# in Re Daniel W. Warren, Beneficiary of the Daniel Steven Weiner 1996 Trust > Texas Court of Appeals, 1st District (Houston) · May 26, 2015 URL: https://www.frixlaw.com/law-library/cases/4055762 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** May 26, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4055762 ## Opinion text 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.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" _ _)k' uj. iZ V) ;:Q· DANIEL STEPHEN WEINER § --o ·; Ji> ) ?;.~ . r'l m 1996TRUST HARRISCOUNT.j.~AA~ § () ... ,;,· ~ \ ORIGINAL PETITION FOR TERMINATION OF TRUs'I{f.' i'" ·'··" t.. ~-- !' - - m m :l made to the individuals who would have inherited the person's personal property if the person had died intestate at the time the distribution is to be made, domiciled in Texas and not married, under the laws of Texas in force on the effective date of this trust agreement, with the shares of taking determined by those laws. However, both trusters and any spouse of a trustor shall be deemed to have died prior to the time that any such distribution is to be made. A distribution to "trusters' heirs" shall be made to the heirs of Andy I. Weiner. F-4. Internal Revenue code. "Internal, Revenue code" means the Internal Revenue Code of 1986, as amended, or corresponding provisions of any subsequent federal tax laws. -7- F-5. other Terms, The use of any gender includes the other genders, and the use of either the singular or the plural includes the other. F-6. Spendthrift Provision. No beneficiary shall have the power to anticipate, encumber, or transfer his interest in any trust estate in any manner. No part of any trust estate shall be liable for or charged with any debts, contracts, liabilities or torts of a beneficiary or subject to seizure or other process by any creditor of a beneficiary. Nothing in this paragraph shall be construed to limit the otherwise valid exercise of a power of appointment or right of withdrawal given by this trust agreement. F-7. Texas Law Applies. The situs of the trusts established under this trust agreement is Texas. Wherever possible, the laws of Texas shall apply to the construction, administration and validity of each trust. F-8, Maximum Term of Trusts. No trust shall continue for a period longer than 21 years after the death of the last to die of trusters and all of trusters' descendants who are living on the effective date of this trust agreement. Any trust still in force at the end of such period shall terminate, and the trust estate shall be distributed to the beneficiary for whom the trust was established. F-9. Powers of Appointment Exercisable by Beneficiaries. In exercising a power of appointment given to a beneficiary by this trust agreement, the beneficiary may appoint the property subject to the power outright to the appointee, in trust, or to a custodian for the appointee under the Uniform Gifts to Minors Act of any state. If the beneficiary appoints to a custodian, he may select the custodian. If the beneficiary appoints in trust, he may select the trustee or trustees, may establish such administrative terms for the trust as he deems appropriate, and may impose lawful spendthrift restrictions. He may give the trustee discretionary powers over the income and principal, and may create a trust that has several permissible distributees. He may create life interests or other limited interests in some appointees with future interests in favor of other appointees, may appoint different types of interests among the appointees, and may create new powers of appointment in a trustee or trustees or in any appointee. He may impose lawful conditions on an appointment and,, in general, may appoint to or among the appointees in any lawful manner. In determining whether, in what manner and to what extent a testamentary power of appointment has been exercised by a beneficiary, the trustee may act in reliance upon a court order admitting an instrument to probate as the beneficiary's last will or an order finding that the beneficiary died intestate, Unless ~ri thin six months after the beneficiary 1 s death the trustee has actual notice of the existence of proceedings to probate a will of the beneficiary, the trustee shall assume that the beneficiary died intestate. The foregoing provisions are intended to expedite the prompt and efficient administration of the trust and to protect the trustee from any action taken or distribution made in accordance with these prov1sions. Nothing in this paragraph shall limit or qualify any power of appointment given by this trust agreement or any right which an appointee or taker in default of appointment may have against any person receiving a distribution from the trustee irrespective of the place of probate or of the time of discovery of a will exercising the power or any other action taken in the beneficiary's estate. G. ACCEPTANCE BY TRUSTEE By signing this trust agreement, the trustee (i) accepts these trusts and all of the rights, powers and duties attached to the office of trustee as provided herein, (ii) agrees to serve as trustee of the Daniel Steven Weiner 1996 Trust and of any Contingent Trusts which may be established under this trust agreement, (iii) acknowledges receipt of the property described in Attachment A, and (iv) agrees to hold and administer each trust estate in accordance with the terms of this trust agreement. This trust agreement is executed effective as of the 20th day of March, 1996. Andy I. Weiner, Trustor and Trustee Katherine Friedman Weiner, Trustor and Trustee -9- ATTACID1ENT A: INITIAL CONTRIBUTIONS TO THE DANIEL STEVEN WEINER l996 TRUST $1.00 Andy I, Weiner, Trustor and Trustee Kather~ne Fr~edman We1ner, Trustor and Trustee 3669:palnso\01 57136 -10- Exhibit B NO. 2011·01 040 IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF § y5 jl.:s' § 1~§ E gosrH JUDICIAL DISTRicT s:f~ KATHERINE F. WEINER AND ANDY I. WEINER F 01c s oanlel lot Clerk · rt:C AND IN THE INTEREST OF MAl2 9 2012 DAVID A. WEINER, DANIELS. § WEINER AND MICHAEL H. Tim•: --,ll§ .,., ii this Court. lll s 50 0 Weiner- Agreed Final Decree of Divorce 1l "" 'ij u ; ihe agreements In this Final Decree of Divorce were reached In mediation with Harry L. Tindall. This Final Decree of Divorce is stipulated to represent a merger of a mediated settlement agreement between the parties. To the extent there exist any differences between the mediated settlement agreement and this Final Decree of Divorce, this Final Decree of Divorce shall control In all instances. Divorce IT IS ORDERED AND DECREED that Katherine F. Weiner, Petitioner, and Andy I. Weiner, Respondent, are divorced and that the marriage between them Is dissolved on the ground of insupportabillty. Children of the Marriage The Court finds that Petitioner and Respondent are the parents of the following children: Name: David A. Weiner Sex: Male Birth date: June 14, 1994 Home state: Texas Social