in Re Charles Storer, Agent Under a Power of Attorney for Kenneth Cooper McAfee

ACCEPTED

01-15-00838-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

10/2/2015 10:38:19 AM

CHRISTOPHER PRINE

CLERK

No. -01-15-00838-CV

-----

FILED IN

1st COURT OF APPEALS

HOUSTON, TEXAS

1st

IN THE COURT OF APPEALS 10/2/2015 10:38:19 AM

FOR HOUSTON, TEXAS CHRISTOPHER A. PRINE

Clerk

INRE: CHARLES STORER,

AGENTUNDERAPOwtROFATTORNEYFOR

KENNETH COOPER MCAFEE,

RELATOR

PETITION FOR WRIT OF MANDAMUS

Respectfully Submitted,

ANDERSON PFEIFFER, PC

Esther Anderson

SBN: 00792332

Robert Teir (of Counsel)

SBN: 00797940

845 FM 517 West, Suite 200

Dickinson, Texas 77539

Telephone: (281) 488-6535

Facsimile: (281) 488-0625

Email: esther@probateguardianship.com

Attorneys for Relator, Charles Storer, Power

of Attorney for Kenneth Cooper McAfee

IDENTITY OF PARTIES AND COUNSEL

Relator, Charles Storer, Agent under a Power of Attorney for Kenneth Cooper

McAfee, certifies that the following is a complete list of the parties, the attorneys

and any other persons who have any interest in the outcome of this lawsuit.

1. Relator: Charles Storer, Agent under a Power of

Attorney for Kenneth Cooper McAfee

Counsel: Esther Anderson

Anderson Pfeiffer, PC

SBN: 00792332

845 FM 517 West, Suite 200

Dickinson, Texas 77539-2903

Office: 281-488-6535

Facsimile: 281-614-5205

Email: esther@probateguardianship.com

Of Counsel: Robert Teir (of Counsel)

SBN: 00797940

845 FM 517 West, Suite 200

Dickinson, Texas 77539

Office: 832-365-1191

Facsimile: 832-550-2700

Email: rob@teirlaw.com

2. Respondent: Honorable Loyd Wright

Judge, Probate Court No. 1

Harris County, Texas

201 Caroline, 6th Floor

Houston, Texas 77002

ii

3. Real Party in Interest: Rosemary Foltyn and Jake Foltyn

Counsel: Dean M. Blumrosen

SBN: 02517900

4615 Southwest Freeway, Suite 850

Houston, Texas 77027

Office: 713-524-2225

Facsimile: 713-524-5570

Email: Dblumrosenlaw@aol.com

4. Real Party in Interest: Rosemary Foltyn, Administratrix of The

Estate of Janet Foltyn McAfee, Deceased

Counsel: Mary Elizabeth Duff

Mitchell & Duff, LLC

SBN: 06166880

21 0 Main Street

Richmond, Texas77469

Office: 281-341-1718

Facsimile: 281-239-7928

Email :eduff@mitchellandduff.com

iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. II, III

TABLE OF CONTENTS ............................................................................................... IV, v

INDEX OF AUTHORITIES ...................................................................... VI, VII, VIII, IX, X

STATEMENT OF THE CASE .......................................................................................... XI

STATEMENT OF JURISDICTION ............................................................................... XIII

ISSUES PRESENTED ................................................................................................... XIII

1. Does the Probate Court have jurisdiction to

act without a pending cause of action? (No.)

2. Without a pending cause of action, are the

June 8, 2011 temporary injunction and the

May 18, 2015 Orders void? (Yes.)

3. Do the doctrines of collateral estoppel and

res judicata bar re-tracing of the Woodforest

account? (Yes.)

4. Do the two Orders amount to a violation of

K. McAfee's due process rights? (Yes.)

5. Do the two Orders amount to an abuse of

discretion? (Yes.)

STATEMENTOFFACTS .................................................................................................. 1

SUMMARY OF ARGUMENT ......................................................................................... 11

iv

ARGUMENT .................................................................................................................... 13

I. This case warrants mandamus relief.

II. The Probate Court does not have jurisdiction

to act without a pending cause of action.

III. Without a pending cause of action, the

temporary injunction and the May 18, 2015

Order are void.

IV. Res Judicata and Collateral Estoppel barre-

tracing of the Woodforest account.

V. The Estate's claims cannot be satisfied from

the Woodforest account or assets stemming

from the Woodforest account and continued

obstruction of these funds violates due

process and constitutes an abuse of

discretion.

PRAYER ...........................................................................................................................45

CERTIFICATE OF SERVICE ......................................................................................... 47

CERTIFICATE OF COMPLIANCE ................................................................................. 48

RULE 52.3(1) CERTIFICATION ..................................................................................... .49

APPENDIX ....................................................................................................................... 50

v

INDEX OF AUTHORITIES

CASES PAGE(S)

360 Degree Commc 'ns Co. v. Grundman,

937 S.W.2d 574 (Tex. App.-Texarkana 1996, no writ) ............................ 22

Amstadt v. US. Brass Corp.,

919 S.W.2d 644 (Tex. 1996) ........................................................................ 37

Barr v. Resolution Trust Corp.,

837 S.W.2d 627 (Tex. 1992) ..................................................... 25, 26, 38, 42

Benson v. Wanda Petroleum Co.,

468 S.W.2d 361 (Tex. 1971) ........................................................................ 37

Big D Props., Inc. v. Foster,

2 S.W.3d 21 (Tex. App.-Fort Worth 1999, no pet.) .................................. 22

Butnaru v. Ford Motor Co.,

84 S.W.3d 198 (Tex. 2002) .......................................................................... 21

Crowson v. Wakeham,

897 S.W.2d 779 (Tex. 1995) ........................................................................ 40

Cunningham v. Parkdale Bank,

660 S.W.2d 810 (Tex. 1983) ............................................................. 17, 18,19

Dionne v. Bouley,

757 F.2d 1344 (1st Cir. 1985) ...................................................................... 44

Eagle Props., Ltd. v. Scharbauer,

807 S.W.2d 714 (Tex. 1990) .................................................................. 35,37

Eastern Energy, Inc. v. SBY P'ship,

750 S.W.2d 5 (Tex. App.-Houston [1st Dist.] 1988, no writ) ................... 25

EOG Res., Inc. v. Gutierrez,

75 S.W.3d 50 (Tex. App.-San Antonio 2002, no pet.) .............................. 22

vi

Evans v. C. Woods, Inc.,

34 S.W.3d 581 (Tex. App.-Tyler 1999, no pet.) ....................................... 22

Goldstein v. Comm 'n for Lawyer Discipline,

109 S.W.3d 810 (Tex. App.-Dallas 2003, pet. denied) ............................. 38

Houtex Ready Mix Concrete & Materials v. Eagle Canst. & Envtl. Servs., L.P.,

226 S.W.3d 514 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ............... 38

In re Cerberus Capital Mgmt., L.P.

164 S.W.3d 379 (Tex. 2005) (orig. proceeding) .................................... 14,45

In re Dickason,

987 S.W.2d 570 (Tex. 1998) .................................................................. 13, 15

In re Francis,

186 S. W.3d 534 (Tex. 2006) ........................................................................ 16

In re Mask,

198 S.W.3d 231 (Tex. App.-San Antonio 2006, orig. proceeding) .......... 15

In re Pierce,

No. 13-12-00125-CV, 2012 WL 3525638

(Tex. App.-Corpus Christi Aug. 10,2012, orig. proceeding)

(mem. op.) .................................................................................. 14, 15, 16, 45

In re Sw. Bell Tel. Co.,

35 S.W.3d 602 (Tex. 2000) (orig. proceeding) (per curiam) .................. 13, 15

InterFirst Bank San Felipe v. Paz Constr. Co.,

715 S.W.2d 640 (Tex. 1986) (per curiam) ............................................. 13,22

Johnson & Higgins ofTex., Inc. v. Kenneco Energy, Inc.,

962 S.W.2d 507 (Tex. 1998) ...................................................... 27, 32, 33,36

Lehmann v. Har-Con Corp.,

39 S.W.3d 191 (Tex. 2001) .......................................................................... 40

vii

Logan v. McDaniel,

21 S.W.3d 683 (Tex. App.-Austin 2000, pet. denied) ............................... 40

Lozano v. Lozano,

975 S.W.2d 63 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) ........ 28

Lucik v. Taylor,

596 S.W.2d 514 (Tex. 1980) ........................................................................ 18

Murray v. 0 & A Express, Inc.,

630 S. W.2d 633 (Tex. 1982) ........................................................................ 18

Parklane Hosiery Co. v. Shore,

439 u.s. 322 (1979) ..................................................................................... 37

Phillips v. Allums,

882 S.W.2d 71 (Tex. App.-Houston [14th Dist.] 1994, writ denied) ........ 37

Quinney Elec., Inc. v. Kondas Entm 't, Inc.,

988 S.W.2d 212 (Tex. 1999) (per curiam) ................................................... 26

Qwest Commc 'ns Corp. v. AT&T Corp.,

24 S.W.3d 337 (Tex. 2000) (per curiam) ............................................... 13, 22

Rexrode v. Bazar,

37 S.W.2d 614 (Tex. App.-Amarillo 1997, no writ) ........................... 34,41

Roark v. Allen,

633 S.W.2d 804 (Tex. 1982) ........................................................................ 18

Robbins v. HNG Oil Co.,

878 S.W.2d 351 (Tex. App -Beaumont 1994, writ dism'd w.o.j.) ............ 37

Scurlock Oil Co. v. Smithwick,

724 S.W.2d 1 (Tex. 1986) ............................................................................ 38

Smith v. Lanier,

998 S.W.2d 324 (Tex. App.-Austin 1999, pet. denied) ........................ 17,18

viii

State & Cty. Mut. Fire Ins. v. Miller,

52 S.W.3d 693 (Tex. 2001) .......................................................................... 28

State v. Traylor,

374 S.W.2d 203 (Tex. 1963) .................................................................. 17, 19

Sysco Food Servs., Inc. v. Trapnell,

890 S.W.2d 796 (Tex. 1994) ................................................ 26, 27, 32, 37,38

Tankersley v. Durish,

855 S.W.2d 241 (Tex. App.-Austin 1993, writ denied) ............................ 38

Tex. Dep 't ofPub. Safety v. Petta,

44 S.W.3d 575 (Tex. 2001) ............................................................... 27, 28,37

Texas Natural Res. Conservation Comm 'n,

85 S.W.3d 201 (Tex. 2002) (orig. proceeding) ............................................ 15

Walling v. Metcalfe,

863 S.W.2d 56 (Tex. 1993) (per curiam) ..................................................... 24

ix

RULES

TEX. R. CIV. P.

§ 2 ........................................................................................................................... 18

§ 22 ......................................................................................................................... 18

§ 97 ......................................................................................................................... 42

§ 683 ................................................................................................................. 18, 24

STATUTES

TEXAS ESTATE CODE

§ 22.029 .................................................................................................................. 24

§ 31.001 ............................................................................................................. 17, 18

§ 31.002 ............................................................................................................ 17, 18

§ 32.001 .................................................................................................................. 17

§ 402.001 ............................................................................................................... 17

TEXAS PROP. CODE

§ 42.0021(a)

42 U.S.C. 407 ................................................................................................... 12, 31, 32,44

X

STATEMENT OF THE CASE

Nature of the Case The Probate Court granted an independent estate

administration m one cause number, and heard a

wrongful death proceeding in another cause number. The

Probate Court issued a temporary injunction in the estate

administration. A final judgment was entered in the

wrongful death proceeding, but no claims were filed in

the estate administration.

Probate Court Probate Court No. 1 of Harris County, Texas

Hon. Loyd Wright, Presiding

Disposition Below The Probate Court refused to fully lift the temporary

injunction and instead ordered that a portion of funds in

an account containing only social security benefit

proceeds be turned over to the County Clerk's registry.

xi

STATEMENT OF JURISDICTION

The Court has jurisdiction to issue a writ of mandamus under TEX. Gov'T

CODE §22.22l(b)(l).

xii

ISSUES PRESENTED

The Probate Court entered an order declaring Kenneth McAfee's account at

Woodforest National Bank ending in -404 exclusively holds his social security

benefit proceeds that are exempt from garnishment. Subsequently, the Probate

Court refused to fully lift a temporary injunction on this account and ordered a

portion of such funds to be turned over to the County Clerk's registry for the

benefit of the estate of Janet Foltyn McAfee, Deceased until the nature of two

deposits at issue has been determined.

1. Does the Probate Court have jurisdiction to act without a pending cause of

action? (No.)

2. Without a pending cause of action, are the June 8, 2011 temporary

injunction and the May 18, 2015 Orders void? (Yes.)

3. Do the doctrines of collateral estoppel and res judicata bar re-tracing of the

Woodforest account? (Yes.)

4. Do the two Orders amount to a violation ofK. McAfee's due process rights?

(Yes.)

5. Do the two Orders amount to an abuse of discretion? (Yes.)

xiii

STATEMENT OF FACTS

Kenneth Cooper McAfee ("K. McAfee" herein) was convicted of a criminal

offense involving the death of his wife, Janet Foltyn McAfee, and is currently

serving his sentence at a Texas correctional institution. Janet McAfee died on May

8, 2010.

