appeal from the court’s order.

6. Whether the Order Appointing Receiver would result in an unconstitutional taking of Fran’s property.

7. Whether Respondent abused its discretion by issuing its Order Appointing Receiver, which enjoined Fran from exercising her statutory right to challenge the rulings of the district court and the actions of the receiver.

8. Whether Respondent abused its discretion by issuing the Order Appointing Receiver.

xxii STATEMENT OF THE RECORD The Mandamus Record is identical to the materials presented in the attached Appendix. The Mandamus Record and Appendix contain sworn copies of the district court’s order appointing the receiver for the Trust, the document creating the Trust, the void orders of the county court at law on which the district court’s order is based, and other documents material to the legal issues presented. See TEX. R. APP. P. 52.3(k), 52.7. The documents in the mandamus record and appendix shall be referred to by tab letter and, when available, page numbers from the Clerk’s Record from the related interlocutory appeal pending in this Court—e.g., Tab A (CR 1291-99).

Fran opted not to attach all documents in the Clerk’s Record from the related interlocutory appeal because it is rather voluminous—i.e., it contains over 1,350 pages of documents. However, when necessary to provide the Court with background information, Fran refers the Court to cites from the clerk’s record on file in the related interlocutory appeal.

The Mandamus Record and Appendix also include a sworn copy of the transcript from the hearing on the parties’ motions to appoint a receiver and to designate a trustee. The transcript shall be referenced by tab letter and page number—e.g., Tab L at 3.

xxiii INTRODUCTION This is a complicated family dispute regarding the appointment of a receiver for the Dorothy Spanos Living Trust (“Trust”). This case is further complicated by the fact that County Court at Law No. 1 of McLennan County issued numerous orders in an earlier proceeding that purport to govern the current administration of the Trust—even though that court never had subject matter jurisdiction over the administration of the Trust. Fran attacks the district court’s Order Appointing Receiver as void because it gives effect to the void orders issued by the county court at law.

The court also abused its discretion by issuing the order appointing a receiver over certain real property in the Trust and directing the receiver to take possession of, and sell, that property because there is no evidence to support the district court’s findings or its order appointing the receiver. The Order Appointing Receiver also includes mandates that do not comport with Texas law or the state and federal constitutions. Thus, the Order Appointing Receiver, even if not void, constitutes an abuse of discretion for which there would be no adequate remedy on appeal, and the Court should grant conditional mandamus relief.

STATEMENT OF FACTS On December 19, 2007, Ms. Dorothy Spanos transferred much of her real and personal property into the Dorothy Spanos Living Trust. See Tab B (CR 467, 551). Ms. Spanos appointed herself trustee. See CR 466. She then appointed the Relator, her daughter Fran, to serve as co-trustee. Ms. Spanos named Fran’s husband, Mr. Ricky Shelton, to serve as substitute trustee, if necessary. Tab B (CR 470-71). Ms. Spanos did not appoint Ms. Katherine Leuschner, her other daughter and Appellee, to serve as trustee or substitute trustee. Ms. Spanos also signed the First Amendment to the Trust. See Tab C (CR 553-60). Upon Ms. Spanos’s death, Fran became the sole trustee.

In March 2022, Ms. Leuschner filed an application in the County Court at Law No. 1 of McLennan County for the appointment of Retired Judge Robert Stem as the temporary administrator of Ms. Spanos’s estate as well as the trust advisor for the Trust. See Tab D (CR 801-11). Under the terms of the Trust, a trust advisor acts as a “super-trustee” vested with the power to, among other things, remove a trustee with or without just cause, appoint a successor trustee, direct a trustee to execute any documents necessary to carry out his will, and, if any conflicts arise, overrule and trump the authority and actions of any trustee. See Tab B (CR 476-78).

On March 8, 2022, the county court at law entered an order appointing Judge Stem as the temporary administrator of Ms. Spanos’s estate and trust advisor to the Trust. See Tab E (CR 817-19). His term was set to expire on September 5, 2022. See Tab E (CR 817). On May 18, 2022, the county court at law discharged Judge Stem as the temporary administrator and ended the administration of the estate. See Tab F (CR 821-23). However, Judge Stem remained the purported trust advisor under the county court’s earlier order.

On September 1, 2022, the county court signed an order extending the appointment of Judge Stem as trust advisor until Judge Stem “determines that there no longer exists a necessity for a Trust Advisor, by agreement of the Parties, or if the Court, in the best interest of the Trust, determines cause exists for the removal of the Trust Advisor.” See Tab G (CR 827-28). On May 3, 2023, Judge Stem removed Fran as trustee of the Trust, skipped over Mr. Shelton, who was named the successor trustee by the terms of the Trust, and appointed his colleague Mr. John Malone, a Waco attorney, as the trustee.

See Tab H (CR 923).

On October 25, 2024, Fran filed the underlying lawsuit against Mr. Malone for breach of his fiduciary duties in the district court. See Tab I (CR 9-19). On February 3, 2025, the Real Parties in Interest filed a joint petition in intervention, seeking damages from Fran for alleged self-dealing and breaches of trust during her stint as trustee. See CR 385-569. On February 24, 2025, Mr. Malone resigned as trustee. See Tab J (CR 990). Thus, currently, the Trust is effectively without a trustee.

Fran filed a motion to re-affirm herself as Trustee or, in the alternative, to properly designate a trustee of the Trust. CR 787-928. On February 25, 2025, the Real Parties in Interest filed an application to appoint a receiver over all Trust property. See Tab K (CR 956-1019, 1061-65).

On March 4, 2025, the district court conducted an evidentiary hearing on the parties’ motions. See Tab L at 1. The Real Parties opened the hearing by calling Judge Stem as a witness. See Tab L at 77. Judge Stem is a highly esteemed, former judge in the Waco legal community, and his reputation and credentials followed him into the courtroom during the hearing. The district court permitted Judge Stem to testify, over Fran’s objections, as an apparent expert, albeit undesignated as such, on the legal effect of the Trust document, the jurisdiction of the county court at law that appointed him, the merits of Fran’s pending claims, and whether Fran’s attorneys violated professional legal ethics. See Tab L at 79, 93-95. The district court also permitted Judge Stem to admonish Fran and her attorneys in open court for filing the lawsuit to remove Mr. Malone as Trustee, which he considered “ridiculous, baseless, [and] spiteful lawsuit conduct.” Tab L at 101. Judge Stem also testified that he believed Fran’s actions violated the terms of the trust. See Tab L at 92, 101.

Judge Stem’s testimony at the hearing directly conflicted with prior statements that he made to Fran before she filed the motion to remove Mr. Malone as trustee (who Judge Stem appointed). Before Fran filed the motion to remove Mr. Malone, Judge Stem informed her that she was not being removed as trustee for cause, but rather to shield her from the “enormously difficult situation” she found herself in “through no fault of [her] own,” which was created by the actions of Ms. Leuschner, which Judge Stem characterized as “firing laser beams at [Fran].” Tab L at 103, 112.

Judge Stem ultimately conceded that his testimony in the district court conflicted with his remarks made many months earlier. See Tab L at 113.

Judge Stem also admitted that, even though he testified that an unidentified cause existed to remove Fran as trustee, he continued to allow Fran to “handle all the finances for the Trust” until a couple of months before the hearing—i.e., for almost a year and a half after she was removed by Judge Stem as trustee. See Tab L at 92, 116-17. The district court concluded the hearing following the testimony of Judge Stem and arguments of counsel.

See Tab L at 137. Fran was not similarly afforded the opportunity to present any witnesses, testimony, or other evidence on her behalf.

On March 31, 2025, based on the testimony of Judge Stem, the district court partially granted Real Parties in Interest’s motion for the appointment of a receiver and issued its Order Appointing Receiver. See Tab A (CR 1291- 99). The trial court made the following finding in support of its ruling: Due to the extraordinary controversy surrounding the sale of the Front 45 Acres, there is a material risk of harm, injury, damage and/or loss to the Property and/or Trust funds, as well as the various beneficiaries, if a Receiver is not appointed to carry out the terms of the Trust.

Tab A (CR 1292). The district court concluded that “[i]rreparable damage will ensue to the beneficiaries of the Trust unless there is an immediate sale of the Front 45 Acres pursuant to the terms of the Trust.” Tab A (CR 1292).

Although the Order Appointing Receiver is “supported” by 11 findings of fact and conclusions of law, the district court did not identify any alleged harm, damage, or loss to the property, trust funds, or the beneficiaries that would result from its failure to appoint a receiver. See Tab A (CR 1292).

The order directed the receiver to take possession of, and sell, the 45- acre tract of Trust property in Crawford, Texas. Tab A (CR 1291). The order effectively denied Fran’s motion to re-affirm or designate a trustee for the Trust. The district court appointed attorney Aubrey R. Williams to serve as the receiver. See Tab A (CR 1293).

The Order Appointing Receiver not only appointed the receiver and set forth his powers and obligations, but also directed Fran, who has been purportedly removed as Trustee by Judge Stem, to turn over “all documents and materials representing all interests of the Trust in the Front 45 Acres” within 10 days. Tab A (CR 1295). The Order also requires Fran, who is no longer a signatory on the Trust’s bank account, to “continue to make regular and routine payments of any bills or invoices incurred by the Trust in the ordinary course of business.” Tab A (CR 1295).

On April 3, 2025, Fran filed an interlocutory appeal from the district court’s Order Appointing Receiver in the Waco Court of Appeals. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1) (“A person may appeal from an interlocutory order of a district court . . . that appoints a receiver or trustee.”).

She concurrently filed an emergency motion for temporary relief because the order required her to pay the bills of the Trust even though she is neither a trustee nor a signatory to the Trust’s bank account. See TEX. R. APP. P. 28.1, 29.3. On April 9, 2025, the Waco Court granted the requested temporary relief and stayed the Order Appointing Receiver pending resolution of the appeal or further order of the court.

On May 1, 2025, the Texas Supreme Court transferred the appeal from the Waco Court to this Court for docket equalization. See TEX. GOV’T CODE § 73.001(a) (“Except as provided by Subsection (b), the supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.”).