Security number: xxx-xx-x861 Driver's license number and issuing state: xxxxx273, Texas Name: DanielS. Weiner Sex: Male Birth date: March 11, 1996 Home state: Texas Social Security number: xxx-xx-x039 Driver's license number and issuing state: xxxxx996Texas Weiner- Agreed Final Decree of Divorce I Name: Michael H. Weiner Sex: Male Birth date: November 1, 1999 Home state: Texas Social Security number: xxx-xx-x735 Driver's license number and Issuing state: N/A The Court finds no other children of the marriage are expected. Parenting Plan The Court finds that the provisions In this decree relating to the rights and duties of the parties with relation to the children, possession of and access to the children, child support, and optimizing the development of a close and continuing relationship between each party and the children constitute the parties' agreed parenting plan. Conservatorship The Court, having considered the circumstances of the parents and of the children, finds that the following orders are in the best interest of the children. IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner are appointed Joint Managing Conservators of the following children: David A. Weiner, Daniel ... '.,. 1i s. Weiner and Michael H. Weiner. J!" IT IS ORDERED that, at all times, Katherine F. Weiner, as a parent joint ' "' .."'~ managing conservator, shall have the following rights: ~ 1. the right to receive information from any other conservator of the ~ children concerning the health, education, and welfare of the children: i 8 Weiner· Agreed Final Decree of Divorce Page4 1l "' ·e u" { I 2. the right to confer with the other parent to the extent possible befo~e making a decision concerning the health, education, and welfare of the children; 3. the right of access to medical, dental, psychological, and educational records of the children; 4. the right to consult with a physician, dentist, or psychologist of the children; 5. the right to consult with school officials concerning the children's welfare and educational status, Including school activities; 6. the right to attend school activities; 7. the right to be designated on the children's records as a person to be notified In case of an emergency; 8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and 9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family. IT IS ORDERED that, at all times, Andy I. Weiner, as a parent joint managing conservator, shall have the following rights: 1. the right to receive information from any other conservator of the children concerning the health, education, and welfare of the children; 2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children; 3. the right of access to medical, dental, psychological, and educational records of the children; li 4. the right to consult with a physician, dentist, or psychologist of the 'E children; z llE g (:) Weiner· Agreed Final Decree of Divorce Page5 vY ~ 1l "' ·e 0" i • 5. the right to consult with school officials concerning the children's welfare and educational status, including school activities; 6. the right to attend school activities; 7. the right to be designated on the children's records as a person to be notified In case of an emergency; B. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and 9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family. IT IS ORDERED that, at all times, Katherine F. Weiner and Andy I. Weiner, as parent joint managing conservators, shall each have the following dulles: 1. the duty to inform the other conservator of the children In a timely manner of significant information concerning the health, education, and welfare of the children; and 2. the duty to inform the other conservator of the children if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows Is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or Is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this Information shall be tendered In the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the children begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense that is the basis of the person's requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE. IT IS ORDERED that, during her periods of possession, Katherine F. Weiner- Agreed Final Decree of Divorce Weiner, as parent joint managing conservator, shall have the following rights and duties: 1. the duty of care, control, protection, and reasonable discipline of the children; 2. the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure; 3. the right to consent for the children to medical and dental care not involving an invasive procedure; and 4. the right to direct the moral and religious training of the children. IT IS ORDERED that, during his periods of possession, Andy I. Weiner, as parent joint managing conservator, shall have the following rights and duties: 1. the duty of care, control, protection, and reasonable discipline of the children; 2. the duty to support the children, Including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure; 3, the right to consent for the children to medical and dental care not Involving an Invasive procedure; and 4. the right to direct the moral and religious training of the children. IT IS ORDERED that Katherine F. Weiner, as a parent joint managing conservator, shall have the following rights and duty: 1. the exclusive right to establish the primary residence and legal domicile of the children in Harris County, Texas or a county that is contiguous to Harris County, Texas, subject to the provisions hereinafter. 2. the exclusive right to consent to medical, dental, and surgical Weiner· Agreed Final Decree of Divorce Page? treatment involving Invasive procedures; 3. the exclusive right to consent to psychiatric and psychological treatment of the children; 4. the exclusive right to receive and give receipt for periodic payments for the support of the children and to hold or disburse these funds for the benefit of the children; 5. the exclusive right to represent the children In legal action and to make other decisions of substantial legal significance concerning the children; 6. the exclusive right to consent to marriage and to enlistment in the armed forces of the United States; 7. the right, subject to the agreement of the other parent conservator, to make decisions concerning the children's education; B. except as provided by section 264.0111 of the Texas Family Code, the independent right to the services and earnings of the children; 9. except when a guardian of the children's estates or a guardian or attorney ad litem has been appointed for the children, the independent right to act as an agent of the children In relation to the children's estates if the children's action is required by a state, the United States, or a foreign government; and 10. the exclusive duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parent. IT IS ORDERED that Andy I. Weiner, as a parent joint managing conservator, shall