defendant’s request for declaratory judgment if it seeks resolution of continuing issues
How later courts described this case
- defendant’s request for declaratory judgment if it seeks resolution of continuing issues
- "Bad faith is not simply bad judgment or negligence, but means the conscious doing of a wrong for dishonest, discriminatory, or malicious purpose."
Written by the judges who cited it.
The opinion
ACCEPTED
01-15-00471-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/26/2015 2:49:52 PM
1 PRINE
CHRISTOPHER
CLERK
1 REPORTER'S RECORD
2 FILED IN
VOLUME 1 OF 1 1st COURT OF APPEALS
HOUSTON, TEXAS
3 TRIAL COURT CAUSE NO. 425.576-401
5/26/2015 2:49:52 PM
CHRISTOPHER A. PRINE
4 APPELLATE NO. Clerk
5 IN RE: IN THE PROBATE COURT
DANIEL STEVEN WEINER NUMBER 4 (FOUR) OF
6 1996 TRUST HARRIS COUNTY, TEXAS
7
8
9
10 * * * * * * * * * * * * * * * * * *
11 DANIEL WARREN'S PLEA TO THE JURISDICTION
12 * * * * * * * * * * * * * * * * * *
13
14
15
16
17 On the 13th day of May, 2015, the following
18 proceedings came to be heard in the above-entitled and
19 numbered cause before the Honorable Christine Butts
20 Judge of Probate Court No. 4, held in Houston, Harris
21 County, Texas:
EXHIBIT
exhibitsticker.com
22
TAB E-1
23
24 Proceedings reported by Machine Shorthand
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
2
1 A-P-P-E-A-R-A-N-C-E-S:
2 Ms. Carol A. Cantrell Ms. Sarah P. Pacheco
Attorney at Law Attorney at Law
3 SBN 24043592 SBN 00788164
CANTRELL & CANTRELL, PLLC Crain Caton & James
4 3700 Buffalo Speedway 1401 McKinney; 17th Floor
Suite 520 Houston, Texas 77010
5 Houston, Texas 77098 713.658.2323
713.333.0555
6
ATTORNEY FOR PETITIONER ATTORNEY FOR ANDY WEINER
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
3
1 VOLUME 1
(PLEA TO THE JURISDICTION)
2 May 13, 2015 Page Vol.
3 PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1
PLEA TO THE JURISDICTION:
4 ARGUMENT BY MS. CANTRELL . . . . . . . . . . . . . . . . 4 1
ARGUMENT BY MS. PACHECO . . . . . . . . . . . . . . . . 10 1
5 REBUTTAL ARGUMENT BY MS. CANTRELL . . . . . . 20 1
REBUTTAL ARGUMENT BY MS. PACHECO . . . . . . . 27 1
6 COURT Is RULING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9 1
7 COURT REPORTER'S CERTIFICATE . . . . . . . . . . . . . . . 38 1
EXHIBITS INDEX
8 RESPONDENT'S DESCRIPTION OFFERED ADMITTED VOL.
A Original Petition for
9 Termination of Trust 15 16 1
B First Amended Original
10 Petition for Modification
of Trust and Response
11 to Plea in Abatement
and Plea to the
12 Jurisdiction 16 17 1
c Original Petition In
13 Intervention 17 17 1
D Andy Weiner's Cross-Claims
14 Against Katherine Warren
F/K/A Katherine Weiner 17 17 1
15 E First Supplement to
Original Answer 17 18 1
16 G Rules of the Probate
Courts of Harris Cnty 18 18 1
17 H Plaintiff's Original
Petition 18 19 1
18 PLAINTIFF'S DESCRIPTION OFFERED ADMITTED VOL.
1 Petitioner's Notice
19 of Nonsuit Against
Andy Weiner 5 5 1
20 2 Order Granting Petitioner's
Nonsuit and Dismissal 5 6 1
21 3 Andy Weiner's Counter
& Cross-Petition 5 6 1
22 4 Andy Weiner's Sec'd
Amended Cross-Claims
23 Against Katherine Warren
F/K/A Katherine Weiner 6 6 1
24 5 Amended Order on
Motion to Sever 6 7 1
25 6 Email chain 7 X 1
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
4
1 May 13, 2015
2 PROCEEDINGS
3 THE COURT: Calling to order Cause Number
4 425.576 in the 401; In Re: Daniel Steven Weiner 1996
5 Trust. We're here on Daniel Warren's Plea To The
6 Jurisdiction.
7 MS. CANTRELL: That is correct. Are we
8 ready to proceed?
9 THE COURT: Yes, we are.
10 DANIEL WARREN'S PLEA TO THE JURISDICTION
11 ARGUMENT BY MS. CANTRELL:
12 MS. CANTRELL: Well hopefully this will be
13 the easiest of the three Weiner Trust cases.
14 This case involves a nonsuit at a time
15 where there were no outstanding claims of any kind.
16 Daniel had sued Andy Weiner, and Katherine
17 Warren was a Respondent in that. He nonsuited Katherine
18 Warren. So, she was out.
19 Andy Weiner had affirmative defenses but
20 no counter-claims against Daniel.
21 Andy Weiner had cross-claims against
22 Katherine but not in Daniel's case. They were all in
23 the case that David filed. And so at the moment in time
24 that he nonsuited, and at the time he was dismissed,
25 under Greenberg versus Brookshire, the case was over.
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
5
1 All the controversies were settled; all the cllaims were
2 gone and the parties were gone.
3 I would like to go ahead and irtroduce as
4 Exhibit 1, the date order so that there's no question
5 about that just to make sure. What I have in Exhibit 1
6 for you, Sarah, is the Daniel's nonsuit of his entire
7 case against Andy Weiner. And I have this Ccurt's order
8 granting his nonsuit and dismissal. His nonsuit was
9 March lOth; the dismissal was March 16th; anc the
10 counter and cross-petition was March 24th.
11 MS. PACHECO: My only request, Your Honor,
12 is if it is three distinct documents, if we can enter
13 those as three distinct exhibits because I'm quite
14 confident where Ms. Cantrell would go next ar.d that
15 would be the appellate record. I always fine it's
16 easier to refer to each document separately in the
17 record if that's okay.
18 MS. CANTRELL: Okay. That's fine.
19 We'll mark those Exhibit 1 for the notice
20 of nonsuit. Exhibit 2 for the dismissal. Ar.d Exhibit 3
21 for the counter and cross-petition.
22 THE COURT: Exhibit 1 which is
23 Petitioner's Notice of Nonsuit Against Andy Weiner is
24 admitted as Exhibit 1, as Plaintiff's Exhibit 1. And
25 the Order Granting Petitioner's Nonsuit and Dismissal,
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
6
1 that is admitted as Plaintiff's Exhibit 2. Jnd Andy
2 Weiner's Counter and Cross-Petition is admitted as
3 Plaintiff's Exhibit 3.
4 MS. CANTRELL: I would also li~e to admit
5 Exhibit 4 which is Andy Weiner's Second Amenced
6 Cross-Claims. And one of the footnotes in tte response
7 that, I guess, Ms. Beduze or Ms. Pacheco filed last
8 night about 5:00, said that it was administrative error
9 that this cross-claim got left off of the liEt of
10 documents that were transferred to Daniel's case. And
11 so, I would like to admit Exhibit 4 as the Second
12 Amended Cross-Claims to show, number one, that it was in
13 David's case only.
14 MS. PACHECO: I have no objection.
15 MS. CANTRELL: Okay.
16 THE COURT: Okay. Andy Weiner's Second
17 Amended Cross-Claims Against Katherine Warren Formerly
18 Known As Katherine Weiner is admitted as Plaintiff's
19 Exhibit 4.
20 MS. CANTRELL: And because I think there
21 might be a dispute over whether that -- those
22 counter-claims or those cross-claims apply in Daniel's
23 case, I would like to also admit Exhibit 5 which is this
24 Court's order and the list of documents that were moved
25 over in the motion to sever in the agreed order -- or
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
7
1 not the agreed, but the amended order to sever - that
2 being dated November 17th of 2014, showing clearly that
3 those cross-claims were not moved.
4 MS. PACHECO: No objection.
5 THE COURT: Okay. The Amended Order On
6 The Motion To Sever is admitted as Plaintiff's Exhibit
7 5.
8 MS. CANTRELL: And the only otter one that
9 I would like to admit at this time is Exhibit 6 which is
10 the email chain that led up to that motion OI that order
11 to sever in that itemized list of documents tecause it
12 took us 10 days of negotiations to get that list pulled
13 together. It started with a draft of a, of a list that
14 Ms. Beduze put together, and it's in substantial
15 identical form as the one that was actually ~igned. And
16 we went back and forth with certain changes to the
17 language on it - who was going to pay for the cost and
18 so forth; but essentially, it was negotiated. It was
19 in the email - this is from Judge Comstock tc me and
20 Kathleen Beduze - she said, "Are there any acditional
21 items that you would like to include in the crder to
22 protect the order?"
23 So we all, I believe, had ample
24 opportunity to add to, subtract, and it didn't make it.
25 Just to clear the record that that is not pait of
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
8
1 Daniel's case - the cross-claims aren't.
2 MS. PACHECO: I'm going to object to a
3 series of emails between Counsel and your court staff
4 that are basically going back and forth and aren't
5 complete. It's hearsay, it's inappropriate, and this
6 doesn't constitute anything but the efforts of lawyers
7 trying to do the right thing. The document speaks for
8 itself.
9 MS. CANTRELL: I would agree to leave it
10 out if there's no objection that the cross-claims are
11 not in Daniel's case.
12 MS. PACHECO: We've already placed in the
13 record what we placed in the record, Your Honor. The
14 record speaks for itself.
15 MS. CANTRELL: The record is conflicting,
16 then, because the response says that they are before
17 this court, and I believe that the record shows that
18 they're not.
19 MS. PACHECO: The Court's order speaks for
20 itself. And the Court's order specifically says that
21 you are moving over, let me find the exact wcrding ...
22 "All prior motions, discovery crders,
23 responses and answers." And then there is a laundry
24 list of specific pleadings. So, the order Sfeaks for
25 itself. I don't think conversations between Counsel and
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
9
1 court staff who are trying to be helpful but certainly
2 weren't shepherding responsible a ruling on these
3 matters is any way relevant to the appellate record in
4 this case.
5 MS. CANTRELL: Then I would point out that
6 prior discovery, orders, motions, responses and answers
7 do not include pleadings. And that cross-claim would be
8 a pleading. So, I mean, if we're in agreemer.t that the
9 cross-claim does not apply to this case, ther., I'm okay
10 not admitting the emails.
11 MS. PACHECO: I've said my objection, Your
12 Honor, at this point. I believe I don't think I have
13 anything else to add, and I'm just wasting ycur time
14 reiterating the same thing. It's for the Co~rt to rule.
15 I believe the record speaks for itself, and it's for the
16 appellate court to determine where somebody is going to
17 go.
18 THE COURT: Okay. I'm not going to be
19 able to admit Exhibit 6.
20 MS. CANTRELL: Okay. That's fine.
21 THE COURT: Okay. So, let's ccntinue.
22 MS. CANTRELL: In a case like Laniel's
23 where there is a nonsuit and there are no outstanding
24 claims, it's clear there was no cross-claim against
25 Katherine and the counter and cross-petition was filed
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND R,PORTER
10
1 well after the dismissal. That is on all 4', - the
2 supreme court case of Greenberg versus Brookshire. And
3 that case has been followed over a hundred times in all
4 kinds of cases. Greenberg versus Brookshire was a
5 divorce case, but it's been followed by Texas Supreme
6 Court cases, it's been followed by appeal court cases,
7 Fifth Circuit Court of Appeals, the federal courts.
8 It's the law of the land. It's a landmark case. It was
9 a case exactly like this where there was a suit and a
10 nonsuit and a counter-claim following the nonsuit. And
11 the supreme court mandamused the judge - it was a
12 district court judge in Jefferson County - and said,
13 "Halt. The case is over."
14 And I submit that our case is Greenberg
15 versus Brookshire on all 4's.
16 MS. PACHECO: May I proceed, Your Honor?
17 THE COURT: Certainly.
18 DANIEL WARREN'S PLEA TO THE JURISDICTION
19 ARGUMENT BY MS. PACHECO: I
20 MS. PACHECO: I think the fundabental
21 difference is the way we view what this case is. I
22 admit, I'll be the first person to admit, this case is
23 probably the most convoluted procedural case ~'ve ever
24 seen. Petitioners have become Respondents; t~ey've
25 released each other; they've sat in depositio~s
I
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER I
11
1 representing the other. It is a bizarre easel. I don't
!
2 understand what they're doing, but frankly, t~ey, as Ms.
Cantrell told me when I called her the day I got her
!
3
!
!
4 nonsuit, she doesn't have to tell; and she's right. But
5 what she misses is when she chooses to nonsui t 1 my
6 client who'd been a defendant for a year and a half, had
7 substantial money invested in the education of this
8 Court and rulings obtained by this Court, had the
9 absolute right to, himself, institute a lawsuit and
10 proceed on that lawsuit to resolve the very issues they
11 have raised and vilified him for. And that's exactly
12 what -- you don't have to worry about the nonsuit.
13 I'll take the simple answer first.
14 When we filed days after she filed her
15 nonsuit, we filed a cross and counter-petition. We
16 affirmatively stated in there, and it's her exhibit,
17 that because of the convoluted procedural nature of this
18 case, we drafted it just like an original petition. And
19 in fact, it shows Paragraph 1 as discovery letter level
20 just like an original petition. And Footnote, 2 says,
21 "Due to the confusing nature of this case's Jrocedural
22 background, Mr. Weiner requests that service lbe affected
I
23 on Daniel through his attorney of record as ~ell as
I
24 through private process."
25 We treated this suit to be careful as a
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
12
1 newly-instituted lawsuit which that jurisdiction
2 reattaches to this court on the moment the pleading is
3 filed. And that is confirmed. In fact, when I was
4 looking at this issue, and it is an odd issue - because
5 what Ms. Cantrell focuses on her nonsuit. If she filed
6 a nonsuit and then when we came down and got
7 affirmative relief against Daniel, which is what
8 happened in Greenberg, I would be saying she's
9 absolutely right. We can't do that. All we did was
10 reinstitute a lawsuit in the same cause number which
11 Local Rule 2.2 tells us this is where this lawsuit goes.
12 Once you choose the number, it goes back to that
13 original number.
14 We instituted a new lawsuit and
15 immediately attempted to effectuate service.
16 When they evaded it nine times, this Court
17 entered a substituted service order. This Court had
18 absolutely every right to do that because every court
19 has jurisdiction to enter a substituted order when a
20 party is evading service. And that's what's happened in
21 this case. That's all that's happened.