On June 8, 2010, Janet McAfee's mother, Rosemary Foltyn, was appointed

Independent Administrator of Janet McAfee's estate by the Probate Court No. 1 of

Harris County, Texas under Cause no. 396,935. Rosemary Foltyn, in this capacity,

will be referred to herein as "the Estate."

On February 23, 2011, Janet McAfee's parents, Rosemary and Jake Foltyn,

individually, and the Estate brought a wrongful death action against Kenneth

McAfee in the same Court, under the ancillary Cause no. 396,935-401.

On March 31, 2011, the Estate obtained a Temporary Restraining Order in

the estate administration under Cause no. 396,935, which was eventually converted

to the June 8, 2011 Agreed Order for Temporary Injunction. Tab 1. The

Temporary Injunction enjoins K. McAfee from the use and control of his assets

and assets he shared with Janet McAfee and states that it is to remain in place until

the Court makes a determination of what property belongs to the Estate of Janet

McAfee or renders a full and final judgment in the wrongful death suit. Tab 1, at

p. 9.

PAGE 1

On March 21, 2014, the Probate Court granted a summary judgment in the

wrongful death action in favor of the Foltyns and awarded them each

$1,000,000.00. Tab 2.

The June 8, 2011 Temporary Injunction remains in place today and affects

K. McAfee's Woodforest National Bank account that is the subject of this

mandamus proceeding and his 401(k) account at GMS.

The Foltyns seek writs ofgarnishment; two of K. McAfee's accounts are exempt.

On October 9, 2014, the Foltyns sought Writs of Garnishment against K.

McAfee's bank accounts at The GMS Group, L.L.C., and Woodforest National

Bank under the ancillary wrongful death cause of action no. 396,935-401. Tab 3.

Charles Storer, as agent under a power of attorney for K. McAfee, acted on

behalf ofK. McAfee in the 401 garnishment proceedings. On November 19, 2014

Storer filed a Motion to Quash Writs of Garnishment only to the extent that they

reached two particular accounts: a GMS account ending in -606 holding only K.

McAfee's tax-deferred retirement benefits from his previous employer, and the

Woodforest account ending in -404 holding only K. McAfee's Social Security

Disability Insurance benefits, claiming both are exempt from judgment creditors.

Tab4.

PAGE2

On January 7, 2015, the Estate entered the 401 garnishment proceedings by

filing a Notice to Court wherein the Estate objected to Storer's Motion to Quash

and claimed a community property interest in the two accounts Storer sought to

protect from garnishment. Tab 5. The Foltyns, individually, also filed a Response

to Charles Storer's Motion to Quash Writs of Garnishment, claiming that Charles

Storer did not have standing, and seeking a stay pending K. McAfee's compliance

with post-judgment discovery. Tab 6. On January 8, 2015, the parties attended a

hearing, which was ultimately continued by the Court until the issues of standing

and post judgment discovery were addressed. Tab 7. 1

On January 22, 2015, the Court heard arguments of counsel regarding the

writs and Storer's Motion to Quash. Tab 8. All counsel agreed that the writs on

the Woodforest -404 account should be quashed because it held K. McAfee's

401(k) and social security benefits. Tab 8, at p. 4, Ins. 1-9; at p. 8, Ins. 11-15 and

at p. 18, Ins. 15-18. All counsel also agreed the Foltyns should receive the balance

in all of the remaining accounts. Tab 8. However, there was disagreement over

whether the Order should include language to release the temporary injunction, and

to what extent. Tab 8.

1

The January 8, 2015 Reporter's Record states Cause No. 396,935, when it should actually state

Cause No. 396,935-401.

PAGE3

The Estate did not want to release the temporary injunction on the 401(k)

account (GMS -606) because of its alleged verbal claim for Janet McAfee's

potential community property interest. Tab 8. The Foltyns did not want to release

either of the two accounts, their reason being, "I don't think [the Estate] has had a

complete [opportunity] to review and look at everything on the Woodforest

account." Tab 8, at p. 3, Ins. 21 through p. 4, ln. 1.

The Court inquired more than once if the Estate had enough information to

determine its claims. Tab 8. The Estate's response was that it was "reasonably

sure" that the 401(k) was the only issue and that the Woodforest account held only

K. McAfee's social security benefits, to which they had no claim. Tab 8, at p. 17,

throughp.18, lns.1-25.

The Foltyns and the Estate made no argument contrary to Storer's argument

in his Motion to Quash or his oral arguments that the Woodforest -404 account

held only K. McAfee's social security benefits and the Court considered the

proposed orders. Tab 8, at p. 21, Ins. 6-8.

On January 27, 2015, the Probate Court entered an Order Partially Granting

Motion to Quash Writs of Garnishment. Tab 9. The Probate Court found that both

the GMS -606 account and the Woodforest -404 account were exempt from

garnishment and the writs against these two accounts were quashed. Tab 9, at p. 2.

The Probate Court further found that K. McAfee's remaining accounts at GMS

PAGE4

(ending in -008 and -628) remained subject to the writs and that payment from

such accounts shall issue to the Foltyns "upon receipt of an order releasing the

Agreed Order for Temporary Injunctions in Cause No. 396,935; In the Estate of

Janet Foltyn McAfee, Deceased, dated June 8, 2011." Tab 9, at p. 3.

Specific language of the Order, as it relates to the Woodforest social security

account, reads:

"On this day came to be considered the Motion to Quash Writs of

Garnishment filed by Charles Storer, Power of Attorney for Kenneth

Cooper McAfee. After review and consideration of said Motion, the

evidence, the responses, and the arguments of counsel, the Court finds

the following:

5. The Woodforest account ending in 404 holds, exclusively, social

security benefit proceeds of Kenneth C. McAfee which benefits

are exempt from garnishment under 42 U.S.C. 407. 42 U.S.C.

provides an absolute exemption and there are no statutory

exceptions to same. Because the Woodforest account ending in

404 contains only funds exempted from garnishment, the writ

directed at Woodforest as to Kenneth McAfee's account ending

in 404 should be quashed."

Tab 9, at p. 2.

The parties deal with the temporary injunction in the estate administration.

On February 10, 2015, Storer filed a Motion to Partially Release Temporary

Injunction in the estate administration cause (396,935) regarding the exempt

Woodforest social security account and the non-exempt GMS accounts payable to

the Foltyns (ending in -008 and -628). Tab 10. On March 6, 2015, the Estate filed

its own Motion to Partially Release Temporary Injunction, in which it sought

PAGES

release of only the non-exempt GMS accounts payable to the Foltyns (ending in -

008 and -628), and requested the temporary injunction otherwise remain in place,

without stating any reason why. Tab 11.

On March 12, 2015, a hearing was held to consider the partial release of the

temporary injunction. Tab 12.2

The Estate now resisted lifting the temporary injunction as to the

Woodforest social security account because it questioned the characterization of

two deposits that were made in the amounts of $25,162.66 on April 23, 2010, and

$9,735.92 on May 4, 2010. Tab 12, at p. 3, Ins. 10-24; at p. 8, Ins. 16-25; at p. 9,

Ins. 1-7; at p. 10, Ins. 13-21; at p. 15, Ins. 17-24; at p. 17, Ins. 6-10. The Estate

claimed it might have an interest of at least 50% in these deposits if they were

community property, and that this potential claim should be considered

"completely separate" from the garnishment proceedings brought by the Foltyns,

individually. Tab 12, at p. 8, Ins 16-25; at p. 9, Ins. 5-7.

2

The March 12, 2015 Reporters Record states Cause No. 396,835-401 when it should actually

state Cause No. 396,935 or include both.

PAGE6

The Foltyns' argument to keep the temporary injunction in place was based

upon (1) the language in the January 27, 2015 Order was overbroad, and (2) the

Court should use its inherent authority to rule for the Estate's claim due to the

purported lack of information from K. McAfee. Tab 12, at p. 9, Ins. 21-25; at p.

10, Ins. 1-3; at p. 6lns. 10-25; at p. 7, Ins. 1-6; at p. 13, Ins. 23-25; at p. 14, lns. 1-

8.

The language in the January 27, 2015 Order is not overbroad. It is true that

the Estate may have a community property interest inK. McAfee's 401(k) account

but the Woodforest social security account is different because it was traced and

found to include only K. McAfee's social security benefits, which benefits are his

separate property. Tab 9. Additionally, the Estate's own Inventory reveals the

Estate has had the information they are now seeking since at least August 26, 2011.

Tab 16, at p. 2.

Storer reminded the Court that, under the doctrine of res judicata, it had

already found that every dime in the Woodforest account is K. McAfee's social

security benefits. Tab 12, at p. 7, Ins. 14-25; at p. 8, Ins. 1-13. In fact, the two

deposits in question were specifically traced in Storer's Motion to Quash and they

were shown to have been withdrawn close to the time of the deposits, leaving only

social security benefits in the social security account. Tab 4, at p. 10, ~25, and

Exhibit "A" to such Motion; Tab 12, at p. 11, Ins. 18-25. And with no objection or

PAGE?

contrary evidence to Storer's tracing, or arguments of counsel, the Estate

previously admitted it was reasonably sure the Woodforest account held only K.

McAfee's social security benefits. Tab 8, at p. 18, Ins. 13-18. The Woodforest

social security account was traced, and that is what the Court found. Tab 9.

That was indeed the purpose of Storer's Motion to Quash Writs of

Garnishment, to prove that the entire Woodforest account was made up only of his

social security benefits and nothing else. Tab 4. The Estate took the additional

step to voluntarily enter the garnishment proceeding, make its claim, and to sit

silent as to any of the details regarding the Woodforest social security account.

Tab 8, at p. 5, Ins. 5-18; at p. 12, Ins. 10-23; at p. 17, Ins. 18-24; at p. 18, lns.

13.23. Their new challenge to the characterization of two deposits is waived and is

ban·ed by collateral estoppel and res judicata.

Nevertheless, on March 16, 2015, the Probate Court granted Rosemary

Foltyn's Motion, releasing only the non-exempt GMS accounts that were ordered

to be paid to the Foltyns (ending in -008 and -628), and continued the temporary

injunction. Tab 13. The Probate Court did not release K. McAfee's exempt

Woodforest -404 account. Tab 13.

PAGES

Storer tries again.

On April 15, 2015, Storer filed a Motion for Reconsideration ... and Motion

for Entry of Order Releasing Social Security Proceeds from Injunction, which was

amended on May 4, 2015. Tab 14 (First Amended Motion). 3 Storer urged the

Court again to release K. McAfee's social security proceeds and reminded the

Probate Court that a determination regarding the tracing of the funds in the

Woodforest account had already been made. Tab 14.

On May 14, 2015, the Probate Court heard the matter again, and specifically

reconsidered the tracing of the two deposits and withdrawals at issue in the

Woodforest account. Tab 15, at p. 16, Ins. 15-25; at p. 17, Ins. 1-17. Again, there

was no contrary evidence presented against Storer's tracing, just arguments that

Storer should have to re-prove his tracing with clear and convincing evidence. Tab

15, at p. 10, Ins. 12-24.

Storer explained some of the lingering questions that had been raised:

First, because social security benefits are not community property, any claim

the Estate might have in the two deposits/withdrawals cannot be satisfied from the

social security account, but must be satisfied from other assets of K. McAfee. Tab

15, at p. 14, Ins. 6-15; Tab 14, at p. 9, ~iii.

3

Because the parties and discussions had started to comingle between the attorneys involved in

the base and ancillary case, the First Amended Motion for Reconsideration was filed in both

causes, but the May 18, 2015 Order on same was signed in the wrongful death ancillary case

(396,935-401).

PAGE9

Second, the Estate indeed had possession of records showing the source of

the deposits since at least the time of filing the Estate inventory on September 26,

2011. Tab 16; Tab 15, at p. 12, Ins. 4-25; at p. 13, Ins. 1-17.

Third, everyone participated in the January 22, 2015 hearing and had the

opportunity to propose language for the Court's January 27, 2015 Order that Mr.

Blumrosen claims is too broad. Tab 15, at p. 27, Ins. 11-25.

The Probate Court releases part of the social security account to K. McAfee, but

takes control of the remaining social security proceeds.

On May 18, 2015, the Probate Court signed the Estate's Order on First

Amended Motion for Reconsideration ... and Motion for Entry of Order Releasing

Social Security Proceeds from lrifunction.... Tab 17. The Court found that Storer

did not prove the characterization of the two deposits by clear and convincing

evidence and ordered the Woodforest funds be released to K. McAfee, but for

$34,898.58 to be made payable to the County Clerk, for the use and benefit of the

Estate of Janet F oltyn McAfee, Deceased, until the nature of two deposits at issue

has been determined. Tab 17.

PAGE10

The Probate Court not only refuses to lift the temporary injunction as to all

of K. McAfee's social security benefits, but now has essentially garnished a large

part of the account ($34,898.58) to satisfy the Estate's alleged verbal claim. These

acts exceed the Court's authority and discretion over K. McAfee's social security

funds.

SUMMARY OF ARGUMENT

Mandamus is appropriate to compel a trial court to rescind a void order, to

correct a clear abuse of discretion, and to preserve important substantive and

procedural rights from impairment and loss when appellate remedy to cure the

error is not adequate. These criteria are present here.

The Probate Court does not have jurisdiction to act without a pending cause

of action. There are no pleadings filed in the estate administration against K.

McAfee, and there are no live pleadings remaining in the wrongful

death/garnishment proceedings at all. The Probate Court does not have jurisdiction

to handle estate claims sua sponte. Therefore, the temporary injunction should be

dissolved and the May 18, 2015 Order should be set aside for lack of jurisdiction.