have the right, subject to the agreement of the other parent conservator, to make decisions concerning the children's education, and In this regard, the Court finds that Andy I. Weiner has agreed for each child to remain at the Kinkaid School through each child's graduation from such School, and that there are other more specific provisions herein further delineating the obligation of Weiner- Agreed Final Decree of Divorce . ·I Andy I. Weiner to pay for the Kinkaid School for the children. The Court finds that, in accordance with section 153.001 of the Texas Family Code, it is the public policy of Texas to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, to provide a safe, stable, and nonviolent environment for the child, and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. IT IS ORDERED that, so long as the principal residence of Andy I Weiner Is in either Harris County, Texas or a county that is contiguous to Harris County, Texas, the primary residence of the children shall be in Harris County, Texas or a county that is contiguous to Harris County, Texas, and the parties shall not remove the children from such designated area for the purpose of changing the primary residence of the children until modified by further order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court. IT IS ORDERED that the following custodial accounts now held by the parties for the parties' children are placed under the sole and exclusive control of ,. ~ 'B Katherine F. Weiner: "' 1. Fidelity UTMA Acct Ending in #4270; and 2. Fidelity UTMA Acct Ending in #6843. Unless these documents have been previously executed, Andy I. Weiner Is Weiner - Agreed Final Decree of Divorce Page 9 •' •' ORDERED to appear in the law offices of Randall B. Wilhite at 4265 San Felipe Street, Suite 1400, Houston, Texas 77027, at 2:00p.m. on March 30, 2012, and to execute, have acknowledged, and deliver to Katherine F. Weiner all documents necessary to effectuate Katherine F. Weiner's sole and exclusive control of the accounts. IT IS ORDERED that the following children's trusts are held in irrevocable trusts, which shall continue as written, and that each party will take any and all necessary steps to provide full co-trustee ownership and control of each such account including the placing of such accounts in a deposit and withdrawal agreement requiring both co-trustees to disburse funds; also known as an "and" account: 1. Fideli1y Trust Acct Ending in #8634 (David); 2. Fidelity Trust Acct Ending in #3958 (Daniel); and 3. Fidelity Trust Acct Ending In #1942 (Michael). Possession and Access 1. Modified Possession Order The Court finds that the parties have entered into a Mediated Settlement Agreement providing for a non-expanded, non-standard possession order as more specifically herein provided. IT IS ORDERED that each conservator shall comply with all terms and conditions of this Modified Possession Order. IT IS ORDERED that this Modified Possession Order is effective immediately and applies to all periods of possession occurring on and after the date the Court signs this Weiner- Agreed Final Decree or Divorce Page 10 I Modified Possession Order. IT IS, THEREFORE, ORDERED: (a) Definitions 1. In this Modified Possession Order "school" means the primary or secondary school in which the child Is enrolled or, if the child is not enrolled In a primary or secondary school, the public school district in which the child primarily resides. 2. In this Modified Possession Order "child" Includes each child, whether one or more, who is a subject of this suit while that cllild Is under the age of eighteen years and not otherwise emancipated. (b) Mutual Agreement or Specified Terms for Possession IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Modified Possession Order. © Except as otherwise expressly provided in this Modified Possession Order, Andy I. Weiner shall have the right to possession of the child as follows: 1. Weekends - On weekends, beginning at 6:00p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, provided that upon 14 days' advance written notice of an out-of-town trip, Andy I. Weiner may pick up at 4 p.m. one time every 60 days. 2. Thursdays - On Thursday of each week during the regular school term, beginning at 4:00 p.m. and ending at 8:00p.m. 3. Spring Vacation in Even-Numbered Years - In even-numbered years, beginning at 5:00 p.m. o'n the day the child is dismissed from school for the school's spring vacation and ending at 5:00p.m. on the day before school resumes after that vacation. Weiner- Agreed Final Decree of Divorce Page 11 ' ' 4. Extended Summer Possession by Andy I. Weiner- With Written Notice by April 1 - On or before April 1•t of each year, Andy I. Weiner shall designate one period of 14 consecutive days (which may be exercised In 2 one week periods of possession, separated by no less than 14 days), beginning no earlier than the day after the child's school is dismissed for the summer vacation and ending no later than 7 days before school resumes for the next school year, during which he shall have his summer periods of possession with the children. These periods of possession shall begin and end at 6:00p.m. on each applicable day. Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORD.ERED for Andy I. Weiner, It Is expressly ORDERED that Katherine F. Weiner shall have a superior right of possession of the child as follows: 1. Spring Vacation in Odd-Numbered Years - In odd-numbered years, beginning at 5:00 p.m. on the day the child Is dismissed from school for the school's spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation. 2. Summer Weekend Possession by Katherine F. Weiner- On or before April 15th of each year, Katherine F. Weiner shall designate 14 consecutive days, or at her election, two 7 day periods beginning no earlier than the day after the child's school Is dismissed for the summer vacation and ending no later than 7 days before school resumes for the next school year, during which she will have her summer perlod(s) of possession with the children, provided the dates do not conflict with Father's Day weekend or the summer periods designated by Andy I. Weiner. These periods of possession shall begin and end at6:00 p.m. on each applicable day. (d) Holidays Notwithstanding the weekend and Thursday periods of possession of Andy I. Weiner, Katherine F. Weiner and Andy I. Weiner shall have the right to possession of the child as follows: Weiner· Agreed Final Decree of Divorce ( 1. Christmas Holidays In Even-Numbered Years - In even-numbered years, Andy I. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Katherine F. Weiner shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation. · 2. Christmas Holidays in Odd-Numbered Years - In odd-numbered years, Katherine F. Weiner shal.l have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and Andy I. Weiner shall have the right to possession of the child beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation. 