22 In Greenberg, after the party dismissed,
23 the Court entered rulings. Well they can't enter
24 rulings because I would agree in that case the parties
25 aren't before this Court. The only thing that's
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
13
1 happened in this case since the readmission of this
2 pleading is the attempt to join her clients, and we have
3 now done that through substituted service. We haven't
4 gotten to any affirmative rulings. They will be a
5 party.
6 Greenberg is completely irrelevant to this
7 case 'cause your court has entered no rulings. You've
8 done nothing other than approved substituted service
9 since we filed this pleading. Now once the service date
10 has passed, whatever she's going to do - she can argue
11 then whether we should have the ruling or not, but
12 they're before this Court; they've been joined.
13 The supreme court in Zachary versus Lane
14 in 2001 looked at the issue of who is a party. Do you
15 have to be served to be a party or are you a party the
16 second the pleading is filed? The supreme court looked
17 at the case and said, "No. You are a party the second
18 the case is filed." They were rejoined as a party
19 'cause we re-served her which I agree - if they claim
20 they want a party - so be it. But we didn't skip the
21 step of personal service. We did that; albeit, by
22 substituted because they evaded.
23 But in that case, the supreme court said
24 they are party the second the pleading is filed. Now
25 you can't render judgment against that person unless we
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
14
1 go and proceed and join, but the definition of "party"
2 is not when they have just been joined; in fact, what
3 they said:
4 "The supreme court does not hold that a
5 named defendant is not a party until that person is
6 served except to waive service."
7 Well it's true the party may be served
8 except to waive service otherwise a PR in order for a
9 judgment to be rendered against them; nevertheless, it
10 doesn't make them not a party in the lawsuit in which
11 they have been specifically named.
12 Another case out of Corpus Christi,
13 Christus Health versus Ragsdale, also a 2001 case,
14 looked at the issue of can you then add a party to a
15 suit later and it relates back to the original filing?
16 And they say, "Yes,•• even if that party tried to run off
17 to another court and file a lawsuit. And that's Corpus
18 Christi -- Christus Health versus Ragsdale.
19 So, my point is we're sort of avoiding the
20 real issue here.
21 She does not like that when she was
22 playing her procedural games, we got a sense that this
23 wasn't going away and reinstituted the very same
24 affirmative claims in this suit that they have been
25 bringing this whole time, construction of the trust.
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
15
1 So, I just disagree wholly that her cases
2 apply. I disagree wholly this Court doesn't have
3 jurisdiction. It's a statute of probate court. As you
4 know very well, it's concurrent jurisdiction in all
5 trust cases. This is a trust case that had been pending
6 here.
7 And on March 24th, before she went to the
8 district court, we initiated, at a minimum, what would
9 be deemed a new lawsuit.
10 I have a few exhibits to put in the
11 record. They are mainly attached to my pleading so I
12 didn't make extra copies for Counsel, but I do feel like
13 I want to go the extra step and have them in the record.
14 I'm offering as Exhibit A, and I
15 apologize, I'm just trying to use the same exhibit
16 numbers I did to my response. The Original Petition For
17 Termination of Trust originally filed by Katherine
18 Warren as Co-Trustee of Daniel's trust on October 2nd,
19 2013 as Respondent's for Mr. Weiner's Exhibit A. And
20 I'll represent to Counsel these are duplicates of the
21 exhibits attached.
22 MS. CANTRELL: That's fine.
23 THE COURT: The Original Petition For
24 Termination of Trust is -- well do you have an
25 objection?
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
16
1 MS. CANTRELL: No objection.
2 THE COURT: Is admitted as Respondent's
3 Exhibit A.
4 MS. PACHECO: Thank you, Your Honor. We
5 offer as Exhibit B, the First Amended Original Petition
6 For Modification of Trust and Response To Plea and
7 Abatement and Plea To The Jurisdiction filed by
8 Katherine Warren as next friend of Daniel Weiner on
9 November 4th of 2013, Your Honor.
10 MS. CANTRELL: My only objection, I guess,
11 other than those two, would be that those are -- are
12 those in Cause 425.576?
13 THE COURT: Yes.
14 MS. CANTRELL: Which is a case that's been
15 dismissed now. So, that's -- it was dismissed back in
16 November of 2013. They're somewhat irrelevant, but I
17 presume it's harmless to admit them at this point.
18 MS. PACHECO: I just want to show the
19 procedural and history of this particular Mr. Weiner's
20 claims, Daniel Weiner's claims as it relates to this
21 Court, Your Honor.
22 THE COURT: The first amended -- so are
23 you --
24 MS. CANTRELL: I'm okay with that.
25 THE COURT: withdrawing your objection?
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
17
1 MS. CANTRELL: No, I have no objection.
2 THE COURT: Okay. The First Amended
3 Original Petition for Modification of Trust and Response
4 To Plea and Abatement and Plea To The Jurisdiction is
5 admitted as Respondent's Exhbit B.
6 MS. PACHECO: Thank you, Your Honor.
7 And I offer as Exhibit C, the Original
8 Petition In Intervention filed by Daniel Steven Weiner
9 on April 22nd of 2014 in Cause Number 425.577.
10 MS. CANTRELL: No objection.
11 THE COURT: The Original Petition In
12 Intervention is admitted as Respondent's Exhibit C.
13 MS. PACHECO: Thank you, Your Honor.
14 I offer as Andy Weiner's Cross-Claims
15 Against Katherine Warren Formerly Known As Katherine
16 Weiner filed on July 2nd, 2014, Your Honor.
17 MS. CANTRELL: No objection.
18 THE COURT: The Andy Weiner's Cross-Claims
19 Against Katherine Warren, F/K/A Katherine Weiner is
20 admitted as Respondent's Exhibit D.
21 MS. PACHECO: Your Honor, I offer into
22 first supplement -- First Supplement To Original Answer
23 filed by Mr. Weiner on July 8, 2014.
24 MS. CANTRELL: No objection.
25 THE COURT: The First Supplement To
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
18
1 Original Answer is admitted as Respondent's Exhibit E.
2 MS. PACHECO: Thank you, Your Honor.
3 I offer as our Exhibit G, the Rules of The
4 Probate Courts of Harris County, Texas approved by the
5 supreme court and entered as an order of this court on
6 March 8 of, 2007.
7 MS. CANTRELL: May I see those? Which
8 rules are those?
9 MS. PACHECO: Yes.
10 MS. CANTRELL: Oh, the probate courts.
11 Good. Thank you.
12 THE COURT: The Rules of The Probate
13 Courts of Harris County, Texas, are entered as
14 Respondent's Exhibit G.
15 MS. PACHECO: Thank you. And I was going
16 to offer so I affirm the offering of Andy Weiner's
17 Counter-Claim and Cross-Petition which I believe is
18 already Plaintiff's Exhibit 3. I believe that's already
19 admitted into evidence; is that right, Your Honor?
20 THE COURT: It is.
21 MS. PACHECO: Thank you.
22 And finally as Exhibit H, I offer
23 Plaintiff's Original Petition of David W. Warren, Daniel
24 W. Warren and Katherine Warren as next friend of MHW, a
25 minor. That was filed in the district courts of Harris
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
19
1 County and assigned to District Court Number 133 on
2 April the 2nd of 2015.
3 MS. CANTRELL: No objection.
4 THE COURT: Okay. Plaintiff's Original
5 Petition is admitted as Respondent's Exhbit H.
6 MS. PACHECO: And what those documents
7 establish is the procedural history in this court
8 including the severance because of Mr. Daniel Weiner's
9 now-Daniel-Warren's intervention; but more specifically,
10 that Mr. Weiner's counter and cross-petition which fell
11 to constitute the original pleading that was promptly
12 served was filed before any attempt to initiate any
13 jurisdiction, any other court which the supreme court
14 has also said the first filing applies. And that would
15 reinstitute this Court's jurisdiction.
16 Even if you believe that we couldn't
17 rejoin her, even if you believed that there was no valid
18 existing lawsuit as it relates to Daniel, it's
19 irrelevant because we reinstituted a lawsuit on March
20 24th; we promptly served; service has been obtained.
21 And finally we ask the Court to take
22 judicial notice of your order of substituted service.
23 THE COURT: It is so noted.
24 MS. PACHECO: Thank you, Your Honor.
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
20
1 REBUTTAL ARGUMENT BY MS. CANTRELL:
2 MS. CANTRELL: May I? I have a couple of
3 comments in rebuttal.
4 THE COURT: Sure.
5 MS. CANTRELL: The facts of this case are
6 what happened in Greenberg versus Brookshire
7 identically. There was a counter-claim, a brand new
8 pleading into the case after the nonsuit, and that's in
9 the Court's -- the supreme court said that that -- the
10 nonsuit ended the case. It was over at that point.
11 There should be no more claims - whether they're
12 hearings or not - there's no more orders. The case is
13 over.
14 And so I also wanted to point out that in
15 their responsive -- the response to our motion -- our
16 plea to the jurisdiction which I'm not sure that you-all
17 have because it was filed about 5:00 last night. Did
18 you-all get that?
19 THE COURT: The response --
20 MS. CANTRELL: Their response to our plea.
21 THE COURT: Yes, I got it right here.
22 They gave me this notebook which is their courtesy copy.
23 MS. CANTRELL: Okay. Could you please
24 look for me on -- at Paragraph 33 and 36 of their
25 response because I would like to correct the record on a
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
21
1 couple of misstatements in there about timing and dates
2 which I think the records -- the documents we have
3 admitted will speak for themselves.
4 Paragraph 33 says that "Further in his
5 counter and cross-petition filed prior to the Court
6 signing Daniel's request for dismissal" - that is not
7 correct. The counter and cross-petition was filed after
8 the Court signing Daniel's request for dismissal - the
9 dates being March 24th for the counter and
10 cross-petition and March 16 on signing the dismissal.
11 And that error is repeated in Paragraph 36 where it
12 says, "In subsequent to Daniel's nonsuit but prior to
13 the entry of dismissal, Mr. Weiner's cross and
14 counter-petition was filed." That's the same error. It
15 is incorrect on the dates. Daniel's nonsuit predated,
16 and his dismissal predated, the cross or the counter and
17 the cross-petition. so·, I would -- I'd 1 ike to correct
18 the record on those two things.
19 THE COURT: Okay. Just quite simply: We
20 view the pleading filed on March 24th by Andy Weiner
21 whose counter and cross-petition, we view that as an
22 original petition. I mean, I know it's titled, "Counter
23 and Cross-Petition" but we view it as an original
24 petition. And so
25 MS. CANTRELL: Your Honor, could we look
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
22
1 at the local rules, then, on the numbering, the case
2 numbering, on original petitions that are in evidence?
3 THE COURT: Okay.
4 MS. CANTRELL: It says, "All matters
5 relating to or appertaining to an estate or
6 guardianship -- "
7 THE COURT: Where are you reading from?
8 MS. CANTRELL: The Rule 2.2, the one they
9 cited in their response.
10 THE COURT: Okay.
11 MS. CANTRELL: "All matters relating or
12 appertaining to an estate or guardianship," which this
13 does not, "that has not been closed as provided in the
14 Probate Court Code including proceedings upon trust
15 created by decedent's will," which this is not -this is
16 an inter vivos trust, "shall remain in such court
17 subject to an order of transfer as with any case and
18 shall retain the original docket number with an
19 appropriate sub file."
20 So, if it's an original petition, it
21 should have its own separate case number according to
22 the way I read these rules.
23 "Each subsequent matter filed involving
24 the same decedent or Proposed Ward," which this does not
25 involve, "shall be filed in the original file under the
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
23
1 same docket number and in the same court as the original
2 filing."
3 So, I do not see under these rules how
4 they can file a brand new petition into a case that has
5 been nonsuited. I don't dispute that they could file a
6 brand new lawsuit and they're welcome to. They will --
7 they've already raised the construction issues in the
8 district court case; so those are already before the
9 district court case. So, it would be duplication if it
10 reads the same way as their counter and cross-petition.
11 MS. PACHECO: Actually, they're part of an
12 affirmative answer, and there is a plea to abate in the
13 district court case saying this court has jurisdiction.
14 MS. CANTRELL: I have a copy of that
15 pleading. Well you've got it in evidence.
16 THE COURT: Okay. So, if we view this as
17 an original petition, does it need to go back to
18 should it have gone through the process of being
19 assigned to another probate court?
20 MS. PACHECO: I don't know the answer to
21 that. That's never been my experience. My experience
22 with the Clerk's Office in 20-plus years, if it relates
23 to the exact same cause number or style of the
24 original - it always goes back to that case. They get
25 very upset when you start picking new courts which is
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
24
1 part of the reason you have assigned it back to the same
2 court which is clearly intention of the local rules.
3 MS. CANTRELL: And, Your Honor, I have the
4 Government Code Section 25.1034 which this Rule 2.2
5 refers to, and it does talk about the random
6 assignments. And it says, "The county clerks will keep
7 a separate docket for each court. The County Clerk
8 shall assign and docket as random matters and
9 proceedings filed in the statutory probate courts
10 according to the following percentages:
11 "Probate Court Number 1 - 30 percent;
12 Probate Court 2 - 30 percent; Probate Court 3 - 20
13 percent; Probate Court 4 - 20 percent."
14 So, this is the random assignments. You
15 may be familiar with this.
16 MS. PACHECO: That's a Clerk's Office
17 function. If the Court wants to tell them to reassign
18 it a new cause number, it doesn't change the filing it
19 attaches to the courts - it's just a matter who hears
20 it. But I've never seen a case where the case was
21 already before a court that even if it was assigned to
22 another court, it wasn't immediately transferred back
23 under administrative transfer powers.
24 MS. CANTRELL: I have no problem --
25 THE COURT: We can go through that -- we
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
25
1 can go through the motions of -- I can send the file
2 back to the Clerk's Office for random assignment. But
3 then whatever judge in Harris County gets it is going to
4 see that we've got two other related cases, and they're
5 going to send it back.
6 MS. CANTRELL: Your Honor, I would submit
7 that they need to file a brand new lawsuit in starting
8 all over.
9 MS. PACHECO: Of course, she does because
10 she wants to try and get to her district court. This is
11 a game. It is a vile game that has been played for a
12 year and a half. It is offensive.
13 MS. CANTRELL: It is not a game; it is
14 called following the rules.
15 MS. PACHECO: No, this isn't following the
16 rules. This isn't the spirit of the Code of
17 Professional Conduct. This isn't the spirit of the
18 Rules of Professional Procedure. There is nothing
19 appropriate about the actions that have been taken in
20 this case.
21 MS. CANTRELL: There is
22 MS. PACHECO: I'm going to be quiet
23 because I'm about to be unprofessional myself.