Additionally, without a pending cause of action, the temporary injunction

and the May 18, 2015 Order are void because an order for an injunction must set a

cause for trial. This requirement is mandatory and failure to comply makes the

temporary injunction and the order void, as they have turned into nothing short of a

PAGE 11

permanent injunction. Therefore, the temporary injunction should be dissolved

and the May 18, 2015 Order should be set aside, both for being void.

Furthermore, res judicata and collateral estoppel bar re-tracing of the

Woodforest account. Storer previously put on tracing evidence, without question

or objection, to show the Woodforest account holds only K. McAfee's social

security benefits, and nothing else. The Court heard and decided that this account

in fact holds only McAfee's social security benefits and is exempt from creditors,

no exception. Any later "questions" the Estate may have that the Woodforest

account needs to be traced again are waived and are barred by the doctrines of

collateral estoppel and res judicata.

The Probate Court's most recent May 18, 2015 Order ignored Storer's

arguments concerning res judicata and invited further litigation. Although the

Probate Court released a portion of the Woodforest account to K. McAfee, the

Court took a drastic step by ordering Woodforest to turn over $34,898.58 of such

account to the County Clerk's registry for the benefit of the Estate of Janet Foltyn

McAfee. This was a violation of due process and contrary to the protections

provided by 42 U.S.C. 407. Such actions have amounted to an abuse of discretion

that needs to be conected.

PAGE 12

ARGUMENT & AUTHORITIES

I. This case warrants mandamus relief.

Mandamus is appropriate to compel a trial court to rescind a void order, to

correct a clear abuse of discretion, and to preserve important substantive and

procedural rights from impairment and loss when appellate remedy to cure the

error is not adequate. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000)

(orig. proceeding) (per curiam) (adding that "mandamus is proper if a trial court

issues an order beyond its jurisdiction") (citing In re Dickason, 987 S.W.2d 570,

571 (Tex. 1998)).

Void order

The June 8, 2011 temporary injunction is void because the Probate Court

does not have jurisdiction, there are no pleadings on file, and there is no cause set

for trial. See Qwest Commc 'ns Corp. v. AT&T Corp., 24 S.W.3d 337, 337 (Tex.

2000) (per curiam); InterFirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640

(Tex. 1986) (per curiam). The requirement for setting a cause for trial is

mandatory and must be strictly followed, or else the order is subject to being

declared void and dissolved. See Qwest Commc 'ns Corp., 24 S.W.3d at 337;

InterFirst Bank San Felipe, 715 S.W.2d at 641. The temporary injunction should

have been rescinded by the trial Court and should be set aside by the Court of

Appeals.

PAGE 13

The May 18, 2015 Order directing $34,898.58 from K. McAfee's social

security account be deposited into the registry of the court for the benefit of Janet

Foltyn McAfee is void for the same reasons: the Probate Court does not have

jurisdiction, there are no pleadings on file, and there is no cause set for trial on the

determination of to whom the funds belong. This Order should be set aside by the

Court of Appeals.

Clear abuse of discretion

A court abuses its discretion "if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law or if it clearly

fails to correctly analyze or apply the law." In re Pierce, No. 13-12-00125-CV,

2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10, 2012, orig.

proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d

379, 382 (Tex. 2005) (orig. proceeding)).

The law was clearly laid out as to why the temporary injunction should be

dissolved, at least in regards to the Woodforest account, for lack of jurisdiction -

no pleadings being on file and no cause being set for trial. Furthermore, it is clear

that the issue of tracing the Woodforest account had already occurred through the

Probate Court's January 27, 2015 Order, which determined that 100% of the funds

were K. McAfee's social security benefits, and nothing else.

PAGE14

The Probate Court's refusal to lift the temporary injunction, and instead to

take control of K. McAfee's funds and to hold them for the use and benefit of the

Estate, before it even receives what is being asked for, constitutes an abuse of

discretion.

Appellate remedy not adequate

Because the June 8, 2011 temporary injunction and the May 18, 2015 Order

are void, Storer need not show lack of an adequate appellate remedy, and

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

2000) (orig. proceeding) (per curiam) (citing In re Dickason, 987 S.W.2d 570, 571

(Tex. 1998)). 4 Nevertheless, at this point in time, there will never be a final order

to appeal on the Probate Com1's seizure of K. McAfee's social security benefits

because there are no claims on file by the estate and because Storer can no longer

obtain a hearing with the Court. That is also why this proceeding is not subject to

an accelerated appeal, because there is no pending claim. See Texas Natural Res.

Conservation Comm 'n, 85 S.W.3d 201, 206-07 (Tex. 2002) (orig. proceeding)

(holding mandamus was available when "a restraint on conduct ... has yet to be

subject to a truly adversarial proceeding"); See In re Pierce, 2012 WL 3525638, at

4

See also In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *4 (Tex. App.-Corpus

Christi Aug. 10, 2012, orig. proceeding) (mem. op.) ("temporary injunctions which do not

comply with 683 are void, and when the trial court's order is void, mandamus relief is available

regardless of whether there is an adequate remedy by appeal"); In re Mask, 198 S.W.3d 231,233

(Tex. App.-San Antonio 2006, orig. proceeding) (concluding that when an order is void, then

"mandamus relief is available regardless of whether there is an adequate remedy by appeal") .

PAGE 15

*4 (writ of mandamus may be appropriate for reviewing a temporary injunction)

(citing In re Francis, 186 S.W.3d 534,538 (Tex. 2006)).

There are also significant benefits to mandamus relief in this matter, due to

the federally mandated protection provided to K. McAfee's social security

benefits, which would be rendered moot absent review by mandamus. 5 The

Probate Court has seized money that it had previously declared to be K. McAfee's

social security benefits. The United States legislature and Supreme Court have

made it painstakingly clear that social security proceeds are prohibited from

seizure in the legal process, regardless of the merits of the claim, including

community property claims. The Probate Court's rulings defeat the purpose of

these laws and place Storer in the position of having to continuously re-litigate the

exempt status of his social security benefits. Appellate remedy would be

inadequate for K. McAfee to protect his social security funds, even if the Court had

seized them with jurisdiction and a proper order. Therefore, mandamus relief is

appropriate in this matter.

II. The Probate Court does not have jurisdiction to act without a pending

cause of action.

According to arguments of the Foltyns and the Estate's counsel, the only

reason they sought to keep the temporary injunction in place was due to alleged

5

See In re Pierce, 2012 WL 3525638, at *4 (discussing the benefits of mandamus relief when

there are other claims raised which would be rendered moot if not reviewed by mandamus).

PAGE 16

community property claims the Estate may have against K. McAfee. 6 But without

any live pleadings on file, the Probate Court lacks jurisdiction to take any action in

this case, including the issuance of injunctive relief or taking control of an

individual's assets to hold in the registry of the Court for the benefit of someone

else.

Texas Estates Code section 402.001 states that after the inventory has been

approved in an independent administration, the Probate Court can take no further

action of any nature unless specifically provided for by the Texas Estates Code.

See also State v. Traylor, 374 S.W.2d 203, 204 (Tex. 1963) (probate court has only

that jurisdiction conferred upon it by the Probate Code).

The probate court is then vested with substantial "potential jurisdiction" to

hear almost any issue involving the estate or the personal representative, even

matters related to the settlement and partition of an estate. Cunningham v.

Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983); TEX. ESTATES CODE§§ 32.001,

31.001, 31.002. The probate court can even have the power to determine

community property claims, characterize separate and community property

interests, and order the surrender of property held by a party to the suit. Smith v.

Lanier, 998 S.W.2d 324, 332, 336 (Tex. App.-Austin 1999, pet. denied) (probate

6

Tab 8, at p. 3, Ins. 20-25; at p. 4, Ins. 1-7; at p. 5, Ins. 5-l 0; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4;

at p. 11, Ins. 4-16; at p. 17, Ins. 18-25; at p. 18, Ins. 1- 24; Tab 12, at p. 3, Ins. 13-22; at p. 6, Ins.

10-25; at p. 7, Ins. 1-6; at p. 8, Ins. 16-25; at p. 9, Ins. 1-7; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21;

at p. 12, Ins. 1-25; at p. 13, Ins. 1-6; at p. 15, Ins. 4-25; at p. 16, ln. 1; Tab 15, at p. 10, Ins. 1-21;

at p. 10, Ins. 7-24; at p. 11, Ins. 10-16; at p. 14, Ins. 16-25.

PAGE17

court can issue injunction against survivor's separate property pending declaratory

judgment action); Lucikv. Taylor, 596 S.W.2d 514,516 (Tex. 1980) (probate court

can issue injunction over estate property pending contest to administration).

But there is no authority for a court to act on estate issues sua sponte. A

probate court's potential jurisdiction is "activated and becomes actual jurisdiction"

only after the filing of a petition, the subject matter of which is within the

jurisdiction of the court. Cunningham, 660 S.W.2d at 812 (probate court did not

have jurisdiction to enter judgment against independent administrator based solely

on substance of final account; pleadings required). Just as in any other type case, a

party must invoke a probate court's jurisdiction by filing an application, petition,

motion, action, claim, cause of action, or request of some nature. See TEX.

ESTATES CODE§§ 31.001, 31.002.

Pleadings create the foundation of due process: they defiJ!.e the issues and

give the opposing party information sufficient to enable him to prepare a defense.

Cunningham, 660 S.W.2d at 812-13 (citing Murray v. 0 & A Express, Inc., 630

S.W.2d 633, 636 (Tex. 1982); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).

There is no exception simply because we are in probate court:

"The Texas Rules of Civil Procedure govern proceedings

in probate matters except in those instances in which a

specific provision has been made to the contrary.

Tex.R.Civ.P. 2. In Texas, '[a] civil suit in the district or

county court shall be commenced by a petition filed in

the office ofthe clerk.' Tex.R.Civ.P. 22." ld.

PAGE18

The Estate has no live pleadings in this case asking the Probate Court to do

anything or decide any matter. In fact, the Estate has never even asked the Court

to determine a marital property claim; it has only alluded throughout the hearings

that there may be claims. The Probate Court cannot provide the Estate any relief to

which it has not requested in writing. !d. at 813 ("a party may not be granted relief

in the absence of pleadings to support that relief').

This is because an independent administration is managed at the direction of

the personal representative, not by the probate court. The Texas Supreme Court

has explained that a probate court cannot take on duties of the independent

executor. In State v. Traylor, the independent executors asked the probate court to

order a partition and distribution, giving the decedent's widow a compromised

community property distribution, which they had chosen not to trace for economic

reasons, and which was opposed by the other beneficiary. 374 S.W.2d 203 (Tex.

1963). While a probate court has statutory authority to order a partition and

distribution, the executors were essentially asking for the court's stamp of approval

on their decision to not trace the community property interest, instead of just

approving the widow's claim (and facing suit) or having the widow's claim

established by judgment. !d. The Supreme Court said this was not something the

Court could do, even at an executor's request, and the executors must act on the

claim before coming to the Court for a partition and distribution.

PAGE 19

In the present case, the independent administrator must first act on its

alleged claim by filing a pleading seeking relief. The Probate Court has no power

to seize or continue an injunction over K. McAfee's assets until after the Estate has

acted.

The fact that the Estate has no pleadings on file was argued by Storer

multiple times:

1. January 8, 2015 hearing:" ... there's nothing to intervene in, because there

is no pending action." Tab 7, at p. 10, Ins. 7-12.

2. January 22, 2015 hearing: " ... I can't even learn what the base lawsuit is

that the Temporary Injunction was filed for." Tab 8, at p. 7, Ins. 1-5.

3. May 14, 2015 hearing: "this Temporary Injunction that everyone IS

talking about and relying on, you know has been going on for a very long

time without a cause of action, without a trial date. It's basically an

agreement for everyone to have a standstill. And that's fine. We intend

to honor it. But it's time to separate these parties." Tab 15, at p. 7, Ins.

3-5.

With no pleadings on file, the injunction should be dissolved entirely. It is

however, even more serious that a portion ofK. McAfee's social security benefits

were ordered to be turned over to the Clerk for the use and benefit of the Estate of

Janet Foltyn McAfee. The Probate Court's taking of the $34,898.58 from K.

PAGE 20

McAfee's social security account IS essentially a further injunction with no

pleadings on file and no jurisdiction.

Therefore, the temporary injunction should be dissolved and the May 18,

2015 Order should be set aside for lack of jurisdiction.

III. Without a pending cause of action, the June 8, 2011 temporary

injunction and the May 18, 2015 Order are void.

The lack of pleadings makes the temporary injunction void in its entirety, as

well as the May 18, 2015 Order that directs Woodforest to turn over $34,898.58 to

the registry of the court. The parties can enter an agreement outside of Court to

freeze the remaining assets, but the temporary injunction, especially in this new

form, has been taken too far.

"A temporary injunction's purpose is to preserve the status quo of the

litigation's subject matter pending a trial on the merits." Butnaru v. Ford Motor

Company, 84 S.W.3d 198, 204 (Tex. 2002). "To obtain a temporary injunction,

the applicant must plead and prove three specific elements: (1) a cause of action

against the defendant; (2) a probable right to the relief sought; and (3) a probable,

imminent, and irreparable injury in the interim. Id. The Estate has no cause of

action on file against K. McAfee, and, even if it did, there is no probable right to

the relief sought because the facts are what they are. The evidence that has already

been considered will always yield the same result-that all of the money in the

Woodforest account is federally protected social security proceeds.

