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ACCEPTED 04-18-00008-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/22/2018 10:29 AM No. 04-18-00008-CV Court of Appeals, Fourth District FILED IN 4th COURT OF APPEALS San Antonio, Texas SAN ANTONIO, TEXAS 1/22/2018 10:29:59 AM KEITH E. HOTTLE CLERK In re Maria Cecilia Martinez Relating to Cause No. PR-06-004 in the County Court at Law Starr County, Texas FIRST SUPPLEMENTAL RECORD ON MANDAMUS VOLUME J. Joseph Vale jvale@atlashall.com State Bar No. 2408400
3 Or. Carl Hamilton och@atlashall.com State Bar No. 08847000 ATLAS, HALL & RODRIGUEZ, LLP 818 Pecan/P.O. Box 3725 McAllen, Texas 78501 (956) 682-5501 (phone) (956) 686-6109 (facsimile) Attorneys for Real Parties in Interest Maria Iris Trevino and Maria Del Rosario G. Pope January 22, 2018 001 TO THE HONORABLE COURT OF APPEALS: Real Parties in Interest Maria Iris Trevino and Maria Del Rosario G. Pope file this First Supplemental Record on Mandamus Volume along with their Response to Petition for Writ of Mandamus filed on this same date, relating to Cause No. PR-06- 004 in the County Court at Law, Starr County, Texas. This volume contains sworn copies of pleadings and documents relevant to this proceeding and a transcript authenticated by the court reporter. The entire volume has been bates stamped for ease of citation. The index for this supplemental volume is attached as an exhibit followed by the record documents. Respectfully submitted, ATLAS, HALL & RODRIGUEZ, LLP 818 Pecan/P.O. Box 3725 McAllen, Texas 78501 (956) 682-5501 (phone) (956) 686-6109 (facsimile) By: /s/ J. Joseph Vale J. Joseph Vale jvale@atlashall.com State Bar No. 2408400
3 Or. Carl Hamilton och@atlashall.com State Bar No. 08847000 Attorneys for Real Parties in Interest Maria Iris Trevino and Maria Del Rosario G. Pope 2 002 Verification STATE OF TEXAS § § COUNTY OF HIDALGO § Pursuant to Texas Civil Practice & Remedies Code § 132.001, on this day personally appeared J. Joseph Vale and declares under penalty of perjury that the following is true and corTect: 1. My name is J. Joseph Vale. I am one of the attorneys for Maria Iris Trevino and Maria Del Rosario G. Pope, real parties in interest the above-referenced cause. I am above the age of eighteen, have never been convicted of a felony or a crime of moral turpitude, and am competent to make this declarntion. The facts stated herein are within my personal knowledge and are true and correct. 2. The documents and pleadings contained in Trevino and Pope 's First Supplemental Record on Mandamus Volume are true and correct copies of the originals appearing in the trial court's record. The documents and authenticated transcript have been "bates stamped" for ease of citation. I declare under penalty of perjury that the foregoing is true and correct. Executed on: January 22, 2018. Ju rat My name is J. Joseph Vale, my date of birth is December 19, 1986, and my address is 818 W. Pecan Blvd., McAllen, Texas 78501, United States of America. I declare under penalty of perjury that the foregoing is true and correct. Executed in Hidalgo County, State of Texas, on the 22nd day of Janu 3 003 Certificate of Service I certify that the foregoing document (and any attachments) was electronically filed with the Clerk of the Court using the electronic case filing system of the Court. I also certify that a true and correct copy of the foregoing was served on all counsel of record on January 22, 2018, as follows: Recipient: Attorney for: Served by: Keith C. Livesay Executrix/relator Electronically if (rgvappellatelaw@yandex.com) available, or by LIVESAY LAW OFFICE Maria Cecilia G. email 517 West Nolana Martinez McAllen, Texas 78504 Marcel C. Notzon, III Executors/real Electronically if (mcn@notzonlawfirm.com) parties in interest available, or by THE NOTZON LAW FIRM email Northtown Professional Plaza Maria Celeste G. 6999 McPherson, Suite 325 Narro, Ignacio Laredo, Texas 78041 Gutierrez, and Maria Minerva G. Guerra Hon. Romero Molina Respondent Certified mail, Starr County Courthouse return receipt 401 N. Britton Avenue requested Rio Grande City, Texas 78582 J. Joseph Vale 4 004 Record Index First Supplemental Volume Date Tab Document 11/16/16 1 Trevino and Pope’s Response to the Motion for Plea to the Jurisdiction 11/17/16 2 Transcript of Hearing on Partial Settlement 01/04/18 3 Trevino and Pope’s Motion to Clarify or Amend Order (along with proposed orders) 01/04/18 4 Martinez’s Response to Motion to Clarify or Amend Order 01/04/18 5 Order Setting Hearing on Motion to Clarify or Amend Order (signed) 01/09/18 6 Martinez’s proposed orders on Motion to Clarify or Amend Order 01/09/18 7 Amended Order Denying Plea to the Jurisdiction (signed) 5 005 TAB 1 OF THE RECORD 006 CAUSE NO. PR-06-004 IN THE ESTATE OF § IN THE COUNTY COURT § IGNACIA G. GUTIERREZ, § OF § DECEASED § STARR COUNTY, TEXAS RESPONSE TO THE MOTION FOR PLEA TO THE JURIDICTION TO THE HONORABLE JUDGE OF SAID COURT: MARIA DEL ROSARIO POPE and MARIA IRIS G. TREVINO, two of the Executors of the Estate of Ignacia Gutierrez, file this response to the Motion for Plea to the Jurisdiction filed by Maria Cecilia G. Martinez, Maria Celeste G. Narro, Jose \. Gutierrez and Maria Minerva G. Guerra and say: 1. In the Motion for Plea to the Jurisdiction, the Movants misstate which motions have been filed on behalf of Maria del Rosario G. Pope and Maria Iris G. Trevino. a. The plea refers to the Motion to Allow One Executor to Convey Property and Sign Distribution Deeds. That motion was filed by Marlane Meyer on behalf of Maria Cecilia G. Martinez, and not by the undersigned attorney. b. The Motion to Allow Three Executors to Convey Property, or Alternatively Remove Executors Refusing to Sign Distribution Deeds was also filed by Marlane Meyer, and not by the undersigned attorney. 