24 THE COURT: You know, I'm just not going
25 to do anything about -- I view this as an original
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
26
1 petition. I don't care what it's called. And I'm not
2 going to do anything about the sending it to the Clerk
3 for random reassignment. I really don't -- I've never
4 had this issue come up, and I'm just not going to do
5 anything about it. And, I mean, and you can, you can
6 appeal these decisions, of course. And so, I mean,
7 that's what I suggest you do. But I view this as an
8 original petition and that's just, that's just how I
9 reasonably view it. And so I could be wrong about that
10 but --
11 MS. CANTRELL: Your Honor, there is a case
12 by Justice Bland who is the same one that wrote the
13 opinion in Michael's case --
14 MS. PACHECO: Your Honor, I have a
15 proposed order on the dismissal of the plea and the
16 jurisdiction. I would ask that the Court enter it.
17 THE COURT: Well what were you saying?
18 MS. CANTRELL: The Court says this:
19 "After the trial Court lost plenary
20 power," this involved a nonsuit, and your plenary power
21 expired 30 days after the March 16th dismissal under
22 Section 329(b) of the Rules of Civil Procedure, "after
23 the Court, trial Court, lost plenary power it granted a
24 plea to the jurisdiction. Because the trial Court had
25 lost its plenary power, the Trial Court's order granting
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
27
1 the plea is void. An appellate Court should declare
2 post-plenary power orders void."
3 And that is my position that any order in
4 this case past April 16th, according to every case I
5 have read, is void.
6 In this case, now they can file a brand
7 new lawsuit, but the jurisdiction in this case is over
8 starting with the nonsuit and 30 days thereafter when
9 the plenary power expires. That is just according to
10 the rules.
11 You can call it gamesmanship as Ms.
12 Pacheco likes to do frequently, but it's playing by the
13 rules. It is to prevent this exact same thing
14 happening; otherwise, the right to nonsuit would be
15 illusory. You could never nonsuit because someone could
16 simply counter-claim you right back in which is exactly
17 what happened. And this case is -- this would be not
18 only void but it would be an interlocutory order and
19 that does not qualify for permissive appeal because it's
20 not a situation where there's substantial ground for
21 disagreement.
22 REBUTTAL ARGUMENT BY MS. PACHECO:
23 MS. PACHECO: One, that case doesn't apply
24 under this circumstance; and two, again Counsel
25 completely ignores how the law does not approve of forum
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
28
1 shopping which is exactly what's happened in this case.
2 We obtained rulings on summary judgments. We did all
3 that. She, again, incurred thousands and thousands of
4 dollars of legal fees. And then she tried to get out of
5 this court 'cause she didn't like where it was going and
6 go find a different shore. That is flat-out forum
7 shopping. This isn't even a different county - it's a
8 different court; different floor; different court; same
9 courthouse.
10 So, I don't see how any of that is
11 appropriate or relevant to the issues in this case.
12 MS. CANTRELL: The plaintiff has a perfect
13 right to choose his forum that's why Wyatt versus Shaw
14 Plumbing is the case that Michael's case went up on
15 appeal over.
16 MS. PACHECO: And Mr. Weiner has done that
17 when they chose to take their ball and try and get
18 different rulings at a different court. And now he is
19 the Plaintiff, and he has chosen the Harris County
20 Probate Courts, wherever he be assigned, including the
21 judge who is very educated on this process.
22 MS. CANTRELL: Your Honor, I have an order
23 dismissing Andy Weiner's counter and cross-claim and
24 dismissing this entire case.
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
29
1 COURT'S RULING
2 THE COURT: Okay. I'm not going to
3 dismiss it. And I could be wrong on when I sign this
4 order on the plea to the jurisdiction. I guess, I'm
5 just -- I'm frustrated because at the beginning of this
6 case then Andy Weiner wanted it moved over to the family
7 court. And so we -- when I looked at the case, I
8 thought, you know, clearly this is within the language
9 of the divorce decree, right? The divorce decree. And
10 I know I'm going back years, but the divorce decree, if
11 I remember right, said that they were to be trustees and
12 that they weren't supposed to seek the removal of either
13 of them. I don't remember exactly what the language
14 was. So, I thought, well, you know, a judge over there
15 is one who signed that order or that decree, and they
16 need to go back and determine if this is, in fact, a
17 violation of that decree. I was wrong about that. So,
18 that came back to us.
19 And now the Warren children are wanting to
20 move their cases to district court. And it's, in my
21 view, it doesn't serve the interest of either party or
22 either -- or any of the parties to be jumping around
23 courts especially you guys have both invested a lot of
24 time, energy, and money in this court. And it feels
25 like forum shopping to me. And they've invested a lot
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
30
1 of effort and money and time when they, over the course
2 of this case, and I can't just dismiss it. And I could
3 be wrong. I mean, I could be wrong that my plenary
4 powers expire 30 days after I sign the order dismissing
5 the case. But that's not the way I view it. I view
6 this as, in essence, an original petition being filed.
7 And maybe it should have been funneled through the
8 Clerk's Office and assigned to a different court. I
9 don't know. But I'm not going to dismiss it over
10 something procedural like that.
11 So, you know, I'm going to have to just do
12 what I think is right and let the appeals court deal
13 with it. So, that's all I know how to do.
14 MS. CANTRELL: Yes, Your Honor.
15 MS. PACHECO: Your Honor, while we're
16 here, may I make one last request that has nothing to do
17 with this motion. And you raised this at the last
18 hearing.
19 Ms. Cantrell has the propensity to contact
20 your staff and email them and elicit comments and then
21 quote them, now in mandamuses and other proceedings. I
22 recognize it's your prerogative to allow us to do that,
23 and you've been very accommodating to move things along.
24 Given what she has contorted some of those statements to
25 be, I would request that if any requests should be made,
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
31
1 they should be made in open hearings with a record so
2 it's not this back and forth convoluted process and then
3 attempt to put an email in the record.
4 I recognize -- I'm a believer in
5 cooperative courts, and y'all have always been
6 cooperative, but I feel that now she tries to get
7 answers and then use those in future proceedings and
8 it's just improper.
9 She has suggested court staff has given
10 her legal advice which hasn't -- I'm not staying it
11 happened, but I just think it needs to stop. I mean, to
12 the extent we request a hearing, the request should be I
13 want to set a hearing on ''X" date - not the going back
14 and forth because I feel like we have crossed the line,
15 or perhaps all sides, in this case. And because of the
16 nature of this case, I would ask that you direct all
17 parties to stop emailing anything substantive to the
18 Court and put in a pleading.
19 THE COURT: Okay.
20 MS. CANTRELL: I thought you did that
21 already, Your Honor, at the last hearing. You did ask
22 us -- well, to put everything in emails so now the
23 request I'm hearing is not to even email?
24 THE COURT: Well, I mean, the thing is,
25 this is the limits -- I mean, we're bound by judicial
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
32
1 ethics, and I'll say this. What I said before is we've
2 kind of been -- we've done our best to abide by those
3 ethical requirements, but I will say that in estate and
4 guardianship matters where we're dealing with a lot of
5 pro se litigants then quite often we will give advice
6 that borders on, you know, it may go beyond just
7 procedural, and it may be even bordering on legal
8 advice. And we do that because we view that sometimes
9 it's just, it's expeditious for the protection of a Ward
10 especially, okay. We don't want anything bad to happen
11 to our Wards, and we view that as our highest priority.
12 This case is totally different, okay. And
13 the only thing that you guys, as you know, are permitted
14 to visit with our staff about is procedural issues. And
15 so beyond that, we shouldn't receive any communication
16 if it has nothing if it goes beyond procedural, we
17 are not permitted to receive it.
18 MS. CANTRELL: Your Honor, I understand
19 that, and I think that was clear at the last hearing.
20 I'm not sure why it's coming up again.
21 MS. PACHECO: It's coming up because now
22 she's quoting emails in mandamuses. And what I've come
23 to realize is you call it procedural issues, but
24 technically, what she should be communicating with the
25 Court about is setting hearings. I mean, she can't get
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
33
1 her procedural questions answered by this Court either.
2 If she wants to know what the Court wants to do on a
3 particular issue, I'm always happy to come down here and
4 have a status conference with a record, and we can deal
5 with it in the proper way.
6 166(g), under the Rules of Procedure, is
7 intended to address procedural issues on notice and
8 pleading. But what has happened in this case is she's
9 sort of contorting those communications into other
10 things; and frankly, I don't like having arguments with
11 Counsel where, you know, colleagues or anybody
12 associated with the Court are copied on those. It just,
13 you know -- and there's embedded comments in there.
14 I understand -- I'm not saying it should
15 be in every case, and I certainly, I said this last time
16 and I'm going to say it on the record - I am not
17 implying this Court has done anything other than be
18 excessively cooperative to both sides. But Ms. Cantrell
19 then contorts those into advice; and, you know, it's not
20 even with you, but your staff is an arm of you and it
21 can be deemed as ex parte communication or she's trying
22 to argue the Court told her to do something. It's
23 improper. And she's not seeing the limits of those, and
24 yet again, when we're setting things, there's a lot of
25 back and forth that included Judge Comstock. I just
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
34
1 think this needs to stop because it's an unusual case
2 with unusual parties and unusual counsel and perhaps
3 this is one where other than asking for setting a
4 hearing, everything else needs to be on the record to
5 avoid this happening again.
6 THE COURT: Okay.
7 MS. CANTRELL: These emails with the order
8 on the severance, I'm not sure who initiated those but
9 it certainly wasn't me. I mean, but we have discussed
10 this over and over at the last hearing.
11 THE COURT: Well no, no because the Court
12 can discuss procedural issues with lawyers, but when
13 but that is such a -- you know, when you talk about
14 procedure versus giving legal advice, I think there is a
15 lot of overlap there. And here, you know, you guys are
16 seasoned lawyers. You guys know the procedures.
17 There's no reason why you need to be visiting with us
18 over -- about anything other than scheduling hearings.
19 So, I think it's very fair that Ms. Pacheco request that
20 we limit our all-communication.
21 MS. CANTRELL: Yes, Your Honor, I agree.
22 We did that already. I'm not sure what it is that made
23 her bring it up again.
24 THE COURT: I don't even see these emails.
25 I don't know. But if there is something that goes
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
35
1 beyond the bounds of simply setting hearings then --
2 MS. PACHECO: There's a discussion of
3 pulling down certain hearings, we're going to go in a
4 different direction. All of that is beyond what should
5 be communicated in emails. They're not part of the
6 Court's record and yet she tries to admit them.
7 Again, I've never made this request, but
8 I've never had a case quite like this. And I'm very
9 appreciative that we can approach you on any normal case
10 and ask reasonable questions with Counsel copied. This
11 is just not that case.
12 MS. CANTRELL: But Counsel was copied on
13 those emails and it was initiated --
14 MS. PACHECO: But it's a rally back and
15 forth. It's an ex parte communication and then Counsel
16 is forced to respond and your staff is then watching
17 this volley back and what do you do with that thing? Do
18 you show it to you? Does it go in the Court's file?
19 THE COURT: It doesn't get to me, but it
20 does in a sense because if it gets to anyone of our
21 staff it gets to me. I mean, it's deemed that I have
22 viewed it, okay. And so because they are an extension.
23 The staff is, of course, an extension of me.
24 And, you know, the truth is, I view those
25 emails as ex parte even though it copies Counsel. It's
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
36
1 still an ex parte communication, and this is why:
2 Because it does force the other side to have to respond.
3 It does bring the other side into like almost a secret
4 hearing in a way. I mean, you're putting information
5 out there or questions out there and forcing the other
6 party in to respond. I don't know what else to say
7 except that if someone makes a request that we limit
8 receipts of emails and communication by email and phone
9 to scheduling hearings. I think that's a reasonable
10 request and especially because you guys can call up any
11 time and set a hearing, and you'll have it, you know. I
12 mean, it's not like I'm not here, you know.
13 MS. CANTRELL: I'm just confused about
14 what it is Ms. Pacheco is concerned about if it was
15 MS. PACHECO: I don't want to have a
16 discussion of the substance of all emails. I think
17 everybody's aware, probably not you because you haven't
18 seen them, of what's been going on. I just think it
19 needs to stop.
20 And again, she, just like the offering of
21 this email today, some emails that are going to happen
22 to show up in the mandamus - it doesn't matter the
23 substance. I'm not complaining anything's improper at
24 this point - I just think in the future on an on-going
25 basis, to avoid future issues, that I would ask the
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
37
1 Court to direct all counsel, us included, to limit our
2 contacts with this Court to requesting hearings which I
3 think is the conservative and appropriate means to
4 communicate with the Court because I do want a record
5 any time Ms. Cantrell communicates with this Court.
6 THE COURT: Okay. So, just I guess going
7 forward, all communication needs to be with setting
8 hearings only and
9 MS. CANTRELL: I agree, Your Honor. I
10 think you made that clear to us last time.
11 THE COURT: Okay. Ms. Pacheco, do you
12 want to sign this?
13 MS. PACHECO: I apologize. Thank you.
14 THE COURT: Thank you.
15 MS. PACHECO: May I be dismissed?
16 THE COURT: Yes.
17 MS. PACHECO: Thank you.
18
19
20 * * * * *
21
22
23
24
25
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
38
1 The State of Texas
2 County of Harris
3
4 I, Hipolita Lopez, Official Court Reporter in and
5 for the Probate Court Number Four of Harris County,
6 State of Texas, do hereby certify that the above and
7 foregoing contains a true and correct transcription of
8 all portions of evidence and other proceedings requested
9 in writing by counsel for the parties to be included in
10 this volume of the Reporter's Record, in the
11 above-styled and numbered cause, all of which occurred
12 in open court or in chambers and were reported by me.
13 I further certify that this Reporter's Record
14 truly and correctly reflects the exhibits, if any,
15 admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $288.00
18 and was paid by Cantrell & Cantrell
19 WITNESS MY OFFICIAL HAND this the 19th day of
20 May, 2015.
21
/s/ Hipolita G. Lopez
22 HIPOLITA G. LOPEZ, Texas CSR #6298
Expiration Date: 12-31-16
23 Official Court Reporter
Probate Court Number Four
24 Harris County, Texas
201 Caroline, 7th Fl.
25 Houston, Texas 77002
HIPOLITA G. LOPEZ, CERTIFIED SHORTHAND REPORTER
FILED
4/17/2015 2:48:53 PM
Stan Stanart
County Clerk
Harris County
PROBATE COURT 4
No. 425,576-401
IN RE: § IN THE PROBATE COURT
§
DANIEL STEVEN WEINER § NO. 4
§
1996 TRUST § HARRIS COUNTY, TEXAS
PLEA TO THE JURISDICTION
Daniel Warren files this Plea to the Jurisdiction in response to Andy Weiner’s Counter and
Cross-Petition.
SUMMARY OF THE ARGUMENT
1. Daniel Warren asks the Court to dismiss Andy Weiner’s Counter and Cross-Petition
because it was filed after Daniel Warren nonsuited all of his claims and the court lacks
jurisdiction to rule on it under the holding of Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.