PAGE 21

Texas Rule of Civil Procedure 683 further states that "every order granting a

temporary injunction shall include an order setting the cause for trial on the merits

with respect to the ultimate relief sought." This requirement is mandatory and

must be strictly followed, or else the order is subject to being declared void and

dissolved. Qwest Commc 'ns Corp., 24 S.W.3d at 337 (Tex. 2000); InterFirst Bank

San Felipe, 715 S.W.2d at 641 (Tex. 1986). An error of such kind is so critical

that it has been held by many Texas appellate courts as "fatally defective and void,

whether specifically raised by point of error or not." 7

The Estate sought a temporary restraining order in the estate administration

cause (396,935) to preserve its community property interests and anticipated

recovery from the wrongful death proceedings pending against K. McAfee in the

ancillary cause (396,935-401). Tab 18. The Estate's Application states, "the

nature of the lawsuit is Probate, with an additional wrongful death suit pending."

Tab 18, at p. 2, ~5. The June 8, 2011 Agreed Order for Temporary Injunction also

states:

7

EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 52-53 (Tex. App.-San Antonio 2002); Evans v. C.

Woods, Inc., 34 S.W.3d 581, 582-83 (Tex. App.-Tyler 1999, no pet.); Big D Props., Inc. v.

Foster, 2 S.W.3d 21, 23 (Tex. App.-Fort Worth 1999, no pet.); 360 Degree Commc'ns Co. v.

Grundman, 937 S.W.2d 574, 575 (Tex. App.-Texarkana 1996, no writ).

PAGE22

"this Temporary Injunction Order ... shall continue in

force and effect until the Court makes a determination

of what property belongs to the Estate or the Court

renders a full and final judgment is in the pending

wrongful death suit associated with this matter,

whichever is later, or by further order of this Court."

Tab 1, at p. 9 of 10.

A full and final judgment was entered in the wrongful death suit on March

21, 2014. Tab 2. The Court, however, has made clear that the injunction remains

in effect in the estate administration until a determination of what property belongs

to the Estate has occurred. Tab 17, last paragraph.

Whether the temporary injunction has ever been effective in the past may be

a moot issue. The temporary injunction was filed only in the estate administration,

where no pleadings were ever filed. On January 22, 2015, the parties argued over

whether the order on the garnishment proceeding (395,835-401) should require a

release of the temporary injunction in the estate administration. Tab 8, at p. 3, Ins.

20-25; at p. 4, Ins. 1-7; at p. 8, Ins. 2-4; at p. 9, Ins. 14-17; at p. 11, Ins. 4-16.

Storer argued to release the temporary injunction:

"The other thing, Judge, is I don't even think there is a

Temporary Injunction in place. I think everyone has

honored it because everyone understood what the intent

was of the parties and the intent of the Court but I can't

even learn what the base lawsuit is that the Temporary

Injunction was filed for. It's my understanding also that

there is no ending to the Temporary Injunction and the

only way one can be valid is if there is a final trial date

that says on this date this Temporary Injunction ends and

PAGE 23

will either go away or tum into a Permanent Injunction.

So I believe there is not even a Temporary Injunction in

place. I will go along with what's been going on but we

were here two weeks ago and the issue garnishment was

decided. That's over. The only thing that needed to be

added was to make the payment to Mr. Blumrosen and/or

his client. That's been done. And so this is the Proposed

Order that covers both parties and both banks in the

garnishment proceeding."

Tab. 8, at p. 6, ln. 25; at p. 7, Ins. 1-16; at p. 14, Ins. 15-19. Regardless of how the

estate administration and wrongful death proceedings were intertwined, today there

are clearly no actions being pursued in any cause against K. McAfee. This makes

the temporary injunction fatally void and it should be dissolved. TEX. R. CIV. P.

683.

Additionally, "Probate" is not a cause of action. Probate is a general

description for all matters or proceedings that relate to a decedent's estate. TEX.

ESTATES CODE§ 22.029.

The Texas Supreme Court has clarified, "the issue in determining whether

an applicant has met the first qualification for a temporary writ of injunction is not

whether the prayer seeking the writ and the ultimate cause of action is 'related,' but

whether the applicant has a cause of action at all." Walling v. Metcalfe, 863

S.W.2d 56, 58 (Tex. 1993) (per curiam) (considering whether applicant's live

pleadings supported the temporary injunction). With no cause of action at all on

PAGE 24

file, there is no matter to set for trial and the injunction in whatever form it has

now taken, must be dissolved.

And if there were a cause of action on file, the reason for strict compliance

m setting a trial date "is to prevent the temporary injunction from becoming

effectively permanent, without a trial having occurred." Eastern Energy, Inc. v.

SBY P'ship, 750 S.W.2d 5, 6 (Tex. App.-Houston [1st Dist.] 1988). Such would

be contrary to the purpose and procedure of obtaining a temporary injunction, yet

this is exactly what has happened in this case, because a determination of all Estate

property may never occur.

Therefore, the temporary injunction should be dissolved and the May 18,

2015 Order should be set aside for being void.

IV. Collateral Estoppel and Res Judicata bar re-tracing of the Woodforest

account.

Even if the Probate Court were to obtain jurisdiction to enjoin or take control

over K. McAfee's assets, the Woodforest account cannot be subject to any further

authority of the Probate Court because the funds have already been traced and

found to be solely K. McAfee's social security benefits. Tab 9; Tab 14, at p. 6-8.

Since the Estate can have no claim against K. McAfee's social security benefits, all

of such assets must be released to K. McAfee.

The well-known case of Barr v. Resolution Trust Corp. describes "res

judicata" as a generic term for two types of conclusive effects given to final

PAGE 25

judgments: res judicata precludes relitigation of claims, and collateral estoppel

prevents relitigation of particular issues. 837 S.W.2d 627, 628 (Tex. 1992). This

mandamus involves both.

The Estate would like the Court to believe that the garnishment proceedings

were completely separate from the Estate's purported community property claims

in the estate administration. Tab 12, at p. 8, Ins. 16-25; Tab15, at p. 11, Ins. 22-25;

at p. 12, Ins. 1-3. This, however, is not accurate. First, the issue of tracing the

Woodforest account was actually litigated in the garnishment proceeding

(collateral estoppel). Second, the Estate should have brought its claims against

Kenneth McAfee for the funds in the Woodforest account during the garnishment

proceedings (res judicata).

1. Collateral Estoppel

The doctrine of collateral estoppel or issue preclusion is designed to promote

judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent

judgments by precluding the relitigation of issues a party previously litigated and

lost. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994);

Quinney Elec., Inc. v. Kondas Entm 't, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per

curiam). "A party seeking to assert the bar of collateral estoppel must establish

that ( 1) the facts sought to be litigated in the second action were fully and fairly

litigated in the first action; (2) those facts were essential to the judgment in the first

PAGE 26

action; and (3) the parties were cast as adversaries in the first action." Sysco Food

Servs., Inc., 890 S.W.2d at 801. "Fairness" may also be considered, but it is

narrowly applied in only the most unique circumstances. !d. at 805.

Collateral estoppel can apply even if the causes of action are different in the

first and second proceedings. Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575,

577 (Tex. 2001) (criminal defendant was convicted of fleeing and attempting to

elude a police officer; because the issue of whether she faced imminent harm was a

fact that was litigated in her criminal trial, she was barred from bringing a civil

action for assault against the officer who tried to stop her). "If a cause of action in

the second lawsuit involves an element already decided in the first lawsuit, that

cause of action is barred" if the issue decided in the first action was actually

litigated, essential to that lawsuit's judgment, and is identical to the issue in the

pending action. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962

S.W.2d 507, 521 (Tex. 1998).

Element 1: the facts sought to be litigated in the second action are

identical to the facts litigated in the first action

"Collateral estoppel applies when an issue decided in the first action is

actually litigated." Tex. Dep't of Pub. Safety, 44 S.W.3d at 579. "Actually

litigated" means the issue was properly raised (by pleadings), submitted for

determination, and determined. Johnson & Higgins of Tex., Inc., 962 S.W.2d at

521. The issues must be identical and must have been fully and fairly litigated.

PAGE 27

State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Tex. Dep't

ofPub. Safety, 44 S.W.3d at 579.

What the Estate is seeking now is identical to what was before the Court in

the garnishment proceedings, a tracing of the Woodforest account. The tracing

that was necessary to establish protection in the garnishment proceedings is the

very same tracing that would be necessary to prove the Woodforest account is

solely K. McAfee's social security benefits. Tex. Dep 't of Pub. Safety, 44 S.W.3d

at 577 (collateral estoppel applied because same facts were necessary to prove first

and second claims).

In the garnishment proceedings, Storer sought to quash two writs the Foltyns

had obtained, one against a 401(k) Savings Plan and one against a social security

account. Tab 4. Both accounts needed to be established as exempt accounts in

order to quash the writs. While the funds in the 401(k) were protected merely by

being in a tax-deferred retirement account, 8 the social security funds were held in

an ordinary checking account and Storer had to show that every penny in the

Woodforest account was attributed to his social security benefits. Tab 4, at rs 22-

25 (regarding need to trace comingling of social security benefits). Had there been

8

TEX. PROP. CODE§ 42.0021(a); see also Tab 4, at p. 13, footnote 12: Unlike with social security

benefits, it is the account that is exempt; the source of the funds is irrelevant. Lozano v. Lozano,

975 S.W.2d 63, 68 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).

PAGE 28

any funds that were not social security benefits, those funds would have been

subject to garnishment. Tab 4, at 'if 23.

The nature of the Woodforest funds was plead in Storer's Motion to Quash,

which also provided copies of the bank statements, and an account detail sheet

showing the source of all deposits and withdrawals. Tab 4, at Exhibits A, B.

Storer agreed the tracing rules in his Motion, and identified the funds all as coming

exclusively from the Social Security Administration. Tab 4, at 'if 25.

At the first hearing on January 8, 2015, the Foltyns did not challenge the

protected status of a person's 401(k) or social security benefits, but argued that

they did not have sufficient information to determine the character of the funds at

issue due to outstanding discovery requests. Tab 7, at p. 4, lns. 1-9; at p. 5, lns. 2-

17; at p. 6, Ins. 9-20; at p. 8, Ins. 12-25; at p. 9, Ins. 1-24. The Probate Court reset

the matter for two weeks to specifically allow time for exchanging information.

Tab 7, at p. 27, Ins. 5-6.

On January 22, 2015, the parties and the Estate returned. Tab 8. Again,

quashing the writs on the two accounts was never challenged. Tab 8; at p. 3, Ins.

5-7. However, because Storer sought to include language in the proposed order to

also release the temporary injunction as to the two accounts, the Foltyns and the

Estate resisted, in order to preserve the Estate's potential community property

claims against the 401(k). Tab 8, at p. 3, Ins. 20-25 through at p. 4, Ins. 1-7; at p.

PAGE29

5, Ins. 5-10; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4; at p. 9, Ins. 14-15; at p. 11, Ins. 4-

16; at p. 14, Ins. 15-19; at p. 17, Ins. 18-25, at p. 18, Ins. 1-24.

At both hearings, no one challenged the character of the funds that made up

the Woodforest social security account (see Tab 7 and Tab 8); this was not done

until months after the Court signed the January 27, 2015 Order. See Tab 12 and

Tab 15. Had any contrary evidence been offered, Storer could have orally argued

his tracing evidence that was filed in his Motion to Quash Writs of Garnishment

because that was the very subject matter of that hearing, to prove that all funds in

the Woodforest account were social security benefits. Tab 7, at p. 5, Ins. 12-15.

But the Foltyns specifically said that was not necessary (Tab 7, at p. 5, Ins. 16-17)

and the Estate raised no issues as to Storer's accounting (Tab 8, at p. 18, Ins. 13-

23).

Based upon the patties' pleadings and arguments, the Probate Court

detetmined that the Woodforest account contained only K. McAfee's social

security benefits and signed the January 27, 2015 Order:

"On this day came to be considered the Motion to Quash

Writs of Garnishment filed by Charles Storer, Power of

Attorney for Kenneth Cooper McAfee. After review and

consideration of said Motion, the evidence, the responses,

and the arguments of counsel, the Court finds the

following:

PAGE 30

5. The Woodforest account ending in 404 holds,

exclusively, social security benefit proceeds of

Kenneth C. McAfee which benefits are exempt

from garnishment under 42 U.S.C. 407. 42 U.S.C.

407 provides an absolute exemption and there are

no statutory exceptions to same. Because the

Woodforest account ending in 404 contains only

funds exempted from garnishment, the writ

directed at Woodforest as to Kenneth McAfee's

account ending in 404 should be quashed."

Tab9.

The Estate now questions the characterization of two deposits that were

made into the Woodforest social security account and that were identically

withdrawn from the account days later, arguing these might be deposits of

community property and withdrawals of social security funds that would give the

Estate a one-half interest in the deposits of community property depending on what

method of tracing is used (first in/first out, or last in/first out). Tab 12, at p. 3, Ins.

13-22; at p. 6, Ins. 14-21; at p. 7, Ins. 1-6; at p. 7, Ins 14-21; at p. 8, Ins. 19-25; at p.