2. The other motions mentioned in the Motion for Plea to the Jurisdiction were filed by the undersigned the attorney, and the court does have jurisdiction to consider those. a. Third Amended Motion to Allow Executors to Convey Property and Sign Distribution Deeds. Section 307.002(b) of the Estate Code authorizes the court to allow fewer than all to sign. 007 b. Motion to Remove Independent Executors. The court is authorized to do that pursuant to Sections 404.003 and 404.0035 of the Estate Code for gross mismanagement of Estate funds. c. Motion to Have Accounting Deemed Accepted. Section 405.001 of the Estate Code provides that any interested person may petition the court for an accounting or distribution. The motion before the court is to get the accounting accepted, and hence the court has jurisdiction over that. d. Motion to Require the Co-Executors to Provide Information. This is in the nature of discovery, and all of the Texas Rules of Civil Procedure, including the discovery rules, are applicable to probate proceedings (Rule 2, Texas Rules of Civil Procedure). Hence, the court has jurisdiction of discovery matters and may impose sanctions if the court's discovery orders are not complied with. 3. Maria del Rosario G. Pope and Maria Iris G. Trevino have now filed a motion asking the court for an order requiring distribution of the Estate. The court's jurisdiction is therefore invoked under Section 405.001 of the Estate Code, and the court has jurisdiction to order distribution of the Estate. 4. The court therefore has jurisdiction to decide all of the above-mentioned motions pending before the court, and the Motion for Plea to the Jurisdiction should be denied. WHEREFORE, PREMISES CONSIDERED, Movants pray that the Court deny the Motion to the Plea to the Jurisdiction filed by Maria Cecilia G. Martinez, Maria Celeste G. Narro, Jose I. Gutierrez, and Maria Minerva G. Guerra. 008 Respectfully submitted, ATLAS, HALL & RODRIGUEZ, LLP P. O. Drawer 3725 (78502) 818 West Pecan Boulevard McAllen, Texas 78501 (956) 682-5501 (956) 686-6109 - Facsimile By: O.C. Hamilton, Jr. Texas State Bar No. 08847000 E-Mail: och@atlashall.com Attorney for Maria Iris G. Trevino and Maria Del Rosario G. Pope CERTIFICATE OF SERVICE I hereby certify that on I have served a true and correct copy of the above and foregoing document on the parties or their attorneys of record through the electronic filing manager and in accordance with Rule 21a of the Texas Rules of Civil Procedure on the /(/(h day of November 2016 .. mcn@notzonlawfirm.com Marcel C. Notzon, III The Notzon Law Firm Northtown Professional Plaza 6999 McPherson, Suite 325 Laredo, Texas 78041 O.C. Hamilton, Jr. 009 TAB 2 OF THE RECORD 010 1 CAUSE NO.PR-06-004 REPORTER’S RECORD IN THE MATTER OF § IN THE COUNTY COURT § THE ESTATE OF § AT LAW § IGNACIA G. GUTIERREZ § STARR COUNTY, TEXAS * * * * * * * * * * * * * * * * PRETRIAL HEARING ON ALL PENDING MOTIONS * * * * * * * * * * * * * * * * On the 17TH day of November, 2016, the following Proceedings came on to be heard in the above-entitled and numbered cause, before the Honorable Romero Molina, Judge Presiding, held in Rio Grande City, Starr County, Texas Proceedings reported by oral stenography 011 2 A P P E A R A N C E S: MARCEL C. NOTZON, III THE NOTZON LAW FIRM State Bar of Texas No. 15119001 6999 McPherson Rd., Suite 325 Laredo, Texas 78041 Tel. (956)717-1961 Fax ATTORNEY FOR THE ESTATE JOHN ANDREW ‘JOHN’ RIGNEY RIGNEY LAW FIRM State Bar of Texas No. 24089356 4712 N. McColl Road McAllen, Texas 78504 Tel. (956) 638-6421 Fax: ATTORNEY FOR CECILIA MARTINEZ OSCAR C. ‘CARL’ HAMILTON, JR. ATLAS, HALL & RODRIGUEZ, LLP State Bar of Texas No. 08847000 818 West Pecan Boulevard P.O. Box 3725 McAllen, Texas 78502-3725 Tel. (956)682-5501 Fax JUDGE JOHN A. POPE, III LAW OFFICE OF POPE AND POPE, PLLC State Bar of Texas No. 16133000 200 N. Britton Ave. Rio Grande City, TX 78582 Tel. (956)488-1896 Fax ATTORNEYS FOR MARIA GUTIERREZ TREVINO AND MARIA ROSARIO G. POPE. 012 3 1 THE COURT: The Court is going to call PR- 2 06-004, In the Matter of the Estate of Ignacia G. 3 Gutierrez. 4 MR. NOTZON: Marcel Notzon on behalf of the 5 Estate of Ignacia G. Gutierrez. 6 MR. HAMILTON: Carl Hamilton on behalf of 7 Iris Trevino and Rosario Pope. 8 MR. RIGNEY: John Rigney, Your Honor, on 9 behalf of Ms. Martina Cecilia Martinez -- I mean, Cecilia 10 Martinez. 11 MR. NOTZON: Judge, basically, we’ve had 12 various discussions and I thing we’ve reached an agreement 13 with regard to how the estate should proceed forward. And, 14 basically, our agreement is as follows: With regard to the 15 survey of the Mirasoles Ranch and Chapote Ranch, that will 16 be -- proceed forward; will be paid from the estate up to 17 twelve thousand dollars. There’s Rosario Pope had her 18 property surveyed previously, I think a few years ago, and 19 the estate will reimburse her three thousand for that per 20 agreement. They said it was six thousand, but she’s agreed 21 to three thousand. And, you know, no compensation for her 22 services. 23 Basically, the parties have agreed to a 24 mutual accountant that both Cecilia Martinez and Rosario 25 Pope use, which is Rolando Flores. He will do an 013 4 1 accounting of the estate for the past couple of years. 2 And basically, with regard to the ETT 3 litigation -- 4 MR. HAMILTON: Excuse me just a minute. And 5 he will be paid by the people who hire him and not the 6 estate. 