Because this dispute involves jurisdictional challenges to the county court’s orders and involves requests for mandamus relief, Fran filed a motion to transfer the interlocutory appeal back to the Waco Court for the efficient resolution of these related disputes in a single forum. Fran feared that this Court may not have jurisdiction to grant the requested mandamus relief because the case did not appear to technically fall under this Court’s exclusive appellate jurisdiction. See TEX. GOV’T CODE 22.220(c-1),(d).

The Supreme Court ultimately denied Fran’s motion. Given counsel’s fear that the Court could resolve the interlocutory appeal without granting mandamus relief to remedy the void nature of the county court at law’s orders, and a paranoia that the Waco Court could deny the mandamus before them because of this Court’s representation to the Supreme Court that it may indeed have jurisdiction to grant mandamus relief—i.e., the existence of another potential appellate remedy—Fran is filing this largely duplicative petition for writ of mandamus in this Court as well.

SUMMARY OF THE ARGUMENT The County Court at Law No. 1 had no jurisdiction over the Trust or the related disputes when it issued its orders related to the administration of the Trust. In 2022, when it issued its order appointing Judge Stem as the trust advisor, county courts at law in McLennan County were permitted to exercise jurisdiction “in third degree felony cases” and were authorized to conduct arraignments, pretrial hearings, accept guilty pleas, and conduct probation revocation hearings in felony cases. TEX. GOV’T CODE § 25.1572 (2022). The county court also possessed jurisdiction over cases within its amount-in-controversy jurisdiction. TEX. GOV’T CODE § 25.003 (2022). The county court did not have jurisdiction to make rulings involving the administration of a trust.

Because the county court at law did not have jurisdiction, its orders appointing Judge Stem and extending his term as the trust advisor, and—as a consequence—all decisions made by Judge Stem on behalf of the Trust pursuant to those orders, are void. Although these orders were issued, and acts were taken, in 2022 and 2023, the district court’s Order Appointing Receiver adopts and incorporates aspects of the 2022 and 2023 orders issued by the county court at law. The district court’s order is, therefore, void as well.

Mandamus relief is the proper remedy for the issuance of void orders.

This Court should make clear that the orders of the County Court at Law No. 1, the actions taken by Judge Stem, and the district court’s order were all void. The Court should grant conditional mandamus relief.

ARGUMENT AND AUTHORITIES To obtain mandamus relief, a relator normally must show that the trial court abused its discretion and that it has no adequate appellate remedy. See In re Bent, 487 S.W.3d 170, 177-78 (Tex. 2016); In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209 (Tex. 2009). A trial court abuses its discretion when it makes a ruling “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1995). A relator has an adequate remedy by appeal when the benefits from mandamus review are outweighed by the detriments from immediate review. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004).

A court also abuses its discretion if it issues an order that exceeds its jurisdiction. Such an order is considered void ab initio, and mandamus relief is the proper remedy. See In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020) (orig. proceeding) (per curiam); In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam); In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998) (orig. proceeding) (per curiam). In seeking relief from a void order, a relator need not show that she lacks an adequate remedy by appeal. In re Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (orig. proceeding) (per curiam); In re Southwestern Bell Tel. Co., 35 S.W.3d at 605. Mandamus relief also protects a relator from an order that enforces another void order.

See Ex parte Fernandez, 645 S.W.2d 636, 639 (Tex. App.—El Paso 1983, no writ); In re Harrison, No. 14–15–00370–CV, 2015 WL 5935816, at *5 (Tex. App.—Houston [14th Dist.] Oct. 13, 2015, orig. proceeding); In re McCray, No. 05–13–01195–CV, 2013 WL 5969581, at *2 (Tex. App.—Dallas Nov. 7, 2013, orig. proceeding).

Finally, a court abuses its discretion if no evidence supports a finding of fact upon which its ruling rests. See In re AutoZoners, LLC, 694 S.W.3d 219, (Tex. 2024); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A district court’s findings and conclusions in support of the appointment of a receiver “are not binding on [this Court] but may be helpful in determining if the trial court exercised its discretion in a reasonable and principled fashion.” Mexico Foods Holdings, LLC v. Nafal, No. 05-23-00108-CV, 2023 WL 6284705, at *4 (Tex. App.—Dallas 2023, no pet.); see Elliott v. Weatherman, 396 S.W.3d 224 at 228. Such findings “do not carry the same weight on appeal as findings made under rule 296,” even if they are not challenged on appeal. Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 858–59 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

If challenged, however, as they are in this case, the Court reviews the findings by the standards used for reviewing the sufficiency of the evidence.

See Franks v. Hovey, No. 10-18-00218-CV, 2022 WL 395228, at *5 (Tex. App.— Waco Feb. 9, 2022, pet. denied); Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). A legal sufficiency challenge to findings of fact fails if there is more than a scintilla of evidence to support the findings. See Safeco Ins. Co. of Am. v. Clear Vision Windshield Repair, LLC, 564 S.W.3d 913, 918-19 (Tex. App—Houston [14th Dist.] 2018, no pet.); TC & C Real Estate Holdings, Inc. v. ETC Katy Pipeline, Ltd., No. 10–16–00134–CV, 2017 WL 7048923, at *1 (Tex. App.—Waco Dec. 20, 2017, pet. denied). No evidence supports the district court’s key findings of fact.

I. THE DISTRICT COURT’S ORDER APPOINTING RECEIVER IS VOID BECAUSE IT ENFORCES ASPECTS OF ORDERS ISSUED BY COUNTY COURT AT LAW NO. 1, WHICH HAD NO JURISDICTION OVER TRUST DISPUTES.

Pursuant to the terms of the Trust, a trust advisor “must be appointed by a court of competent jurisdiction on petition of a Trustee or beneficiary.”

Tab B (CR 845). Although the Real Parties stated in their application for the appointment of a trust advisor that County Court at Law No. 1 was a court of competent jurisdiction to hear their action, it clearly was not. CR 801; see Brown v. Peters, 94 S.W.2d 129, 130 (Tex. Comm’n App. 1936) (jurisdiction is based on allegations in the petition unless a lack of jurisdiction is apparent from the face of the petition).

A. County Court at Law No. 1 Had No Jurisdiction Over the Administration of a Trust in 2022.

County courts at law in Texas have varying jurisdictions dependent on statutes enacted by the Legislature. See In re Breviloba, LLC, 650 S.W.3d 508, (Tex. 2022) (citing TEX. GOV’T CODE §§ 25.0041-. 2512). No statute in effect in 2022 conferred jurisdiction on McLennan County Court at Law No. 1 to exercise jurisdiction over cases involving the administration of a trust.

1. Section 25.1572 of the Texas Government Code Did Not Confer Jurisdiction on County Court at Law No. 1 to Exercise Jurisdiction Over Disputes Involving the Trust.

In 2022, a county court in McLennan County had “jurisdiction in third degree felony cases,” as well as authority “to conduct arraignments, conduct pretrial hearings, accept guilty pleas, and conduct probation revocation hearings in felony cases.” TEX. GOV’T CODE §§ 25.1571-.1572 (2022). The county court also possessed limited amount-in-controversy jurisdiction. See TEX. GOV’T CODE § 25.0003 (2022). Cases involving the administration of a trust were not within the jurisdiction that was expressly granted to County Court at Law No. 1 by statute.

2. County Court at Law No. 1 Did Not Have Original Probate Jurisdiction Over the Trust Claims.

Ms. Leuschner moved to appoint Judge Stem as trust advisor while her motion for a temporary administration of Ms. Spanos’s estate was before the country court at law. Thus, the county court at law was exercising probate jurisdiction. 1 The county court at law’s probate jurisdiction included “all matters related to probate proceedings” as specified in Section 31.002 of the Estates Code. See TEX. ESTATES CODE §§ 31.002, 32.001(a). Section 31.002(a)

1 County Court at Law No. 1 had probate jurisdiction because McLennan County did not have a statutory probate court. See TEX. GOV’T CODE § 25.0003(d), (e). defines “matters related to probate proceedings” to include many different types of claims; however, a claim related to trust administration is not one of them. 2 Section 31.002(b)(2) states that matters related to probate proceedings include “the interpretation and administration of a testamentary trust if the will creating the trust has been admitted to probate in the court.” TEX. ESTATES CODE § 31.002(b)(2) (emphasis added). Section 31.002(b)(3) provides that matters related to probate proceedings include “the interpretation and administration of an inter vivos trust created by a decedent whose will has been admitted to probate in the court.” TEX. ESTATES CODE § 31.002(b)(3) (emphasis added). Section 31.002(b)(3) is the only basis that even arguably vests the county court at law with jurisdiction over Ms. Leuschner’s 2002 trust claims; however, at bottom, that section does not apply either.

2 Section 31.002 defines matters related to a probate proceeding to include: (1) an action against a personal representative or former personal representative arising out of the representative’s performance of the duties of a personal representative; (2) an action against a surety of a personal representative or a former personal representative; (3) a claim brought by a personal representative on behalf of an estate; (4) an action brought against a personal representative in his capacity as personal representative; (5) an action for trial of title to real property that is estate property, including the enforcement of a lien against the property; and (6) an action for trial of the right of property that is estate property. TEX. ESTATES CODE § 31.002(a).

On March 2, 2022, Ms. Leuschner filed a motion for the appointment of a temporary administrator for Ms. Spanos’s estate and for appointment of a trust advisor. Tab D (CR 801-11). Although the Dorothy Spanos Living Trust is an inter vivos trust, Ms. Spanos’s will has never been admitted to probate in any court. Tab D (CR 803) (“Applicant is not contesting the validity of the Will.”).

Indeed, Ms. Leuschner recognized as much when, on September 17, 2025, she filed an application to probate Ms. Spanos’s will and to appoint yet another temporary administrator of Ms. Spanos’s estate. See Tab M. Thus, Ms. Leuschner’s claim seeking the appointment of a trust advisor in 2022, was not a matter related to a probate proceeding as a matter of law, and the county court did not have probate jurisdiction over the trust claims.