3. Thanksgiving In Odd-Numbered Years In odd-numbered years, Andy I. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00p.m. on the Sunday following Thanksgiving. 4. Thanksgiving In Even-Numbered Years In even-numbered years, Katherine F. Weiner shall have the right to possession of the child beginning at 6:00 p.m. on the day the child Is dismissed from school for the Thanksgiving hoiiday and ending at 6:00p.m. on the Sunday following Thanksgiving. 5. Father's Day • Andy I. Weiner shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father's Day and ending at 6:00 p.m. on Father's Day, provided that if Andy I. Weiner is not otherwise entitled under this Modified Possession Order to present possession of the child, he shall pick up the child from Katherine F. Weiner's residence and return the child to that same place. ,. • possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's Day, provided that if Katherine F. Weiner Is not otherwise entitled under this Modified Possession Order to present possession of the child, she shall pick up the child from Andy I. Weiner's residence and return the child to that same place. (e) Undeslgnated Periods of Possession Katherine F. Weiner shall have the right of possession of the child at all other times not specifically designated In this Modified Possession Order for Andy I. Weiner. (f) General Terms and Conditions Except as otherwise expressly provided In this Modified Possession Order, the terms and conditions of possession of the child are as follows: 1. Surrender of Child by Katherine F. Weiner- Katherine F. Weiner Is ORDERED to surrender the child to Andy I. Weiner at the beginning of each period of Andy I. Weiner's possession at the residence of Katherine F. Weiner. 2. Return of Child by Andy I. Weiner - Andy I. Weiner is ORDERED to return the child to the residence of Katherine F. Weiner at the end of each period of possession. 3. Surrender of Child by Andy I. Weiner - Andy I. Weiner is ORDERED to surrender the child to Katherine F. Weiner, if the child is In Andy I. Weiner's possession or subject to Andy I. Weiner's control, at the beginning of each period of Katherine F. Weiner's exclusive periods of possession, at the place designated in this Modified Possession Order. 4. Return of Child by Katherine F. Weiner- Katherine F. Weiner is ORDERED to return the child to Andy I. Weiner, If Andy I. Weiner is entitled to possession of the child, at the end of each of Katherine F. Weiner's exclusive periods of possession, at the place designated in this Modified Possession Order. Weiner- Agreed Final Decree of Divorce ' ' ' 5. Notwithstanding any other prov1s1on herein to the contrary, any child with a driver's license shall be permitted to drive himself to and from each period of possession and during each period of possession; however, any child without a driver's license (which at this lime includes Daniel Weiner and Michael Weiner) Is ORDERED to ride only with Andy I. Weiner. 6. Personal Effects - Each conservator Is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession. 7. Designation of Competent Adult- Each conservator may designate any competent adult to pick up and return the child, as applicable. IT. IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned. 8. Inability to Exercise Possession - Each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator's right of possession for any specified period. 9. Written Notice- Written notice shall be made to the other parent via e-mail correspondence to the other parent's e-mail address, including all notices from one parent to the other of any changes in a party's e-mail address. Each party is ORDERED to provide any change in the e-mail address designated by each such party as the one to be used for notification by the other party within 7 days of a change thereof. This concludes the Modified Possession Order. 2. Provisions for Jewish Religious Holidays In addition to the holiday periods of possession set forth In the Modified Possession Order, Andy I. Weiner and Katherine F. Weiner shall share the Jewish holidays as set forth below: a. Rosh Hashanah - Even-Numbered Years. In all Weiner- Agreed Final Decree of Divorce r even-numbered years Andy I. Weiner shall have possession of the children for a period beginning at 5:00 p.m. on the night before the first day of Rosh Hashanah and ending at 9:00 p.m. on the same day; Katherine F. Weiner shall have possession of the children from 10:00 a.m. until 8:00 p.m. on the first day of Rosh Hashanah. b. Rosh Hashanah- Odd-Numbered Years. In all odd-numbered years Katherine F. Weiner shall have possession of the children for a period beginning at 5:00 p.m. on the night before the first day of Rosh Hashanah and ending at 9:00 p.m. on the same day; Andy I. Weiner shall have possession of the children from 10:00 a.m. until 8;00 p.m. on the first day of Rosh Hashanah. c. Yom Kippur - Odd-Numbered Years - In all odd-numbered years, Katherine F. Weiner shall have possession of the children for a period beginning at 5:00 p.m. on the night before the first day of Yom Kippur and ending at 9;00 p.m. on the same day; Andy I. Weiner shall have possession of the children from 10:00 a.m. until8:00 p.m. on the first day of Yom Kippur. d. Yom Kippur - Even-Numbered Years - In all even-numbered years, Andy I. Weiner shall have possession of the children for a period beginning at 5:00 p.m. on the night before the first day of Yom Kippur and ending at 9:00 p.m. on the same day; Katherine F. Weiner shall have Weiner- Agreed Final Decree of Divorce Page 16 possession of the children from 10:00 a.m. until 8:00p.m. on the first day of Yom Kippur. e. Passover - Even-Numbered Years - In all even-numbered years, Andy I. Weiner shall have possession of the children for a period beginning at 5:00 p.m. on the night before the first full day of Passover and ending at 9:00 p.m. on the same day. f. Passover- Odd-Numbered Years- In all odd-numbered years, Katherine F. Weiner shall have possession of the children for a period beginning at 5:00 p.m. on the night before the first full day of Passover and ending at 9:00 p.m. on the same day. 3. Duration The periods of possession ordered above apply to each child the subject of this suit while that child Is under the age of eighteen years and not otherwise emancipated. 4. Noninterference with Possession IT IS ORDERED that neither conservator shall take possession .of the children during the other conservator's period of possession unless there is a prior written agreement signed by both conservators or In case of an emergency. 