7 MR. NOTZON: Right. At this time, that’s 8 correct. 9 MR. NOTZON: And basically -- and with 10 regard to the ETT litigation, there was a separate -- 11 THE COURT: I’m sorry. What is that? 12 MR. NOTZON: ETT Versus -- there’s some 13 property that belonged to three of heirs -- I think Jose 14 Ignacio Gutierrez, Minerva Guerra and Celeste Narro. There 15 was litigation on that. There’s two hundred and twelve 16 thousand in the registry of the court. They’ve agreed that 17 the estate is -- has no interest in that property pursuant 18 to the law, and so they’re relinquishing any and all claim 19 to those funds. So any settlement with ETT -- 20 THE COURT: There’s litigation still pending 21 regarding that matter? 22 MR. NOTZON: Right. 23 THE COURT: And they’re giving up any 24 interest in the litigation and in the funds. 25 MR. NOTZON: That’s correct. 014 5 1 MR. HAMILTON: Correct. 2 MR. NOTZON: Mr. Hamilton and his clients 3 agree to that. Also -- what’s the last thing? 4 MR. HAMILTON: There’s two other -- 5 MR. NOTZON: Oh, with the cattle, both sides 6 will do a new inventory of the cattle. Mr. Schifelbaum can 7 go over to the Mirasoles Ranch and the 377 acres just to 8 verify what cows and cattle are there. And they can have a 9 representative go to the Chapote Ranch and verify what 10 cattle are there. We’ll try to get that done by, maybe, 11 November 30th or the first week in December, according to 12 the schedule of the parties. And then we can allocate the 13 cattle accordingly, by agreement, or -- 14 MR. HAMILTON: We’ve already inventoried and 15 furnished them with an inventory. They furnished us with 16 an inventory. There’s about two or three cows difference. 17 So our agreement, after we verify that, is going to be that 18 whatever is on the Chapote Ranch, they keep. Whatever is 19 on the Mirasoles Ranch, the owners of that keep. 20 MR. NOTZON: Subject to this accounting. 21 THE COURT: Correct, unless there’s some 22 discrepancies in the accounting. 23 MR. HAMILTON: The other -- the other 24 agreement, Your Honor, is with respect to the deeds for 25 distribution of the estate. Way back in 2009, Mr. Notzon 015 6 1 prepared some deeds. And some of the folks got them and 2 recorded, and they’re incorrect in many respects. 3 Number 1, they convey all the minerals to 4 those grantees, and the deed provides that all the minerals 5 go into a mineral trust, so that’s wrong. The deeds also 6 convey some property that the estate didn’t own. And the 7 deeds may or may not take into account the disclaimers. We 8 only have some of the deeds and not all of them. 9 So we need to redo those deeds and file 10 correction deeds. And as the Court knows, the grantees are 11 going to have to sign off on all those deeds because 12 they’re substantive changes in them. And so we need an 13 agreement that once the deeds are prepared and ready to by 14 executed, that the grantees of the deeds will all sign off 15 on those. 16 Will they agree to that? 17 MR. NOTZON: Right, to the extent that 18 there’s an error on that, that will be corrected. All of 19 the beneficiaries, including the ones that received 20 disclaimers, need to have a proper deed. So to the extent 21 that there’s an error on those deeds, we’ve agreed to 22 correct that and give the respective percentages. 23 THE COURT: There’s new -- 24 MR. HAMILTON: I beg your pardon? 25 THE COURT: There’s new law regarding 016 7 1 corrections. I’m assuming you all will follow that. 2 MR. HAMILTON: Yes, Your Honor. That’s what 3 requires -- 4 THE COURT: Do affidavits and stuff like 5 that in lieu of actual correction deeds. 6 MR. HAMILTON: That’s what requires the 7 grantees to sign off on them. 8 THE COURT: Then you’re aware of that and 9 will comply with those. 10 MR. NOTZON: Just by way of example -- just 11 -- so I think we’re on the same page. For example, Rosario 12 Pope, she disclaimed fifty percent of certain property of 13 the estate and twenty-five percent went to Douglas Pope, 14 and twenty-five -- her son -- and twenty-five percent to 15 Rachel Pope, her daughter. So basically, instead of 16 receiving 1/6th she’s going to receive 1/12th, and each of 17 the children will receive 1/24th. Or he wanted to put it in 18 percentages like 50% of 1/6th, and then 25% of 1/6th to 19 Douglas, 25% of 1/6th to Rachel. Is that correct? 20 MR. HAMILTON: Yes. 21 MR. NOTZON: Okay. 22 MR. HAMILTON: Now the other thing is that 23 we prepared -- when we were asked to prepare the deeds to 24 distribute the entire estate, we did so for, not only the 25 clients that own Mirasoles, but also the parties that own 017 8 1 the Chapote Ranch. And up until now, I don’t think there’s 2 been any agreement on the descriptions that Mr. -- that 3 Judge Pope found. That’s why they wanted these surveyed. 4 I intend to -- with the Court’s permission? 5 We have a motion pending for two executors to sign these 6 deeds, rather than all of them. And my motion would ask 7 the Court to grant that and allow these two executors to 8 sign these deeds. And we proposed to sign the deeds to 9 Mirasoles and everything that goes to Iris and Rosario, but 10 not deeds to your other folks if they don’t want them. If 11 they want to use the deeds we prepared, fine. If you want 12 to do some other deeds or whatever, we don’t care, because 13 I don’t represent those people on those deeds. So I think 14 we need to have -- 15 THE COURT: And those deeds are property 16 that’s not going to covered by this re-survey of these two 17 ranches? 