1982).
BACKGROUND
2. Daniel Warren is the sole beneficiary of the Daniel Steven Weiner 1996 Trust (the
“Trust”). The Trust was created on March 20, 1996 by Andy I. Weiner and Katherine R.
Warren (formerly Katherine F. Weiner), who are also the co-trustees.
3. On April 22, 2014, Daniel Warren filed a Plea in Intervention in Cause No. 425,577,
In Re David Abraham Weiner 1994 Trust, suing Andy Weiner for breach of fiduciary duty
for borrowing substantially all of the Trust assets for Andy Weiner’s own personal use,
commingling the Trust assets with Andy’s personal funds, failing to prudently invest the
Trust assets, and failing to render an accounting upon Daniel’s request.
4. On July 8, 2014 Andy Weiner asserted various affirmative defenses, including that his
EXHIBIT
exhibitsticker.com
1
TAB F
“actions were justified, excused and/or authorized by the terms of the Daniel Steven Weiner
1996 Trust” and “Ambiguity.” [See attached Exhibit A]
5. On October 24, 2014 Andy Weiner filed a Second Amended Cross-Claim against
Katherine Warren in Cause No. 425,577 seeking to hold Katherine responsible for any
damages, actions, inactions, and violations of the Trust Agreement, breach of her fiduciary
duty, removal, tortious interference with Andy’s ability to properly administer the Trust, and
reimbursement of Andy’s legal fees in defending the lawsuit.
6. On November 17, 2014 the Court severed Daniel Warren’s suit against Andy Weiner
into a separate Cause No. 425,576-401, and ordered 24 docket entries to be moved to the
new case. [See attached Exhibit B] The Cross-Claim was not moved and remained in Cause
No. 425,577.
7. Pursuant to the November 17, 2014 Order, Daniel Warren filed an Original Petition in
this Cause No. 425,576-401 on December 1, 2014 asserting the same claims as in his Plea in
Intervention filed in Cause No. 425,577. The Original Petition named Andy Weiner and
Katherine Warren as parties, but expressly stated that his Notice of Nonsuit against Ms.
Warren applies to this Cause No. 425,576-401.
8. On February 10, 2015, Daniel challenged Andy Weiner’s Answer and Supplemental
Answer by Special Exceptions. After a hearing on the matter on February 17, 2015, the Court
ordered Andy Weiner to replead nine (9) of his thirteen (13) defenses by March 17, 2015.
Andy Weiner failed to do so.
9. On March 10, 2015, Daniel Warren nonsuited all of his claims in this case and on March
16, 2015 the Court dismissed Daniel Warren without prejudice. [See attached Exhibit C].
10. On March 24, 2015, two weeks after Daniel Warren nonsuited his claims, Andy Weiner
2
filed a Counter and Cross-Petition against Daniel and Katherine, attempting to join them as
parties to the nonsuited case.
ARGUMENT & AUTHORITIES
11. Daniel Warren asks the Court to dismiss Andy Weiner’s Counter and Cross-Petition for
the following reasons:
12. Daniel Warren had an absolute right to nonsuit all of his claims on March 10, 2015 and
be dismissed from the case as long as it does not “prejudice the right of an adverse party to
be heard on a pending claim for affirmative relief.” (emphasis added) [TRCP 96, 162].
13. The right to nonsuit should be liberally construed in favor of the nonsuiting plaintiff.
[Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982)].
14. When the defendant has no pending claims for affirmative relief, the plaintiff’s nonsuit
renders the merits of the underlying case moot and dismisses the entire case. A trial court
may not rule on a counter or cross claim filed after a nonsuit. [Greenberg, 640 S.W.2d at
871].
15. Andy Weiner’s failure to replead the nine (9) affirmative defenses as ordered by the
Court left Andy’s only defenses as 1) that Daniel is not entitled to attorney fees, 2) Daniel
lacks standing, legal authority or capacity to sue, 3) Daniel’s claims are barred by the statute
of limitations, and 4) Daniel’s claims are barred because he has no legal or equitable basis
for recovery. [See attached Exhibit D]. These are not claims for affirmative relief under
TRCP 162.
16. Since Daniel has dropped all his claims, both the claims and the defenses in this case are
moot. A trial court has no jurisdiction to rule on a moot controversy. [Klein v. Hernandez,
3
315 S.W.3d 1, 3 (Tex. 2010; Devon Energy Prod. Co., L.P. v. KCS Res., LLC, 450 S.W.3d
203, 209 (Tex. App.─Houston [14th Dist.] 2014, pet. pending on other grounds)].
17. In Greenberg v. Brookshire, the wife filed a counterclaim against her husband two days
after he nonsuited his divorce case against her. Over the husband’s objections, the trial judge
held a hearing on the wife’s counterclaim and entered an order pertaining to it. In a
proceeding for mandamus relief, the Texas Supreme Court held that the trial judge should
not have proceeded with the hearing on the counterclaim and directed him to withdraw his
order pertaining to it. [Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982)].
18. When a plaintiff files a nonsuit, the trial court loses jurisdiction of the entire case,
except jurisdiction to render the order of dismissal without prejudice, which this Court has
done. [Ault v. Mulanax, 724 S.W.2d 824, 828 (Tex. App.─Texarkana 1986, orig.
proceeding), also citing Greenberg v. Brookshire].
19. Similarly, in Ault v. Mulanax the defendant filed a cross-action against the plaintiff after
she had nonsuited all of her claims. The appeal court held that the trial court lost jurisdiction
of the entire case immediately upon the filing of the plaintiff’s nonsuit, except jurisdiction to
render the order of dismissal without prejudice. [Ault, 724 S.W.2d at 829].
20. Just as in Greenberg and Ault, when Daniel nonsuited this case, there were no pending
claims for affirmative relief filed by any party. As such, the trial court’s only recourse is to
dismiss the entire case without prejudice, as the Court has done.
21. Andy Weiner’s cross-claims against Katherine Warren have no impact on this case.
They were filed only in Cause No. 425,577, a separate cause of action. Nor do Andy
Weiner’s Counter and Cross-Petition have any impact on this case because they were filed
4
after Daniel nonsuited his entire case. According, Daniel had an absolute right to dismiss his
entire case under the holding of Greenberg v. Brookshire.
22. A trial court cannot deny a litigant's right to nonsuit his case when affirmative relief is
not sought by an adverse party before the nonsuit. [Greenberg v. Brookshire, 640 S.W.2d
870, 871 (Tex. 1982)]. Andy Weiner had no claims for affirmative relief pending at the time
of Daniel’s nonsuit.
23. Accordingly, the Court should dismiss this entire case and Andy Weiner’s Counter and
Cross-Petition as it was filed after Daniel nonsuited his entire case.
RELIEF REQUESTED
24. For these reasons, Daniel Warren asks the Court to set this Plea to the Jurisdiction for a
hearing and sign an order dismissing Andy Weiner’s Counter and Cross-Petition and this
entire case for lack of jurisdiction.
Respectfully submitted,
CANTRELL & CANTRELL, PLLC
By: /s/ Carol A. Cantrell
Carol A. Cantrell, Attorney for Daniel Warren
State Bar No.: 24043592
Meredith N. McIver
State Bar No.: 24078974
Cantrell & Cantrell, PLLC
3700 Buffalo Speedway, Suite 520
Houston, Texas 77098
Telephone: (713) 333-0555
Facsimile: (713) 333-0550
ccantrell@cctaxlaw.com
5
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing instrument has been
duly served by electronic delivery and facsimile on all parties and counsel of record indicated
below, on April 17, 2015.
Sarah Patel Pacheco Thomas R. Conner
Kathleen Tanner Beduze Conner & Lindamood, P.C.
Crain Caton & James 1221 Lamar, Suite 1010
Five Houston Center, Houston, TX 77010
1401 McKinney, 17th Floor tom@lawcl.com
Houston, TX 77010 713-654-8115 (facsimile)
pacheco-efile@craincaton.com ATTORNEY FOR KATHERINE R. WARREN
713-658-1921 (facsimile)
ATTORNEY FOR ANDY WEINER
/s/ Carol Cantrell
CAROL A. CANTRELL
6
Oct. 23. 2013 3:35PM No. 1344 P. 24
NO_ 425,577
INRE: § IN PROBATE COURT
§
DAVID ABRAHAM WEINER § NUMBER FOUR (4) OF
§
1994 TRUST § HARRIS COUNTY, TEXAS
ANSWER TO PETITION FOR TERMINATION OF TRUST
TO THE HONORABLE JUDGE OF SAID COURT:
Andy Weiner ("Mr. Weiner"), co-trustee of the David Abraham Weiner 1994 Tmst
("Tmst''), files this Answer to Original Petition for Termination of Tmst filed by Katherine F.
Warren ("Ms. Warren") and David A Weiner kin/a David W. Wro-ren ("David"), and in suppOlt
thereof respectfully shows the following:
I.
Overview
1. Tho Original Petition for Termination of Trust ("Petition") is just anothe1· sad stage in
Ms. Warren's systematic plan to exclude Mr. Weiner from his son's life. Mr. Weiner and Ms.
Warren are currently patties to a family coUlt proceeding that arises from Ms. Warren's failure to
comply with the terms of the Trust and a Judgment entered by the Family Court in their divorce,
pending in the 309111 Judicial District Court of Harris County, Texas.
2. The Petition filed Jn this Comt seeks to gain complete control of funds gifted by Mr.
Weiner's parents to the Trust established by both Mr. Weiner and Ms. Warren prior to their
divorce. It cites no credible or legal basis to remove Mr. Weiner and/or terminate the Trust by
distributing said funds either free of trust to David or into a Uniform Transfers to Minors Act
account only Ms. Wan·en would control. And, while Mr. Weiner has historically attempted to
accommodate Ms. Warren's various requests, he is unwilling to risk funds needed for David's
EXHIBIT
exhibitsticker.com
A
onawoo]()Ql
l76- 942296vl
Oct. 23. 2013 3:35PM No. 1344 P. 25
future education or sanction her ignoring provisions of a Judgment entered by the Family Court
in their divorce.
3. Neither Mr. Weiner nor the named successor trustee is disqualified to serve as a trustee of
the Trust. Mr. Weiner has never mishandled the Trust, has never harbored any hostility towai"ds
David and has always acted in a prudent ffit\lll\er- even under the most difficult of circumstances
created by Ms. Warren. Mr. Weiner has done so because he recognizes that David and the T!.·ust
both need protection.
II.
B@ckgro!lnd
4. On December 13, 1994, Mr. Weiner and Ms. Warren established the Tmst for the benefit
of their then-minor son, David. The irrevocable trust agreement provides that David is the
primaq beneficiary and Mr. Weiner and Ms. Wan·en are the original co-trustees. In the event
they are not able to serve, the tmst agreement provides that Bayle Weiner Dt-ubel shall serve as
successor trustee.
5. Mr. Weiner's parents, David's grandparents, funded the Trust with the desire to provide
for their grandson's education,
6. After David's grandparents' generous gifts, Ms. Warren systematically excluded Mr.
Wehter and his family from David and his siblings' lives. By way of example, Ms. Warren
facilitated in David changing his last name from his father's (Weiner) to a name with no family
..
significance shortly after David's eighteenth birthday. And, Ms. Wan·en routinely belittled Mr.
Weiner, his mother and his sisters in front of his sons, includh1g David.
7. Ms. Wanen filed for. divorce and, pursuant to an Agreed Decree of Divorce ("Divorce
Decree") entered into by the 309th Judicial District Court of Hat1'ls County, Texas in Cause No.
2
.. -·-- . --·0928651000001.
376 • 942296v I
Od. 23. 2013 3:35PM No. 1344 P. 26
2011-01040 (the "Family Court Proceeding"), Mr. Weiner and Ms. Wanen were divorced on
March 29, 2012. See Exhibit C to Ms. Wanen's Petition.
8. 'rhe Divorce Decree addresses the Trust at issue in this case. Specifically, the Divorce
Decree provides:
l'f iS ORDERED lhnt lhe following children's lruols are h•!d In lno'voo~ble
lrusl~. which sh~ll conllnue &$ wrlllen, and lhal each partY wlllclaxa any and all
·necessary slep~ to provide full r.<rlrusloa !JWner~hlp and control of eP<'h suo.h
acoou~l Including tho pl~clng of such ae<Jounls' In a dsposll. ,and ly!Jhdrawal
agreement requlrlng both co-ltO$Ioe~ to dlsburae funds; aleo knowp a~ an "and"
a<;counl: (
1. Fldellly rrusl A~l ending In 118634 (Pavld); -. •.
. 2, FldelllyTrnsl Ao~t E:ndlhgln #3966 (Daniel); end
3, f.ldellly TrusfA~ot Ending In i/1942 (Micha~l),
See Exhibit C to Ms. Wmren's Petition, page 10.
9. Subsequent to the parties' divorce, Ms. Warren has continued her eff011s to alienate their
children and has failed to comply with the terms of the Divorce Decree. For example, Ms.
Warren has refused to provide a simple invoice to confirm an alleged significant tuition payment
for David, who started his- fi·eshrnan year at Rice University this fall. Instead, she acknowledges
in her affidavit that she wired trust funds without Mr. Weiner's required permission and consent.
10. The Petition seeks an order from this Cotu't to either distribute the Trust funds to David
free of trust or, alternatively, to awm·d Ms. Wan·en sole and exclusive control over a new account
(a Uniform Transfers to Minors Act account created for David's benefit), even though the Trust
agreement and the Divorce Decree provide otherwise.
3
092865/000001
376 ·942296vl
Oct. 23. 2013 3:36PM No. 1344 P. 27
m.
Answer to Petition fo1· Te1·mination of Trust
11. Mr. Weiner incorporates by reference the allegations contained within tho preceding
Paragraphs 1 through 10.
A. Ge1zeml Deulttl
12. Mr. Weiner asserts a general denial, as authorized by Rule 92 of the Texas Rules of Civil
Procedure, to each a11d every, all and singular, allegation contained in the Petition and
respeptf\tlly requests that this Court and jury require Plaintiffs to ptove their claims, charges, and
allegations by a preponderance of the evidence, as required by the Constitution and the laws of
the State of Texas.
13. Mr. Weinel' respectfully reserves the right to file an amended answer in this cause in the
manner authorized by the Texas Rules of Civil Procedure.
B. Affinnative Defenses
14. Pleading further and without waiving the foregoing, Plaintiffs' claims are barred in whole
or in part, by the doctrine of res judicata.
15. Pleading further and without waiving the foregoing, Plaintiffs·' claims are halTed in whole
or in p·art, by the doctrine of estoppel, including collateral estoppel.
16. · Pleading further and without waiving the foregoing, Plaintiffs' claims are barred in whole
or in pillt, by the doctrine of unclean hands:
17. Pleading further and without waiving the foregoing, Plaintiffs' claims aro barred in whole
or in part, by the terms of the Trust.
