                                                                         ACCEPTED
                                                                     04-15-00615-CV
                                                         FOURTH COURT OF APPEALS
                                                              SAN ANTONIO, TEXAS
                                                                10/1/2015 2:06:54 AM
                                                                      KEITH HOTTLE
                                                                              CLERK
                    04-15-00615-CV
               NO.___________________



              IN THE COURT OF APPEALS
         FOR THE FOURTH DISTRICT OF TEXAS
                   AT SAN ANTONIO


          IN RE ESTATE OF MARIA L. RAYNES


FROM THE PROBATE COURT NO. 1 OF BEXAR COUNTY, TEXAS



   RELATOR’S PETITION FOR WRIT OF MANDAMUS AND
                WRIT OF PROHIBITION



                       Per Hardy, SBN: 08986500
                       James E. Hoffman, SBN: 09781750
                       418 East Park Avenue
                       San Antonio, TX 78212
                       Phone: (210) 226-8890
                       Facsimile: (210) 222-1891
                       perhardylawofc@sbcglobal.net

                       ATTORNEYS FOR RELATOR
                       Arthur Raynes, Independent Executor




           EMERGENCY RELIEF REQUESTED

           ORAL ARGUMENT IS REQUESTED
                    IDENTITY OF PARTIES AND COUNSEL
      Relator certifies that the following is a complete list of all parties, attorneys, and
any other persons who have any interest in the outcome of this Petition for Writ of
Mandamus and Writ of Prohibition regarding the trial court’s Final Judgment entered
on August 17, 2015.
             PARTIES                                    COUNSEL
Relator:     Arthur Raynes,                       Per Hardy, SBN: 08986500
             Independent Executor                 James E. Hoffman, SBN: 09781750
                                                  418 East Park Avenue
                                                  San Antonio, Texas 78212
                                                  Phone: (210) 226-8890
                                                  Fax: (210) 222-1891
                                                  perhardylawofc@sbcglobal.net

Respondent: Honorable Kelly Cross
           Judge of Probate Court No. 1
           Bexar County Courthouse
           100 Dolorosa
           San Antonio, Texas 78205
           Phone: (210) 335-2670
           Fax: (210) 335-3998

Real Parties in Interest:
             Defendant Leah Raynes                Cecil Bain, SBN: 01550000
                                                  The Forum, Suite 600, 8000 IH 10 West
                                                  San Antonio, Texas 78230
                                                  Phone: (210) 344-1700
                                                  Fax: (210) 344-1700
                                                  cecilbain@yahoo.com

             Defendant Todd Barta                 pro se
                                                  6307 Handsome Lake Dr.
                                                  Leon Valley, Texas 78238

             Defendant Samuel Barta               pro se
                                                  6307 Handsome Lake Dr.
                                                  Leon Valley, Texas 78238

                                           -II-
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . II

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII

RECORD REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IX

RELATOR’S PETITION FOR WRIT OF MANDAMUS AND
    WRIT OF PROHIBITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. ENTITLEMENT TO MANDAMUS RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 1
     The trial court abused its discretion by denying the Independent Executor’s
     constitutional right to a jury trial on material issues of fact.. . . . . . . . . . . . . 8

D. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 2
     The trial court abused its discretion by limiting the subject of the hearings to
     the Requests for Injunction filed by the Independent Executor and Leah Raynes
     and the Petition for Eviction from the Estate’s real property filed by the
     Independent Executor and then entering a Final Judgment on all requests for
     relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

E. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 3
     The trial court abused its discretion by finding that a letter written by an
     attorney for the Independent Executor on June 5, 2013, offering to sell the
     Estate’s real property was an enforceable Contract where the offer was not
     accepted by Leah Raynes and negotiations regarding essential terms continued
     after that date.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


                                                           -III-
F. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 4
     The trial court abused its discretion by entering a Judgment forcing the
     Independent Executor to sell the Estate’s real property to Leah Raynes for an
     amount well below fair market value based on a nonexistent Contract.. . . 16

G. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 5
     The trial court abused its discretion by entering a Final Judgment not supported
     by the live pleadings before the Court, including the appointment of a receiver
     which was not requested by any party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

H. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 6
     The trial court abused its discretion by denying the Independent Executor’s
     request for eviction of Leah Raynes and her adult sons from the Estate’s real
     property and injunctive relief to protect and preserve the Estate of Maria L.
     Raynes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