18 MR. HAMILTON: No, these are in addition to. 19 THE COURT: They’re in addition? 20 MR. HAMILTON: They’re in addition. 21 THE COURT: You don’t have any problems with 22 those legal descriptions? 23 MR. NOTZON: Well, that’s why we need the 24 survey for Cecilia. Specifically, on my client, I don’t 25 think there will be a problem for the Chapote Ranch, but -- 018 9 1 or for those set of executors and beneficiaries. But for 2 Mirasoles, there is Iris and Cecilia that are receiving the 3 bulk of Mirasoles. There’s about a hundred and fifteen 4 acres that has to be carved out of Mirasoles. 5 And Mr. Hamilton is correct. We have to 6 agree on the dimensions. She specifies, “We want it on 7 Escobas Road.” And so we need to figure out where are 8 those -- what dimensions are the hundred and fifteen acres 9 are going to be from, and then get a metes and bound 10 description of that. So this survey should help us get 11 that done, to the extent that there are judicial 12 partitions, which I think there are in several of the 13 properties. I think, generally, we’re going to have to go 14 with the judicial partition even if there is a shortage or 15 excess acres. 16 They will know exactly where, per the 17 survey, the fence lines of the property are. You know, 18 well you’ve got five acres excess or five acres short, 19 they’ll know that, for their own dealings in the future, 20 which is, I assume why Rosario had hers done a couple of 21 years ago -- her three hundred and seventy-seven acres. 22 But generally, once we -- the surveys should 23 be ready within about ten to fourteen days. Once I get 24 that, I’ve agreed to give that to Mr. Hamilton and Mr. 25 Pope. And from there, I’ve very hopeful we should reach an 019 10 1 agreement as to what the deeds should say. So I don’t 2 there should be any -- 3 THE COURT: Who is the surveyor? 4 MR. NOTZON: It is Howland Engineering out 5 of Laredo. And they’re also doing the ad joinders, as the 6 Court had suggested. And they’ve also done not as much as 7 Melvin and Hunt, but they’ve done -- I mean, their price 8 was very reasonable at twelve thousand for both of these 9 properties. 10 MR. RIGNEY: If I may, Judge? My client is 11 -- in this agreement that we’re doing, the understanding 12 was that we are no longer pursuing the only -- only two of 13 the heirs to be the executors. And we were honoring the 14 intent of the Will, which was there’s four independent 15 executors, and those four independent executors will be 16 left alone to do their job. Which means after the surveys 17 are complete -- and Your Honor is correct in the fact that 18 the survey will affect the Mirasoles Ranch as well -- the 19 descriptions will be found properly. The surveys will be 20 done. There’ll be new deeds done to everybody and they 21 will be approved by the four independent executors, 22 according to the will of the deceased. 23 And that was the understanding that we were 24 coming forth here today before Your Honor. If that is -- 25 if I’m mistaken in that understanding, then we need to go 020 11 1 back to the drawing table. 2 MR. HAMILTON: Well, we didn’t really 3 discuss that in there in our settlement discussion. 4 MR. RIGNEY: No, we said -- 5 MR. HAMILTON: The Court has the authority 6 to authorize less than the four or less than the six to 7 sign the deeds. 8 THE COURT: Well why don’t get all the 9 survey work and all that, and then maybe we can cross that 10 bridge when we get to it. 11 MR. HAMILTON: Who’s going to sign the 12 deeds, yeah. 13 MR. NOTZON: Yeah, and there may not be a 14 problem. 15 THE COURT: See if you can agree on all of 16 the descriptions and then get a preliminary agreement on 17 that. And then it shouldn’t even matter who’s going to 18 sign on them, as long as everybody is in agreement. 19 MR. NOTZON: Okay. I think that’s a good 20 agreement, Judge. 21 THE COURT: Is that satisfactory to all 22 parties? Mr. Hamilton, is that okay with you? 23 MR. HAMILTON: That’s fine, Judge. 24 THE COURT: Counsel? 25 MR. NOTZON: That’s fine. 021 12 1 MR. HAMILTON: The other thing that we 2 needed to discuss was we need to get the house sold. And I 3 think we’ve agreed that -- 4 MR. NOTZON: I’m going to contact a realtor 5 to get a proposal. 6 MR. HAMILTON: I forgot his name already. 7 THE COURT: Let me elicit his approval. 8 You’re okay with that as well, that we’re going to get this 9 survey done. 10 MR. RIGNEY: What Your Honor proposed. 11 THE COURT: When we get an agreement on all 12 the legal descriptions, then we’ll decide on who is going 13 to be actually be signing the documents. 14 MR. RIGNEY: I’m okay with that at this 15 time, Your Honor. 16 THE COURT: Okay. Go ahead. I’m sorry, Mr. 17 Hamilton. Go ahead. 18 MR. HAMILTON: A realtor here or in McAllen 19 is going to contact Mr. Notzon. What’s his name? 20 THE COURT: Which house is this that is 21 going to be sold? 22 MR. POPE: Michael Ramey. 23 THE COURT: Which house is this that is 24 going to be sold? 25 MR. HAMILTON: Mrs. Gutierrez’, the 022 13 1 Testator. 2 THE COURT: Oh, the one by the highway? 3 MR. HAMILTON: Yeah, it needs to be sold to 4 stop the taxes and the upkeep and everything on it. And 5 Mr. Ramey -- 6 THE COURT: No one is in the house at 7 current? 8 MR. HAMILTON: No, sir. 9 THE COURT: No one is occupying the house? 10 MR. NOTZON: No one is occupying it. 11 THE COURT: Mr. Ramey, he’s a recognized 12 realtor in the area. Is there any problem with Mr. Ramey? 13 MR. HAMILTON: He’s going to use -- 14 MR. NOTZON: I think, just so it’s clear for 15 the beneficiaries, this is solely to get a proposal from 16 Mr. Ramey -- 17 MR. HAMILTON: To get a value. 