18. Pleading further arid without waiving the foregoing, Plaintiffs are not entitled to
attorneys' fees under Section 114.064 of the Texas Trust Code or otherwise.
4
092865/00000L
376. 942296\'1
Oct. 23. 2013 3:36PM No. 1344 P. 28
IV.
Request for Jury Tl'ial
19. Pleading further, and without waiving the foregoing, Mr. Weiner demands a trial by jury
and hereby tenders payment.
v.
Request fol' })isclosul'e
20, Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiffs are each requested
to disclose, within 30 d~ys of service of this request, the information or material described in
Rule l94.2(a)- (i).
WHEREFORE, Mr. Andy Weiner respectfully requests that Plaintiffs recovet nothing by
their suit, and for such other and further relief as to which he may show himself justly entitled to
receive.
Respectfully submitted,
CRAIN, CATON & JAMES,
A PROF • NA CORPORATION
Attomeys for Andy Weiner
5
092MSI~9QOQI ..
376 -942296vl
Oct. 23. 2013 3:36PM No. 1344 P. 29
CERTIFICATE OF SERVlCE
I hereby certifY that a true and correct copy of the foregoing instrument has been forwatded to:
Carol A. Cantrell
Meredith N. Mciver
Cantrell & Cowan, PLLC
3700 Buffalo Speedway, Suite 520
Houston, Texas 77098
Facsimile: (713) 333-0550 . ~
by facsimile and/or certified mail, return receipt requested, on the~ay of October, 20l3.
6
09286S/OOOOO I
J76 :9m96vr ·
FILED
7/8/2014 3:34:04 PM
Stan Stanart
County Clerk
Harris County
NO. 425,577
IN RE: § IN PROBATE COURT
§
DAVID ABRAHAM WEINER § NUMBER FOUR (4) OF
§
1994 TRUST § HARRIS COUNTY, TEXAS
FIRST SUPPLEMENT TO ORIGINAL ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
Andy Weiner (“Mr. Weiner”), co-trustee of the David Abraham Weiner 1994 Trust, files
his First Supplement to Original Answer in response to Petitioner David W. Warren f/k/a David
A. Weiner’s (“Petitioner”) Second Amended Original Petition and Intervenor Daniel Steven
Weiner’s (“Intervenor”) Original Petition in Intervention and, in support thereof, respectfully
shows the following:
I.
VERIFIED DENIAL
1. Intervenor does not have standing, lacks the legal authority, or lacks capacity to sue and
is not entitled to recover in the capacity in which he has sued.
II.
SUPPLEMENTAL AFFIRMATIVE DEFENSE
2. Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, because Mr. Weiner’s actions were justified, excused and/or
authorized by the terms of the David Abraham Weiner 1994 Trust.
3. Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, based on the equities.
4. Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, because of ambiguity.
092865/000002
376 - 1096417v1
5. Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, by the statute of limitations.
6. Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, by the doctrine of comparative fault.
7. Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, by the doctrine of contributory negligence.
8. Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, because there is no legal or equitable basis for recovery.
9. Pleading further and without waiving the foregoing, Petitioner’s and Intervenor’s claims
are barred, in whole or in part, by Katherine Warren f/n/a Katherine Friedman Weiner.
10. Pleading further and without waiving the foregoing, Intervenor’s claims and/or defenses
are barred, in whole or in part, because of lack of standing and/or because he lacks a judiciable
interest in the David Abraham Weiner 1994 Trust.
III.
SUPPLEMENTAL PRAYER
11. In addition to the relief sought in Mr. Weiner’s Original Answer to Petition to Terminate
Trust, Mr. Weiner prays that Petitioner David W. Warren f/k/a David A. Weiner takes nothing
by his Second Amended Original Petition and Intervenor Daniel Steven Weiner likewise takes
nothing by his Original Petition in Intervention, and for such other and further relief as to which
he may show himself justly entitled to receive.
2
092865/000002
376 - 1096417v1
Respectfully submitted,
CRAIN, CATON & JAMES,
A PROFESSIONAL CORPORATION
By: /s/ Kathleen Tanner Beduze
SARAH PATEL PACHECO
(TBA # 00788164)
KATHLEEN TANNER BEDUZE
(TBA # 24052205)
1401 McKinney, 17th Floor
Houston, Texas 77010
(713) 658-2323
(713) 658-1921 (Facsimile)
Attorneys for Andy Weiner
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:
Carol A. Cantrell / Meredith N. Thomas R. Conner
McIver Conner & Lindamood, P.C.
Cantrell & Cowan, PLLC 1221 Lamar, Suite 1010
3700 Buffalo Speedway, Suite 520 Houston, Texas 77010
Houston, Texas 77098 Facsimile: (713) 654-8115
Facsimile: (713) 333-0550
by e-file, facsimile and/or certified mail, return receipt requested, on the 8th day of July, 2014.
/s/ Kathleen Tanner Beduze
KATHLEEN TANNER BEDUZE
3
092865/000002
376 - 1096417v1
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day personally appeared Andy I. Weiner
who, after being sworn, stated under oath that he is the person whose signature appears on this
document. The affiant has read the foregoing First Supplement to Original Answer and he verifies
that the information contained therein is true and correct based upon his personal knowledge.
einer, as Co-Trustee of the David
aham Weiner 1994 Trust
Subscribed and sworn to before me on this ~ day of July, 2014.
NOTARY PUBLIC IN
OF TEXAS
4
Error! Unknown document property name.
No. 425 ,577
INRE: § IN THE PROBATE COURT
§
DAVID ABRAHAM WEINER § N0.4
§
1994 TRUST § HARRIS COUNTY, TEXAS
AMENDED ORDER ON MOTION TO SEVER
On this date, the Court having considered Daniel W. Warren' s Motion to Sever and the
Court's written and verbal Orders on August 27-28, 2014, GRANTS the Motion to Sever as
follows. It is hereby:
ORDERED that Daniel W. Warren shall restate the claims set forth in his Motion to
Sever as a new Original Petition by December 1, 2014 and complete service pursuant to the rules
that would apply to a new lawsuit. It is further,
ORDERED that the Court Clerk assign Cause No. 425 ,576-401 to Daniel W. Warren 's
new Original Petition. It is further,
ORDERED that Daniel W. Warren file all future pleadings, motions, and other papers
under Cause No . 425 ,576-401 as Petitioner rather than Intervenor. It is further,
ORDERED that all prior discovery, orders, motions, responses and answers pertaining to
Daniel W. Warren in Cause No. 425 ,577 shall apply in the same manner as if such had occmred
in Cause No. 425 ,576-401 , and that the Clerk of this Court is hereby directed to transfer and file
copies ofthe following pleadings and orders from Cause No. 425,577 to Cause No. 425,576-401:
1. Daniel W. Warren's Original Petition in Intervention; docket entry date 4-22-14
2. Andy Weiner's Motion for Partial Summary Judgment (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 7-15-14
3. Andy Weiner' s Special Exceptions to the Original Petition in Intervention filed by
Daniel W. Warren; docket entry date 8-5-14
4. Notice of Submission of Andy Weiner 's Motion for Partial Summary Judgment (a
copy of which shall remain filed in Cause No. 425 ,577) ; docket entry date 8-5-14
5. Petitioners ' Notice of Nonsuit Against Katherine Warren (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 8-7- 14
EXHIBIT
exhibitsticker.com
B
6. Andy Weiner' s Motion to Compel Depositions (a copy of which shall remain
filed in Cause No. 425 ,577); docket entry date 8-14-14
7. Petitioners ' Joint Motion for Partial Summary Judgment (a copy of which shall
remain filed in Cause No. 425 ,577); docket entry date 7-1-14
8. Motion for Continuance of Hearing on Motion for Pru1ial Summary Judgment (a
copy of which shall remain filed in Cause No . 425 ,577); docket entry date 8-14-
14
9. Petitioners ' Response to Andy Weiner' s Motion to Compel (a copy of which shall
remain filed in Cause No . 425 ,577); docket entry date 8-18-14
10. Andy Weiner' s Special Exceptions to Petitioners ' Joint Motion for Partial
Sunm1ary Judgment (a copy of which shall remain filed in Cause No. 425 ,577);
docket entry date 8-22-14
11. Petitioners ' Response to Andy Weiner' s Motion for Continuru1ce (a copy of
which shall remain filed in Cause No. 425 ,577); docket entry date 8-25-14
12. Petitioners ' Response to Andy Weiner' s Special Exceptions to Petitioners' Joint
Motion for Partial Swmnary Judgment (a copy of which shall remain filed in
Cause No. 425 ,577); docket entry date 8-25-14
13. Order Granting Andy Weiner' s Special Exceptions to the Original Petition in
Intervention filed by Daniel W. Warren; docket entry date 8-29-14
14. Order Denying Motion for Sanctions; docket entry date 8-29-14
15 . Order Pru1ially Granting and Partially Denying Andy Weiner's Special
Exceptions to Petitioners' Joint Motion for Pru1ial Summary Judgment (a copy of
which shall remain filed in Cause No. 425 ,577) ; docket entry date 9-4-14
16. Daniel W. Warren ' s Motion to Sever; docket entry date 9-8-14
17. Order Partially Granting and Partially Denying Andy Weiner' s Motion for Prutial
Summary Judgment (a copy of which shall remain filed in Cause No . 425 ,577);
docket entry date 9-26-14
18. Order Granting Motion to Sever; signed 11-5-14
19. Colllt' s Docket Sheet; docket entry date 8-29-14
20. Andy Weiner ' s First Supplement To Original Answer; docket entry date 7-8-14
21. Petitioner' s Response to Andy Weiner' s Motion for Prutial Traditional SlllTimary
Judgment; docket entry date 8-5-14;
22. Petitioner' s Application to Quash Deposition of Dru1iel Warren; docket entry date
8-11-14;
23. Order to Compel Depositions Granted ; docket entry date 8-29-14; and
24. Petitioner's Responses to Andy Weiner ' s Special Exceptions to Petition m
Intervention and Motion for Sanctions; docket entry date 8-19-14.
It is further,
ORDERED that Cause No. 425 ,576-401 is subject to the deadlines set out in the Agreed
Docket Control Order dated August 27, 2014 relating to Cause No. 425,577. It is further,
ORDERED that all costs related to the copying, transfer, and filing of items 1 through 24
herein be assessed against Daniel Warren. It is further,
ORDERED that if Daniel W. Warren fails to file a new Original Petition by the 1st day of
December, 2014 as Cause No. 425,576-401 , his pleading in Cause No. 425,577 will be
dismissed.
SIGNED on this _JJ_ day of /'J~ ' 2014.
PRESIDING JUDGE
-""'
li"
425,576-401
IN RE: § IN THE PROBATE COURT
§
DANIEL STEVEN WEINER § N0.4
§
1996 TRUST § HARRIS COUNTY, TEXAS
§
ORDER GRANTING PETITIONER'S NONSUIT AND DISMISSAL
The Court GRANTS Petitioner Daniel Warren ' s Notice of Nonsuit without prejudice and
dismisses his claims against Respondent Andy Weiner without prejudice.
Signed ~o.>r~ \~ , 2015
JUDGE CHRISTINE BUTTS
HARRIS COUNTY PROBATE COURT FOUR
EXHIBIT
exhibitsticker.com
C
No. 425,576-401
INRE: § IN THE PROBATE COURT
§
DANIEL STEVEN WEINER § N0.4
§
1996TRUST § HARRIS COUNTY, TEXAS
ORDER ON DANIEL WARRE~
S SPECIAL EXCEPTIONS TO ANDY WEINER'S
ANSWER AND FIRST UPPLEMENT TO ORIGINAL ANSWER
After considering Daniel W. Want 's Special Exceptions to Andy Weiner's Answer and
First Supplement to Original Answe[ the pleadings, response, reply, affidavits, and other
evidence on file, the Court finds l at Daniel Wan-en's Special Exceptions should be
GRANTED and Andy Weiner should plead the following affirmative defenses and cure their
defects as follows:
1-\o f'\CITUt 11 1Ultt'
~ '
I. Paragraph 14 of Andy Weiner'} Answer, which reads: "Plaintiffs' claims are barred, in
whole or in part, by the doctrin~ of res judicata"
1.
~-X--- Granted --t---- Denied
!
2. Paragraph 15, of Andy Weiner'~ Answer, which reads: "Plaintiffs' claims are barred, in
whole or in part, by the doctrin9 of estoppel, including collateral estoppel"
'I
-----"1)(0---- Granted --+----Denied
3. Paragraph 16 of Andy Weiner's Answer, which reads: "Plaintiffs' claims are barred, in
whole or in patt, by the doctrin1 of unclean hands"
---fr--~ Granted ' Denied
4. Paragraph 17 of Andy Weiner'~ Answer, which reads: "Plaintiffs' claims are baned in
whole or in part, by the te1ms of the trust"
_ _)<,_,__ _ Granted --+----Denied
5. Paragraph 18, of Andy Weiner's Answer, which reads: "Plaintiffs' are not entitled to
attomey's fees under Section 11~.064 of the Texas Trust Code or otherwise"
_ _ _ _ _ Granted )< Denied
EXHIBIT
--'-----
exhibitsticker.com
D
ij
I,
1:
I
i
6. Para raph I of Andy Weiner'J IFirst Supplement to Original Answer, which states that
Petit oner "does not have stan'1ing, lacks the legal authority, or lacks capacity to sue
and i not entitled to recover in rhe capacity in which he has sued"
1
- - t - - - Granted ';( Denied
7. Para raph 3 of Andy Weiner's first Supplement to Original Answer, which states that
Petitibner's "claims are barred, jn whole or in part, based on the equities"
lx Granted : Denied
I
8. Para raph 4 of Andy Weiner's hrst Supplement to Original Answer, which states that
·b
Petitipner's "claims are barred, whole or in part, because of ambiguity"
I f
).{. Granted Denied
{
I
9. Paragraph 5 of Andy Weiner's first Supplement to Original Answer, which states that
Petitioner's "claims are barred, i~ whole or in part, by the statute of limitations"
- - - - - Granted Denied
10. Paragraph 6 of Andy Weiner's irst Supplement to Original Answer, which states that
Petitioner's "claims are barred in whole or in part, by the doctrine of comparative
fault"
I
_ __...,__ _ Granted - - +i't - - - - Denied
1
II. Paragraph 7 of Andy Weiner's Rirst Supplement to Original Answer, which states that
Petitioner's "claims are barred 'jin whole or in part, by the doctrine of contributory
negligence" .