MANDAMUS CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS AND
    WRIT OF PROHIBITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A




                                                          -IV-
                                           INDEX OF AUTHORITIES

                                                             Cases

Estate of Casida, 13 S.W.3d. 519 (Tex. App.–Beaumont 2000)... . . . . . . . . . . . . 18

Estate of Eberling v. Fair, 546 S.W.2d 329 (Tex. Civ. App.–Dallas 1976, writ ref'd
n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Gen. Motors Corp. v. Gayle, 951 S.W.2d 469 (Tex. 1997)... . . . . . . . . . . . . . . . . . 8

Guerra v. Alexander, 04-09-00004-CV (Tex App.—San Antonio May 26, 2010, no
pet.) (mem. op.)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Guzman v. Acuna, 635 S.W.2d 315 (Tex. App.–San Antonio 1983, pet dism’d).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Halsell v. Dehoyos, 810 S.W.2d 371 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . 10

In Re Fallis, No. 04-08-00781-CV (Tex App.—San Antonio Feb. 4, 2009, no pet.)
(mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

In re M.G.N., 401 S.W.3d 677 (Tex.App.–San Antonio 2013), rev’d on other
grounds, 441 S.W.3d 246 (Tex. 2014)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004). . . . . . . . . 8, 10

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985).. . . . . . . . . . . . 7

Mercedes-Benz Credit Corp. V. Rhyne, 925 S.W.2d 664 (Tex. 1996). .. . . . . . 9, 10

Oil Field Haulers Assoc. v. RR Comm’n, 381 S.W.2d 183 (Tex. 1964). . . . . . . . 18

Roman v. Roman, 193 S.W.3d 40 (Tex.App.–Houston [1st Dist.] 2006, pet. filed).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992). .. . . . . 12,
                                                                             13, 16


                                                               -V-
Vincent v. Bank of America, N.A., 109 S.W.3d 856 (Tex. App. –Dallas 2003, pet.
denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

W. E. Grace Mfg. Co. v. Levin, 506 S.W.2d 580 (Tex.1974).. . . . . . . . . . . . . . . . 15

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548 (Tex.App.–Houston [14th Dist.]
2002, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                                                    Constitution

Tex. Const. art. I, § 15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Tex. Const. art. V, § 6... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII

                                                        Statutes

Tex. Bus. & Com. Code § 26.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Est. Code § 356.002.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Tex. Est. Code § 402.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Tex. Est. Code § 402.052.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20

Tex. Est. Code § 55.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Gov’t Code § 22.221(a), (b)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII

                                                          Rules

Tex. R. Civ. P. 216.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. R. Civ. P. 220.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. R. Civ. P. 301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                            -VI-
                         STATEMENT OF THE CASE

The underlying proceeding:           Request by the Independent Executor for
                                     Eviction and request by both parties for an
                                     Injunction. The Jury trial scheduled on the
                                     Independent Executor’s Petition for
                                     Preservation of the Estate, reimbursement,
                                     damages and attorneys fees was denied by the
                                     Final Judgment signed by the trial court.

The Respondent:                      The Respondent is the Honorable Kelly Cross,
                                     Judge of Probate Court No. 1 Bexar County,
                                     Texas.

Order from which Relief is Sought:   Final Judgment signed on August 17, 2015,
                                     denying Arthur Raynes, Independent
                                     Executor, the right to a jury trial on material
                                     issues of fact and ordering a forced sale of real
                                     property for an amount far below market value
                                     based on a nonexistent contract.




                                      -VII-
                        STATEMENT OF JURISDICTION

       This Court has jurisdiction to issue a Writ of Mandamus and Prohibition under

Texas Constitution Article V, § 6, and under Texas Government Code § 22.221(a),

(b).




                             RECORD REFERENCES

       RR 1 - Reporter’s Record, Hearing on June 16, 2015, attached and the original
will be filed with the Fourth Court of Appeals.

       RR 2 - Reporter’s Record, Hearing on July 22, 2015, attached and the original
will be filed with the Fourth Court of Appeals.

       P-Ex - Petitioner’s Exhibits

       R-Ex - Defendant’s Exhibits




                                       -VIII-
                             ISSUES PRESENTED

1.   The trial court abused its discretion by denying the Independent Executor’s
     constitutional right to a jury trial on material issues of fact.