18 MR. NOTZON: -- What he believes the value 19 is, then that would have to be -- 20 MR. HAMILTON: Right. Agreed to. 21 MR. NOTZON: -- agreed to by the executors. 22 MR. RIGNEY: Any my client is -- 23 MR. NOTZON: Whether someone wants to keep 24 it or -- 25 THE COURT: He’s not an appraiser. He’s 023 14 1 just a realtor. 2 MR. HAMILTON: He’s just a realtor. 3 THE COURT: So you just want to get his 4 opinion on that? 5 MR. NOTZON: Right, like a market analysis 6 that they normally do. 7 MR. HAMILTON: Because there is no appraiser 8 here, we understand, in Starr County that does real estate 9 appraisals. 10 MR. RIGNEY: Your Honor, if -- 11 THE COURT: There’s some, but they’re highly 12 inaccurate, and it would be very unreasonable to find ad 13 joiners and to get numbers that are going to get us a real 14 idea. The tax rolls, I don’t think, would be accurate as 15 well, so. That’s a good place, I guess, to start. 16 So there’s no problem with Mr. Ramey, then, 17 giving us a number and then we’ll go from there? 18 MR. NOTZON: No. 19 MR. HAMILTON: No. 20 MR. RIGNEY: The only issue with my client 21 is that anything having to do with that home is to be 22 administered by the Independent Executors, not Mr. 23 Hamilton. The Independent Executors to estate right now 24 are in charge, and so they’re the ones that want to make 25 the decisions on that particular home. 024 15 1 MR. HAMILTON: I don’t administer anything, 2 Your Honor. 3 THE COURT: All we’re trying to do is -- 4 apparently there’s been an effort to sell the house, and 5 that effort should start with Mr. Ramey giving you a number 6 as to what he thinks its worth. After that, there’s 7 nothing to bind anybody to do anything. 8 MR. NOTZON: Exactly. It’s not binding 9 them. 10 MR. RIGNEY: Right. 11 THE COURT: Except if they number they like 12 and they want to engage him to try to sell it -- 13 MR. NOTZON: Exactly. 14 THE COURT: -- then you all agree, then we’ll 15 go over and start doing that. 16 MR. NOTZON: We’ll cross that bridge once we 17 get the proposal. 18 THE COURT: Nothing else is going to occur. 19 MR. RIGNEY: Absolutely. I just -- my 20 client just wanted it to be clear on the record that that’s 21 something for the Independent Executors to -- 22 THE COURT: You have no problem with Mr. 23 Ramey being contacted to give that number? 24 MR. RIGNEY: Well, the only issue I have is 25 that, like I said, the Independent Executors will make a 025 16 1 decision as to contacting -- I guess we’ll take the 2 initiative as to contact Mr. Ramey and his qualifications. 3 So, at this point -- 4 THE COURT: There’s no agreement on that 5 then? 6 MR. HAMILTON: I don’t care if they contact 7 Mr. Ramey. 8 MR. RIGNEY: Yeah. 9 THE COURT: Okay, what else -- what else do 10 we need to talk about then? 11 MR. RIGNEY: Um, the only other issue, 12 actually, that my client is quite adamant about, Judge, is 13 that, tentatively, the proposal has been for there to be an 14 accounting done of the last -- 15 THE COURT: Okay, let’s do a little time out 16 here. I was told I was listening to an agreement. If we 17 don’t have an agreement, then I’ve got to hear Motions and 18 go from there. 19 MR. NOTZON: This is the last point, Judge. 20 MR. RIGNEY: This is the last point. 21 THE COURT: If you all don’t have an 22 agreement, then there’s nothing for me to be listening to. 23 MR. NOTZON: Yeah, this is the last point. 24 THE RIGNEY: I thought -- 25 THE COURT: If it’s a contentious point, 026 17 1 then we don’t have an agreement. 2 MR. NOTZON: I don’t think it’s very 3 contentious. 4 MR. RIGNEY: It’s pretty bad. 5 THE COURT: Then we don’t have an agreement 6 then. 7 MR. NOTZON: I think the only -- 8 MR. RIGNEY: It’s -- 9 MR. NOTZON: Go ahead. 10 MR. RIGNEY: The issue, Your Honor, is 11 that -- 12 THE COURT: I’m going to postpone that 13 discussion until after we get surveys and continue 14 negotiating that. I’ve got a Plea to the Jurisdiction. 15 I’ve got a Motion to Disqualify Attorneys. I’ve got his 16 Motion to let two people sign the deeds. 17 MR. RIGNEY: Right. 18 THE COURT: I’m holding off on that because 19 you say have an agreement. If you don’t have an agreement, 20 then I’ve got to go and start hearing these motions. 21 MR. RIGNEY: The only contention, Your 22 Honor, if I may, just to please the Court? It’s that Mr. 23 Hamilton’s position is, on the accounting, that my client 24 should pay for it out of her own pocket. However, it is an 25 accounting of the estate money. And so my client’s 027 18 1 position is because it is an accounting of the estate 2 money, the estate should pay for that accounting. 3 THE COURT: So in other words, there was an 4 announcement that that was going to be paid by them 5 individually? 6 MR. HAMILTON: Right. 7 THE COURT: And now you’re saying that’s not 8 the agreement? 9 MR. RIGNEY: My understanding was they were 10 going to hire him subject to review. If there is no 11 discrepancies within the accounting, then I will speak to 12 my client and say, “Look, because there were no 13 discrepancies, there’s no problems, it was sort of a 14 needless accounting. You should pay for it individually.” 