3. The County Court at Law No. 1 Did Not Have Pendent or Ancillary Jurisdiction Over the Trust Claims.

Statutory county courts acting as probate courts can exercise “pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy.” TEX. ESTATES CODE § 32.001(b). However, the county court at law

could not exercise pendant or ancillary jurisdiction over Ms. Leuschner’s trust claims. 3 A county court exercising its original probate jurisdiction may exercise pendent or ancillary jurisdiction “when a close relationship exists between the non-probate claims and the matter pending in the probate court” and doing so “will aid in the efficient administration of a matter pending in the probate court.” Schuchmann v. Schuchmann, 193 S.W.3d 598, 603 (Tex. App.— Fort Worth 2006, pet. denied); see In re Estate of Hallmark, 629 S.W.3d 433, 438 (Tex. App.—Eastland 2020, no pet.). A close relationship between probate and non-probate proceedings exists, for example, when the matters involve the same parties, the same causes of action, and the same underlying facts.

See, e.g., Castaneda v. Chapa, No. 13-22-00537-CV, 2024 WL 2197216, at *5 (Tex. App.—Corpus Christi-Edinburg May 16, 2024, pet. denied).

The County Court at Law No. 1’s exercise of jurisdiction over the trust claims did not and could not have “aid[ed] in the efficient administration of”

3 In its order appointing the trust advisor, the County Court at Law No. 1 never stated that, and likely never considered whether, it had jurisdiction over the Trust. Rather, the court found “that this Court has jurisdiction and venue over this estate, and the interest of this estate and trust requires the immediate appointment of a Temporary Administrator and Trust Advisor.” Tab E (emphasis added) (CR 817). This language suggests that the county court knew it lacked jurisdiction over the Trust and, at best, simply assumed ancillary jurisdiction over the trust claims. any estate claims. Ms. Spanos’s will is a simple “pourover will”—i.e., a “will giving money or property to an existing trust.” Tab D (CR 802-03); BLACK’S LAW DICTIONARY Will (12th ed. 2024). Thus, the only administration of the estate that was required was the transfer of Ms. Spanos’s assets that had not already been transferred to the Trust into the Trust.

Ms. Leuschner’s claims, on the other hand, related to the temporary administration of the Trust and were not related to the estate proceedings before the county court. The administration of the Trust did not aid in Judge Stem’s administration of the estate—i.e., collecting, accounting for, or transferring the remaining assets in Ms. Spanos’s estate to the Trust.

Although Ms. Leuschner asserted estate and trust claims in the county court that involved some of the same parties, those claims sought to enforce two different documents that governed different parties and different property, and those two documents were written to serve two very different functions.

For these reasons, the county court’s exercise of pendant or ancillary jurisdiction over Ms. Leuschner’s trust claims would not have been proper.

See In re Southwestern Bell Tel. Co., 35 S.W.3d at 605; In re Tex. Conference of Seventh-Day Adventists, 652 S.W.3d 136, 142 (Tex. App.—Fort Worth 2022, orig. proceeding); In re Toyota Motor Corp., No. 10–11–00050–CV, 2011 WL 18 5830468, at *1 (Tex. App.—Waco Nov. 16, 2011, orig. proceeding). Because the county court had no jurisdiction over the trust claims, no pendent or ancillary jurisdiction, and the district court’s Order Appointing Receiver incorporates and gives effect to the county court’s void orders, its order is likewise void, and this Court should grant conditional mandamus relief. 4 B. Assuming Arguendo the County Court at Law No. 1 Had Some Sort of Ancillary Jurisdiction Over the Trust Claims, the County Court Lost That Jurisdiction No Later Than May 18, 2022.

Assuming arguendo that County Court at Law No. 1 could have exercised pendant or ancillary jurisdiction over the trust claims, the court lost authority to exercise such jurisdiction no later than May 18, 2022—i.e., the date on which the county court discharged Judge Stem as the temporary administrator and terminated the temporary administration of Ms. Spanos’s estate.

“In Texas, the pendency of a probate proceeding is a requisite for a court’s exercise of jurisdiction over matters related to it.” Goodman v. Summit at West Rim, Ltd., 952 S.W.2d 930, 933 (Tex. App.—Austin 1997, no pet.) (applying the predecessor to Section 32.001(b) of the Estates Code); see Schuld

The district court’s Order Appointing Receiver acknowledges, sanctions, and approves the county court at law’s appointment of Judge Stem as trust advisor and the county court’s extension of his service as trust advisor. See CR 1292, 1295. v. Dembrinski, 12 S.W.3d 485, 487 (Tex. App.—Dallas 2000, no pet.). Once an estate is closed, a court loses any probate or ancillary jurisdiction over any claims. See Lawton v. Lawton, No. 01–12–00932–CV, 2014 WL 3408699, at *2 (Tex. App.—Houston [1st Dist.] Jul. 10, 2014, no pet.); Dembrinski, 12 S.W.3d at 487; Goodman, 952 S.W.2d at 933.

County Court at Law No. 1 signed an Agreed Order Approving the Discharge of the Temporary Administrator and Termination of Temporary Administration on May 18, 2022. Tab F (CR 821-23). On that date, County Court at Law No. 1 terminated its jurisdiction over the probate proceeding and lost any pendant or ancillary jurisdiction. See Goodman, 952 S.W.2d at 933; Lawton, 2014 WL 3408699, at *2; Dembrinski, 12 S.W.3d at 487. As a result, the County Court at Law No. 1’s September 1, 2022, Agreed Order to Extend the Appointment of Judge Stem as the trust advisor is void for want of jurisdiction, as are his acts taken after September 1, 2022, including the removal of Fran as trustee on May 3, 2023. See Tab G (CR 827-28).5

5 In the district court, the Real Parties made much of the fact that this order was agreed; however, that fact is irrelevant because “subject-matter jurisdiction cannot be conferred on a court by consent or waiver.” Guardianship of Fairley, 650 S.W.3d 372, 379 (Tex. 2022); see San Antonio River Auth. v. Austin Bridge & Road, L.P., 601 S.W.3d 616, 627 (Tex. 2020).

Although the Real Parties relied on Guardianship of Fairley to support their argument that the agreed order somehow vested the county court with jurisdiction, that case is totally distinguishable because the county court here, unlike the court in Guardianship of Fairley, formally terminated the administration of the estate.

Because the County Court at Law No. 1 could not exercise jurisdiction over Ms. Leuschner’s trust claims, its appointment of Judge Stem is void, its order extending Judge Stem’s tenure as trust advisor is void, Judge Stem’s removal of Fran as trustee is void, and the district court’s order giving effect to those orders is likewise void. Accordingly, this Court should grant mandamus relief to vacate these void acts and orders.

II. THE REAL PARTIES IN INTEREST FAILED TO PRESENT ANY EVIDENCE TO SUPPORT THE APPOINTMENT OF A RECEIVER UNDER TEXAS LAW.

In Texas, a court’s appointment of a receiver is a “harsh, drastic, and extraordinary remedy,” which district courts should be “particularly loathe to utilize.” Matter of Marriage of Pinkston and Smith, No. 12-24-00185-CV, 2024 WL 3858474, at *2 (Tex. App.—Tyler Aug. 15, 2024, no pet.); see Spiritas v. Davidoff, 459 S.W.3d 224, 232 (Tex. App.—Dallas 2015, no pet.); Krumnow v. Krumnow, 174 S.W.3d 820, 828 (Tex. App.—Waco 2004, pet. denied). The district court’s appointment of Mr. Williams to serve as receiver and sell the front 45-acres of Trust property, and its findings of fact and conclusions, are not supported by any evidence. Rulings made with no evidence to support the findings and conclusions upon which the rulings rest constitute abuses of discretion that support mandamus relief. See In re AutoZoners, LLC, 694 S.W.3d at 223.

The Real Parties sought the appointment of a receiver under Texas Civil Practice & Remedies Code § 64.001 and Property Code § 114.008(a)(5).

See Tab K (CR 957-62, 1061-62). As requested by the Real Parties and Judge Stem, see Tab L at 101, the district court appointed a receiver “[p]ursuant to Texas Civil Practice & Remedies Code § 64.001, Texas Property Code § 114.008(a)(5), and/or the rules of equity.” Tab A (CR 1292).

The parties seeking the appointment of the receiver, in this case the Real Parties, had the burden “to demonstrate that the circumstances justify the appointment of a receiver.” Estate of Vines, No. 01-21-00003-CV, 2022 WL 1085624, at *5 (Tex. App.—Houston [1st Dist.] Apr. 12, 2022, no pet.); see Estate of Benson, No. 04-15-00087-CV, 2015 WL 5258702, at *5 (Tex. App.— San Antonio Sept. 9, 2015, pet. dism’d); Elliott v. Weatherman, 396 S.W.3d 224, 230 (Tex. App.—Austin 2013, no pet.). That burden was never met.

A. The Appointment of a Receiver Under Texas Civil Practice and Remedies Code § 64.001 Was an Abuse of Discretion Because the Appointment Was Not Supported by Any Evidence.

The Real Parties in Interest alleged that Sections 64.001(a)(2), (3), and (6) authorized the district court to appoint Mr. Williams as the receiver for the Trust. See Tab K (CR 959-60). Those sections provide that a “court of competent jurisdiction” may appoint a receiver “in an action by a creditor to

subject any property or fund to his claim,” “in an action between partners or others jointly owning or interested in any property or fund,” and “in any other case in which a receiver may be appointed under the rules of equity.”

TEX. CIV. PRAC. & REM. CODE § 64.001(a)(2), (3), (6). 6 Under Sections 64.001(a)(2) and (a)(3), the party seeking appointment of the receiver must also prove that the property or fund is “in danger of being lost, removed, or materially injured.” TEX. CIV. PRAC. & REM. CODE § 64.001(b); see Floyd v. MMWKM Advisors, LLC, No. 05-23-00638-CV, 2024 WL 549036, at *2 (Tex. App.—Dallas Feb. 12, 2024, no pet.); Estate of Martinez, No. 01-18-00217-CV, 2019 WL 1442100, at *4–*5 (Tex. App.—Houston [1st Dist.]

Apr. 2, 2019, no pet.) (appointment of a receiver under Section 64.001(a)(3) requires evidentiary support, not simply allegations and arguments in pleadings and motions).