2.   The trial court abused its discretion by limiting the subject of the hearings to
     the Requests for Injunction filed by the Independent Executor and Leah Raynes
     and the Petition for Eviction from the Estate’s real property filed by the
     Independent Executor and then entering a Final Judgment on all requests for
     relief.

3.   The trial court abused its discretion by finding that a letter written by an
     attorney for the Independent Executor on June 5, 2013, offering to sell the
     Estate’s real property was an enforceable Contract where the offer was not
     accepted by Leah Raynes and negotiations regarding essential terms continued
     after that date.

4.   The trial court abused its discretion by entering a Judgment forcing the
     Independent Executor to sell the Estate’s real property to Leah Raynes for an
     amount well below fair market value based on a nonexistent Contract.

5.   The trial court abused its discretion by entering a Final Judgment not supported
     by the live pleadings before the Court, including the appointment of a receiver
     which was not requested by any party.

6.   The trial court abused its discretion by denying the Independent Executor’s
     request for eviction of Leah Raynes and her adult sons from the Estate’s real
     property and injunctive relief to protect and preserve the Estate of Maria L.
     Raynes.




                                       -IX-
          RELATOR’S PETITION FOR WRIT OF MANDAMUS AND
                       WRIT OF PROHIBITION


TO THE HONORABLE COURT OF APPEALS:

      Relator, ARTHUR RAYNES, INDEPENDENT EXECUTOR, submits this

Petition for Writ of Mandamus and Prohibition complaining of the Final Judgment of

the Honorable Kelly Cross, Judge of the Probate Court No. 1 of Bexar County, Texas.

For clarity, Relator, Arthur Raynes, Independent Executor, will be referred to as

Independent Executor; Respondent, the Honorable Kelly Cross, will be referred to by

name; and the Real Parties in Interest, Defendants, Leah Raynes, Todd Barta and

Samuel Barta will be referred to by name.

A. STATEMENT OF FACTS

      On January 27, 2013, Maria L. Raynes died and left a Will appointing Relator,

Arthur Raynes, as Independent Executor. (RR 1:7; Tab 2). Leah Raynes is one of five

heirs under the Will. (RR 1:8). No one contested the Will or the appointment of

Arthur Raynes as Independent Executor. (RR 1:8; RR 2:117-118). On July 4, 2013,

the trial court approved the Inventory, Appraisement, and List of Claims of the Estate

filed by the Independent Executor. (RR 1:8).

      The major asset of the Estate is the real property located at 6307 Handsome

Lake Dr., Leon Valley, Texas 78238. (RR 1:9). The Estate has no cash assets and has



                                         -1-
been funded by loans from the Independent Executor and another heir. (RR 2:1, 90-

91; P-Ex 1).

      Since January 27, 2013, Leah Raynes and her adult sons, Todd Barta and

Samuel Barta, have resided in the Handsome Lake property without paying rent to the

Estate. (RR 1:21; RR 2:26, 80, 114-115). Todd Barta and Samuel Barta have no

ownership interest in the property and they did not pay any rent or expenses for use

of the house. (RR 1:27; RR 2:100, 118). Since 2013, the Estate has paid most of the

expenses for the house. (P-Ex 1).

      In April 2013, the Independent Executor requested Leah Raynes and her adult

sons to vacate the property by May 6, 2013, so that he could list it for sale. (RR 1:9,

11; RR 2:122-123). Instead of moving out of the house as requested, Leah Raynes

hired an attorney who accused the Independent Executor of harassment. (RR 1:10; RR

2:102-103; RR 2:123-124). On May 9, 2013, Leah Raynes’ attorney sent a letter to

the Independent Executor’s attorney proposing that his client have exclusive

possession of the house, but this letter did not mention purchasing the house. (RR

1:33-34; R-Ex 2). The Independent Executor did not agree to allow Leah Raynes and

her adult sons to remain in the house because he wanted to sell it in order to distribute

the proceeds equally to all of the heirs. (RR 1:10-11, 35, 37; RR 2:88, 102-103).

      On June 5, 2013, the Independent Executor’s attorney sent a letter to Leah

Raynes’ attorney, offering to sell the house to Leah Raynes “as is” for $121,000.00


                                           -2-
to close within 25 days or she and her two adult sons should vacate the property so it

could be listed with a real estate agent and sold for fair market value. (RR 1:11, 13;

R-Ex 4; Tab 5). Leah Raynes rejected this offer, and after 25 days the offer expired,

on June 30, 2013. (RR 1:13; 47, 60; RR 2:88).