15 However, it’s subject to the review. If there is 16 discrepancies within the accounting, then I believe that 17 the estate should pay for it. So that’s kind of -- it’s 18 kind of up in the air. 19 MR. NOTZON: Whether or not there’s 20 discrepancies, all I’m saying, Judge, is this something 21 that, you know, maybe we can cross that bridge or have the 22 right to come back and have the estate pay for it. I mean, 23 it is an estate matter. It’s not individual matters. And, 24 you know, I think we both made a lot of concession, but 25 this is something that we’ve agreed to reimburse her the 028 19 1 three thousand dollars for her own personal survey that she 2 did, so -- I mean, they -- 3 THE COURT: Well, why don’t we do this? Why 4 don’t we have this individual retained by them, personally, 5 and then if he comes up with discrepancies that satisfy me 6 that they were substantial enough, then I can order part or 7 some or all of it to be reimbursed by the estate. 8 MR. HAMILTON: Sounds fair. 9 MR. NOTZON: I think -- and I think that 10 sounds reasonable. I think the only thing is, since it’s 11 an estate matter, that they would like to have the right to 12 request the Court to have -- 13 THE COURT: Well the estate is already done, 14 if they want to review, basically, what the estate has 15 done? 16 MR. HAMILTON: Exactly. 17 THE COURT: And if they want to do that, 18 they should pay for it. And if their review says, “Wow, 19 this really bad work”, then I can say, “Well, guess what, 20 I’m going to pay you from the estate because the estate did 21 a bad job on it.” 22 MR. NOTZON: Well, that’s the problem. 23 THE COURT: But I don’t think I should make 24 the estate pay for it unless that has been established. 25 MR. NOTZON: Well, we haven’t -- that’s the 029 20 1 problem, Judge. We haven’t gotten an accounting. They 2 can’t point to anything in the file that says, “Judge, 3 here’s our accounting that we did. Here it is. Look at 4 it. We think it’s in order.” There is none. 5 THE COURT: So what are they going to review 6 then? 7 MR. NOTZON: They’re going to review just 8 bank statements, checks, things of that nature just to see, 9 okay, there was hay. There was fences built. There was 10 dozer work done. 11 THE COURT: They’ve provided some form of an 12 accounting, haven’t they? 13 MR. NOTZON: No. None. 14 MR. RIGNEY: If I may, Your Honor? What 15 we’re trying to look at is an equitable distribution of the 16 estate funds. So there is talks about, like dozer work 17 done on one ranch, and it only benefits that ranch. So, 18 therefore, that particular portion of the dozer work that 19 only benefitted one ranch should be disproportionally 20 credited to the other ranch. If there was hay and feed 21 purchased for animals, for the cows, we need to distribute 22 that according to the ranches. So it’s kind of just trying 23 to do an equitable distribution rather that a prorated 24 distribution, Judge. 25 MR HAMILTON: Your Honor, in July, Mr. 030 21 1 Notzon’s wife came to our office and picked up for the 2 years 2014, ’15 and ’16, bank statements, receipts and 3 check registers. And they’ve had everything that we have 4 since July. She writes on there that there are no 5 cancelled checks. That’s true because the bank stopped 6 sending cancelled checks unless you wanted to pay for them. 7 And we told them if they wanted to pay for them, we would 8 get the canceled checks, but they declined that. So they 9 have all of the accounting documents that we have for their 10 person to look at. 11 THE COURT: If that person wants to review 12 it and make any objections, they should pay for it. And 13 if, then, there is some objections on, like you’re saying 14 about dozer work and stuff, I can deal with that and then 15 decide how much to reimburse them from the estate. 16 MR. RIGNEY: Yes, Judge. 17 THE COURT: Is that satisfactory to the 18 parties? 19 MR. HAMILTON: Satisfactory. Yes, sir. 20 MR. RIGNEY: Yes, Your Honor. 21 MR. NOTZON: Yes. 22 THE COURT: Okay, anything else that we need 23 to talk about? 24 MR. HAMILTON: I don’t think so. 25 THE COURT: Great. I want to thank you all 031 22 1 for your diligent efforts to conclude this estate, and, 2 hopefully, an agreement can be reached after these surveys 3 are done. And if not, then we’ll expeditiously resolve 4 this matter by proceedings here before the Court. 5 MR. RIGNEY: Thank you, Judge. 6 MR. HAMILTON: Thank you, Judge. 7 MR. NOTZON: Okay. Thank you, Judge. 8 THE COURT: Who’ll prepare an Order of what 9 we talked about today. 10 MR. HAMILTON: Okay. 11 MR. NOTZON: Yeah. There will -- I guess we 12 may need the transcript. But, hopefully, once we get the 13 survey, we’ll provide it to them and they can let me know 14 what they think needs to be corrected with the deeds. 15 THE COURT: So may assume, for now, that the 16 Plea to the Jurisdiction is being withdrawn, or do I keep 17 all these motions still pending. 18 MR. NOTZON: Well, if they’re not 19 withdrawing about the two executors, I think that will just 20 -- those two will remain pending. 21 MR. RIGNEY: But the agreement was to 22 withdraw it? 23 THE COURT: There’s also a motion to 24 disqualify an attorney. Is that --? 25 MR. HAMILTON: No, we’re not going to 032 23 1 withdraw that yet till the Judge -- till we get all the 2 surveys done. 3 MR. RIGNEY: I guess we have to leave them 4 pending, including the Motion to Disqualify. 5 THE COURT: The Motion to Disqualify? Okay, 6 no, that’s fine. We’ll leave all that pending. Hopefully, 7 we can resolve these matters. 8 MR. NOTZON: Thank you, Judge. 9 MR. RIGNEY: Thank you, Judge. May I be 10 excused? 