5. Termination of Orders Weiner- Agreed Final Decree of Divorce Page 17 The provisions of this decree relating to conservatorship, possession, or access terminate on the remarriage of Katherine F. Weiner to Andy I. Weiner unless a nonparent or agency has been appointed conservator of the children under chapter 153 of the Texas Family Code. Child Support IT IS ORDERED that Andy I. Weiner is obligated to pay and shall pay to Katherine F. Weiner child support of two thousand two hundred fifty dollars · RPrll ($2,250) per month, with the first payment being due and payable on MMeh 1, 2012, and a like payment being due and payable on the 1st day of each month thereafter until the first month following the date of the earliest occurrence of one of the events specified below: 1.' any child reaches the age of eighteen years or graduates from high school, whichever occurs later, subject to the provisions for support beyond the age of eighteen years set out below; 2. any child marries; 3. any child dies; 4. the parent-child relationship Is terminated based on genetic testing l that excludes the obligor as the child's genetic father; 5. the child enlists in the armed forces of the United States and begins ~ active service as defined by section 101 of title 10 of the United States Code; or .D ~ ii ! Weiner- Agreed Final Decree of Divorce Page 18 • J 6. '1nY child's disabilities are otherwise removed for general purposes. Thereafter, Andy I. Weiner is ORDERED to pay to Katherine F. Weiner child support of one thousand eight hundred seventy-five dollars ($1,875) per month, due and payable on the 1st day of the first month immediately following the date of the earliest occurrence of one of the events specified above for another child and a like sum of one thousand eight hundred seventy-five dollars ($1 ,875) due and payable on the 1st day of each month thereafter until the next occurrence of one of the events specified above for another child. Thereafter, Andy I. Weiner Is ORDERED to pay to Katherine F. Weiner child support of one thousand five hundred dollars ($1 ,500) per month, due and payable on the 1st day of the first month Immediately following the date of the earliest occurrence of one of the events specified above for another child and a like sum of one thousand five hundred dollars ($1 ,500) due and payable on the 1st day of each month thereafter until the next occurrence of one of the events specified above for another child. If the child is eighteen years of age and has not graduated from high school, " ~ IT IS ORDERED that Andy I. Weiner's obligation to pay child support to Katherine ~ l F. Weiner shall not terminate but shall continue for as long as the child Is enrolled- 1. under chapter 25 of the Texas Education Code In an accredited ii secondary school in a program leading toward a high school diploma or under l~ s ~ 'g "'u'E Weiner- Agreed Final Decree of Divorce Page 19 ;. section 130.008 of the Education Code In courses for joint high school and junior college credit and is complying with the minimum attendance requirements of subchapter C of chapter 25 of the Education Code or 2. on a full-time basis in a private secondary school in a program leading toward a high school diploma and Is complying with the minimum attendance requirements Imposed by that school. Withholding from Earnings IT IS ORDERED that any employer of Andy I. Weiner shall be ordered to withhold from earnings for child support from the disposable earnings of Andy I. Weiner for the support of David A. Weiner, Daniel S. Weiner and Michael H. Weiner. IT IS FURTHER ORDERED that all amounts withheld from the disposable earnings of Andy I. Weiner by the employer and paid in accordance with the order to that employer shall constitute a credit against the child support obligation. Payment of the full amount of child support ordered paid by this decree through the means of withholding from earnings shall discharge the child support obligation. If the amount withheld from earnings and credited against the child support obligation Is less than 1oo percent of the amount ordered to be paid by this decree, the balance due remains an obligation of Andy I. Weiner, and It Is hereby ORDERED that Andy I. Weiner pay the balance due directly to the state Weiner- Agreed Final Decree of Divorce Page 20 disbursement unit specified below. On this date the Court authorized the issuance of an Order/Notice to Withhold Income for Child Support. Payment IT IS ORDERED that all payments shall be made through the state disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265·9791, and thereafter promptly remitted to Katherine F. Weiner for the support of the children. IT IS ORDERED that each party shall pay, when due, all fees charged to that party by the state disbursement unit and any other agency statutorily authorized to charge a fee. Change of Employment IT IS FURTHER ORDERED that Andy I. Weiner shall notify this Court and Katherine F. Weiner by U.S. certified mail, return receipt requested, of any change of address and of any termination of employment. This notice shall be given no later than seven days after the change of address or the termination of employment. This notice or a subsequent notice shall also provide the current address of Andy I. Weiner and the name and address of his current employer, whenever that information becomes available. Clerk's Duties IT IS ORDERED that, on the request of a prosecuting attorney, the title IV·D Weiner· Agreed Final Decree of Divorce Page 21 agency, the friend of the Court, a domestic relations office, Katherine F. Weiner, Andy I. Weiner, or an attorney representing Katherine F. Weiner or Andy I. Weiner, the clerk of this Court shall cause a certified copy of the Order/Notice to Withhold Income for Child Support to be delivered to any employer. Suspension of Withholding from Earnings The Court finds that good cause exists that no order to withhold from earnings for child support should be delivered to any employer of Andy I. Weiner as long as no delinquency or other violation of this child support order occurs and as long as the Office of the Attorney General Child Support Division is not providing services to Katherine F. Weiner. For the purpose of this provision, a delinquency has occurred if Andy I. Weiner has been In arrears for an amount due for more than thirty days or the amount of the arrearages equals or is greater than the amount due for a one-month period. If a delinquency or other violation occurs or If the Office of the Attorney General Child Support Division begins providing services to Katherine F. Weiner, the clerk shall deliver the order to withhold earnings as provided above. ACCORDINGLY, IT IS ORDERED that, as long as no delinquency or other violation of this child support order occurs and as long as the Office of the Attorney General Child Support Division is not providing services to Katherine F. Weiner, all payments shall be made through the state disbursement unit and thereafter Weiner- Agreed Final Decree of Divorce Page 22 promptly remitted to Katherine F. Weiner for the support of the children. If a delinquency or other violation occurs or If the Office of the Attorney General Child Support Division