_ __,.....__ _ Granted - - - 1 - i - - - Denied
12. Paragraph 8 of Andy Weiner's ·irst Supplement to Original Answer, which states that
Petitioner's "claims are barred m whole or in part, because there is no legal or
equitable basis for recovery"
- - - - <"(0-vlkd
13. Paragraph 9 of Andy Weiner's "rst Supplement to Original Answer, which states that
Petitioner's "claims are barrec in whole or in part, by Katherine Warren f/n!a
Katherine Friedman Weiner"
--XP----- Granted ---+If---Denied
'
PRESIDING JUDGE
I
I
FILED
5/12/2015 5:02:57 PM
Stan Stanart
County Clerk
Harris County
PROBATE COURT 4
NO. 425,576-401
IN RE: § IN PROBATE COURT
§
DANIEL STEVEN WEINER § NUMBER FOUR (4) OF
§
1996 TRUST § HARRIS COUNTY, TEXAS
ANDY WEINER’S RESPONSE TO PLEA TO THE JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
Andy Weiner (“Mr. Weiner”), as co-trustee of the Daniel Steven Weiner 1996 Trust, files
his Response to Plea to the Jurisdiction filed by Daniel Warren f/k/a Daniel Steven Weiner
(“Daniel”), and in support thereof, respectfully shows the following:
I.
OVERVIEW
1. Notwithstanding Daniel’s assertions to the contrary, Mr. Weiner’s claims against
Katherine Warren f/k/a Katherine Weiner (“Ms. Warren”) were properly on file when Daniel
filed his nonsuit. But, regardless, Mr. Weiner has an absolute right to initiate a new lawsuit to
resolve the construction and other issues pled in his Counter and Cross-Petition properly filed in
the above-referenced proceeding in accordance with Local Rule 2.2. Therefore, this Court
should retain the above-referenced lawsuit on its docket and deny Daniel’s Plea to the
Jurisdiction.
II.
FACTUAL BACKGROUND
2. On March 20, 1996, Mr. Weiner and Ms. Warren established the Daniel Steven Weiner
1996 Trust (the “Trust”) for the benefit of their then-minor son, Daniel. The irrevocable trust
agreement provides that Daniel is the primary beneficiary and Mr. Weiner and Ms. Warren are
EXHIBIT
exhibitsticker.com
TAB F-1
092865/000001
376 - 1495732v1
the original co-trustees. In the event they are not able to serve, the trust agreement provides that
Bayle Weiner Drubel shall serve as successor trustee.
3. Mr. Weiner’s parents, Daniel’s grandparents, primarily funded the Trust with the desire
to provide for Daniel’s education.
4. After Daniel’s grandparents’ generous gifts, Ms. Warren systematically excluded Mr.
Weiner and his family from Daniel’s life, as well as the lives of his brothers, David and Michael.
By way of example, Ms. Warren likely facilitated the process of Daniel changing his last name
from his father’s (Weiner) to a name with no family significance on his eighteenth birthday.
And, in 2011, Ms. Warren deceitfully made ulterior plans to celebrate Daniel’s birthday to
purposefully exclude Mr. Weiner. Further, Ms. Warren routinely belittled Mr. Weiner, his
mother and his sisters in front of his sons.
5. On January 6, 2011, Ms. Warren filed for divorce from Mr. Weiner. Pursuant to an
Agreed Decree of Divorce (“Divorce Decree”) entered into by the 309th Judicial District Court
of Harris County, Texas in Cause No. 2011-01040 (the “Family Court Proceeding” or “Family
Court”), Mr. Weiner and Ms. Warren were divorced on March 29, 2012.
6. Subsequent to the parties’ divorce, Ms. Warren has continued her efforts to alienate their
children and has failed to comply with the terms of the Divorce Decree.
7. On September 30, 2013, Ms. Warren, as co-trustee of the Trust, filed a lawsuit1 against
Mr. Weiner, seeking an order from this Court to terminate the Trust and for the Trust funds to be
distributed to a Uniform Transfers to Minors Act account created for Daniel’s benefit over which
Ms. Warren would have sole control, even though the Trust agreement and the Divorce Decree
provide otherwise. See Original Petition, attached hereto, without exhibits, as Exhibit A and
incorporated by this reference.
1
Cause No. 425,576; In re: Daniel Steven Weiner 1996 Trust, In Probate Court No. 4 of Harris County, Texas.
2
092865/000001
376 - 1495732v1
8. On October 23, 2013, Mr. Weiner filed a Plea to the Jurisdiction in Cause No. 425576,
alleging that the District Court had jurisdiction over the claims brought by Daniel because they
related to the Family Court Proceeding.
9. On November 4, 2013, Ms. Warren, as next friend of Daniel, filed a First Amended
Original Petition in Cause No. 425,576 in which she requests for the Trust to be modified to
allow Daniel to become his own trustee upon reaching the age of 18. See First Amended
Petition, attached hereto, without exhibits, as Exhibit B and incorporated by this reference.
10. On November 21, 2013, the Probate Court granted Mr. Weiner’s Plea to the Jurisdiction
in Cause No. 425576.
11. On April 22, 2014, Daniel filed an Original Petition in Intervention in his older brother
David Weiner’s proceeding against Mr. Weiner.2 See Original Petition in Intervention, attached
hereto, without exhibits, as Exhibit C and incorporated by this reference.
12. On July 2, 2014, Mr. Weiner filed his Cross-Claims against Ms. Warren in Cause No.
425,577 (where Daniel was an Intervenor), seeking to hold Ms. Warren equally responsible for
(1) all actions and alleged inactions of the trustees, (2) all claimed damages and relief sought by
David and Daniel, (3) all violations of the Trust agreements, including any scheme of collusion,
(4) the preparation of an accounting, and (5) payment of one-half of Mr. Weiner’s attorneys’ fees
and costs. See Cross-Claims, attached hereto, without exhibits, as Exhibit D and incorporated by
this reference.
13. On July 8, 2014, Mr. Weiner filed his First Supplement to Original Answer, alleging,
among other claims and defenses, that Daniel has no standing to intervene in David’s case. See
2
Cause No. 425,577, In re: David Abraham Weiner 1994 Trust, In Probate Court No. Four (4) of Harris County,
Texas (“David’s Case”).
3
092865/000001
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First Supplement to Original Answer, attached hereto, without exhibits, as Exhibit E and
incorporated by this reference.
14. On July 15, 2014, Mr. Weiner filed his Motion for Partial Traditional Summary
Judgment.
15. On August 7, 2014, Mr. Weiner filed his First Supplement to Cross-Claims against Ms.
Warren, incorporating, by reference, the cross-claims and factual background supporting same
contained within his Motion for Partial Traditional Summary Judgment.
16. Also on August 7, 2014, David and Daniel (as Intervenor in David’s Case) nonsuited
their claims against Ms. Warren in Cause No. 425,577.
17. On September 8, 2014, pursuant to an order of this Court, Daniel filed a Motion to Sever
in David’s Case.
18. On September 25, 2014, the Probate Court partially granted and partially denied Mr.
Weiner’s Motion for Partial Traditional Summary Judgment finding that, pursuant to the terms of
David’s Trust: (i) a trustee of the trust may retain, invest or reinvest in assets unproductive of
interest and wasting assets, (ii) the diversification required under the Texas Trust Code and
Texas common law, if any, does not apply to the Trust; (iii) Mr. Weiner and Ms. Warren had a
duty to jointly administer the Trust; (iv) in order to delegate her powers or duties to Movant as
co-trustee of the Trust, Ms. Warren must have filed a written instrument with the records of the
Trust; and (v) Mr. Weiner has no liability relating to his actions as trustee other than for acts and
omissions found to be made with gross negligence, bad faith or fraud.
19. On October 24, 2014, Mr. Weiner filed his Second Amended Cross-Claims against Ms.
Warren in Cause No. 425,577. See Second Amended Cross-Claims, attached hereto as Exhibit F
and incorporated by this reference. As clearly expressed in the Second Amended Cross-Claims,
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the cross-claims relate to the David Abraham Weiner 1994 Trust as well as Daniel’s Trust
because, at the time of filing, Daniel’s intervention had not yet been severed into its own cause
of action. Exhibit F ¶1.
20. On November 5, 2014, Daniel’s claims were severed into their own cause of action in the
instant proceeding. An amended order, specifically identifying the pleadings and orders to be
transferred into the new cause of action, was signed on November 17, 2014.3
21. On December 1, 2014, Daniel, pursuant to this Court’s order, filed his Original Petition in
Cause No. 425,576-401.
22. On March 10, 2015, Daniel nonsuited his claims against Mr. Weiner.
23. On March 24, 2015, Mr. Weiner filed his Counter and Cross-Petition. See Counter and
Cross-Petition, attached hereto, without exhibits, as Exhibit G and incorporated by this
reference. In his Counter and Cross-Petition, Mr. Weiner (1) asked for the Court to construe the
language of the Trust agreement; (2) alleged the following cross/counterclaims against Ms.
Warren: breaches of fiduciary duty, reimbursement, removal as trustee, tortious interference with
administration; and (3) requested the appointment of a corporate trustee. While no monetary
claims were brought against Daniel, he was joined as a necessary party because he is the primary
beneficiary of Daniel’s Trust. See TEX. PROP. CODE § 115.011.
24. On March 24, 2015, Mr. Weiner’s counsel took Ms. Warren’s court-ordered deposition.
Ms. Cantrell attended that deposition.
25. On April 2, 2015, Daniel, along with his brothers, David and Michael, jointly filed an
Original Petition in the 133rd Judicial District of Harris County, Texas, Cause No. 2015-19320.
See Original Petition, attached hereto, without exhibits, as Exhibit H and incorporated by this
3
Due to an administrative error, Mr. Weiner’s Second Amended Cross-Claims were inadvertently left off of the list
of documents to be transferred to Cause No. 425,576-401.
5
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reference. When the three related cases currently pending in Probate Court No. 4 of Harris
County, Texas (Cause No. 425,576-401, Cause No. 425,577, and Cause No. 425,578) are
compared to the District Court case, the parties and issues are the same.
26. On April 17, 2015, Daniel filed a Plea to the Jurisdiction in this Court, alleging that Mr.
Weiner’s cross-claims against Ms. Warren, pled in his Second Amended Cross Claims and his
Counter and Cross-Petition, have “no impact on this case.” Motion at ¶21. As further discussed
below, Daniel’s request for dismissal is misguided, as Mr. Weiner’s affirmative claims against
Ms. Warren were properly in front of this Court prior to the nonsuit being filed. But, regardless,
Mr. Weiner had every right – and did – initiate cross and counter claims. Even if considered a
new lawsuit, the Counter and Cross-Petition is validly before this Court and Mr. Weiner has
properly and diligently sought to serve Daniel, in compliance with the Texas Rule of Civil
Procedure.
27. On May 4, 2015, Mr. Weiner filed a Plea in Abatement and, subject thereto, Original
Answer in Cause No. 2015-19320.
III.
ARGUMENT & AUTHORITY
28. Daniel’s Plea to the Jurisdiction is his last ditch effort to have his case tried in the District
Court, instead of this Court where he originally filed his claims against his father, Mr. Weiner.
29. Daniel’s nonsuit nullifies the controversy by and between Daniel and Mr. Weiner; it does
not affect any pending claims for relief made by Mr. Weiner. In re Bennett, 960 S.W. 35, 38
(Tex. 1997). A party has an absolute right to nonsuit their own claims, but not someone else’s
claims they are trying to avoid. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008)
(emphasis in original).
30. So long as the plaintiff pleads enough facts to affirmatively demonstrate the trial court
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has jurisdiction over the suit, a court’s jurisdiction attaches upon filing a lawsuit. TEX. PROP.
CODE § 115.001; TDCJ v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). And, unless the pleadings
demonstrate the absence of jurisdiction, the court will assume it has jurisdiction over the case.
Peek v. Equip. Serv., 779 S.W.2d 802, 804 (Tex. 1989); Beacon Nat’l Ins. v. Montemayor, 86
S.W.3d 260, 266 (Tex. App.—Austin 2002, no pet.). In the event this Court “lost” its
jurisdiction upon Daniel’s nonsuit – which Mr. Weiner vehemently disagrees – this Court gained
jurisdiction upon the filing of Mr. Weiner’s Cross and Counter-Petition.
31. Rule 162 of Texas Rule of Civil Procedure governs dismissal and nonsuits. Rule 162
provides that “[a]ny dismissal pursuant to this rule shall not prejudice the right of an adverse
party to be heard on a pending claim for affirmative relief.” TEX. R. CIV. P. 162. A claim for
affirmative relief is one “on which the claimant could recover compensation or relief even if the
plaintiff abandons his cause of action.” Univ. of Tex. Med. Branch at Galveston v. Est. of
Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006); BHP Petroleum Co., Inc. v. Millard,
800 S.W.2d 838, 841 (Tex.1990).
32. Daniel falsely asserts that Mr. Weiner had no affirmative claims for relief pending at the
time of Daniel’s nonsuit. At the time of Daniel’s nonsuit, Mr. Weiner had the following cross-
claims, alleged in his Second Amended Cross-Claims, against Ms. Warren pending: (1)
contribution, (2) breaches of fiduciary duty, (3) removal of trustee, (4) tortious interference with
administration, and (5) attorneys’ fees and costs. See Exhibit F. These are claims for affirmative
relief under Rule 162 of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 162; BHP Pet. Co.
v. Millard, 800 S.W.2d 838, 840-41 (Tex. 1990) (defendant’s request for declaratory judgment if
it seeks resolution of continuing issues); Leon Springs Gas Co. v. Restaurant Equip. Leasing Co.,
961 S.W.2d 574, 578 (Tex. App—San Antonio 1997, no pet.); Ulloa v. Davila, 860 S.W.2d 202,
7
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204 (Tex. App.—San Antonio 1993, no writ) (counterclaim did more than resist plaintiff’s suit).
These are independent claims for affirmative relief, not merely derivative claims. In re Estate of
Kidd, 812 S.W.2d 356, 359 (Tex. App.—Amarillo 1991, writ denied).
33. Further, in his Counter and Cross-Petition, filed prior to this Court signing Daniel’s
request for dismissal, Mr. Weiner alleged the following claims: (1) construction of the Trust
Agreement, (2) breach of fiduciary duty, (3) reimbursement, (4) removal as trustee, (5) tortious
interference with administration, and (6) petition to modify trust and request for appointment of a
corporate trustee. See Exhibit G.
34. Daniel relies upon Greenberg v. Brookshire and Ault v. Mulanex in support of his
position that this lawsuit should be dismissed, despite Mr. Weiner’s valid pending claims.
Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982); Ault v. Mulanex, 724 S.W.2d 824 (Tex.
App—Texarkana 1986, orig. proceeding). However, these cases are readily distinguishable.