11 MR. HAMILTON: Thank you. 12 MR. NOTZON: Have a nice day. 13 (End of Proceeding) 14 15 16 17 18 19 20 21 22 23 24 25 033 24 THE STATE OF TEXAS § COUNTY OF HIDALGO § I, Alma A. Garza, Official Court Reporter in and for the County Court At Law of Starr County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and of other proceedings requested in writing by Counsel for the parties to be included in this volume of the Reporter’s Record, in the above-styled and numbered cause, all of which occurred in open court and were reported by me. I further certify that this Reporter’s Record of the proceedings truly and correctly reflect the exhibits, if any admitted by the respective parties. I further certify that the cost for this Reporter’s Record is $96.00 and will be paid by the Hon. Marcel C. Notzon and $96.00 will be paid by Hon. Carl Hamilton. WITNESS BY OFFICIAL HAND this the 30th of November, 2016. ________________________________ ALMA A. GARZA, TEXAS C.S.R. 3053 Expiration Date 12/31/17 401 N. Britton Ave., Room 305 Rio Grande City, Texas 78582 Court: (956)487-8502 Mobile: (956)821-9025 034 TAB 3 OF THE RECORD 035 Filed: 1/4/2018 10:45 AM Dennis D. Gonzalez County Clerk Starr County, Texas Lilly Guerrero CAUSE NO. PR-06-004 IN THE ESTATE OF § IN THE COUNTY COURT § IGNACIA G. GUTIERREZ, § OF § DECEASED § STARR COUNTY, TEXAS MOTION TO CLARIFY OR AMEND ORDER TO THE HONORABLE JUDGE OF SAID COURT: MARIA DEL ROSARIO G. POPE and MARIA IRIS G. TREVINO, two of the Executors of the Estate of Ignacia G. Gutierrez, file this Motion to Clarify or Amend Order, and say: 1. On May 22, 2017, the Court signed an order denying Maria Cecilia G. Martinez's Plea to the Jurisdiction ("Order''). That order states that "the administration of the Estate will be treated as dependent administration." A copy of that order is attached as "Exhibit A" for the Court's convenience. 2. At the time the Court signed its Order, the Court had several motions pending before it which the Court had jurisdiction to consider under the Estates Code. Martinez's plea to the jurisdiction nonetheless argued that this Court lacked jurisdiction to take further steps in this probate administration. Pope and Trevino argued that the Court has jurisdiction. 3. Pope and Trevino thus understood the Order's "treated as dependent" language to mean that the Court it intended to hear the other motions before it and decide for itself whether it can and should grant the relief requested. Martinez, however, construed the Order's language to mean that the Court was converting the administration from independent to dependent. Martinez filed a petition for writ of mandamus largely 036 based on her interpretation of the Order, and the San Antonio Court of Appeals dismissed her mandamus petition for want of jurisdiction in case number 04-17-00333-CV. It is possible, however, that Martinez can attempt to re-file the same mandamus complaint. 4. To avoid further costs and delays, Pope and Trevino respectfully ask the Court to clarify that it did not intend to convert the administration from independent to dependent. This could be accomplished by a separate order or by signing the attached proposed amended order, which denies Martinez's plea to the jurisdiction but does not include the "treated as dependent administration" language. WHEREFORE, PREMISES CONSIDERED, Maria Del Rosario G. Pope and Maria Iris G. Trevino pray that the Court grant this Motion to Clarify or Amend Order and that the Court remove the "treated as dependent" language from its May 22, 2017 order. Pope and Trevino also request such other and further relief to which they may be justly entitled. Respectfully submitted, ATLAS, HALL & RODRIGUEZ, LLP P. 0. Drawer 3725 (78502) 818 West Pecan Boulevard McAllen, Texas 78501 (956) 682-5501 (956) 686-6109 - Facsimile E-Mail: och@atJas~' By: (}t, . O.C. Hamilton, Jr. Texas State Bar No. 0884 7000 Attorney for Maria Iris G. Trevino and Maria Del Rosario G. Pope Motion to Amend or Clarify Order - Page 2 037 CERTIFICATE OF SERVICE I hereby certify that on I have served a true and correct copy of the above and foregoing document on the parties or their attorneys of record through the electronic filing manager and in accordance with Rule 21 a of the Texas Rules of Civil Procedure on the 3rd day of January, 2018. Marcel C. Notzon, Ill The Notzon Law Firm Northtown Professional Plaza 6999 McPherson, Suite 325 Laredo, Texas 78041 Email: mcn@notzonlawfirm.com Keith C. Livesay Livesay Law Office Brazos Suites No. 9 517 West Nolana McAllen, Texas 78504 Email: RGVAppellateLaw@yandex.com Dalinda B. Garcia Law Office of Dalinda B. Garcia, P.C. 4847 S. Jackson Rd., Suite E Edinburg, Texas 78539 Email: dalindabgarcialawoffice@yahoo.com O.C. Hamilton, Jr. Motion to Amend or Clarify Order - Page 3 038 Filed: 5/22/2017 4:01:27 PM Dennis D. Gonzalez County Clerk ; Starr County, Texas Lilly Guerrero Cause No. PR-06-004 In Re: Estate of § In the County Court § Ignacia Gutierrez § of § Deceased § Starr County, Texas ORDER DENYING PLEA TO JURISDICTION Came on to be heard Cecilia Martinez's Plea to the Jurisdiction, and the Court, having considered the motion, any response thereto, along with the arguments and authorities of counsel, finds that such motion is not well taken; and accordingly, it is hereby ORDERED that the administration of the Estate will be treated as dependent administration. Signed and Entered on this the z-i, E PRESIDING cc: Ricardo Ramos, raramoslaw@gmail.com John Pope, Ilf, popeandpopelawfirm@gmail.com John Rigney, rigneylaw@aol.com Marcel Notzon, mcn@notzonlawfirm.com O.C. Hamilton, och@atlashall.com Dalinda B. Garcia, dalindabgarcialawoffice@yahoo.com Keith C. Livesay, RGVAppeIIateLaw@yandex.com EXHIBIT I A 039 CAUSE NO. PR-06-004 IN THE ESTATE OF § IN THE COUNTY COURT § IGNACIA G. GUTIERREZ, § OF § DECEASED § STARR COUNTY, TEXAS ORDER SETTING HEARING Maria Del Rosario G. Pope and Maria Iris G. Trevino's Motion to Clarify or Amend Order having come to the Court's attention and