begins providing services to Katherine F. Weiner, all payments shall be made in accordance with the order to withhold earnings as provided above. Kinkaid School Tuition IT IS ORDERED that Andy I. Weiner shall pay, as child support, through graduation from high school, each child's tuition, required fees, required books, lunches at school and other fees associated with the children's attendance at the Kinkaid School, as billed directly by the school to Andy I. Weiner. Health Care 1. IT IS ORDERED that Katherine F. Weiner and Andy I. Weiner shall each provide medical support for each child as set out In this order as additional child support for as long as the Court may order Katherine F. Weiner and Andy I. Weiner to provide support for the child under sections 154.001 and 154.002 of the Texas Family Code. Beginning on the day Katherine F. Weiner and Andy I. ~ '<> Weiner's actual or potential obligation to support a child under sections 154.001 ~1 ~ l and 154.002 of the Family Code terminates, IT IS ORDERED that Katherine F. ' ~ ~ Weiner and Andy I. Weiner are discharged from the obligations set forth in this 00 ~ on li ,£> medical support order with respect to that child, except for any failure by a parent ~ ~ ~ 8 Weiner- Agreed Final Decree of Divorce Page23 1l ""·e u ~ •• to fully comply with those obligations before that date. 2. Definitions - "Health Insurance" means insurance coverage that provides basic health-care services, Including usual physician services, office visits, hospitalization, and laboratory, X-ray, and emergency services, that may be provided through a health maintenance organization or other private or public organization, other than medical assistance under chapter 32 of the Texas Human Resources Code. "Reasonable cost" means the total cost of health insurance coverage for all children for which Andy I. Weiner is responsible under a medical support order that does not exceed 9 percent of Andy I. Weiner 's annual resources, as described by section 154.062(b) of the Texas Family Code. "Reasonable and necessary health-care expenses not paid by Insurance and incurred by or on behalf of a child" include, without limitation, any copayments for office visits or prescription drugs, the yearly deductible, If any, and medical, surgical, prescription drug, mental health-care services, dental, eye care, ophthalmological, and orthodontic charges. These reasonable and necessary health-care expenses do not Include expenses for travel to and from the health-care provider or for nonprescription medication. "Furnish" means: Weiner- Agreed Final Decree of Divorce Page 24 '. a. to hand deliver the document by a person eighteen years of age or older either to the recipient or to a person who is eighteen years of age or older and permanently resides with the recipient; b. to deliver the document to the recipient by certified mail, return receipt requested, to the recipient's last known mailing or residence address; or c. to deliver the document to the recipient at the recipient's last known mailing or residence address using any person or entity whose principal business is that of a courier or deliverer of papers or documents either within or outside the United States. 3. Findings on Health Insurance Availability- Having considered the cost, accessibility, and quality of health Insurance coverage available to the parties, the Court finds: Health insurance Is available or is in effect for the children through Andy I. Weiner's employment or membership in a union, trade association, or other organization at a reasonable cost. IT IS FURTHER FOUND that the following orders regarding health-care coverage are in the best interest of the children. 4. Provision of Health-Care Coverage - Weiner- Agreed Final Decree of Divorce Page 25 \ ' As additional child support, through four (4) months past high school graduation for each child and for so long as child support is payable for a child, Andy I. Weiner Is ORDERED to provide health Insurance for each such child with a deductible of no more than $1 ,000.00 per year, per child, and if it is higher, as child support, Andy I. Weiner Is ORDERED to pay 100% of all deductible amounts to a point where such deductible amount reaches that level. For example, if the deductible for the children is $7,500, Andy I. Weiner shall pay 100% of the fist $6,500 in uninsured health care expenses of the children. Beginning on the first day of the first month following the rendition of the divorce, and pursuant to section 154. 183© of the Texas Family Code, IT IS ORDERED that the reasonable and necessary uninsured medical expenses of the children be paid as follows: a. Andy I. Weiner shall be responsible for payment of 70% of each child's deductible; b. after the deductible has been met, Katherine F. Weiner shall pay for 30% and Andy I. Weiner shall pay for 70% of all uninsured health care expenses for each child's health care not covered by the children's health Insurance policy. c. Notwllhstanding the foregoing, any uninsured health care expenses not applied toward the deductible shall be paid 30% by Katherine F. Weiner and 70% by Andy I. Weiner. Weiner· Agreed Final Decree of Divorce Page26 ~ '. d. Unless approved in advance by both parents, any party Incurring out of network expenses, except in the case Qi a medical emergency, shall pay 100% of such expense. Andy I. Weiner is ORDERED to continue to maintain health insurance for each child who is the subject of this suit that covers basic health-care services, including usual physician services, office visits, hospitalization, and laboratory, X-ray, and emergency services. Andy I. Weiner is ORDERED to maintain such health insurance in full force and effect on each child who is the subject of this suit as long as child support is payable for that child. Andy I. Weiner is ORDERED to convert any group insurance to individual coverage or obtain other health Insurance for each child within fifteen days of termination of his employment or other disqualification from the group insurance. Andy I. Weiner is ORDERED to exercise any conversion options or acquisition of new health insurance in such a manner that the resulting insurance equals or exceeds that in effect immediately before the change. Andy I. Weiner Is ORDERED to furnish Katharine F. Weiner a true and correct copy of the health insurance policy or certification and a schedule of benefits within 10 days of the signing of this order. Andy I. Weiner is ORDERED to furnish Katherine F. Weiner the insurance cards and any other forms necessary for use of the insurance within 10 days of the signing of this order. Andy I. Weiner Weiner- Agreed Final Decree of Divorce Page 27 • is ORDERED to provide, within three days of receipt by him, to Katherine F. Weiner any insurance checks, other payments, or explanations of benefits relating to any medical expenses for the children that Katherine F. Weiner paid or