1. Section 64.001(a)(2) does not apply here.

Section 64.001(a)(2) permits a court to appoint a receiver “in an action by a creditor to subject any property or fund to his claim” if the property or fund is “in danger of being lost, removed, or materially injured.” TEX. CIV.

6 In this section, Fran assumes only for purposes of this argument that County Court at Law No. 1 was a court of competent jurisdiction. Of course, in light of the arguments presented above, the Court should never reach this argument.

PRAC. & REM. CODE § 64.001(a)(2), (b). Any creditor seeking the appointment of a receiver under this subsection must be a secured creditor, and the receivership may only be imposed with respect to the property or fund to which the lien is attached. See Jay & VMK, Corp. v. Lopez, 572 S.W.3d 698, 703-04 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Junkin v. Sterchi Furniture Co., 92 S.W.2d 1098, 1101 (Tex. Civ. App.—San Antonio 1936, no writ).

The Real Parties are not secured creditors of the front 45-acre tract or any Trust property. The Real Parties certainly did not attach any evidence to the motion to appoint a receiver that supported a finding that any of them were secured creditors or that any Trust property or funds were subject to a lien. See Tab L (CR 956-1018). Likewise, at the hearing on the motion, the Real Parties did not present any evidence that they were secured creditors of, or had a lien against, any Trust funds or property. See Tab L at 158; 3 RR 4-21. Accordingly, Section 64.001(a)(2) did not apply, and the district court abused its discretion to the extent it relied on that subsection as a legal basis for appointing the receiver.

2. Section 64.001(a)(3) does not authorize the district court’s appointment of the receiver.

Section 64.001(a)(3) does not provide a basis for the district court’s order either. That section permits a court to appoint a receiver “in an action between partners or others jointly owning or interested in any property or fund” when “the property or fund [is] in danger of being lost, removed, or materially injured.” TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3), (b).

Although the Real Parties have a joint interest in the Trust property, they wholly failed to present any evidence demonstrating that this property was in any danger of being lost or materially injured in any way.

The Real Parties did not attach any evidence to their motion or present any evidence at the hearing showing that the Trust property was in any danger of being lost or materially injured. To begin, the order is based on the county court’s orders and the “testimony of the Trust Advisor,” Judge Stem. Tab A (CR 1292). Although counsel for the Real Parties argued at the hearing that the “trust is always going to be losing money over time,” it is well settled that argument of counsel is not evidence. Tab L at 139; see Abila v. Miller, 683 S.W.3d 842, 848 (Tex. App.—Austin 2023, no pet.); Fallon v. MD Anderson Physicians Network, 586 S.W.3d 58, 75 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). And Judge Stem did not testify that the Trust property was in any danger of being lost or materially injured in any way.

Instead, Judge Stem simply believed that a receiver was needed to end the dispute amongst the beneficiaries regarding the Trust property, based in large part on his personal frustration with Fran and the fact that he believed this dispute had gone on too long and should be resolved quickly: I have thought long and hard on this. The trust is exhausted.

There’s no money left. This is an extraordinary case. And it requires extraordinary measures. This is a time where we need to save these people from themselves. There will be nothing left.

All these grandkids will be cheated out of their inheritance. This ongoing litigation will exhaust this trust. This is an extraordinary case that requires an extraordinary ruling.

The only way to bring this to conclusion is not through a successor trustee, but it’s through a receivership with some judicial protection to get this done. John Malone and I worked hours and hours and hours trying to get this done. And that man deserves a medal. He deserves a nod toward the Nobel Peace Prize, not a ridiculous, baseless, spiteful lawsuit. Shame on you guys. I’m sorry, Judge, but this is—enough is enough. I’ve seen these in court.

The only route to get this done is a receivership, bring someone in with fresh eyes, not connected to anyone. I’ll stay on, if the Court wants me to, just for background information, but let’s get someone in here with fresh eyes, that has experience in receiverships and get this done. . . . Everyone deserves this to be final.

Tab L at 101-03, 130-31.

Although Judge Stem testified that there was only $8,000 or so in cash left in the Trust, he later admitted that he was personally unaware of the Trust’s financial position. Tab L at 100, 119. When Fran’s attorney attempted to show Judge Stem that the balance in just one of the Trust’s accounts was $615,000, the district court sustained the Real Parties’ objection because Judge Stem had already admitted that he was unaware of the Trust’s actual cash position. Tab L at 119-20.

Judge Stem also speculated that, as a result of the ongoing litigation, there would be nothing left in the Trust to distribute to the beneficiaries. Tab L at 101. Such pure speculation is not evidence. See, e.g., Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 833 (Tex. App.—Fort Worth 2008, no pet.) (citing Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 164 (Tex. 2004)); Welch v. Milton, 185 S.W.3d 586, 599 (Tex. App.—Dallas 2006, pet. denied). Judge Stem’s remarks also ignore the undisputed fact that the Trust includes real property valued at $1 million or more. There simply is no evidence to justify the district court’s finding that the Trust assets were at risk of any harm, injury, damage, or loss. See Tab A (CR 1292).

In theory, the most likely source of potential harm to Trust property would be a quick, forced sale of the front 45-acres to a non-family member.

There is only one road on the Trust property that is used to access the entire 261-acre tract. If the front 45-acres were sold with easements of access for each of the Trust beneficiaries, without selling the remainder of the property, the front 45 acres would likely reap a far lesser sales price as a result of being burdened by easements to persons with such a litigious history. Likewise, the value of the remainder of the tract, which would be virtually inaccessible absent the easements to facilitate construction of new roads or irrevocable covenants from the purchasers to keep the existing access road as is, would likely be substantially devalued as a result of the limited access.

At bottom, the Real Parties presented no evidence demonstrating that any Trust property had deteriorated in any way, had been stolen, had been vandalized, damaged, or destroyed, was subject to condemnation, was being misused, was under contract for sale, or was in danger of any “irreparable damage” as found by the district court. See Tab A (CR 1292). To the extent the district court determined that it was appropriate to appoint a receiver under Section 64.001(a)(3), it abused its discretion because there is no

evidence to support its factual findings or its legal conclusions justifying its Order Appointing Receiver.

3. Section 64.001(a)(6) does not authorize the district court’s appointment of the receiver either.

Section 64.001(a)(6) vests a court with the power to appoint a receiver “in any other case in which a receiver may be appointed under the rules of equity.” TEX. CIV. PRAC. & REM. CODE § 64.001(a)(6). In effect, this section permits a court to appoint a receiver under the equitable common law in limited circumstances. This section, however, didn’t vest the district court with authority to appoint the receiver in this case for several reasons.

First, in construing this statute, the Court must give effect to the intent of the Legislature. See TEX. GOV’T CODE § 312.005. To do so, the Court must give the words in the statute their plain and common meaning and give effect to all the statute’s terms. See TEX. GOV’T CODE §§ 311.011(a), 311.021(2); Interest of J.S., 670 S.W.3d 591, 599 (Tex. 2023). When the Real Parties moved for the appointment of a receiver, Section 64.001 authorized the appointment of a receiver in six types of cases. Section 64.001(a)(6), the last in the list of six, authorized the appointment of a receiver “in any other case in which a receiver may be appointed under the rules of equity.” See TEX. CIV. PRAC. & REM. CODE § 64.001(a)(6) (emphasis added).

The highlighted language only permits the appointment of a receiver in “instances beyond” the five situations listed earlier in Section 64.001(a)— i.e., it does not permit the appointment of an equitable receiver in cases that would ordinarily be governed by one of the five preceding subsections. See Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 861 (Tex. App.—Houston [1st Dist.]

1999, no pet.); In re Estate of Martinez, No. 01-18-00217-CV, 2019 WL 1442100, at *3-*4 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.). To interpret this section otherwise would fail to give effect to the common meaning of “any other case.” See Mueller, 994 S.W.2d at 861; In re Estate of Martinez, 2019 WL 1442100, at *4 (“[S]ection 64.001(a)(6) applies to instances beyond the specific circumstances in subsections (a)(1) through (a)(5). Thus, if subsection (a)(3) applies, then subsection (a)(6) does not.”).

This case would ordinarily be controlled by Section 64.001(a)(3), given that Fran and the Real Parties have a joint interest in the Trust property, but the Real Parties failed to present any evidence that any Trust property was in danger of being lost, removed, or materially injured. See TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3), (b).

Second, Section 64.001(a)(6) is a so-called “equitable receivership.” To plead and prove that such a receivership was required, the Real Parties had to produce evidence—not merely pleadings—supporting imposition of this harsh, drastic, and extraordinary remedy. See Estate of Price, 528 S.W.3d 591, 594 (Tex. App.—Texarkana 2017, no pet.); Marriage of Pinkston and Smith, 2024 WL 3858474, at *2 n.4 (citing Fortis Benefits v. Cantu, 234 S.W.3d 642, 648 (Tex. 2007)).

The Real Parties did not present any evidence to the district court that the value of the front 45 acres had lost value or would suffer any potential devaluation absent an immediate sale. Judge Stem, the only witness allowed to testify at the hearing on the motion, did speak of unidentified breaches of trust by Fran as trustee. See Tab L at 82, 88, 98, 119. Such allegations, however, are the basis for some of Appellees’ unsubstantiated claims at issue in this lawsuit, not evidence.

Of course, the Real Parties’ counsel repeatedly relied on these alleged breaches of trust at the hearing on the motion to appoint a receiver; however, his arguments are not evidence either. Tab L at 139, 140, 141, 143; see Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).

Moreover, given the fact that Fran is no longer a trustee and has no superior access to Trust assets (under the County Court at Law No. 1’s void orders),

it is hard to imagine how Fran could breach any alleged duty of trust as a beneficiary.

To the extent that Judge Stem alleged that Fran’s failure to sell the front 45-acres was a past breach of trust, see Tab L at 82, 88, 98, 119, his accusation is quite rich. Judge Stem has been the trust advisor for years and has not managed to arrange a sale of the front 45 acres either. In fact, Judge Stem admitted that it would be best to keep the Trust property in the family and that Fran had offered to purchase the Trust property for more than market value. See Tab L at 122-23. (Mr. Malone inexplicably rejected her above- market offer (which Fran considers a breach of his trust)). There was simply no evidence that the rules of equity required the appointment of an equitable receiver to sell the front 45-acre tract.