Greenberg was a divorce action wherein the lower court conducted a hearing on an amended
pleading after the husband nonsuited his claims. Unlike the facts to the instant case, there were
only two parties to the lawsuit – a husband and a wife – and the wife filed a counterclaim against
her husband and requested a hearing on same after her husband filed a nonsuit. The lower court
conducted a hearing on the counterclaims, which the Texas Supreme Court held was in error, as
a plaintiff has an absolute, unqualified right to a nonsuit. Greenberg, 640 S.W.2d at 872. Ault
v. Mulanax is another divorce proceeding, specifically involving custody and child support issues
and; not relating, whatsoever, to the factual disputes at issue in the instant litigation. Ault v.
Mulanax, 724 S.W.2d at 828. Notwithstanding the factual differences, the Ault cases specifically
related to and involved the imposition of the Texas Family Code. Id. Furthermore, the legal
issues in Ault were jurisdictional – which court had dominant jurisdiction at the time the nonsuit
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was filed. Id. at 828. Like in Greenberg, the Texarkana Court of Appeal’s ruling in Ault is not
instructive to this Court, as the factual and legal matters at issue in Ault are grossly different and
irrelevant to the case at hand.
35. Regardless of the gamesmanship of Daniel and his mother, Ms. Warren, and their
persistent litigious acts, Daniel’s nonsuit does not summarily dismiss the affirmative claims
brought by Mr. Weiner against Ms. Warren, which were filed prior to the nonsuit; Daniel cannot
nonsuit Mr. Weiner’s claims against Ms. Warren. Tex. Mut. Ins. Co., 251 S.W.3d at 37.
V.
CONCLUSION
36. Mr. Weiner’s Second Amended Cross-Claims were properly on file prior to Daniel’s
Nonsuit. And, subsequent to Daniel’s nonsuit, but prior to the entry of dismissal, Mr. Weiner’s
Cross and Counter-Petition was filed.
37. While Daniel’s nonsuit effectively eliminates the affirmative claims he had against Mr.
Weiner, it does nothing with respect to the claims alleged by Mr. Weiner against Ms. Warren.
This Court has jurisdiction over this case and the remaining claims between Mr. Weiner and Ms.
Warren.
38. Accordingly, it would be improper to dismiss this case, in its entirety, because of the
remaining claims by Mr. Weiner against Ms. Warren.
WHEREFORE, Andy Weiner respectfully requests that this Court, after oral hearing,
deny the Plea to the Jurisdiction filed by Daniel Warren f/k/a Daniel Steven Weiner, and for such
other and further relief, either at law or in equity, to which he may be justly entitled.
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Respectfully submitted,
CRAIN, CATON & JAMES,
A PROFESSIONAL CORPORATION
By: /s/ Kathleen Tanner Beduze
SARAH PATEL PACHECO
(TBA # 00788164)
spacheco@craincaton.com
KATHLEEN TANNER BEDUZE
(TBA # 24052205)
kbeduze@craincaton.com
1401 McKinney, 17th Floor
Houston, Texas 77010
(713) 658-2323
(713) 658-1921 (Facsimile)
Attorneys for Andy Weiner
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:
Carol A. Cantrell Thomas R. Conner
Cantrell & Cantrell, PLLC Conner & Lindamood, P.C.
3700 Buffalo Speedway, Suite 520 1221 Lamar, Suite 1010
Houston, Texas 77098 Houston, Texas 77010
Facsimile: (713) 333-0550 Facsimile: (713) 654-8115
by e-file, facsimile and/or certified mail, return receipt requested, on the 12th day of May, 2015.
/s/ Kathleen Tanner Beduze
KATHLEEN TANNER BEDUZE
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376 - 1495732v1
PROBATE COURT 4
No. 4 2 55 7 6
INRE: § IN THE PROBATE CO~RT
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DANIEL STEPHEN WEINER § --o
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1996TRUST HARRISCOUNT.j.~AA~
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ORIGINAL PETITION FOR TERMINATION OF TRUs'I{f.' i'"
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TO THE HONORABLE JUDGE OF SAID COURT:
1996 TRUST (the "Trust"), Petitioner herein, and files this Original Petition for Termination of
Trust, respectfully showing the Comt as follows:
PARTIES
l. Petitioner is an individual acting as co, trustee of the Trust. The sih1s of administration of
the Trust is maintained in Houston, Han·is County, Texas. Petitioner brings this action in
her capacity as co-h11stee of the Tmst pursuant to Texas Trust Code § 111.004(7). A true
and correct copy of the trust agreement is attached hereto as "Exhibit A" and is
incmporated for all purposes.
2. Andy I. Weiner is an individual acting as co-tmstee of the Tmst. Andy I. Weiner is
joined as a Respondent herein because he has an interest in this Trust under Texas Trust
Code § 111.004(7) and is a necessary party pursuant to Texas Trust Code §
115.0ll(b)(4). Andy I. Weiner cunently resides at 1200 Post Oak Blvd., Apartment 907,
Houston, Texas 77056.
3. Daniel S. Weiner, ("Primary Beneficiary") has an interest in this proceeding pursuant to
Texas Trust Code § 111.004(7) and is joined as Respondent herein because he is
cunently eligible, or potentially eligible to receive distributions of income and principal
EXHIBIT
exhibitsticker.com
TAB G
fi·om the Trust. Pursuant to Texas Tmst Code § 115.011(2) Daniel S. Weiner is a
necessary party because he is the p1imary beneficiary named in the Tmst. Daniel S.
Weiner was bom on March II, 1996 and he currently resides at 1226 Mnirfield Place,
Houston, Harris County, Texas 77055. Petitioner requests to appear as next of fi'iend on
behalf of Daniel S. Weiner. Daniel S. Weiner is a minor, and Petitioner is his mother. In
the divorce decree, attached as "Exhibit B," entered into by Katheline F. Wan·en and
Andy I, Weiner in Cause Number 2011-01040 in the Distlict CoUit of the 309'h Judicial
Dishict in Harris County, Texas, Petitioner was awarded the exclusive right to represent
her minor children in legal actions and to make decisions of substantial legal significance
on behalf of her minor children. Texas Tmst Code§ 115.013(c)(3) permits a parent to
represent her child as guardian ad litem or next of fi·iend if there is no conflict of interest
and no guardian of the estate or guardian ad litem has been appointed.
JURISDICTION
4. This Court has jurisdiction to grant the relief requested in this petition pursuant to Texas
Tmst Code§ 115.001(d)(l) and Texas Probate Code§ 4G.
VENUE
5. Venue of this proceeding is proper in tllis Court pursuant to Tex.as Tmst Code §
115.002(b-2) and Texas Probate Code§ 8.
FACTS
6. The Twst is an inter vivos trust created under Internal Revenue Code § 2503( c) by
Katheline F. Wan·en and Andy I. Weiner by agreement dated March 20, 1996 for the
benefit of their son, the Primary Beneficiary.
2
7. At the present time, the only pennissible beneficiary of the Trust is the Primary
Beneficiary. The Trust is authorized under Section A-I to make distributions to the
Primary Beneficiary as follows:
During the tenn of the trust, the trustees may distribute as much or
all of the Trust estate as, in the trustees' discretion, is in the
Primary Beneficiary's best interests.
8. Pursuant to Section A-2 of the Trust, the Plimary Beneficiary may withdraw all or part of
the Tn1st estate within 60 days after becoming age 21, and may thereby terminate the
trust as to the part withdrawn. If the Primaty Beneficiary does not exercise his
withdrawal right, the T!ust continues 1mtil the Primary Beneficiary becomes age 30.
9. Section A-2 of the Tmst provides that in the event the Primary Beneficiary should die
before the Trust tenninates, then all assets remaining in the T1ust shall be held or
distributed by the T1ustee for the benefit of those in favor of whom the Primary
Beneficiary exercises a power of appointment, or otherwise in the following order: (I) to
the Primary Beneficiary's descendants, (2) if none of the descendants are then Jiving, to
the hustors' descendants, (3) if none of the trusters' descendants are then living, to the
trustors' heirs.
I 0. Section C-1 T1ust agreement provides that any distribution made to a beneficiary of the
Trust may be made to a custodian for a minor beneficiary under the Uniform Gifts to
Minors Act.
II. The trust had marketable securities and cash in the approximate value of $113,000 as of
August 31, 2013.
3
12. The initial co-trustees of the Trust were Katherine A. Warren and Andy I. Weiner. Both
of the initial co-hustees of the Trust remain the current co-trustees, and no other co-
trustees have been appointed. In the event that Andy I. Weiner and Katherine F. Warren
cease to act as tmstee, Bayle Weiner Drubel, Andy I. Weiner's sister, is appointed
successor trustee under Section D-l(a) of the Tmst.
13. The co-hustees of the Tn.1st are the parents of the Primary Beneficiary. Although the co-
hustees were manied at the time the Trust was created, they were granted a divorce on
March 29, 2012. From the time that the div01'ce was finalized, the co-trustees have been
unable to agree on proper administration of the Trust.
14. Pursuant to the divorce decree attached as "Exhibit B," the Court ruled that the Trust
should be administered according to its te1ms. Tltis requixes the co-trustees to act jointly,
which has proved detrimental to the best interests of the Primary Beneficiary and
contrary to the purposes ofthe Trust.
15. Texas Trust Code § 112.054(a)(3) provides that on the petition of a trustee, a Comt may
order that the trustee be changed or that the Tmst be terminated if modification of
administrative, non-dispositive terms of the tmst is necessary or appropriate to prevent
waste or avoid impairment ofthe Tmst's administration.
16. Texas Trust Code§ 112.054(a)(2) provides that on the petition of a trustee, a Court may
order that the tmstee be changed or that the Tmst be tenninated if, because of
circumstances not known to or anticipated by the hustors, termination or modification of
the Tmst will further the purposes oft he Trust.
17. Petitioner claims that the inability of the co-llustees to agree on the appropriate
administration of the Trust assets has impaired the Tn1st's administration. The purposes
4
of the Tmst, to provide for the Primary Beneficiary, cannot be fulfilled if the co-tmstees
cannot agree regarding what actions constitute the "best interests" of the Primary
Beneficiary. Additionally, the cunent circumstances, i.e. the divorce of the co-tmstees,
was not known to or anticipated by the tmstors. Tetmination or modification of the Trust
is necessary due to the disharmony between the Tmst's co-trustees which prevents the
co-trustees from administering the Tmst in the best interests of the Primary Beneficiary.
RELIEF REQUESTED
l. Petitioner requests that the Court order that the Tmst be tetminated and that the Trust
estate be distributed to the Unifmm Transfers to Minors Act account created for the
benefit of the DanielS. Weiner, Fidelity Account ending in #6843, over which Katherine
F. Wanen was awarded sole and exclusive control in the divorce decree attached as
"Exhibit B"; that continued administration of the Trust would defeat or substantially
impair the accomplislm1ent of the Tmst; that such circumstances were not known to or
anticipated by the tmstms upon creation of the Tmst; that termination of the Tmst will
further the purposes of the Trust; that the Petitioner be awarded Court costs and expenses
and legal fees fi·om the Trust estate; that the remaining assets of the Tmst, after payment
of Court costs and expenses and legal fees, be distributed to the Fidelity Account ending
in #6843; and that the Court enter such other orders as may be approp1iate to provide for
the delivery of all Tmst assets fi·om Katherine F. Warren and Andy I. Weiner to the
Fidelity Account ending in #6843.
2. Petitioner altematively requests that the Comi order that the co-trustees be changed; that
the Court appoint an independent corporate tmstce; that replacing the co-trustees with an
independent corporate tmstee will ftniher the purposes of the Trust; that modification of
5
the Trust is necessary or appropriate to prevent waste or avoid impairment of the Ttust's
administration; that the Petitioner be awarded Court costs and expenses and legal fees
from the Trust estate; that the remaining assets of the Trust, after payment of Court costs
and expenses and legal fees, be distributed to an independent corporate trustee; and that
the Court enter such other orders as may be appropriate to provide for the delivery of all
Trust assets fi·om Katherine F. Wall'en and Andy I. Weiner to the independent corporate
trustee.
3. After the hearing on this petition, if the Comt tenninates the Trust or appoints a corporate
trustee in place of the current co-trustees, Katherine F. Warren will submit a final
accounting that describes all of the actions she has taken as co-tntstee of the Tmst. In
that event, Petitioner asks the Court to review the final accounting, and to enter an order
approving the accounting and discharging Katherine F. Wanen from any liabilities in
connection with her actions as co-trustee of this Trust, including the termination.
4. Petitioner brings this action for the puqJose of preserving and protecting the interests of
the Trust and its Primary Beneficiary. The relief sought herein is necessary to enable the
Tntst to fulfill its purposes as created by the tmstors. Accordingly, Petitioner is entitled
to recover reasonable attorney's fees and coutt costs fi·om the Trust pursuant to Texas
Trust Code§ 114.064. If any of the other parties to this proceeding retain counsel to
represent their interests in this cause, including counsel appointed by this Comt, the
Court should detetmine whether all or any portion of the attorney's fees and court costs
incuJTed by these parties should be paid by the Trust.
6
PRAYER
WHEREFORE PREMISES CONSIDERED, Petitioner prays that the Com! grant the
requested relief. Petitioner further prays for such other and further relief to which Petitioner is
justly entitled.
Respectfully submitted,
Cantrell & Cowan, PLLC
By: !JJ~
Carol A. Cantrell, Attomey for Petitioner
Texas Bar No.: 24043592
Meredith N. Mciver
Texas Bar No.: 24078974
3700 Buffalo Speedway, Suite 520
Houston, TX 77098
Phone: 713-333-0555
Fax: 713-333-0550
7
CERTIFICATE OF SERVICE
I certif'y that on September 30, 2013, I served a tme and correct copy of the foregoing
instrument by cetiified mail, return receipt requested to the following:
Andy I. Weiner
1200 Post Oak Blvd.,
Apartment 907,
Houston, Texas 77056
Carol
llA£~~11.
~antrell
No. _ _ _ _ _ __
INRE: § IN THE PROBATE COURT
§
§ NO. _____________
DANffiL STEPHEN WEINER §
1996TRUST § HARRIS COUNTY, TEXAS
FINAL JUDGMENT
On the ___ day of _ _ _ _ _ _ _ _ _, 2013, came on to be heard the Original
Petition for Termination of Trust in the above-entitled and numbered cause by Katherine F.
Warren, co-trustee of the DANIEL STEPHEN WEINER 1996 TRUST. Petitioner appeared
through her duly authorized representative and attomey of record and mmounced ready for trial.
Respondent Andy I. Weiner appeared by and through his duly authorized representative and
attomey of record and allllounced ready for trial. No jury having been demanded by any patiy,
all issues of fact and law were submitted to the Court for decision.
Having reviewed the pleadings and other papers on file in this cause; and having
considered the evidence presented at trial and the arguments of counsel, the Court finds as
follows:
1. This Court has jurisdiction and venue of this action.
2. All necessary patiies to this action are properly before the Court and have been duly
served with citation in the mallller required by law.