9, Ins. 7-9; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21; at p. 12, Ins. 1-25; at p. 13, Ins. 1-

6; at p. 15, Ins. 4-25; at p. 16, ln.1; Tab 15, at p. 10, Ins. 6-24; at p. 11, Ins. 1-16; at

p. 14, Ins. 18-25. This is a tracing issue that has already been litigated and

determined by the Court. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25;

Tab 15, at p. 4, Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p.

7, Ins. 17-25; at p. 7, Ins. 17-25; at p. 8, Ins. 1-25; at p. 9, Ins. 1-17; at p. 13, lns.

13-17; at p. 15, Ins. 1-9; at p. 16, Ins. 3-25; at p. 17, lns. 1-14.

PAGE 31

Storer does not dispute the 401(k) is funded with some community property.

But the social security benefits are federally protected separate property, so there is

nothing left to fight over. 42 U.S.C. 407; Tab 15, at p. 15, Ins. 10-14; at p. 15, Ins.

22-25; at p. 16, Ins. 1-25; at p. 17, Ins. 1-17. To have this fight again (to trace the

Woodforest social security account) would require an identical trial to the one

already had, with the exact same tracing evidence and burden of proof (Sysco Food

Servs., Inc., 890 S.W.2d at 802 (in considering collateral estoppel, similarity of

each action's burden of proof was a factor));it would just be for a different

purpose, but with the same result as to the Woodforest assets.

Although Storer's tracing evidence was not challenged in the garnishment

proceeding, that does not mean the issue was not actually litigated. "Actually

litigated" does not require a contested proceeding, but merely that the issue was

pled, considered and decided. Johnson & Higgins ofTex., Inc., 962 S.W.2d at 521.

These criteria have all been met. The transcripts show that it was put before the

Court by all counsel, repeatedly, and that there was no issue that the Woodforest

account contained anything other thanK. McAfee's social security benefits. The

Estate specifically said, "the two issues, which one we could see, the Woodforest,

is that's all SSI money. My client has no claim to that. We can see that. As long

as that's an accurate statement, it's all SSI." Tab 8, at p. 18, Ins. 13-25, at p. 19,

line 1; Tab 4, Exhibit A & B.

PAGE 32

In Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., the Supreme

Court considered "fully and fairly litigated" and rejected a party's argument that

they had no real incentive in the first action to develop their claims in the second

action. 962 S.W.2d 507, 525 (Tex. 1998). When the plaintiff lost a significant

portion of his profits in oil he was transporting across the Atlantic, he used his

insurance agent as a witness to recover from another insurance company based on

agreements that had been discussed between multiple insurance companies to

insure the cargo. Id. at 511-513. As to at least one claim, the Supreme Court

found that the testimony of the plaintiffs insurance agent supported the court's

detennination that there were no insurance agreements for the extra loss coverage

the plaintiff was seeking. I d. at 524. The plaintiff was later barred from suing his

own insurance company because the issue had already been decided that there

were no valid insurance agreements for the extra loss coverage. Id. The plaintiff

argued that had he known he would be precluded from suing his own insurance

company, he would have further developed the testimony to prove his insurance

agent represented to him that he was covered. Id. at 525. The Supreme Court said

he had missed his chance because he had every incentive in the first suit to

establish an agreement since his claims in the first suit depended on that

agreement. Id. Likewise, the Estate's purported community property claims to the

Woodforest account depend 100% on what type funds are in the account. The

PAGE 33

tracing was just as essential to the garnishment proceeding as it is to the Estate's

purported community property claims. The Estate's agreement and/or inaction

when the issue of tracing was before the Court precludes the Estate's later

developed arguments.

Additionally, in Rexrode v. Bazar, collateral estoppel was applied even in a

situation where no evidence was ever admitted. 937 S.W.2d 614 (Tex. App.-

Amarillo 1997, no writ). A plaintiff sued a defendant for negligence and also sued

his own insurance company under the uninsured/underinsured motorist provision

of his auto insurance policy. Id. at 615-16. When the insurance company failed to

answer requests for admissions, the plaintiff nonsuited his case against the

defendant and went to trial against the insurance company. ld. at 616. At trial, the

plaintiff offered only the deemed admissions. ld. at 617-18. The insurance

company was granted leave to prepare responses to the requests for admissions.

ld. at 618. The plaintiff rested. ld. The insurance company prepared responses,

and the Court withdrew the deemed admissions. Jd. The Court then issued a

directed verdict against the plaintiff, having rested with no evidence. Jd. The

plaintiff was later bmred from bringing suit against the original defendant because

he had "failed to prevent the issue ... from being submitted for determination and

determined adversely to him. That being so, the issue was "actually litigated" in

the first suit." ld. at 620. That is exactly what has happened in this case-the

PAGE 34

Estate's agreement and/or inaction failed to prevent the tracing issue from being

submitted for determination and determined adversely to their current purported

claims, if any. The opportunity to fully and fairly litigate the issue of tracing

existed, but the Estate chose not to act. This opportunity is all that is required. See

Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990) (collateral

estoppel applies when the party against whom it is asserted had a full and fair

opportunity to litigate the issue in the prior suit).

Because the issue of tracing the Woodforest social security account was

actually litigated, fully and fairly, and is identical to the claims the Estate makes

now, the first element of collateral estoppel has been met.

Element 2: those facts were essential to the judgment in the first action

When the Probate Court examined whether or not the Woodforest social

security account should be exempt from garnishment, the sole issue was the nature

of the funds in the account. It may be redundant to keep saying that it was already

established and unopposed that the funds were 100% K. McAfee's social security

benefits. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25; Tab 15, at p. 4,

Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p. 7, Ins. 17-25; at

p. 7, Ins. 17-25; atp. 8, Ins. 1-25; atp. 9, Ins. 1-17; atp. 13, Ins. 13-17; atp. 15, Ins.

1-9; at p. 16, Ins. 3-25; at p. 17, Ins. 1-14. But there was simply no other purpose

to the garnishment proceeding in regards to the Woodforest account other than to

PAGE 35

trace the funds, which is exactly what the Estate seeks to do again. See above,

Johnson & Higgins of Tex., Inc., 962 S.W.2d at 525 (establishment of insurance

agreement was essential to first claim against 3rd party insurance company;

plaintiff could not bring action against his own insurance company because court

already found there was no insurance agreement).

Because the issue of tracing was essential to the Probate Court's January 27,

2015 Order, the second element of collateral estoppel has been met.

Element 3: the parties were cast as adversaries in the first action

All parties involved today also participated in the garnishment proceeding

that resulted in the January 27, 2015 Order.

The parties in the estate administration proceedings are K. McAfee, the

Estate, and the Foltyns, individually, who are participating herein as interested

parties. Tab 18.

The garnishment proceeding did not originally involve the Estate; it

involved only K. McAfee and the Foltyns, individually, who sought to recover on

their wrongful death judgment. Tab 3. However, the Estate made a voluntary

appearance in the garnishment proceeding by filing a Notice to Court in which the

Estate objected to Storer's Motion to Quash and claimed an interest in the two

accounts Storer sought to protect from garnishment. Tab 5; Tab 7, at p. 9, Ins. 1-8.

The Estate further participated in the garnishment hearings, not challenging the

PAGE 36

quashing of the writs, but alluding to their community property claims that might

exist post-garnishment. Tab 7, at p. 8, Ins. 15-25; at p. 9, Ins. 1-2; Tab 8, at p. 2; at

p. 5, Ins. 5-10, Ins. 16-18; at p. 12, Ins. 10-17; at p. 17, Ins. 21-24; at p. 18, Ins. 18-

23.

Regardless of what happened thereafter, it cannot be disputed that all parties

involved today actually participated in the garnishment proceedings that (1)

considered the tracing of the Woodforest social security account and (2) resulted in

the January 27, 2015 Order. 9

Because the same parties were cast as adversaries in the garnishment

proceeding, the third element of collateral estoppel has been met.

Consideration of Fairness

The nature of the wrongful death proceeding is not a factor the court can

consider in deciding whether to apply collateral estoppel. Fairness factors involve

unique procedural and evidentiary burdens that defeat the design of collateral

estoppel, and that are not caused by the party seeking to avoid the preclusive effect

9

Nevertheless, collateral estoppel does not even require direct participation by the Estate, only

that the Estate be in privity with the Foltyns. Tex. Dep 't of Pub. Safety, 44 S.W.3d at 577; Sysco

Food Servs., Inc., 890 S.W.2d at 801; Eagle Props., Ltd., 807 S.W.2d at 721. Privity cannot be

disputed because the Estate and the Foltyns both share interests in the Woodforest account that

are directly affected by its tracing. See Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363

(Tex. 1971). They are merely acting in two different capacities, individually and as beneficiaries

of the Estate, to recover the same interests under different theories of recovery. See Robbins v.

HNG Oil Co., 878 S.W.2d 351, 357-58 (Tex. App -Beaumont 1994, writ dism'd w.o.j.)

(Robbins as attorney-in-fact in second suit was certainly in privity with Robbins, individually, in

first suit).

PAGE 37

of a prior judgment. See Sysco Food Servs., Inc., 890 S.W.2d at 804-05 (party was

prevented from filing all of their claims in one suit by case law that has

subsequently been overruled by statute; procedural predicament is not of their own

making; then holding is narrow, given the unusual procedural posture of the case);

Phillips v. Allums, 882 S.W.2d 71, 75 (Tex. App.-Houston [14th Dist.] 1994, writ

denied) (because party was nonsuited, party was deprived of the opportunity to

litigate; "Mary Carter" agreements violate public policy). None of these type

.c:

1actors •

are present m th"IS case. 10

2. Res Judicata

Res judicata precludes relitigation of claims that have been finally

adjudicated, and claims that arise out of the same subject matter that could have

been litigated in the prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627,

628, 631 (Tex. 1992). The elements of res judicata are: (1) a prior final judgment

on the merits by a court of competent jurisdiction; (2) identity of parties or those in

privity with them; and (3) a second action based on the same claims as were raised

or could have been raised in the first action." Amstadt v. US. Brass Corp., 919

S.W.2d 644, 652 (Tex. 1996); see also Houtex Ready Mix Concrete & Materials v.

10

See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31 (1979) (noting when offensive

collateral estoppel may be unfair); Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 7 (Tex. 1986)

(holding when fairness factors are applicable); Goldstein v. Comm 'nfor Lawyer Discipline, 109

S.W.3d 810, 813 (Tex. App.-Dallas 2003, pet. denied) (observing the factors when offensive

collateral estoppel may be applied); Tankersley v. Durish, 855 S.W.2d 241, 245-46 (Tex. App.-

Austin 1993, writ denied) (noting applicable fairness factors).

PAGE 38

Eagle Canst. & Envtl. Servs., L.P., 226 S.W.3d 514, 519 (Tex. App.-Houston [1st

Dist.] 2006, no pet.).

Element 1: there is a final judgment on the merits

The January 27, 2015 Order is a final judgment on the merits of tracing the

Woodforest social security account. Tab 15, at p. 6, Ins. 4-10. It specifically and

correctly states, "the Woodforest account ending in 404 holds, exclusively, social

security benefit proceeds of Kenneth C. McAfee." Tab 9.

The wrongful death and estate administration claims, if any, are and/or will

be separate actions. In the wrongful death action, a final judgment was entered

against K. McAfee on March 21, 2014, that disposed of all parties and was

appealable. Tab 2. The Foltyns' Application for Writ of Garnishment was initiated

in the wrongful death proceeding on October 9, 2014 to collect on the judgment.

Tab 3. The Probate Court had jurisdiction over the garnishment proceedings

because there were garnishment pleadings and notices (Tab 3), not because the

wrongful death action was on-going. Thereafter, Storer's Motion to Quash Writs

of Garnishment was filed in the garnishment proceeding and the Probate Court

properly acted on those pleadings after two hearings on the merits. Tab 9.

When the Probate Court signed the January 27, 2015 Order Partially

Granting Motion to Quash Writs of Garnishment, there were no more issues

pending in the garnishment proceeding, however the Court did direct the

PAGE 39

temporary injunction to be lifted as to the GMS accounts in favor of the Foltyns,

even though the temporary injunction was in a separate proceeding. Tab 9, at p. 3.

(The remaining accounts were still subject to the temporary injunction in the

separate estate administration cause, just as they were before the Foltyns'

Application for Writ of Garnishment was filed.) On March 16, 2015, the Probate

Court signed its Order Partially Releasing Temporary Injunction in regards to the

GMS accounts in favor of the Foltyns, (Tab 9), and the January 27, 2015 became

final as it disposed of all issues and parties in the garnishment proceeding.

This January 27, 2015 judgment was never appealed, and cannot be appealed

now. The judgment is also not interlocutory because "a probate order is final if it

adjudicates a substantial right and disposes of all issues in the phase of the

proceeding for which is was brought, even though multiple judgments final for

purposes of appeal can be rendered on certain discrete issues." Crowson v.

Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995); Lehmann v. Har-Con Corp., 39

S.W.3d 191, 192-93 (Tex. 2001); Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.

App.-Austin 2000, pet. denied) ("An order rendered in a probate proceeding need

not finally dispose of the entire proceeding ... A probate proceeding consists of a

continuing series of events, in which the probate court may make decisions at

various points in the administration of the estate on which later decisions will be

based."). Although the Estate Independent Administration is still open (without

PAGE40

Court supervision), the January 27, 2015 Order resolved all issues and pleadings in

the garnishment proceeding, in which it participated. Therefore, even if the

garnishment proceeding had been tied to the Estate administration, which it was

not, this phase of the garnishment proceeding has been disposed of and is final,

even though the Estate independent administration may continue.