Third, a court should not appoint an equitable receivership unless evidence reflects “a threat of serious injury to the applicant.” Benefield v. State, 266 S.W.3d 25, 31 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see Matter of Bumstead Family Irrevocable Trust, No. 13-20-00350-CV, 2022 WL 710159, at *17 (Tex. App.—Corpus Christi-Edinburg Mar. 10, 2022, pet. denied); Pajooh v. Royal West Invs. LLC, Series E, 518 S.W.3d 557, 567 (Tex.

App.—Houston [1st Dist.] Mar. 30, 2017, no pet.). As discussed above, no such evidence exists.

This case is complex. The situation is difficult. The emotions of the parties run high. But the Trust must be administered properly—i.e., per the terms of the Trust and per Texas law as interpreted by a court of competent jurisdiction. The appointment of the receiver is not based on any competent evidence and cannot be grounded on the unfounded conjecture of a former judge who has clearly lost his objectivity regarding this situation. To the extent the district court appointed a receiver based on Section 64.001, the court abused its discretion because there was no evidence to support the appointment of the receiver under that statute.

B. The Appointment of a Receiver Under Texas Property Code § 114.008 Was an Abuse of Discretion as Well.

The district court also stated that it was appointing the receiver based on Section 114.008(a)(5) of the Texas Property Code. Tab A (CR 1292). But again, in so doing, the district court abused its discretion because there is no evidence to support its order.

Section 114.008(a)(5) authorizes a court to “appoint a receiver to take possession of the trust property and administer the trust” if the court finds it necessary to “remedy a breach of trust that has occurred or might occur.”

TEX. PROP. CODE § 114.008(a)(5); see Moody Nat’l Bank v. Moody, No. 14-21- 00096-CV, 2022 WL 14205534, at *6 (Tex. App.—Houston [14th Dist.] Oct. 25, 2022, pet. denied); Peek v. Mayfield, No. 02-22-00492-CV, 2023 WL 5967886, at *9 (Tex. App.—Fort Worth Sept. 14, 2023, pet. denied). As with Section 64.001, the Real Parties bore the burden to produce evidence demonstrating the need for the appointment of the receiver under this section. See Estate of Hoskins, 501 S.W.3d 295, 306 (Tex. App.—Corpus Christi-Edinburg 2016, orig. proceeding).

However, as discussed above, there is no evidence that Fran ever breached her duty of trust or that her past alleged breaches of trust could be somehow remedied by the appointment of a receiver. Judge Stem removed Fran as Trustee pursuant to Section 4.07(c) of the Trust; however, Section 4.07(a) permitted Judge Stem to remove Fran “at any time, with or without cause,” and Judge Stem did not identify any cause to remove Fran as Trustee in his notice of removal. Tab B (CR 476-77); Tab H (CR 923).

Judge Stem stated at the hearing that there were unidentified grounds for removing Fran as trustee for alleged breaches of trust. Tab L at 92. Judge Stem never identified these alleged breaches of trust, and his testimony was belied by his own previous statements made to Fran near the time of her removal that she was not being removed for cause. See Audio Exhibit (CR 1051-52). Indeed, Judge Stem conceded at the hearing that he told Fran that he “did not remove [her] for cause.” Tab L at 92. Any finding of any alleged breach of trust was also belied by Judge Stem’s decision to permit Fran to continue to “handle all the finances for the Trust” until a couple of months before the motions hearing—i.e., for over one and half years after she was removed as Trustee. Tab L at 116-17. 7 And, of course, a receiver could not have been necessary to prevent any future breaches of trust by Fran that might occur since Fran was removed as trustee pursuant to the county court at law’s void orders and purportedly has no current duties of trust. As stated before, it is difficult to imagine why a receiver would be necessary to prevent potential breaches of trust by Fran given the lack of her duty of trust as a beneficiary.

To the extent that the district court appointed the receiver pursuant to Section 114.008 of the Texas Property Code, the court abused its discretion because there was no evidence to support the order.

7 Although Judge Stem did discuss Fran’s proposal to partition the Trust property, which he considered improper, Fran floated that proposal before she was removed as trustee— i.e., more than two years before the hearing on the motion to appoint the receiver. See Tab L at 84-88. Once Fran was purportedly removed as Trustee by Judge Stem, her proposal died.

C. The “Rules of Equity” Did Not Justify the Appointment of the Receiver.

Lastly, the district court’s Order Appointing Receiver stated that it was authorized by the “rules of equity.” Tab A (CR 1292). Such a receivership fails because it is unnecessary to protect the Trust assets or the interests of the beneficiaries.

An equitable remedy is simply one that exists in equity. See BLACK’S LAW DICTIONARY Equitable (12th ed. 2024). Equity, in turn, is defined as “[f]airness; impartiality; evenhanded dealing.” Id. Equity. Thus, the rules of equity permit a court to appoint a receiver whenever circumstances exist that the court finds require the appointment of a receiver to protect Trust assets, prevent damage to the Trust, or to protect the interests of the beneficiaries.

When a court is faced with an intractable controversy between parties, equity “’will take cognizance of a controversy to determine the rights of all the parties, and grant the relief required to meet the ends of justice in order to prevent a multiplicity of suits.’” Tex. Unemployment Comp. Comm’n v. Metropolitan Bldg. & Loan Ass’n, 139 S.W.2d 309, 311 (Tex. Civ. App.—Austin 1940, writ ref’d) (quoting Rogers v. Daniel Oil & Royalty Co., 110 S.W.2d 891, 895 (Tex. 1937)).

In this case, however, the appointment of the receiver is based largely on the testimony of Judge Stem as the trust advisor that was improperly appointed by the county court at law. This fact, coupled with his continued administration of the Trust and the court-ordered sale of the Trust property, will likely multiply future legal proceedings necessary to prevent or remedy any illegal sale of the trust property, not deter it. Why? Because the district court’s Order Appointing Receiver enforces the prior void orders of the county court at law by rubber-stamping the appointment of Judge Stem as trust advisor. Tab A (CR 1292, 1295-96).

Although the Trust beneficiaries remain at odds, the appointment of a limited receivership to sell the front 45-acre tract of land will not ease this tension. More importantly, the rules of equity did not compel the district court to resort to this harsh and drastic remedy. The appointment of the receiver to take possession of, and sell, the front 45-acre tract is simply not supported by the facts, the law, or principles of equity.

“When a court appoints a receiver, the court has determined that property should no longer be under the control of the parties but instead within the custody of the court.” Gilbreath v. Horan, 682 S.W.3d 454, 552 (Tex. App.—Houston [1st Dist.] 2023, pet. denied). If the passage of time alone or a protracted disagreement between trust beneficiaries were sufficient to justify the appointment of an equitable receiver, then the reality will be that every sizeable or complex trust is likely to soon be under the supervision of a Texas court. This result would transmute an equitable receivership from the “harsh, drastic, and extraordinary remedy” it is intended to be into an everyday occurrence. See Benefield v. State, 266 S.W.3d 25, 31 (Tex. App.— Houston [1st Dist.] 2008, no pet.).

D. Mandamus Relief Is Proper Because the Benefits of Review at This Time Outweigh Any Detriments of Immediate Review.

To the extent the district court’s Order Appointing Receiver is based on findings of fact that are not supported by any legally sufficient evidence, the district court abused its discretion. Thus, the question becomes whether these abuses of discretion also warrant mandamus relief—in addition to the fact that the district court’s order is void because it gives effect to provisions of the county court at law’s void orders—because Fran has no adequate remedy on appeal.

Obviously, Fran’s interlocutory appeal of the appointment of the receiver is before the Court; however, the Fifteenth Court should resolve this entire controversy rather than require the piecemeal resolution of different aspects of the case in different cases. Thus, although the Court can reverse the Order Appointing Receiver for want of evidentiary support, for example, the Court should also grant conditional mandamus relief, declare the orders void, and end the use of the county court at law’s void orders in the future administration of the Trust.

Given that the Court should review the former issues on mandamus and the latter issues on interlocutory appeal, the Court may now review all issues presented in this single forum. See CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996).

III. THE ORDER APPOINTING RECEIVER REQUIRES FRAN TO PAY THE BILLS OF THE TRUST, WHICH VIOLATES TEXAS LAW AND RESULTS IN AN UNCONSTITUTIONAL TAKING OF FRAN’S PROPERTY.

The district court’s Order Appointing Receiver directs Fran to pay the Trust’s expenses incurred in the ordinary course of Trust business: Mrs. Frances Shelton is ORDERED to continue to make regular and routine payments of any bills or invoices incurred by the Trust in the ordinary course of business with a copy of any such invoice or bill and payment thereof relating to or connected with the Front 45 Acres to be delivered to the Receiver and the parties.

Tab A (CR 1295). Fran was improperly removed as trustee by Judge Stem and removed as a signatory on the Trust’s bank accounts. Tab H (CR 923).

Thus, to comply with this order, Fran would be required to use her personal funds to pay Trust expenses. Such would constitute an unconstitutional

taking of her private property. See Thompson v. Winkelmann, No. 01-06-00457- CV, 2008 WL 921041, at *4-*5 (Tex. App.—Houston [1st Dist.] Apr. 3, 2008, no pet.) (sustaining challenge to the trial court’s order because it did “not comport with Texas law and result[ed] in an unconstitutional taking of said land”); see also Thompson v. Consolidated Gas Util. Corp., 300 U.S. 55, 79-80 (1937) (upholding plaintiff’s claim that enforcement of Railroad Commission order resulted in unconstitutional taking of private property).

The Texas takings clause reflects that the right to own, use, and enjoy one’s private property is a fundamental right and is “’among our most cherished liberties.’” Commons of Lake Houston, Ltd. v. City of Houston, 711 S.W.3d 666, 675 (Tex. 2025) (quoting City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014)); see TEX. CONST. art. 1, § 17(a). Property is “taken” when the State transfers property from one owner to another. See Commons of Lake Houston, 711 S.W.3d at 678 n.34. Ordering Fran to pay the expenses of the Trust out of her own pocket results in such an unconstitutional taking of her private property.