3. The DANIEL STEPHEN WEINER 1996 TRUST (hereinafter referred to as the "Trust")
is an inter vivos trust created by Katherine F. Warren and Andy I. Weiner by agreement
dated March 20, 1996 for the benefit of their son, Daniel S. Weiner (hereinafter referred
to as the "Primary Beneficiary").
4. The current co-trustees of the Trust are Katherine F. Warren and Andy I. Weiner.
5. Texas Trust Code§ 112.054(a)(3) provides that on the petition of a trustee or beneficiary,
a Comt may order that the tmstee be changed or that the Trust be te1minated if
modification of administrative, non-dispositive terms of the trust is necessary or
appropriate to prevent waste or avoid impairment of the Tmst's administration.
6. Texas Tmst Code§ 112.054(a)(2) provides that on the petition of a trustee or beneficiary,
a Comt may order that the tmstee be changed or that the Trust be tem1inated if,· because
of circumstances not known to or anticipated by the trustors, termination or modification
of the Tmst will fmther the purposes of the Tmst.
7. Petitioner has requested termination of the Trust contingent on the Court's finding that:
(a) the inability of the co-hustees to agree on the appropriate administration of the Trust
assets has impaired the Trust's administration; and (b) due to the divorce of the co-
trustees, a circumstance not known to or anticipated by the trustors when they created the
Trust, termination will further the purposes of the Trust, which is to provide for the best
interests of the Primary Beneficiary.
8. Petitioners have alternatively requested that the co-trustees be replaced by an independent
cmporate trustee, if available, contingent on the Court's finding that: (a) the inability of
the co-trustees to agree on the appropriate administration of the Trust assets has impaired
the Trust's administration; and (b) due to the divorce of the co-trustees, a circumstance
not known to or anticipated by the trustors when they created the Tmst, modification of
the Tmst will further the p\ll'poses of the Trust, which is to provide for the best interests
of the Primary Beneficiary.
2
9. The co-trustees have tendered an accounting of their actions as co-trustee of the Tn1st
(the "Final Accounting"). The Final Accounting reflects that the co-trustees have
administered the Tmst in accordance with the requirements of Texas law.
10. The Final Accounting should be approved in all respects, and the co-trustees should be
released and discharged from any and all liabilities arising out of or in any way related to
the administration of the Trust or the Trust termination.
11. The Tmst should be tenninated and the remaining Trust estate, after payment of all Comt
costs and expenses and legal fees should be distributed to the Unifonn Transfers to
Minors Act account created for the benefit of the Daniel S. Weiner, Fidelity Acco<mt
ending in #6843.
12. Katherine F. Warren brought this action for the purpose of preserving and protecting the
interests of the Trust and its Primary Beneficiary. The relief sought in this action was
necessary to enable the Trust to accomplish the purposes of the Trust as established by
the trustors. Accordingly, Katherine F. Warren is entitled to recover her reasonable and
necessary attorney's fees and litigation expenses fi·om the Trust pursuant to Texas Trust
Code § 114.064.
It is therefore, ORDERED, ADJUDGED, and DECREED that the Trust is hereby
terminated; that the termination shall be effective immediately upon the entry of this Final
Judgment by the Court; that the co-trustees are directed to deliver the remaining Trust estate,
after payment of all Court costs and expenses and legal fees to the Fidelity Account ending in
#6843. The provisions of this Final Judgment shall constitute sufficient legal authority to all
persons owing any money to the Trust, having custody of any property of the Trust, or acting as
3
transfer agent of any property of the Tn1st, for payment or transfer of such money, property, or
right without liability to Daniel S. Weiner, the Primary Beneficiary, and his legal successors in
interest.
It is further ORDERED, ADWDGED, and DECREED that the Final Accounting
submitted by the co-trustees is hereby approved in all respects, and that the co-trustees are
hereby released and discharged from any and all liabilities arising out of or in any way related to
the administration of the Tmst, including its termination.
It is further ORDERED, ADmDGED, and DECREED that Katherine F. Warren is
entitled to recover her reasonable attomey's fees and comt costs of$_ _ _ _ _ _ from the
Trust pursuant to Texas Trust Code § ll4.064, and that these fees shall be paid prior to the
delivery of any propCJties to the Primary Beneficiary.
It is fi.uther ORDERED, ADJUDGED, and DECREED that all :filing fees and Court costs
in this cause are hereby taxed against the Trust, for which execution shall issue if not timely
paid.
SIGNED this _ _ _ day of _ _ _ _ _ _ _ _ , 2013.
Judge Presiding
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APPROVED AS TO FORM AND SUBSTANCE:
CANTRELL & COWAN, PLLC
Carol A. Cantrell, Attomey for Petitioner
Texas Bar No.: 24043592
Meredith N. Mciver
Texas Bar No.: 24078974
3700 Buffalo Speedway, Suite 520
Houston, TX 77098
Phone: 713-333-0555
Fax: 713-333-0550
5
I
I
Exhibit A
DANIEL STEVEN WEINER 1996 TRUST
By this· trust agreement, Andy I. Weiner and Katherine Friedman
weiner, husband and wife, both of Harris county, Texas, as
11 trustors," establish the Daniel steven weiner 1996 Trust for the
benefit of their son, Daniel Steven Weiner ("Daniel"), born
Harch 11, 1996, Trusters grant, assign and deliver to Andy r.
Weiner and Katherin.e Friedman Weiner, both 9f Harris county, Texas,
as "trustees," the property described in Attachment A. Attachment
A, which is captioned "Initial Contributions to the Daniel steven
weiner 1996 Trust," is incorporated by reference as a part of this
trust agreement.
This trust agreement and the trusts. established by it are
irrevocable. No person shall have the right to revoke or amend
this trust agreement or any of its provisions. However, property
acceptable to the trustee may be added to any trust from time to
time in the future by trusters or by any other person (including
additions pursuant to the provisions of the last will of any
person). ·
All references to "trustee" shall refer to the person or
persons then acting as such.
A. PRIMARY TRUST
A-1. Distributions. The income of the trust may be accumulated
and retained, in whole or in part, or the trustee may distribute to
Daniel, from time to time, so much or all of the trust estate as,
in the trustee's discretion, is in Daniel's best interests.
A-2, Termination. Daniel may withdraw any part or all of the
trust . estate within 60 days after he becomes. age .21, and may
thereby terminate the trust as to the part withdrawn. Exercise of
this w~·thdrawal right shall be by one or more written instruments
delivered to the trustee within the 60-day period. If or to the
extent that Daniel does not exercise this withdrawal right, the
trust shall continue until Daniel becomes age 30 or dies before
that age, at which time the trust estate shall be distributed:
(a) To Daniel.
(b) If Daniel is not then living, to such one or more
persons, corporations or organizations (including Daniel's estate),
as Daniel appoints by a will which specifically refers to this
power of appointment. If or to the extent that Daniel does not
effectively exercise this power cf appointroent, the trust estate
shall be distributed:
(1) To Daniel's descendants.
(2) If none of Daniel's descendants is then riving, to
trustors' descendants.
( 3) If none of trusters' descendants is then living, to
trusters' heirs.
A-3. Pavment of Taxes. If Daniel's will contains no contrary
directions, the trustee shall pay from the trust estate the entire
increment in taxes payable by reason of Daniel's death (including
any interest or penalties thereon) to the extent (if any) that the
total of such taxes is greater than would have been imposed if no
portion of the trust estate were taken into account in determining
such taxes.
B. CONTINGENT TRUSTS
B-1. Trusts Established. Any portion of a trust estate upon the
trusts termination (other than a portion withdrawn by Daniel
pursuant to Paragraph A-2) which would be distributable to a
beneficiary who is under age 30 or to a beneficiary who is under a
legal disability instead shall be distributed to the trustee of a
Contingent Trust (unless otherwise directed by the valid exercise
of a power of appointment). Each beneficiary's portion so
distributed shall be held and administered as the initial trust
estate of a separate trust for the beneficiary. However 1 if a
Contingent Trust is already in existence for that beneficiary, any
additional portion to be distributed to the trustee of a contingent
Trust for the beneficiary shall be added to the trust estate of the
existing contingent Trust.
B-2. Distributions. The income of each Contingent Trust may be
accumulated and retained, in whole or in part, or the trustee may
distribute to the beneficiary for whom the trust was established,
from time to time, so much or all of the trust estate as, in the
trustee's discretion, is in the beneficiary's best interests.
B-3, Termination. Each Contingent Trust shall terminate when the
beneficiary for whom the trust was established has become age 30
and is under no legal disability or upon the beneficiary's earlier
death. Upon termination, the trust estate shall be distributed:
(a) To the beneficiary.
(b) If the beneficiary is not then living, to such one or
more persons, corporations or organizations as the beneficiary
appoints by a will which specifically refers to this power of
appointment. If none of the beneficiary's descendants is than
living, this power may not be exercised in favor of the
beneficiary, the beneficiary's estate, the beneficiary's creditors
or the creditors of the beneficiary's estate. If or to the extant
that the beneficiary does not effectively exercise this power of
appointment, the trust estate shall be distributed:
(1) To the beneficiary's descendants,
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(2) If none of the beneficiary's descendants is then living,
to the descendants of the beneficiary's nearest ancestor who was
one of trusters' descendants and who has descendants then living,
(3) If none of these persons is then living, to trusters,
descendants.
( 4) If none of trusters 1 descendants is then living, to
trustors' heirs.
C, DISTRIBUTIONS
c-1, Distributions to or for Beneficiaries. During the term of a
trust, any distribution to be made to a beneficiary from the trust
may be made (i) to the beneficiary, (ii) if the beneficiary is
under a legal disability or if the trustee determines that the
beneficiary is unable to properly manage his affairs, to a person
furnishing support, maintenance or education for the beneficiary or
with whom the beneficiary is residing, for expenditure on the
beneficiary's behalf, or (iii) to a custodian for a minor
beneficiary, as selected by the trustee, under the uniform Gifts to
Minors Act of any state. Alternatively, the trustee may otherwise
apply all or a part of the distribution for the beneficiary's
benefit. However, no such distribution shall be made to a trustor,
to any spouse of a trustor, or in any manner that discharges a
legal obligation (including an obligation of support) of a trustor
or any spouse of a trustor. Any distribution under this paragraph
shall be a full discharge of the trustee with respect thereto.
c-2. Best Interests of Beneficiary, In making distributions in
the "best interests" of a beneficiary, the trustee may consider the
age of the beneficiary, the costs of the beneficiary's support,
maintenance, education and comfort without regard to any other
resources available to the beneficiary for these purposes, the
effect of any distribution upon the income and transfer tax
liability of the beneficiary or of the trust, and any other factors
deemed relevant by the trustee.
D. OFFICE OF TRUSTEE
D-1. Successor Trustee, Co-Trustee, The following provisions
shall apply to each separate trust established under this trust
agreement:
(a) Successor ~'rustee. Should Andy I. l~einer or Katherine
Friedman Weiner cease to act as trustee, for any reason, the one
remaining shall continue to act as trustee. Should both Andy I.
Weiner and Katherine Friedman Weiner cease to act as trustees, for
any reason, trusters appoint Bayle Weiner Drubel as successor
trustee.
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(b) Appointment of successor Trustee by Trustee, At any time
after qualifying as trustee, any trustee may appoint a successor
trustee to act in his place, either immediately or in the future
upon any stated contingency, and may thereby supplement the
provisions of subparagraph (a).
(c) Appointment of successor Trustee by Beneficiaries. If at
any time there is no trustee acting and none has been appointed, a
majority of the beneficiaries (acting through the beneficiary's
natural or legal guardian or legal representative, in the case of
a beneficiary under a legal disability) who might then be entitled
to receive a distribution from the trust estate shall appoint a
successor trustee.
(d) Appointment of Co-Trustee. The trustee (acting
unanimously if more than one) may appoint one or more co-trustees,
(e) !fuo May Be Appointed. A successor trustee or co-trustee
may be any individual, bank or trust company and may be domiciled
anywhere.
(f) Procedure for Appointment. Appointment shall be made by
written instrument filed with the trust records. Any such
appointment may be changed or revoked prior to the date it becomes
effective. Any such appointment may be limited in any manner
deemed advisable by the person making the appointment, including,
for example, restricting the power over distributions as necessary
to avoid the imposition of any tax upon the trust, the appointee or
the appointee's estate.
D-2, Resignation of Trustee, A trustee may resign from a trust
without the necessity of any court proceeding upon meeting these
conditions:
(a) Notice. At least 30 days' written notice (if not waived)
shall be given to each beneficiary who might then be entitled to
receive a distribution from the trust estate. If a beneficiary is
under a legal disability, notice shall be given to (or waived by)
the beneficiary's natural or legal guardian,
(b) Accounting. I f and to tbe extent required by the
successor trustee, an accounting for the administration of the
trust shall be given to the successor trustee, The successor
trustee shall be fully protected in relying upon such accounting,
D-3, Rights and Liabilities,
(a) Bond Not Required, No bond or other security shall be
required of any trustee.
(b) Liabilities, This agreement shall always be construed in
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favor of the validity of any act by or omission of any trustee. A
trustee shall not be liable for any act or omission except in the
case of gross negligence, bad faith or fraud. Specifically, in
assessing the propriety of any investment of a trust estate, the
overall performance of the entire trust estate shall be taken into
account.
(c) Compensation. Each trustee shall be entitled to receive
reasonable compensation for services actually rendered to a trust.
E. ADMINISTRATION
E-1. General Powers of Trustee. To carry out the trust purposes
but subject to any limitations stated elsewhere herein, the trustee
of each trust shall have the following powers, which may be
exercised free from court supervision, and which shall exist until
all of the trust estate has been distributed:
(a) Trust Estate. The trustee may invest and reinvest all or
any part of. the trust estate in property of any description and may
retain as a part of the trust estate any property acquired at any
time and in any manner. specifically, and without regard to the
provisions of any applicable state law, the trustee may retain, or
invest and reinvest in, property unproductive of income, shares of
open or closed end investment trusts or companies, wasting assets,
and any other property, regardless of location and without regard
to any requirement of diversification as to kind or amount.
(b) Business Interests. The trustee may continue operation
of any business entity, in any business form, with all or any part
of the trust estate, and may reorganize or liquidate any such
entity at any time.
(c) Tl'ansfers. Loans. The trustee may lease 1 sell, transfer,
or encumber in any manner (including with purchase money mortgages)
all or any part of the trust estate, and may loan or borrow money
in any manner (including by joint and several obligations) ~lith or
1~ithout security. Subject to the provisions of Paragraph E-J(a),
the trustee may purchase assets from the estate of a trustor and
may loan funds to the estate of a trustor at such rate of interest
and with such security as the trustee determines to be in the best
interests of the current beneficiaries of the trust.
(d) Dealings Nith Related Parties, The trustee may deal with
any person or entity regardless of any relationship or identity of
any trustee to or with that person or entity and may hold or
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