Incurred. Pursuant to section 1504.051 of the Texas Insurance Code, IT IS ORDERED that if Andy I. Weiner is eligible for dependent health coverage but fails to apply to obtain coverage for the children, the insurer shall enroll the children on application of Katherine F. Weiner or others as authorized by law. The party who incurs a health·care expense on behalf of a child is ORDERED to submit to the other party ail forms, receipts, bills, statements, and explanations of benefits reflecting the uninsured portion of the health·care expenses within thirty days after he or she receives them. The non incurring party is ORDERED to pay his or her percentage of the uninsured portion of the health·care expenses either by paying the health·care provider directly or by reimbursing the Incurring party for any advance payment exceeding the incurring party's percentage of the uninsured portion of the health·care expenses within thirty days after the nonlncurrlng party receives the forms, receipts, bills, statements, and explanations of benefits. These provisions apply to all unreimbursed health·care expenses of any child who Is the subject of this suit that are Incurred while child support Is payable for that child. Weiner. Agreed Final Decree of Divorce Page28 ·'' 5. Secondary Coverage- IT IS ORDERED that if a party provides secondary health insurance coverage for the children, both parties shall cooperate fully with regard to the handling and filing of claims with the Insurance carrier providing the coverage in order to maximize the benefits available to the children and to ensure that the party who pays for health-care expenses for the children is reimbursed for the payment from both carriers to the fullest extent possible. 6. Compliance with Insurance Company Requirements - Each party is ORDERED to conform to all requirements imposed by the terms and conditions of the policy of health Insurance covering the children in order to assure maximum reimbursement or direct payment by the insurance company of the Incurred health-care expense, Including but not limited to requirements for advance notice to any carrier, second opinions, and the like. Each party Is ORDERED to attempt to use "preferred providers," or services within the health maintenance organization, if applicable; however, this provision shall not apply if emergency care is required. Disallowance of the bill by a health Insurer shall not excuse the obligation of either party to make payment; however, if a bill is disallowed or the benefit reduced because of the failure of a party to follow insurance procedures or requirements, IT IS ORDERED that the party failing to follow the insurance procedures or requirements shall be wholly responsible for the increased portion Weiner- Agreed Final Decree of Divorce Page29 / ~~\ 1996TRUST § HARRIS COUNTY,'TEXAS ~ c- ~- .,.,. ' ·(it\ FIRST AMENDED ORIGINAL PETITION FOR MODIFICATION OF TRUST and 0 RESPONSE TO PLEA IN ABATEMENT AND PLEA TO THE JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Katherine F. Warren as next friend of Daniel S. Weiner, a mmor, Petitioner herein, and files this First Amended Original Petition for Modification of Trust for the DANIEL STEPHEN WEINER 1996 TRUST, a true and correct copy of which is attached hereto as "Exhibit A" and is incorporated for all purposes. Petitioner respectfully shows the Court as follows: PARTIES I. Katherine F. Warren appears as next fi'iend of Daniel S. Weiner pursuant to Rule 44 of the Texas Rules of Civil Procedure and files this action on his behalf in his capacity as beneficiary of the DANIEL STEPHEN WEINER 1996 TRUST ("Trust"). Daniel S. Weiner, a minor, was born on March 11, 1996. He will be an adult on March II, 2014. No legal guardian or attorney ad litem has been appointed for DanielS. Weiner. 2. Daniel S. Weiner ("Primary Beneficiary") has an interest in tltis proceeding under Texas Trust Code § 111.004(7). He is also a necessary pmiy under Texas Trust Code § 115.011(2) because he is the primary beneficiary named in the Trust. 3. Katherine F. Warren has the exclusive right to represent Daniel S. Weiner in legal action and to make decisions of substantial legal significance concerning him pursuant to the EXHIBIT exhibitsticker.com I TAB H Agreed Final Decree of Divorce ("Divorce Decree"), Cause No. 2011-01040 in the District Court of the 309'" Judicial District in Hanis County, Texas, which is attached as "Exhibit B" and incorporated for all pmposes. Texas Trust Code§ 115.013(c)(3) petmits a parent to represent her child as guardian ad litem or next friend if there is no conflict of interest and no guardian of the estate or guardian ad litem has been appointed. Ms. Wan·en's interests do not conflict with those of DanielS. Weiner. 4. Katherine F. Wanen is an individual acting as tmstee of the Tmst. Ms. WmTen is joined as a Respondent herein because she has an interest in the proceeding under Texas Tmst Code § 111.004(7) and is a necessary party pursuant to Texas Tmst Code § 115.011(b)(4). She cmTently resides at 1226 Muirfield Place, Houston, Hanis County, Texas 77055. 5. Andy I. Weiner is an individual acting as trustee of the Tmst. Mr. Weiner is joined as a Respondent herein because he has an interest in this proceeding under Texas Tmst Code § 111.004(7) and is a necessary party pursuant to Texas Trust Code§ 115.011(b)(4). Mr. Weiner currently resides at 1200 Post Oak Blvd., Apmiment 907, Houston, Texas 77056. 6. The situs of the Trust is Houston, Hanis County, Texas. JURISDICTION 7. The subject matter of this dispute involves the management and modification of the Trust estate of the DANIEL STEPHEN WEINER 1996 TRUST. This Court has jurisdiction over this subject matter pursuant to Texas Trust Code§ 115.001(d)(1) and Texas Probate Code§ 4G. 2 RESPONSE TO PLEA IN ABATEMENT 8. Respondent Andy I. Weiner filed a Plea in Abatement in this action alleging that he had commenced an earlier suit on the same subject matter involving the same patties in the 3091h Judicial Disllict. In order to succeed on his Plea in Abatement, Mr. Weiner must show that I) he commenced suit first, 2) the suit is still pending, 3) the same parties are involved, and 4) the controversies are the same. In re Sims, 88 S.W.3d 301, 303 (Tex. App. - San Antonio 2002, Wiit granted). The undisputed record shows that the Mr. Weiner cannot meet the last two requirements. On their face, Mr. Weiner's pleadings show that the parties are not the same in the District Comt and the Probate Court. Daniel S. Weiner is not a party in the District Court action. Daniel S. Weiner would be a necessary party to a suit involving the DANIEL STEPHEN WEINER 1996 TRUST because he is a named beneficiary. Tex. Trust Code§ 115.01l(b)(2). A lack of necessary parties deprives the first court of dominant jurisdiction. Mission Res. v. Garza Energy Trust, 268 S.W.3d 301, 328 (Tex. App. Corpus Christi 2005). A plaintiff who is not a pmty to a plior suit is fi·ee to choose his forum. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). A defendant, however, is not at libetty to decline to do battle in the forum chosen by the plaintiff. Id. Accordingly, Mr. Weiner's Plea in Abatement should be denied. 9. Nor can Mr. Weiner show that he had a prior case involving the same subject matter when Petitioner filed his case in the Probate Comt. Two controversies involve the same subject matter when the issues presented in each case are "inherently intenelated" - i.e. one controversy cannot be resolved without resolving the other. In re Puig, 351 S.W.3d 301, 305 (Tex. 2011); Wyatt, 760 S.W.2d at 247. That is not the case here. The pleadings 3 on their face reveal that the subject matters in the two actions are wholly dissimilar. The alienation issues can be resolved without modifying the Tmst and the Trust can be modified without resolving the alienation issues. 10. The hemi of Mr. Weiner's Petition to Modify Parent-Child Relationship ("SAPCR" 1) filed on August 14, 2013 is a claim of alienation from his children allegedly caused by Katherine F. Wan·en, his ex-wife. See Suppotiing Affidavit to Exhibit A to Mr. Weiner's Plea in Abatement. Mr. Weiner's SAPCR contained a litany of grievances and relief requested in order to stop the alienation. Among them was a request for the exclusive right to consent to the children's psychiattic and psychological treatment, to manage their estates, 2 to represent them in legal action, and to exercise a fully expanded Standard Possession Order. Mr. Weiner also requested temporary orders for psychological evaluation of the whole family, the appointment of an Amicus Attorney, mandatory alternative dispute resolution ("ADR"), access to the children's health care records, and enforcement of the Divorce Decree's order that the Fidelity Trust accounts be changed to "and" accounts. He also requested a temporary restraining order to prevent Ms. Wan·en from withdrawing the children from school where they are presently enrolled and making disparaging remarks about him in front of the children. And finally, he requested a permanent injunction to prevent Ms. Wan·en from changing the names of the children. There was no mention of Trust management or modification and hence no inherent intenelation of the initial subject matter of the two suits. In re Puig, 351 S.W.3d at 305; Wyatt, 760 S.W.2d at 247. 1 Suit Affecting the Parent-Child Relationship ("SAPCR") means a suit filed in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is requested. Tex. Family Code§ 101.032. 2 The children have a Unifonn Transfer to Minors Account ("UTMA"), which Ms. WaiTen was awarded sole and exclusive control of on page 9 of the original Divorce Decree dated March 29, 2012. 4 II. It was only after Petitioner filed suit to modify the Trust on September 30, 2013 that Mr. Weiner amended hiss pleadings in the District Court on October 18, 2013 to request "the exclusive right to manage the existing ttusts of the children." See page 2 of Exhibit B to Mr. Weiner's Plea in Abatement. This addition is the only change that was made in the amended pleadings. See Mr. Weiner's Exhibits A and B to his Plea in Abatement. In essence, Mr. Weiner amended his pleading to set up a new subject matter in order to obtain dominant jurisdiction in the District Court. But this is directly contrary to the Texas Supreme Court's ruling in State of Texas v. Boyd, in which the Court held that a party cannot obtain dominant jurisdiction by amending its pleadings in the first court to set up a subject matter similar to a different case in a second court involving the same parties. State of Texas v. Boyd, 136 S.W.2d II 07 (Tex. 1940). The plaintiff in Boyd amended its pleading in the Ha!Tis County District Court to set up a similar subject matter as another suit involving the same defendant in Travis County. The plaintiff then filed a plea in abatement alleging that it had a prior suit on the same subject matter pending in Han-is County. The Court held that such action did not bestow dominant jurisdiction on the first case because they were wholly dissimilar prior to the amendment. Id. These facts are identical to the case at bar in which Mr. Weiner amended his parent-child alienation case against his ex-wife to add a new subject matter- management of the Trust estate - and then alleged that he had a prior suit pending on the same subject matter as Petitioner's case in the Probate Court. But the law is clear that amending a pleading to set up a subject matter similar to a second action does not give the first action dominant jurisdiction where the subject matter of the two cases were "wholly dissimilar" prior to the amendment. Id. 5 RESPONSE TO PLEA TO THE JURISDICTION 12. Mr. Weiner also filed a Plea to the Jurisdiction on October 23, 2013 alleging that the District Court has continuing exclusive jurisdiction over matters pertaining to the Trust estate. But that asse1iion is directly contrary to the statute. Texas Family Code § 155.001(a) confers exclusive continuing exclusive jurisdiction over only the matters provided for in Title 5 of the Texas Family Code. These include "orders regarding managing conservatorship, possessory conservatorship, possession of and access to the child, and support of the child." Tex. Family Code§ 155.003(a). The limits of the District Comi's continuing exclusive jurisdiction are not boundless. They include only those matters expressly enumerated in Texas Family Code § 155.003(a), which are not involved in Petitioner's action to modifY the Trust. Accordingly, this Court should deny Mr. Weiner's Plea to the Jurisdiction. 13. A hearing is scheduled on the Plea in Abatement and the Plea to the Jurisdiction for November II, 2013 at I :30 p.m. in this Court. VENUE 14. Venue of this proceeding is proper in this Comi pursuant to Texas Trust Code § 115.002(b-2) and Texas Probate Code§ 8. FACTS 15. The Trust is an inter vivos minor's trust created under Internal Revenue Code§ 2503(c) by Ms. Wan·en and Mr. Weiner by agreement dated March 20, 1996 for the benefit of their son, DanielS. Weiner, the Primary Beneficimy and Petitioner. 6 16. At the present time, Daniel S. Weiner is the only beneficiary of the Trust. Daniel S. Weiner is a high school senior and straight-A student at The Kincaid School in Houston, Texas. He is completing applications to attend college in the Fall of 2014 and is concemed about being able to depend on distributions fi·om the Tmst to help pay for his college. 17. The Tmst estate consists of marketable securities and cash in the approximate value of $113,000 as of August 31, 2013. 18. The Trust is authorized under Section A-1 to make disttibutions to the Ptimary Beneficiary as follows: "The income of the trust may be accumulated and retained, in whole or in pati, or the tmstee [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4055762. Public record. Not legal advice.