The district court abused its discretion by issuing its Order Appointing Receiver requiring Fran to pay the expenses of the Trust out of her own pocket. To avoid the unconstitutional effect of the order, the Court should grant conditional mandamus relief requiring the district court to vacate this portion of its order.

IV. THE ORDER APPOINTING RECEIVER ALSO IMPROPERLY ENJOINS ANY BENEFICIARY FROM DIRECTLY OR INDIRECTLY TAKING ANY ACTIONS THAT WOULD HINDER THE RECEIVER FROM SELLING TRUST PROPERTY.

The Order Appointing Receiver also provides that the beneficiaries of the Trust “are hereby restrained and enjoined from directly or indirectly taking any action or causing any action to be taken, without the express written agreement of the Receiver, which would . . . [h]inder, obstruct or otherwise interfere with the Receiver in the performance of his duties.” Tab A (CR 1296). This order effectively prohibits any beneficiary, including Fran, from challenging any act of the district court or the receiver that would slow the receiver from selling the property. Tab A (CR 1296).

The overly broad language of this injunction would theoretically keep Fran from filing her notice of interlocutory appeal and prohibit her from filing this mandamus, or taking any other legal action, even though she has legal and statutory rights to do so. See TEX. CIV. PRAC. & REM. CODE § 51.014(a). Although the district court’s order is not technically an anti-suit injunction because the injunction was not issued by a separate court, the effect is the same—i.e., it would bar Fran’s right to prosecute her appeal or

this mandamus. As a consequence, the court’s order is illegal and constitutes an abuse of discretion that should be corrected by mandamus. See Greiner v. Jameson, 865 S.W.2d 493, 499 (Tex. App.—Dallas 1993, writ denied) (observing that a court’s inherent power is not without its limits); see also Bridas Corp. v. Unocal Corp., 16 S.W.3d 887, 890 (Tex. App.—Houston [14th Dist.] 2000, pet. dism’d w.o.j.) (same).

V. MANDAMUS RELIEF IS NOT BARRED BY PRINCIPLES OF EQUITY.

Relator acknowledges that County Court at Law No. 1 issued its void orders as early as 2022; however, this fact does not preclude mandamus relief here. Ordinarily, such a delay might preclude mandamus relief unless the delay was justified. See In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009). In this case, however, delay is not a barrier to mandamus relief.

Although mandamus is not an equitable remedy, its grant is controlled largely by equitable principles. See In re Kelly, 399 S.W.3d 282, 284-85 (Tex. App.—San Antonio 2012, orig. proceeding). The Texas Supreme Court has explained that a party’s unreasonable delay in seeking mandamus relief may waive the party’s right to such relief. See Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding).

If, however, the challenged orders are void, then “equitable doctrines such as delay and laches do not apply to bar mandamus relief.” In re Giles, 675 S.W.3d 376, 387 (Tex. App.—Corpus Christi-Edinburg 2023, orig. proceeding); see In re Valliance Bank, 422 S.W.3d 722, 728-29 (Tex. App.—Fort Worth 2012, orig. proceeding); Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex. App.—Corpus Christi 1996, orig. proceeding) (“Since mandamus relief in the present case is premised on the entry of a void order, it would not serve the interests of justice or those of the parties to invoke laches as an excuse to ignore that order, and thus to allow the parties to expend further time and effort in connection with a lawsuit that must ultimately be dismissed . . . or reversed on appeal for want of jurisdiction.”).

County Court at Law No. 1 did not have any jurisdiction to issue orders related to the administration of the Trust. Therefore, its orders related to the administration of the Trust, including the order appointing Judge Stem as the trust advisor and his subsequent decision to remove Fran as trustee, are void. The Court should grant the mandamus relief sought by Fran notwithstanding any perceived delay.

CONCLUSION AND PRAYER The Court should declare the orders of the County Court at Law No. 1 and the district court’s Order Appointing Receiver void and conditionally grant the mandamus relief requested in this petition. Relator also requests such further relief to which she may be justly entitled.

Respectfully submitted, By: /s/ Rick Thompson Kirk L. Pittard State Bar No. 24010313 Rick Thompson State Bar No. 00788537 [email protected] DURHAM, PITTARD & SPALDING, LLP P.O. Box 224626 Dallas, Texas 75222 (214) 946-8000 (214) 946-8433 (fax) Craig D. Cherry State Bar No. 24012419 [email protected] Ryan C. Johnson State Bar No. 24048574 [email protected] Scott H. James State Bar No. 24037848 [email protected] CHERRY JOHNSON SIEGMUND JAMES, PLLC 7901 Fish Pond Road, 2nd Floor Waco, Texas 76710 (254) 732-2242 (866) 627-3509 (fax) COUNSEL FOR RELATOR

TEXAS RULE OF APPELLATE PROCEDURE 52.3(j) CERTIFICATION Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I have reviewed this Petition for Writ of Mandamus and every factual statement in it is supported by competent evidence included in the Appendix or Mandamus Record.

/s/ Rick Thompson Rick Thompson

CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Rule 9.4(i)(2) (D) because it contains 9,927 words, excluding any parts exempted by Rule 9.4(i)(1).

/s/ Rick Thompson Rick Thompson

CERTIFICATE OF SERVICE I hereby certify that on October 6, 2025, a true and correct copy of the foregoing petition for writ of mandamus was served on the following counsel of record via electronic service, pursuant to the Texas Rules of Appellate Procedure.

Jim Dunnam Andy McSwain [email protected] [email protected] Andrea Mehta Mark E. Firmin [email protected] [email protected] Mason Vance Dunnam BEARD KULTGEN BROPHY BOSTWICK [email protected] & DICKSON PLLC DUNNAM & DUNNAM LLP 220 South 4th Street 4125 West Waco Drive Waco, Texas 76701 Waco, Texas 76710 Attorneys for Real Parties Robert Attorneys for Real Party Vernon Spanos, Chrisopher Spanos, and Leuschner Nicole Spanos The Honorable Judge Ryan Luna Aubrey R. Williams 414th Judicial District Court Law Office of Aubrey R. Williams Washington Avenue P.O. Box 20156 Suite 307 Waco, Texas 76702 Waco, Texas 76701 [email protected] [email protected] Appointed Receiver Respondent

/s/ Rick Thompson Rick Thompson

No. 15-25-______-CV IN THE COURT OF APPEALS FOR THE FIFTEENTH DISTRICT AT HOUSTON

IN RE FRANCES SPANOS SHELTON, Relator.

On Mandamus Relief from the 414th District Court of McLennan County, Texas, Cause No. 2024-3035-5

APPENDIX IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS

Tab Document A March 31, 2025, Order Appointing Receiver B The Dorothy Spanos Living Trust C The First Amendment to The Dorothy Spanos Living Trust D Application for Appointment of Temporary Administrator and of a Trust Advisor E March 8, 2022, Order Appointing Temporary Administrator and Trust Advisor and Authorizing Issuance of Letters of Administration F May 18, 2022, Agreed Order Approving the Discharge of Temporary Administrator and Termination of Temporary Administration G September 1, 2022, Agreed Order to Extend the Appointment of the Trust Advisor of the Dorothy Spanos Living Trust H Judge Stem’s May 3, 2023, Letter Removing Frances Shelton as Trustee of the Dorothy Spanos Trust Tab Document I Plaintiff’s Verified Original Petition and Request for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction J John Malone February 24, 2025, Letter to Judge Stem Resigning as Trustee K Motion to Appoint Receiver and Robert Lee Spanos, Christopher Blake Spanos and Kathryn Nicole Lawrie’s Joinder to Motion to Appoint Receiver L March 4, 2025, Hearing Transcript on Motion to Appoint Receiver and Motion to Re-Affirm and/or Designate Trustee of the Dorothy Spanos Living Trust M Ms. Leuschner’s Application to Probate Ms. Spanos’s Will and for Appointment of Temporary Administrator

TAB A 1291 1292 1293 1294 1295 1296 1297 1298 1299 TAB B TAB C TAB D TAB E TAB F TAB G TAB H TAB I TAB J TAB K 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1061 1062 1063 1064 1065 TAB L 1 REPORTER'S RECORD VOLUME 2 OF 3 VOLUMES 2 TRIAL COURT CAUSE NO. 2024-3035-5 COURT OF APPEALS CAUSE NO. 10-25-00108-CV FRANCES SPANOS SHELTON, )( IN THE DISTRICT COURT OF 4 Plaintiff, )( )( VS. )( )( VERNON LEUSCHNER, )( AND AS DURABLE POWER OF )( ATTORNEY FOR KATHERINE )( LEUSCHNER, ROBERT LEE SPANOS, )( 414TH JUDICIAL DISTRICT AND KATHRYN NICOLE LAWRIE, )( Intervenors, )( 9 )( VS. )( 10 )( VERNON LEUSCHNER,INDIVIDUALLY,)( AND KATHERINE LEUSCHNER, )( Defendants. )( MCLENNAN COUNTY, TEXAS 12 ______________________________________________________ 13 MOTION TO RE-AFFIRM AND/OR DESIGNATE TRUSTEE OF THE DOROTHY SPANOS LIVING TRUST 15 MOTION TO APPOINT RECEIVER ______________________________________________________

18 On the 4th day of March, 2025, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Ryan Luna, Judge Presiding, held in Waco, McLennan County, Texas.

22 Proceedings reported by oral stenography.

Jennifer Murphy, CSR, CVR there been any discussion with Judge Stem about who he thinks ought to replace Malone?

3 MR. MCSWAIN: We're gonna talk about that.

4 That's one of the things. I'm gonna put Judge Stem on the stand. I'm happy to do it now, or I'm happy to do it in connection with the Receivership. Whatever you want to do.

7 THE COURT: Let's do it now.

8 MR. MCSWAIN: Do it now?

9 THE COURT: Yeah.

10 You need a break? Okay. Let's take a five-minute break.

12 MR. MCSWAIN: Okay.

13 (Recess taken from 3:14 p.m. to 3:22 p.m.)