Because there is a final judgment on the merits of tracing the Woodforest

account, the first element of res judicata has been met.

Element 2: same parties

As discussed above, the same parties involved today actually participated in

the garnishment proceedings that resulted in the January 27, 2015 Order, and the

Estate is "in privity" with the Foltyns. See collateral estoppel, element 3 above.

Because the same parties are involved in both proceedings, the second

element of re judicata has been met.

Element 3: same claims

Res judicata provides broader relief than collateral estoppel since it allows

preclusion of claims that not only were adjudicated, but claims that could have

been litigated in the prior suit. Rexrode, 937 S.W.2d at 616 ("unlike the broader

res judicata doctrine, collateral estoppel analysis does not focus on what could

have been litigated, but what was actually litigated").

PAGE 41

"A subsequent suit will be barred if it arises out of the same subject matter

of a previous suit and which through the exercise of diligence, could have been

litigated in a prior suit." Barr, 837 S.W.2d at 631. "A determination of what

constitutes the subject matter of a suit necessarily requires an examination of the

factual basis of the claim or claims in the prior litigation. It requires an analysis of

the factual matters that make up the gist of the complaint, without regard to the

form of action. Any cause of action which arises out of those same facts should, if

practicable, be litigated in the same lawsuit." !d. at 630.

The Barr standard "is substantially similar to the rule of compulsory

counterclaims embodied in the rules of civil procedure. A party defending a claim

must bring as a counterclaim any claim that "arises out of the transaction or

occurrence that is the subject matter of the opposing party's claim." !d.; TEX. R.

CIV. P. 97.

While the issue of tracing was actually litigated on more than one occasion,

the Estate still has never filed its community property claims. The garnishment

proceeding was the proper time to have brought such claims. As discussed above,

the issue in the garnishment proceeding was to trace the funds in the Woodforest

account as solely K. McAfee's social security benefits in order to protect the entire

account from garnishment. The Estate's purported claim seeks to re-trace the

funds in the Woodforest account to see if the funds are all K. McAfee's social

PAGE42

security benefits, or if the funds have been comingled with community property.

While the purpose for tracing may be different, the issues, facts and evidence that

make up both claims are identical-what is the character of the funds in the

Woodforest account?

The issue of the Estate's potential community property claims was known

and discussed in the garnishment proceedings. Tab 7, at p. 8, lns. 15-25; Tab 8, at

p. 4, lns. 1-7; at p. 5, lns. 5-19; at p. 8, lns. 2-4; at p. 9, lns. 14-19; at p. 11, Ins. 4-

16; at p. 12, lns. 10-25; at p. 13, lns. 1-11; at p. 14, lns. 15-19; at p. 17, Ins. 18-25;

at p. 18, Ins. 1-24. The Estate argued for the protection of its community property

claims against the 401(k) account, yet made no mention of potential claims to the

social security account. Tab 8. Knowing that tracing in the garnishment

proceeding directly affected the Estate's community property interests, the Estate

had the burden to bring its claim at the time the issue of tracing was first before the

Court. It is not enough to merely say they want to litigate the claims in the future.

Because the same claims that the Estate alleges now could have been

litigated in the prior suit, the third element of res judicata has been met.

V. The Estate's claims cannot be satisfied from the Woodforest social

security account and continued obstruction of these funds violates due

process and constitutes an abuse of discretion.

K. McAfee's social security benefits are his separate, federally protected

property that cannot be used to satisfy the Estate's alleged community property

PAGE43

claims. 42 U.S.C. 407 ("none of the moneys paid or payable ... shall be subject to

execution, levy, attachment, garnishment, or other legal process .... "). Storer has

explained this protection provided by the Social Security Act, and its lack of

exceptions, in great detail. 11

The F oltyns and the Estate do not disagree that any funds that are social

security benefits are protected. See Tab 7, at p. 4, Ins. 1-6; Tab 8, at p. 18, Ins. 13-

18;seeTab 12,atp.3,Ins.15-17;atp.9,lns.1-7;atp.15,lns.ll-13;atp.17,Ins.

6-10; see Tab 15, at p. 14, Ins. 17-19; at p. 24, Ins. 16-18. Since the nature ofthe

funds in the Woodforest account have already been traced, and found to be social

security benefits, there is nothing left to fight over. If the Estate has claims, they

can only be satisfied from other accounts made up of community property assets of

Janet and K. McAfee, not from the Woodforest account that holds only K.

McAfee's social security benefits. Tab 15, at p. 9, Ins. 18-22; at p. 13, Ins. 1-17; at

p. 13, Ins. 2-25; at p. 14, lns.1-15; at p. 17, Ins. 8-11.

The Court's continued obstruction of these funds violates due process rights

and the supremacy clause. Dionne v. Bouley, 757 F.2d 1344, 1354 (1st Cir. 1985)

(social security account was exempt from attachment, procedural issues that

prevented access to the account violated due process right and perhaps even the

11

See Storer's Motion to Quash Writs of Garnishment, Tab 4, ~'s 11-29; Tab 7, at p. 5, Ins. 2-17;

at p. 11, Ins. 2-4; at p. 18, Ins. 9-23; Tab 8, at p. 5, Ins. 20-25; at p. 6, Ins. 1-24; Tab 14, at p. 9;

Tab 12 and Tab 15.

PAGE44

supremacy clause.) These violations are further reason why the May 18, 2015

Order should be set aside and the temporary injunction dissolved.

Last, the Probate Court has abused its discretion by failing to correctly

analyze and apply the law in regards to Storer's arguments of lack of jurisdiction,

no pleadings being on file, and no cause being set for trial. See In re Pierce, No.

13-12-00125-CV, 2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10,

2012, orig. proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164

S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)) (court abuses its discretion "if it

reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law or if it clearly fails to correctly analyze or apply the law.").

PRAYER

For the reasons stated above, Relator, respectfully requests that the Court

grant his Petition for Writ of Mandamus; direct the Honorable Loyd Wright to set

aside the May 18, 2015 Order on First Amended Motion for Reconsideration of

March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended

Motion for Entry of Order Releasing Social Security Proceeds from Injunction and

Motion for Sanction; direct the Honorable Loyd Wright to dissolve the June 8,

2011 Agreed Order for Temporary Injunction, and grant Relator such other relief,

at law or in equity, to which Relator may be justly entitled.

PAGE45

Respectfully Submitted,

ANDERSON PFEIFFER, PC

Esther Anderson

SBN: 00792332

Robert Teir (of Counsel)

SBN: 00797940

845 FM 517 West, Suite 200

Dickinson, Texas 77539

Telephone: (281) 488-6535

Facsimile: (281) 488-0625

Email: esther@probateguardianship.com

Attorneys for Relator, Charles Storer,

Power of Attorney for Kenneth Cooper

McAfee

PAGE46

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing Petition for Writ

of Mandamus was delivered via the electronic service provider and/or certified

mail, return receipt requested on this 1st day of October, 2015, to all parties/and or

counsel of record:

cc: Honorable Loyd Wright

Judge, Probate Court No. 1

Harris County, Texas

201 Caroline, 6th Floor

Houston, Texas 77002

Dean M. Blumrosen, Esq.

4615 Southwest Freeway, Suite 850

Houston Texas 77027

Counsel for Rosemary Foltyn and Jake Foltyn

Mary Elizabeth Duff

21 0 Main Street

~chmond, Texas77469

Counsel for Rosemary Foltyn,

Administratrix of the Estate of Janet Foltyn McAfee, Deceased

Esther Anderson

PAGE47

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)

This brief complies with the word limitation of Tex. R. App. P. 9.4 (i)

because the brief contains 10,912 words, excluding the parts of the brief exempted

by Tex. R. App. P. 9.4(i)(1).

This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)

because it has been prepared in a proportionally spaced typeface using Microsoft

Word 2007 in 14 point Times New Roman font.

Dated: October 1, 20 15.

Esther Anderson

PAGE48

RULE 52.3(j) CERTIFICATION

I have reviewed the petition and concluded that every factual statement in

the petition is supported by competent evidence included in the appendix or record.

Esther Anderson

PAGE49

APPENDIX TO PETITION FOR WRIT OF MANDAMUS

1. Agreed Order for Temporary Injunction

2. Order

3. Application for Writ of Garnishment

4. Motion to Quash Writs of Gmnishment

5. Notice to Court

6. Response to Charles Storer's Motion to Quash Writs of Garnishment

7. January 18,2015 Transcript

8. January 22, 2015 Transcript

9. Order Partially Granting Motion to Quash Writs of Garnishment

10. Motion to Partially Release Temporary Injunction

11. Motion to Partially Release Temporary Injunction

12. March 12, 2015 Transcript

13. Order Partially Releasing Temporary Injunction

14. First Amended Motion for Reconsideration of March 16, 2015, Order

Partially Releasing Temporary Injunction, First Amended Motion for Entry

of Order Releasing Social Security Proceeds from Injunction and Motion for

Sanctions

15. May 14,2015 Transcript

16. Inventory, Appraisement and List of Claims

17. Order on First Amended Motion for Reconsideration of March 16, 2015

Order Partially Releasing Temporary Injunction, First Amended Motion for

Entry of Order Releasing Social Security Proceeds from Injunction and

Motion for Sanctions

18. Application for Temporary Restraining Order and Temporary Injunction

PAGE 50

TABl

Agreed Order for Temporary

Injunction

~··--""""

06/08/2011 WBD 9:20 PAX 7132243111 Law Office ~002/0~1

06/07/2011 10:58 Mitchell & Duff Attorneys at Law (FAX)281341S517 P.002/011

D~BATE COURT 1

·~Jltrli'~Ji; 998~91 No. 396,935

IN THE ESTATE OF § IN THE PROBATE COURt

§

JANET FOLTYN MCAFEE, § N0.1

§

DECEASED § HARRIS COUNTY, TEXAS

AGBEED ORDER FOR TEMPORARY :INJUNCTION

On Maroh 31, 2011 the Application for a Temporary Restraining Ot·der of Rosemary Foltyn,

as Administratrix of the Estate of Janet Foltyn McAfee (the ..Estate"), was beard and granted before

this Court.

OnApril14 and May 5, 2011 the Courtultimatelyol·dered the Temporary Restraining Ordet•

be extended and Temporary Injunction hearlng be rescheduled to June 9, 2011 at 2:00P.M.

On May 18, 2011 the Application for a Supplemental Temporary Restraining Order of

Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee, was heard and gtanted

before this Court. The Temporary Injunction hearing was scheduled for June 1, 2011 at 12:00 PM.

On June 1, 2011 the Cowt ordered the Supplemental Temporary Restraining Order be

extended and Temporary Injunction be extended and Temporary Injunction hearing be rescheduled

to June 9, 2011 at 2:00P.M.

On June 7, 2011, tho parties agreed to the entry of a Temporary Injunction, andtopasson the

hearing on June 9, 2011. This agreement is evidenced by counsels' signatures below.

The Court finds that all necessnry prerequisites of the law have been legally satisfied and that

the Court has jurisdiction in this case and of all the parties. The Court finds that Rosemary Foltyn, as

Adnlinistratrix of the Bstate of JBJI.et Foltyn McAfee, is entitled to a Temporary Injunction.

Agreed Temporary JbjUDCI1on 1 Df10

Confidential information may have been redacted from the document in compliance with the Public Information Act.

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IT IS THEREFORE ORDERED that Kenneth McAfee and all of his officers, agents,

servants, employees, agents, servants, successors, assigns, representatives, and attorneys are ordered

to immediately cease and desist from the use and control of the following accounts a:od property:

THE GMS GROUP, LLC

1, Any and all funds in OMS Group, LLC accounts, including but not limited to

the following, all of which are pl'esumed to contain community funds and/or funds belonging to the

Estate:

a. SSH-004628

b. 55H-OS6008

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.

c. 551·660606

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d. SSH-003612

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i. 989~03491

j. 996·66060

k. 989-03500

2. Any and all funds in GMS Group, LLC accounts, all of which are presumed to

contain commwlity :funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee

j·

i

or Janet F. McAfee, Individuallyi (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which Ii

i

names one or both of them as a signatory: (iv) which contains fuuds In the care, custody, co.c.trol, for iI

!

i

the bc.mefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v)

,\greed 'l"c111porary lnJun~lloll :z. or tO

Confidential information may have been r edacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

:;li::i:d__o

----~S~

t e~d~ir~lQ

~GL~

SKe~n~ec~~

~~aL

II~II~--------Deputy

,....-------··----

06/08/2Gll WED 9:20 FAX 7132243111 Law Office ~004/.011

06/07/201 1 10:58 Mitchell & Duff Attorneys at Law (fAX)2813415517 P.004/01 1

under any address related to eitherofthem~ such as a previous residence~ relative, representative, or

attorney's address, or company which did business on behalf of either Kenne1h McAfee or Janet F.