the Court being of the opinion that the same should be set for hearing, it is therefore ORDERED by the Court that the same be set for hearing on the _ _ _ day of _ _ _ _ _ _ _ _ _ , 2018, at ______ o'clock, _.m. SIGNED this the ___ day of _ _ _ _ _ _ _ _ _ , 2018. JUDGE PRESIDING cc: O.C. Hamilton Jr., Atlas, Hall & Rodriguez, LLP, 818 W. Pecan Blvd, P.O. Box 3725 (78502-3725), McAllen, Texas 78501 - Email: och@atlashall.com Marcel C. Notzon, Ill, The Notzon Law Firm, Northtown Professional Plaza, 6999 McPherson, Suite 325, Laredo, Texas 78041 - Email: mcn@notzonlawfirm.com Keith C. Livesay, Livesay Law Office, Brazos Suites No. 9,517 West Nolana, McAllen, Texas 78504 - Email: RGVAppellateLaw@yandex.com Dalinda B. Garcia, Law Office of Dalinda B. Garcia, P.C., 4847 S. Jackson Rd., Suite E, Edinburg, Texas 78539- Email: dalindabqarcialawoffice@yahoo.com 040 CAUSE NO. PR-06-004 IN THE ESTATE OF § IN THE COUNTY COURT § IGNACIA G. GUTIERREZ, § OF § DECEASED § STARR COUNTY, TEXAS AMENDED ORDER DENYING PLEA TO THE JURISDICTION Came on to be heard Cecilia Martinez's Plea to the Jurisdiction, and the Court, having considered the motion, any response thereto, along with the arguments and authorities of counsel, finds that such plea is not well taken; and accordingly, it is hereby DENIED. This Order amends and replaces the Court's Order Denying Plea to Jurisdiction signed on or about May 22, 2017. SIGNED this _ _ day of _ _ _ _ _ _ _ _ _ , 2018. JUDGE PRESIDING cc: O.C. Hamilton Jr., Atlas, Hall & Rodriguez, LLP, 818 W. Pecan Blvd, P.O. Box 3725 (78502-3725), McAllen, Texas 78501 - Email: och@atlashall.com Marcel C. Notzon, Ill, The Notzon Law Firm, Northtown Professional Plaza, 6999 McPherson, Suite 325, Laredo, Texas 78041 - Email: mcn@notzonlawfirm.com Keith C. Livesay, Livesay Law Office, Brazos Suites No. 9,517 West Nolana, McAllen, Texas 78504 - Email: RGVAppellateLaw@yandex.com Dalinda B. Garcia, Law Office of Dalinda B. Garcia, P.C., 4847 S. Jackson Rd., Suite E, Edinburg, Texas 78539 - Email: dalindabgarcialawoffice@yahoo.com 041 TAB 4 OF THE RECORD 042 CAUSE NO. PR-06-004 IN THE ESTATE OF § IN THE COUNTY COURT § § IGNACIA G. GUTIERREZ, § OF § § DECEASED § STARR COUNTY, TEXAS MARIA CECILIA MARTINEZ’ RESPONSE TO MOTION TO CLARIFY OR AMEND ORDER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, MARIA CECILIA MARTINEZ, Independent Co-Executor of this Will, by and through her attorneys of record and respectfully submits this Response To Motion To Clarify or Amend Order and in support show the Court the following: This Court is without authority to take further steps in the Administration of this Estate. Decedent, Ignacia G. Gutierrez left a Will which clearly made her Estate an Independent Administration by providing for Estate decisions to be made by a majority of four of her six children. The terms are clearly identified in her Will and reaffirmed in the Family Settlement Contract. See Exhibit “1,” copies of the Family Settlement Contract, incorporated by reference as if fully copied. Maria Del Rosario G. Pope and Maria Iris G. Trevino have repeatedly violated the terms of the Will and the Family Settlement Contract and have refuse to provide information relating to the Estate to the other Co-Executors. In his Motion to Clarify or Amend Order, on page 1, Paragraph 3, O. C. Hamilton speaks on behalf of Maria Cecilia Martinez. O. C. Hamilton has no authority to speak on behalf of Maria Cecilia Martinez regarding her interpretation of the Order signed on May 22, 2017. Maria Cecilia Martinez’ Response Page 1 of 3 To Motion To Clarify or Amend Order 043 Maria Cecilia Martinez prays that her Plea to the jurisdiction be granted and that this Court refrain from taking further steps in the administration of the Estate. WHEREFORE, PREMISES CONSIDERED, Maria Cecilia Martinez further prays that said Motion To Clarify or Amend Order be set for a hearing for argument of counsel and for all other further and relief, either at law or in equity to which Maria Cecilia Martinez shows herself justly entitled. Respectfully submitted, LAW OFFICE OF DALINDA B. GARCIA, P.C. 4847 S. Jackson Rd., Suite E Edinburg, Texas 78539 (956) 682-3777 (956) 682-5277 (Fax) dalindabgarcialawoffice@yahoo.com By : /s/ Dalinda B. Garcia DALINDA B. GARCIA State Bar No. 16436392 LIVESAY LAW OFFICE BRAZOS SUITES NO. 9 517 West Nolana McAllen, Texas 78504 (956) 928-0149 RGVApplellateLaw@yandex.com State Bar No. 24067619 ATTORNEYS FOR MARIA CECILIA MARTINEZ Maria Cecilia Martinez’ Response Page 2 of 3 To Motion To Clarify or Amend Order 044 CERTIFICATE OF SERVICE I, DALINDA B. GARCIA, do hereby certify that on the 4th day of January, 2018 true and correct copies of the above and foregoing Maria Cecilia Martinez’ Response To Motion To Clarify or Amend Order was served on each attorney of record in accordance with the Texas Rules of Civil Procedure. O.C. Hamilton, Jr. Atlas, Hall & Rodriguez, LLP 818 West Pecan Blvd. McAllen, Texas 78501 och@atlashall.com (956) 682-5501 (956) 686-6109 (Fax) Marcel C. Notzon, III THE NOTZON LAW FIRM 6999 McPherson Rd., Suite 325 Laredo, Texas 78041 mcn@notzonlawfirm.com (956) 717-1961 (956) 717-2789 (Fax) /s/ Dalinda B. Garcia DALINDA B. GARCIA Maria Cecilia Martinez’ Response Page 3 of 3 To Motion To Clarify or Amend Order 045 PR-06-004 .STATE OF TEXA.5 § § FAl'vllL Y SETTLEMENT CONTRACT ·:OUNTY OF STARR § The follov.-ing are named as Independent Co-E:\.ecutors of the Estate of!GNACIA G. GliTII:l
Document Info
Docket Number： 04-18-00008-CV
Filed Date： 1/22/2018
Precedential Status： Precedential
Modified Date： 1/26/2018