14 THE COURT: We are back on the record in 2024-3035-5.

16 (Witness sworn.)

17 THE COURT: If you'll have a seat, please.

18 JUDGE ROBERT STEM, having been first duly sworn, testified as follows: 20 DIRECT EXAMINATION BY MR. MCSWAIN: 22 Q. Would you please state your name for the record, Judge Stem.

24 A. Robert Stem.

25 Q. Okay. How long were you a district judge?

Jennifer Murphy, CSR, CVR case. We've got the order that's already in evidence, where you appointed the trust advisor in March of 2022.

3 Did you begin to serve at that point in time?

4 A. I did.

5 Q. As you sit here today, do you believe that that order was issued by Judge Vik -- 7 (Speaking simultaneously.)

8 A. Absolutely.

9 Q. (BY MR. MCSWAIN) -- jurisdiction? You think it was issued with jurisdiction -- 11 MR. CHERRY: Objection, Your Honor; calls for a legal conclusion.

13 THE COURT: I'm sorry, can you ask the question again so we can have a clean -- please?

15 Q. (BY MR. MCSWAIN) Do you think that Judge Vik had jurisdiction when he issued that order?

17 MR. CHERRY: Objection, Your Honor; legal conclusion.

19 THE COURT: Overruled.

20 A. Yes, sir.

21 Q. (BY MR. MCSWAIN) Have you done a lot of work since March 2022, on this estate and this trust and trying to sort things out?

24 A. Yes, sir.

25 Q. Tell the judge a little bit about what you have done Jennifer Murphy, CSR, CVR powers under 4.7 -- 2 A. Yes.

3 Q. -- of the trust?

4 A. Correct.

5 Q. And did you feel, at the time, that -- based on her actions, that you had the ability to remove her for cause?

7 A. Yes.

8 Q. There's been some discussion, and Ms. Shelton has provided an audio recording of you -- I don't know, six or eight or nine months later -- in a discussion with Josh White and Ms. Shelton, where you told Ms. Shelton, "I did not remove you for cause," or words to that effect?

13 A. Words to that effect.

14 Q. Okay. Did you tell her that?

15 A. Yeah.

16 Q. Okay. Why did you tell her that when you felt like you could have removed for cause at the time?

18 A. Well, I mean, that's my nature. I mean, I was practicing some degree of diplomacy at that time. We didn't need to have a hard-hitting session. Kathy's side had outlined -- and Fran had seen it -- a several-page letter detailing what Kathy believed is violations of the trust, okay? Mr. Palmer responded, and I had to make a call, okay?

24 Q. Okay.

25 A. My letter of May the 3rd just simply says, we need a Jennifer Murphy, CSR, CVR neutral, detached, and independent trustee, okay? And she was not a neutral, detached, and independent trustee, okay? And that's as far as I took it, okay?

4 Q. So to Judge Luna's -- so you ended up appointing John Malone, and there's reference made that appointment in this letter?

7 A. Correct.

8 Q. As John Malone served as trustee, did he discuss with you, as trust advisor, on a regular basis, things that he was doing, ought to be doing, thinking about doing? Did he discuss those things with you?

12 A. Yes.

13 Q. Did the two of you work hand-in-hand to try to bring this to a resolution somehow?

15 A. Yes.

16 Q. Did you think that the suit against John Malone was righteous?

18 A. No. Baseless.

19 Q. Okay.

20 A. Clearly baseless.

21 Q. And I want to go back. And we're gonna talk about that in just a minute. I want to go back.

23 Apparently, in the discussion that you had with Mr. White and Ms Shelton five, six, seven, eight months after you removed her as the trustee, your hour-long discussion with Jennifer Murphy, CSR, CVR them -- or at least part of it -- was recorded. Are you now aware of that?

3 A. I am now. I wasn't then.

4 Q. Did Mr. White tell you that he was using his fancy Apple Watch to record everything that y'all were talking about?

7 A. No. 8 Q. Did he disclose to you, at the time, that he was recording?

10 A. No. 11 Q. Okay. If he had told you, "I'd like to record what we're talking about, you know, so that we can have that record of it later, or so that my wife can take notes" -- which apparently was the situation -- "and make sure she's accurate," what would you have said?

16 A. I think John Malone and I would have discussed it with him, and say, "Hey, why do you need to record this?" 18 Q. Okay.

19 A. But the fact is, he never disclosed that to us.

20 Q. Okay.

21 A. That, in my mind -- to everyone in this courtroom -- is a breach of a professional courtesy. And anyone who participates in that, that is breach of professional responsibility and courtesy.

25 MR. JAMES: Your Honor, I'm gonna object to Jennifer Murphy, CSR, CVR that last statement and ask it to be stricken from the record.

2 Josh White's not here to defend himself. There's no motion or pleading regarding that. And it's improper for Judge Stem just to make that ex parte statement on the record.

5 MR. MCSWAIN: Judge, they put it into the filings in this court, along with an affidavit from Mr. White, and have repeatedly utilized it in their briefing in this case in front of you, and I think that it's fair for Judge Stem to get to explain himself.

10 MR. JAMES: Your Honor, I'm not objecting to the audio, I'm objecting to what Judge Stem just said on the record.

13 THE COURT: I'll overrule the objection.

14 Mr. McSwain, if you could, if you think it's an appropriate time to turn our attention to the reasons why you think of a receiver is necessary?

17 MR. MCSWAIN: Yes, sir.

18 THE COURT: Thank you.

19 MR. MCSWAIN: I'm sorry. I'm just about there.

20 MR. JAMES: Your Honor, I would request a brief cross-examination before he goes on to the receivership argument, just so the record's clear. If you want me to reserve it until later, that's fine, too. But I do have some questions for Judge Stem.

25 THE COURT: Okay. Well, I'll certainly grant Jennifer Murphy, CSR, CVR issue with accounting when I came on. We got that done.

2 Maybe the attorneys can have an idea how much was in there.

3 Several hundred thousand dollars.

4 Q. Okay. Based on your experience, based on all the discussions you've had with the parties, based on all that you know that has gone on and the decisions that have to be made about this real property, what do you think -- what do you think needs to happen here to get the parties from where we are right now, at each others' throats, to being done?

10 A. I have thought long and hard on this. The trust is exhausted. There's no money left. This is an extraordinary case. And it requires extraordinary measures. This is a time where we need to save these people from themselves. There will be nothing left. All these grandkids will be cheated out of their inheritance. This ongoing litigation will exhaust this trust. This is an extraordinary case that requires an extraordinary ruling.

18 The only way to bring this to conclusion is not through a successor trustee, but it's through a receivership with some judicial protection to get this done. John Malone and I worked hours and hours and hours trying to get this done. And that man deserves a medal. He deserves a nod toward the Nobel Peace Prize, not a ridiculous, baseless, spiteful lawsuit. Shame on you guys. I'm sorry, Judge, but this is -- enough is enough. I've seen these in court.

Jennifer Murphy, CSR, CVR 1 I'm gonna show you -- 2 MR. JAMES: And if may I approach the witness, Your Honor, this is in the actual trust document. The ELMO seems to be pretty blurry over there, but I wanted to reference Section 3.08 with the witness, if I may, Your Honor.

6 May I approach?

7 THE COURT: Yes.

8 Q. (BY MR. JAMES) There was a lot of talk earlier, Judge Stem, about this real estate and how you believe that my client, Fran Shelton, was not able to divide it appropriately because, you know, she was biased or whatever your words were, correct? Is that a fair summary of what you were saying?

13 A. I didn't say biased. I would say she was not impartial.

15 Q. Would you say that -- again, you said you reviewed the trust and wanted to follow it, that she would be an interested party over that particular transaction because she's always getting some of the land?

19 A. Yeah. She's getting some of the land, but more importantly -- I mean, she put one of her children up front, a clear violation of the trust.

22 Q. And I -- we'll get to that in a minute, the specific language, in a minute. What I'm talking about -- there's a definition in the trust of interested party. Have you read that -- or interested trustee, sorry.

Jennifer Murphy, CSR, CVR "her" being Fran, right -- "to be in such a dynamically difficult situation?" 3 A. Yes.

4 Q. You also told my client, face-to-face, just as if just the two of y'all were in the room, "There's an appreciation of what you have done for this trust." 7 A. Correct.

8 Q. Didn't you also tell my client that she was put in a horrible position by no fault of her?

10 A. Exactly.

11 Q. Didn't you also tell her that she's been put in an enormously difficult position?

13 A. Yes.

14 Q. Did you not also say, sir -- and this is a verbatim quote, "This is a family situation that was sideways by no fault of your own"?

17 A. Correct.

18 Q. And then last, but not least, you told my client to her face, seven months and two days after you sent this letter that has no for-cause reason in it whatsoever -- you told her that, "They were throwing laser beams at her." Is that a true quote?

23 A. Yes.

24 Q. And when you're saying, "they," you're talking about her sister Kathy and their side?

Jennifer Murphy, CSR, CVR 1 A. Correct.

2 Q. So, in other words, your decision -- not what you're saying here today, but way back to almost over two years ago -- it was 22 years months ago when she was removed, correct?

6 A. May of 2023.

7 Q. Yeah. So around 22 months, a little less than 2 years ago; that's correct?

9 A. Correct.

10 Q. Isn't it true, sir, that way back when, you removed Fran as trustee to protect her from all that was going in the trust at that time?

13 A. We talked about it.

14 Q. Okay. That's not my question, though. I said, isn't that true why you removed her?

16 A. That was one of the reasons. You've got my letter.

17 I think it speaks for itself.

18 Q. Well, I don't know that it speaks for itself. And I'm not gonna go through it because the judge can read the letter. But I would presume that if somebody was going to -- especially a trust advisor that had the duties that you had -- that you're going to put the details of why you were removing a trustee, and you didn't put up that.

24 A. Not necessarily.

25 Q. Okay. Well, forget the "not necessarily" -- Jennifer Murphy, CSR, CVR 1 A. It was somewhere a million-two, to a million-five, somewhere in that range.

3 Q. And isn't it true that there actually have been offers to purchase that part, the 40 acres with the house, for $1.45 million?