McAfee or which was owned in whole or in part by either Ol' both of them. The addresses include,

but are not limited to, the following;

1. PO Box 66352, Houston Texas, 77266

2. PO Box. 460786 Houston, Texas, 77056

3. 6650 Fairfield Street Houston, Texas, 77023

4. 21 I 9 Tangley Houston, TexllB, 77005

WOODFOREST NATIONAL BANK

3. Any and all funds in Woodforest National Bank accounts, all of which are

presumed to contain conummity funds and/or funds belonging to the .Estate, (I) :in the name of

Kenneth McAfee or Janet F. McAfee, Individually; (il) Kenneth McAfee 11Dd Janet F. McAfee

jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care,

custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,

individually or jointly; and (v) under any address related to either of them, such as a previous

residence, relative, representative, or attorney's address, or company which clid business on behalfof

either Kenneth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both

of them. The adch·esses include, but are not limited to, the following:

a. PO Box 66352, Houston Texas, 77266

b. PO Box 460786 Houston, Texas1 77056

e. 6650 Faid'ield Street Houston, Texas, 77023

d. 2119 Tangley Houston, Texas, 77005

.Agrulf Temporary Illjuncdoll 3or10

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

,.,11;_--dd

Ster11ng G. Senechal II!

Q Deputy

0~/0812011 WBD 9121 FAX. 7132243111 Law Office ~005/011,

06/07/2011 10:58 Mitchell & Dutt Attorneys at Law (FAX)281341S517 P.OOS/011

BANI{ OF AMERICA, N.A.

4. Any and aU funds .in Bank of America, N.A. accounts, all of which are

.•

presumed to contain community funds and/or funds belonging to the Estate, (i) in the name of

Kenneth McAfee or Janet F. McAfee, lndividually; (ii) Kenneth McAfee and Janet F. McAfee

jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care,

custody, control, for the beoe.fit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,

individually or jointly; and (v) under any address related to either of them, such as a previous

residence, relative, representative, or attorney's address, or company which rud business on behalf of

either Kenneth McAfee o.l' Janet F. McAfee or which was owned in whole or in part by elther or both

of them, The addresses include, but are not limited to, the following:

a. PO Box 66352, Houston Texas, 77266

b. PO Box 460786 Houston, Texas) 77056

o. 6650 Fairfield Street Houston, Texas, 77023

d. 2119 Tangtey Houston, Texas, 77005

BBVA COMPASS BANK

5. Any and all funds in BBVA Compass accounts, including Laredo National

Bank, including but not limited to the tollowing, all of which are presumed to contain community

funds and/or funds belonging to the Estate:

a. 113010547049~023

j

b. 00810028023

I

6. /uly and all funds in BBVA Compass aooounts, including Laredo National I·

Bank. all of which are presumed to contBin commwuty funds and/or funds belonging to the Estate,

i

!

j,

(i) in the name ofKenneth McAfee or JIUlot F. McAfee, Individually; (ii) Kermeth McAfee and Janet

Asretd Temporary IIIJun~don 4 of 10 I·

J

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Har ris County, Texas

.Lf;_A,J___a

stenmg G: S8neclial II!

Deputy

06/DS/2011 WBO 9t21 FAX 7132243111 Law Office ll!D06/01l

OS/07/2011 10:SB Mitchell & Duff Attorneys at Law (FAX)281J415517 P.0061011

F. McAfee jointly; (iii) which names one or both ofthllm as a signatory; (iv) which contains funds in

the care, custody, control) for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,

individually Ol' jointly; and (v) under any address related to either of them, such as a previous

residence) relative, representative, or attorney's address, or company which did business on behalfof

either Kermetb.McAfee or Janet F, McAfee or which was owned in whole or in part by either or both

of them. The addl'esses include, but are not limited to, the following:

a. PO Box 66352, Houston Texas, 77266

b. PO Box 460786 Houston, Texns, 77056

c. 6650 Fairfield Street Houston, Texas,.77023

d. 2119 Tangley Houston, Texas, 77005

WELLS FARGO BANK, N.A.

7. Any and all fUnds in Wells Fargo Bank, N.A. accounts, all of which are

presumed to contain· community funds and/or funds belonging to the Estate, (i) in the name of

Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McMee

jointly; (iii) which names one or both ofthem as a signatory; (iv) which contains funds in the care,

custody, control, for the benefit. or on behalf of Kenneth McAfee and/or Janet F. McAfee,

individually or jointly; and (v) under any address related to either of them, such as a :preVious

residence, relative, representative, or attomey's address, or ~ompany which did business on behalfof

either Kenneth McMee or JanetF. McAfee or which wa~ owned in whole or in part by either or both

of them. The addresses include, but arc not limited to, the following:

a. PO Box 66352, Houston Texas, 77266

b. PO Box 460785 Houston, Texas, 77056

c. 6650 Fairfield Street Houston, Texas, 77023

Asrced Temporary Jlljuner!o11 5of10

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

A-44 Sterling G. Senechal 111

£;( Deputy

.--------------·-·---·--------------------------------

06/08/2011 WBD 9~21 FAX 71322431ll Law Office fZJO 07/011

06/07/2011 10:58 Mitchell & Duff Attorneys at Law (F~13415517 P.007f011

d. 2119 Tangley Houston, Texas, 77005

CITIZENS FINANCIAL GROUP, INC.

8, Arly and aU funds in Citiz~::mJ Financial Group, Inc. accounts, all ofwhich are

presumed to contain community funds and/or funds belonging to tho Estate, (i) in the name of

Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee

jointly; (iii) which names one or both of them as a signatory; (iv) whioh contains funds in the care,

custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee.

individually or jointly; and (v) under any address related to either of them, such as a previous

1·esidence, rela1ive, representative, or attorney's addtess. or company which did business on behalfof

either Kenlleth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both

of them. The addresses include, but are not limited to, tho following:

a. PO Box 66352, Houston Texas. 77266

b. PO Box 460786 Houston, Texas, 77056

c. 6650 Fairfield Street Houston, Texas, 77023

d. 2119 Tat~gley Hou.ston, Texas. 77005

PERSHIN_G LLC

9. Any and all funds in Pershing, LLC accowtts, all ofwhlch are presumed to

contain community fund& and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee

or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (Ui) which

names one Ol' both ofthem as a signatory; (iv) which contains funds in the care, custody, control, for

the benefit, or on behalf ofKenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v)

Aerced Temporary Jnjuncrloa 6 orxo

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

A_4d .QSterling G. Senechal II!

Deputy

06/09/2011 WED 9:21 FAX 7132243111 Law Office !llo oS/ o11

OS/07/2011 10:59 Mitchell & Duff Attorneys at Law (FAX)2S13415S1 7 P.OOSJ01 1

under any address ~:elated to either of them, such as a previous residence, relative, representative, or

attorney's address, or company which did business on beijalfofeither Kenneth McAfee 01' J8IletF.

McAfee or which was owned in whole or in pBlt by either or both of them. The addresses include,

but are not limited to, the following:

a. PO Box 66352, Houston Texas, 77266

b. PO Box 460786 Houston, Texas, 77056

c. 6650 Fairfield Street Houston, Texas, 77023

d. 2119 Tangley Houston, Texas, 77005

GRUNT,AL & CO•• INC_.

10. Any and all funds in Gruntal & Co., Inc. accounts, including 8DY Gruntal &

Co., lltc. subsidiaries Ol' affiliates, inclucfutg but not limited to the following, all of which al'e

presumed to contain community funds and/or funds belonging to the Estate:

a. 989·03491

. b. 989·05600

11, Any and all funds In Gruntal &. Co., Inc. e.ecoun~, , il1cludlng any Gruntal &

Co., Inc. subsidiaries or affiliates, all of which are presumed to contain community funds and/or

funds belonging to the Estate, (i) in the name ofKenneth McAfee or Janet F. McAfee, Individually;

(ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a

signatory; (iv) which contains funds In the care, custody, control, for tho benefit, or on behalf of

Kenneth McAfee and/or Jooet F. McAfee, individually or jointly; and (v) under any address related

to either of them, such as a previous residence, relative, representative, or attomey's address, or

company which did business on behalf of either Kenneth McAfee or Janct F. MoAfoe or which was

Agrctll 'l'emporar)' Ih)unctlon 7 utlO

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

..fl;4-d

Sterling G. Senechal IP

Q Deputy

06/08/2011 WED 9:21 FAX 7132243111 Law Office !ll009/0ll

06/07/2011 10:59 Mitchell & Duff Attorneys at Law f AX)281341 5517 P.009/011

owned in whole or in part by either or both of them. The addresses include, but are not lhnited to, tbe

following:

a. PO Box. 66352, Houston Texas, 77266 ·

b. PO Box 460786 Houston, Texas, 77056

c. 6650 Fairfield Street Houston, Texas, 77023

d. 2119 Tangley Houston, Texas, 7?005

OTIIER ACCOUNTS

12. A!ly and till accounts presumed to contain community funds and/or funds

belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii)

KeMeth McAfee and Janet F. McAfee jointly;. (iii) which name them as a signatory; (iv) which

contains funds in the care, custody, control, for the benefit1 or on behalf of Kenneth McAfee and/or

Janet F. McAfee. individually or jointly; and (v) under any address related to either ofthem, such as

a previous residence, relative, representative1 or attorney's address, or company which did business

on behalfof either Kenneth McAfee or Janet F. McAfee, including, but not limited to the following:

a. PO Box 66352, Houston Texas, ?7266

b. PO Box 460786 Houston, Texas, 77056

c. 6650 Fairfield Street Houston, Texas, 77023

d. 2119 Tangley Houston, Texas, 77005

which contain:

(i) Funds transfened from 01· that can be traced to the accom1ts described

herein, including but limited to accounts at The OMS Group, LLC,

Aem~ Tem-porary lnjunetloo BoflO

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

A ..d_f_o

Starling G: S8n8Challl!

Deputy

06/08/2011 WED 9:21 FAX 7132243111 Law Office fili010/011

06/0712011 10:59 Mitchell & Duff Attorneys at Law (FAX)2813415517 P.OlOIOt 1

Woodforest National Bank1 Bank of America. N.A., BBVA Compass

Bank1 Wells Fargo Bank, N.A., Citizens Financial Group, Inc.,

Pershing LLC, and G.nlt'llal & Co,1 Inc.; and/or

(ii) Any and all additional funds and assets w,hich arc preswned to

contain community funds and/or funds belonging to the Estate.

,

IT IS THEREFORE ORDERED, AD.nJDGED AND DECREED that any entity or

individual, including but not limited to The GMS Group, LLC, Woodforest National Bank, Bank of

America, N.A., BBVA Compass Bank, Wells Fargo Bank, N.A., Citizens Financial Group, Inc.,

Pershing LLC, and Grutnal & Co., Inc., which contains, controls, or possess~s funds presumed to

belong to the community and/or Estate, is ordered by the Court to effectuate the terms of tbis

Temporary Injunction should Kenneth McAfee, or any officers, agents, servants, employees, agents,

servants, successors, assigns, representatives> and/or attorneys acting on ms behalf, attempt to access

or obtain accounts or property within that entity or individual's control or possession, which may

contain commtmitY funds and/or funds that belong to 'the Estate.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this Temporary

Injunction Order is effective immediately and shall continue in force and effect until the Court me.keil

a detClmination of what property belongs to the Estate or the Court 1'enders a full and fmaljudgment

is in the pending wrongful deatl1 suit associated with this matter, which ever is later, or by further

order of this Court. This order shall be binding on Kenneth McAfee, or any officers, employees,

agents, servants, successo1·s> assigns, representatives, attorneys acting on his behalf, and on those

persons in active concert or participation with him. The bond posted by the Administratrix is

required to remain posted.

Agreed 'fe111por~ry llljuneclon 9or10

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

A_Ad .o

Sterling G. Senechal II!

Deputy

06/08/2011 WED 9:22 PAX 7132243111 Law Office ~011/0ll

06/0712011 10:59 Mitchell & Duff Attorneys at Law (FAX)2813415517 P.011/011

':X) tI

SIGNEDon~~~ at~m.

APPROVED AS TO FORM:

Duff

Texas o.06J66880

21 0 Main Street

Richmond, TX 77469

Tel. (281)34IM1718

Fax. (281)34lM5517

Atton1ey for Independent Administratrix

Ro~ol~~

By:.___ ~~~---------------

DEAN M. BLUMROSEN, ESQ.

State Bar No. 02517900

4615 Southwest Freeway, Suite 850

Houston, Texas 77027

7l3.S24.222SM Telephone

713.524.557~ Faoslmil

Attomey for Heirs f et Foltyn McAfee

I

.;a -

r-

ro

0

.CN

RECORDER'S MEMORANDUM:

At tho time of recordation, lhll Instrument was

round to be lnadaqusto for the belt photographic

reproduction because of Illegibility, carbon or

photo copy, dlacolored paper, etc. AIJ blockoull,

,1\groecl 'romporK., lojuoclloo 10 of 10 addlllona and changes were pro~~&nt allhe lima

the Instrument was filed and rucordad.

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

J,t..Jd

Sterling G. Senechal II!

_Q Deputy

Tab2

Order

.. PROBATE COURT I

r~ NO. 396,935-401

a

c

r:: ROSEMARY FOLTYN, Individually §

(~.

And as Independent Administratrix of the§ \_

0 Estate of Janet Foltyn McAfee, Deceased; §

(\J AND JAKE FOLTYN, Individually §

o:l Plaintiffs §

0 §

§

I -

~

I C'J vs.

§

§

§

,.,

(\j

KENNETH COOPER MCAFEE §

N Defendant § HARRIS COUNTY, TEXAS

C'l

c

ORDER

On this day the Court considered the Plaintiffs' Second Amended

Motion for Summary Judgment on Plaintiffs wrongful death claim. The

Court, after considering the pleadings, the motion, the response, if any,

and the arguments of counsel, is of the opinion that the Plaintiffs'

Second Amended Motion for Summary Judgment is hereby

GRANTED. Defendan~, Kenneth Cooper McAfee is liable to the

individual Plaintiffs for causing the death of their daughter, Janet

McAfee.

ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary

Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after

all offsets and credits, judgment in the amount of $1,000.000.00 for her

1

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

A4LoSter11ng G. S nechal Ill

Deputy

.I -

.....

emotional pain and suffering due to the death of her daughter, Janet McAfee.

It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake

Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after

all offsets and credits, judgment in the amount of $1,0001 000.00 for his

emotional pain and suffering due to the death of his daughter, Janet McAfee.

This judgment shall accrue together with interest thereon at the rate of 5% per

annum from the date this suit was filed on February 23, 2011, until the date

of judgment, post-judgment interest at the rate of 5% per annum, and for all

costs of Court expended in this cause, for which let execution issue. This

Judgment finally disposes of all parties and is appealable.

SIGNED this ~~ ..rr- day of_---=-/-~

?2ar=--=cb~'----' 2014.

JUDGE LOYD WRIGHT

2

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

A.4d. .a

Ster11ng G Senech 1111

Deputy

Tab3

Application for Writ of

Garnishment

FILED

10/9/2014 10:18:51 AM

Stan Slanart

PROBATE COURT 1 County Cieri<

OM Hams County

JANET F. MCAFEE, DECEASED 396935-401

NO. _ _ __

0 ROSEMARY FOLTYN, Individually§ IN THE PROBATE COURT

AND JAKE FOLTYN, Individually§ ONE

Plaintiffs §

§

§

§

§

§ OF

§

,.. vs. §

0 §

THE GMS GROUP, L.L.C. AND §

WOODFOREST NATIONAL §

BANK § HAREITSCOUNTY,TEXAS

Defendants 1 PER WRIT BY CERTIFIED MAILED

APPLICATION FOR WRIT OF GARNISHMENT1 PER WRIT IN

10-9-2014

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Rosemary and Jake Foltyn (hereinafter referred to as

"Gamishors") and makes this Application for Writ of Garnishment against

The GMS Group, L.L.C., and Woodforest National Bank, (hereinafter

referred to as "Garnishees") and, in support hereof, Garnishors would show

the Court the following:

I.

1. Plaintiffs/Garnishors are Rosemary and Jake Foltyn

("Garnishors").

Application for Writ of Garnishment Page 1

C.P!RSONAL OCT 1 3 2014

·-··--·- ---. ·-· ··· - - - - · - - -- ----- ..... .. ··---- ---- .. - .

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A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

.A,4d_ .a

St rUng G. S n challll

Deputy

2. Defendant/Garnishee, LGMS Group, L.L.C., is a limited

liability company doing business in Texas and may be served by serving its

registered agent, via certified mail, return receipt requested, Corporation

Service Company, DIBIA CSC -Lawyers Tnco,~E. 7&. Street, Suite 620,

'I:J'

Austin, Texas 78701.

3. Defendant/Garnishee~::dforest National Bank is a privately

held bank doing business in Texas and may be served by personally serving

its~tered agent, James D. Dreibelbis, 25231 Grogan's Mill Road, Suite

100, The Woodlands, Teas 77380.

4. Venue is appropriate in Harris County, Texas because the

Judgment was rendered in Harris County, Texas.

II.

5. On or about March 21,2014, this Court, in case number 396,935-

401 styled Rosemary Foltyn, Individually and as Independent Administratrix

ofthe Estate ofJanet Fo/tyn McAfee, Deceased; and Jake Foltyn, Individually

v. Kenneth Cooper McAfee entered a Judgment against Defendant, Kenneth

Cooper McAfee in the amount of $2,000,000.00, plus pre and post judgment

interest, plus costs of Court ("Judgment"). A true and correct copy of the

Application for Writ of Garnishment Page 2

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A Certified Copy

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Stan Stanart, County Clerk

Harris County, Texas

Judgment is attached hereto as Exhibit "A" and incorporated herein by

reference for all purposes. This Judgment is just, due, unpaid, and remains

unsatisfied.

,~

III.

6. To the best of Garnishors' knowledge, the debtor, Kenneth

Cooper McAfee does not possess property in Texas subject to execution that

,..

Cl is sufficient to satisfy the above-described claim. Plaintiffs served post-

,..

judgment discovery on Mr. McAfee on April 21, 2014. Defendant did not

produce any documents establishing his ownership of property in Texas

sufficient to satisfy the judgment against him.

IV.

7. Gamishors have reason to believe, and do believe, that

Garnishees, The OMS Group, L.L.C., and Woodforest National Bank, may be

indebted to Kenneth Cooper McAfee by maintaining or holding one or more

bank accounts. Gamishors believe Kenneth Cooper McAfee's social security

number to be 454-82-X:X:XX. Gamishors are not seeking to injure or harass

the Garnishees or the Judgment Debtor by sending out a Writ of Garnishment.

Rather, Garnishors are attempting to collect on a Judgment. Gamishors

request that if Garnishees, The OMS Group, L.L.C., and Woodforest National

Application for Wrtt of Garnishment Page 3

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

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Stan Stanart, County Clerk

Harris County, Texas

Sterling G. Senechaf 111

Bank are indebted to Kenneth Cooper McAfee by any account or otherwise,

that Garnishees hold and allow Garnishors to garnish said belongings.

Garnishors also request that if Garnishees hold possessions in a safety deposit

box at any branch that Garnishees hold and allow Gamishors to garnish said

belongings as pennitted by law.

v.

8. This Application is supported by the Affidavit of Dean M.

Blumrosen attached hereto as Exhibit "8" and incorporated herein by

reference for all purposes.

WHEREFORE, PREMISES CONSIDERED, Rosemary and Jake

Foltyn, request that a Writ of Garnishment be issued as above described and

that Gamishors have judgment to partially satisfy the claim above-mentioned

as provided by law, together with all costs of Court incurred in this

proceedings, and other such relief to which Garnishors may be justly entitled.

Application for Writ of Garnishment Page 4

- - - - - - -- ··· ···· · · · - -·······-··- - - -- -

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

··------------------------------------------------

C)

il. R~~t~

DEAN M. BLUMROSEN, ESQ.

State Bar No. 02517900

4615 Southwest Freeway, Suite 850

~1 Houston, Texas 77027

.... 713.524.2225- Telephone

0 713.524.5570- Facsimile

N Dblumrosenlaw@aol.com

ATTORNEY FOR PLAINTIFFS

I'"'

Application for Wtit of Garnishment Page 5

. ····- ··· ·-·-···- ··· - ---- - --·· - -· ... ... ... . . ······· .. .

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

('J

1;\j

EXHIBIT A

------------------- -····

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

Deputy

NO. 396,935-401

ROSEMARY YOLTYN, fndlvlduall)' § IN THE PROBATE COURT ONE

And as Independent Adminl~tnltrix of the§

Estate of .Jaaet Foltyn McAfee, Deceased; §

AND JAh.'"E FOLTYN, Individually §

,..... Plaintifft §

§

§ OF

§

I"'

1'", vs. §

1\J §

t".. KE!IINETH COOPER MCAFEE §

'••'

Defendant § HARRIS COUNTY, TEXAS

,..

ORDER

On this day the Court considered the Plaintiffs' Second Amended

Motion for Summary Judgment on Plaintiffs wrongful death claim. The

Court, after considering the pleadings, the motion, the response, if any,

and the arguments of counsel, is of the opinion that the Plaintiffs'

Second Amended Motion for Summary Judgment is h.ereby

GRANTED. Defendant, Kenneth Cooper McAfee is liable to the

individual Plaintiffs for causing the death of their daughter, Janet

McAfee.

ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary

Foltyn, Individually, recover from Defendant, KeMeth Cooper McAfee, after

all offsets and credits, judgment in the amount of $1,000.000.00, for her

1

I

!

I I'f

I,.

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy

Attest: 9/29/2015

Stan Stanart, County Clerk

Harris County, Texas

v ••

emotional pain and suffering due to the death of her dau~ter, Janet McAfee.

It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake

Foltyn, Individually, recover from Defendant, Kenneth Cooper McMee, after

all offsets and credits, judgment in the amount of $1,000.000.00, for his

emotional pain and suffering due to the death of his daughter, Janet McAfee.

This judgment shall accrue together with Interest thereon at the rate of 5% per

,,,

I,_..J

annum from the date this suit was filed on February 23, 2011, until the date

of judgment, post-judgment interest at the: rate of 5% per annum, and for all

costs of Court expended in this cause, for which let execution issue. This

Judgment finally disposes of all parties and is appealable.

SIGNED this ~I ..s-r- day of _ _!.:.../?2__.(:.-~oQ.C~ch..c;....)._ ___,, 2014.

JUDGE LOYD WRIGHT

2

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(,

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A Certified Copy

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Stan Stanart, County Clerk

Harris County, Texas

......

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(:)

EXHIBIT B

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A Certified Copy

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Stan Stanart, County Clerk

Harris County, Texas

A-<4L o

St nino G. Sen chef Ill

Deputy

AFFIDAVIT OF DEAN M. BLUMROSEN

STATEOFTEXAS §

§

COUNTY OF HARRIS §

BEFORE ME, the undersigned official, on this day, personally appeared before me,

Dean M. Blumrosen, who after being duly sworn, did depose and state as follows:

I. "My name is Dean M. Blumrosen.l am over 21 years of age, of sound mind,

have never been convinced of a felony and um capable of making this

1::; allidavit.

2. ';I om nn attorney for Rosemary and Jake Foltyn., Gamishors in this

Garnishment.

3. ;'I have personal knowledge of the facts as stated in Garnishors' Application

r~ W<h ofGom;•hmom Md '"'' ~ 'hl-lliL

DEAN M. BLUMROSEN

Subscribed and sworn to before me on this~ day of October, 2014

IICHEl.L£ GAIRtli.A fOR$1111

,)ly c-IIIIGCill!lm

\)CIOIItll, 2011

.

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A Certified Copy

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Stan Stanart, County Clerk

Harris County, Texas

Tab4

Motion to Quash Writs of

Garnishment

FILED

1111!112014 4:12'2~ PM

stan:Stanan

Coun1YCIG11<

PraOBATE COURT 1 Hsllf> CouniY

522CAUSE NO. 396935-401

N

c INRE § IN THE PROBATE COURT

().

JANET F. McAFEE, §

Deceased § NUMBER ONE

§

ROSEMARYFOLYNand §

i JAKEFOLYN §

i .. §

I~ ~ § OF

10 §

iN THE GMS GROUP, LLC and §

I~ WOODFOREST NATIONAL BANK,

Defendants

§

§

HARRIS COUNTY, TEXAS

MOTION TO QUASH WRITS OF GARNISHMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Charles Storer, Power of Attorney for Charles McAfee, Defendant

herein, and holder of the accounts Plaintiffs seeks Via the Writs of Garnishment Issued

by this Court, who m011es to quash (dissolve} the two Wrfts of Garnishment issued post-

judgment in this cause (to Woodforest National Bank and GMS Group}, as the Writs

reach accounts andlor assets that are wholly exempt from the reach of judgment

creditors (indeed from the reach of all creditors). In support of this Motlon, Mr. storer,

would show the following: 1

I. INTRODUCTION AND SUMMARY

1. This Court Issued two writs of garnishment at the request of Plaintiffs. While a

judgment creditor has a right to pursue collection on their judgment, including via

garnishment upon depository aocounts, Texas and federal law sharply limit what

property of a judgment debtor may be taken. Here, both or the accounts are

1

Mr. McAfee deslgnated a Power of Attorney heta\lse he 1s incarcerated.

..... or

MOnoN TO QIJ.I.SH WRFT-5 GAAHISHMEJlf

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A Certified Copy

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Stan Stanart, County Clerk

Harris County, Texas

Deputy

entirely and undividedly, protected from the reach of all creditors. Because these

.-

N

0 accounts may not be taken by any creditor, with any judgment, the two Writs

0.

issued while the Court was unknowing of the exempt status of these accounts,

0

1'1 should and must be quashed.

II. FACTS AND PROCEDURAL HISTORY

,...<IJ 2. Mr. McAfee was convicted of a criminal offense Involving the death of the

0

N decedent, Janet Foltyn McAfee, and Is currently serving his sentence at a Texas

0

N

correctional institution. The underlying claim was a wrongful death action against

Mr. McAfee. This Court found for the Plaintiffs In the wrongful death action.

3. Post-judgment, the Plaintiffs sought from this Court, and received, two Writs of

Garnishment. The Application for Writs of Garnishment made no mentlon of the

exempt status of either account. Rather, the Application simply noted that the

garnishees, both Woodforest and GMS, may be indebted to the Defendant 'by

maintaining or holding one or more bank accounts." Application for Writ of

Garnishment, 117.

4. The first Writ of Garnishment reached Mr. McAfee's depository account at

Woodforest National Bank ("Woodforest'). This account, however, is beyond the

reach of all creditors, including the judgment creditors in this cause, because the

account was opened to receive, received, and Is now holding funds received

pursuant to the federal Social Security Disability insurance ('SSDI') system. The

account contains no funds other than those received as Social Security benefrts.

5. The second Writ of Garnishment reached Mr. McAfee's depository account held

by his former employer, GMS Group, L.L.C. ('GMS'). This account is also

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