6 A. Yes. Both sides have made some offers.

7 Q. Exactly. But the highest offer during the time that you've been the trust advisor was $1.45 million, correct?

9 A. I think that's correct. Yes.

10 Q. And, yet, John Malone -- and you acting as trust advisor, did not agree to the sale, correct?

12 A. I don't think the contract was ever submitted.

13 Q. Okay. But an offer was made -- 14 A. I think there was an offer made. Yes.

15 Q. But it was rejected by John Malone, correct?

16 A. I don't know that he rejected because it was ever actual -- correct. John asked for a tract form, and it was never submitted.

19 Q. And, again, contract or no contract, do you know who made that offer to purchase that -- the highest offer?

21 A. I think it was Fran.

22 Q. Okay.

23 A. I'm not sure. Both sides made one.

24 Q. Kathy and her husband, Vernon, the opposing side, they made an offer -- and again, let me back up.

Jennifer Murphy, CSR, CVR 1 That was agreeable for you as the trust advisor and for John Malone as the Trustee. It was okay for the family to bid on it, and they were gonna sell it to the highest bidder, right?

5 A. Yeah, they should. It's family property.

6 Q. That's right.

7 In your opinion, it would be good to try to keep it in the family if the price was correct?

9 A. That was my initial conversation right after I got here; called everybody together and said, "Does anybody want to buy the other one out? Let's keep this ranch together." 12 Q. And you've testified, and the trust document amendment also says that it's supposed to be sold as reasonable as practicable.

15 A. Sure.

16 Q. And it's your testimony that my clients were the highest bidder on that, but that sale was never consummated?

18 A. Correct.

19 Q. Okay.

20 A. Never a contract submitted.

21 MR. JAMES: Your Honor, I have no further questions at this time. I appreciate your time, Judge Stem.

23 THE WITNESS: Thank you.

24 MR. DUNNAM: Do you have a map, Mr. Firmin?

25 THE COURT: Here you go.

Jennifer Murphy, CSR, CVR relate to 64.001 of the Civil Practice and Remedies Code. And they don't relate to 114.008(a)(5) of the Texas Property Code. Neither of those statutes include a requirement that you have to exhaust all other remedies. In fact, under 114, it's just one of many options that you can use to remedy a potential breach of trust.

7 And, in this case, under 64.001, all you have to have in order to be able to get a receivership is you've gotta have a probable interest in the right of the property, okay? All the -- everybody agrees here that the beneficiaries have an interest in that property and in the trust, okay? We talked about a plan of distribution for that. So there's no question there's a probable right in interest of the property, okay? It's part of the trust.

15 Then you have to show that the property or fund must be in danger of being lost, removed, or materially injured, okay? We already had a beneficiary sue an independent special trustee because she didn't like the decision that was going to happen. If you appoint another trustee, it's the same thing. This trust is always going to be losing money over time.

22 In fact, that was a concern Josh White raised in a letter to Judge Stem and John Malone was his concern about all the money being lost if litigation was filed, and then a month later, they filed it, and caused all this other Jennifer Murphy, CSR, CVR money to be spent on 6,000-plus pages in discovery and everything else that forced our hand to go file a lawsuit to try to protect our rights.

4 If you appoint another independent trustee, a corporate one, some other -- A: Judge Stem's already told you that it's gonna be unlikely somebody's gonna want to do it.

7 Why would they want to, if they're going to be able to get sued? If Ms. Shelton doesn't like what's going to happen when someone exercises their discretion, she's gonna file a lawsuit. You cloak someone with immunity as a receiver to sell this property, you avoid that. There's not a way to stop this from just devolving into years of wasted money if a Receiver isn't appointed under 64.101 or under 114.

14 We've asked you to appoint James Volberding.

15 We've attached his exhibit as Exhibit A to our motion -- he's out of Tyler -- as a receiver. He's happy to talk with you, if you like. He's mentioned that to us. I've spoken to the man one time. And his primary practice is on receiverships.

19 That's what he primarily does. He's well-qualified to do this. He's gonna make the decisions that the parties themselves have not been able to agree to.

22 We've given you evidence under 114.008 that has been a breach of trust that has occurred or might occur. You heard Judge Stem talk about things that Fran Shelton did that were violation of the trust or interpretations of the trust Jennifer Murphy, CSR, CVR that were wrong when she was the trustee.

2 From the very beginning, she made accusations of theft against Kathy's children that she had no evidence of whatsoever that were there. That is not the action of a person who can be a trustee or her husband to be a person who's gonna be a trustee. Those are the type of people that are showing vengeance of vindictiveness, for whatever reason you want, trying to give acreage out of -- that clearly has to be sold.

10 Front pasture? And you're gonna get 12 acres there? Another plan was provided. She rejected that one. As soon we request access easements back in January of 2023, which by the way, is seven months before Fran Shelton swore under verified pleading that we first raised that issue, she as trustee, immediately denied the ability for us to get this access easements as trustee because she didn't want to be able to share a road. When you're the trustee and also the beneficiary, you don't have the right to take off your hat, favor some people, and not favor another.

20 Because there's been evidence of a breach of trust, and Judge Stem's talked extensively about how those things that occurred while he was trust advisor before she was removed. Those are in the email. And if I need to prove those up and admit them as evidence, I can. The fact is, a breach of trust has occurred or might occur. If you put her Jennifer Murphy, CSR, CVR she picked the road to benefit herself, when she was serving as trustee. Why does she get the road? The only reason we were even willing to contemplate doing that was because accesses are required by the Texas Supreme Court for easement by necessity for a landlocked property, particularly when there's not one.

7 And that's actually been given -- an ingress-egress easement -- has actually been given by Dorothy and Nick to Kathy Leuschner when she bought the rock house back in the 1990s. We have a certified deed for that that I could put into the record for you, where they granted an easement to Kathy. The same property she's going to get again, her parents gave her an easement. They want to know what Dorothy wanted to do, that's what she did. She gave an easement to Kathy.

16 So there is more than enough evidence here that a breach of trust has occurred. And when a breach of trust occurs, all there has to be is some evidence, and the Court doesn't abuse their discretion. Those three cases that I gave you: The Benson case, the Moody case, and the Price case, dispel this myth that you have to exhaust all of the other remedies.

23 And you've heard Judge Stem, a judge with an impeccable reputation in this county -- and elsewhere -- who told you that he believes that is the only way to get these Jennifer Murphy, CSR, CVR 1 REPORTER'S RECORD VOLUME 2 OF 3 VOLUMES 2 TRIAL COURT CAUSE NO. 2024-3035-5 COURT OF APPEALS CAUSE NO. 10-25-00108-CV FRANCES SPANOS SHELTON, )( IN THE DISTRICT COURT OF 4 Plaintiff, )( )( VS. )( )( VERNON LEUSCHNER, )( AND AS DURABLE POWER OF )( ATTORNEY FOR KATHERINE )( LEUSCHNER, ROBERT LEE SPANOS, )( 414TH JUDICIAL DISTRICT AND KATHRYN NICOLE LAWRIE, )( Intervenors, )( 9 )( VS. )( 10 )( VERNON LEUSCHNER,INDIVIDUALLY,)( AND KATHERINE LEUSCHNER, )( Defendants. )( MCLENNAN COUNTY, TEXAS 13 _____________________________________________ 14 REPORTER'S CERTIFICATE _____________________________________________ 16 I, Jennifer Murphy, Official Court Reporter in and for the 414th District Court of McLennan County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. 24 I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, Jennifer Murphy, CSR, CVR if any, admitted by the respective parties.

2 WITNESS MY OFFICIAL HAND this, the 10th day of April 2025.

4 __________/s/Jennifer Murphy__________ 5 Jennifer Murphy, Texas CSR # 11894, CVR Expiration Date: 09-30-2025 6 Official Court Reporter 414th District Court 7 McLennan County, Texas Washington Avenue, Room 307 8 Waco, Texas 76501 (254)759-5914

Jennifer Murphy, CSR, CVR TAB M Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Kelly Blackburn on behalf of William Richard Thompson Bar No. 788537 [email protected] Envelope ID: 106480768 Filing Code Description: Original Proceeding Petition Filing Description: Petition for Writ of Mandamus Status as of 10/6/2025 1:37 PM CST Associated Case Party: FrancesSpanosShelton Name BarNumber Email TimestampSubmitted Status Kelly Blackburn [email protected] 10/6/2025 12:28:00 PM SENT Kirk Pittard [email protected] 10/6/2025 12:28:00 PM SENT Rick Thompson [email protected] 10/6/2025 12:28:00 PM SENT Craig Cherry 24012419 [email protected] 10/6/2025 12:28:00 PM SENT Ryan Johnson 24048574 [email protected] 10/6/2025 12:28:00 PM SENT Scott James 24037848 [email protected] 10/6/2025 12:28:00 PM SENT

Associated Case Party: Vernon Leuschner Name BarNumber Email TimestampSubmitted Status Angus McSwain 13861100 [email protected] 10/6/2025 12:28:00 PM SENT Mark Firmin 24099614 [email protected] 10/6/2025 12:28:00 PM SENT

Associated Case Party: Robert Spanos Name BarNumber Email TimestampSubmitted Status James Dunnam 6258010 [email protected] 10/6/2025 12:28:00 PM SENT Andrea Mehta 24078992 [email protected] 10/6/2025 12:28:00 PM SENT Mason Dunnam 24108079 [email protected] 10/6/2025 12:28:00 PM SENT

Associated Case Party: Hon. Judge Ryan Luna Name BarNumber Email TimestampSubmitted Status Hon. Judge Ryan Luna [email protected] 10/6/2025 12:28:00 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Kelly Blackburn on behalf of William Richard Thompson Bar No. 788537 [email protected] Envelope ID: 106480768 Filing Code Description: Original Proceeding Petition Filing Description: Petition for Writ of Mandamus Status as of 10/6/2025 1:37 PM CST Associated Case Party: Aubrey Williams Name BarNumber Email TimestampSubmitted Status Aubrey Williams 21512500 [email protected] 10/6/2025 12:28:00 PM SENT