      In October 2013, Leah Raynes made her first offer to purchase the house for

$122,000.00, which was rejected by the Independent Executor. (RR 1:14-15, 57).

Thereafter, a series of letters were exchanged between the Independent Executor and

Leah Raynes’ representatives with negotiations regarding the sale of the property to

her, including her offers of various purchase prices, but none of these letters extended

the deadline for expiration of the offer in the June 5, 2013 letter. (RR 1:53-54, 76, 78;

RR 2:20, 109-111; R-Ex 35; R-Ex 11). In his response letters, the Independent

Executor demanded payment for expenses and rent, but did not accept any of the

proposals from Leah Raynes. (RR 2:4-5, 19, 63).

      The Independent Executor wrote “proposed” on the Contract submitted by Leah

Raynes and he never signed any contract to sell the house to Leah Raynes. (RR 1:75,

77; RR 2:7, 21, 25; 35, 101; R-Ex 11). Since 2013, the Independent Executor and

Leah Raynes never reached an agreement for the sale of the house because there was

no agreed price, her offers did not treat all of the heirs equally and fairly, and there

was no reimbursement to the Estate for expenses and rental value. (RR 1:17-18; RR

2:27-28, 94-95).


                                           -3-
      During this time, Leah Raynes and her attorney interfered with the Independent

Executor’s efforts to maintain the house and prepare it for sale and accused him of

harassment whenever he attempted to have access to the property. (RR 1:22, 24; RR

2:97, 137; RR 2:90, 103, 137).

      On February 12, 2015, the Independent Executor sent a “Ten Days Notice to

Vacate” by certified mail to Leah Raynes and her adult sons, but they did not vacate

the property. (RR 1:24; RR 2:83; RR 2:127).

      In February 2015, the Independent Executor notified Leah Raynes that he and

a Real Estate Appraiser would inspect the house on February 23, 2015, but they were

unable to obtain access because his key did not work and no one answered the door.

(RR 1:25-26). The Independent Executor requested a key from Leah Raynes, but that

request was denied. (RR 1:26-27; RR 2:143, 146).

      On March 12, 2015, the Independent Executor filed a Petition for Preservation

of the Estate, for Damages and Other Relief against Defendants Leah Raynes and her

two adult sons, Todd Barta and Samuel Barta. (Tab 6). On March 30, 2015, Leah

Raynes filed a verified Defendant’s Original Answer, Counter-Petition for Recovery

of Property of Estate, For Sale of Estate Real Property, and for Declaratory Judgment,

Temporary Injunction and For Show Cause Order for Removal and demanded a jury.

(Tab 7). On April 16, 2015, the Court signed a Docket Control Order scheduling a

jury trial for October 12, 2015. (Tab 4). On April 27, 2015, Leah Raynes paid the jury


                                         -4-
fee. (Tab 3).

      On April 24, 2015, a licensed real estate appraiser conducted an inspection and

evaluation of the house and determined its value to be $151,000 because of deferred

maintenance, which if addressed would increase the value to $161,000. (RR 2:61, 95-

96; P-Ex 2).

      On May 15 and 18, 2015, the other heirs filed Affidavits stating their support

of the Independent Executor’s efforts to evict Leah Raynes and list the property for

sale on the market. (Tab 10).

      On May 19, 2015, Leah Raynes filed a Motion to Withdraw and Dismiss the

Application for Sale of Property and an Amended Answer and Counter-Petition. (RR

1:4; Tab 9).

      On June 16, 2015, and July 22, 2015, hearings were held on the Requests for

Injunction filed by the Independent Executor and Leah Raynes and the Petition for

Eviction filed by the Independent Executor. (RR 1:4-6). The Court repeatedly stated

that those were the only two issues before the Court during these two hearings and

that hearings were “not a trial on the merits.” (RR 2:43-44, 77, 89-90, 106, 108, 112,

135, 143, 169-170).

      At these hearings, Leah Raynes and her attorney admitted that there is no

Contract signed by both parties, but only proposed Contracts submitted by her, but

never “finalized.” (RR 1:5-6; RR 2:165).


                                         -5-
      On August 17, 2015, the Court entered a Final Judgment. (Tab 1). In this

Judgment, the Court found that the letter dated June 5, 2013, from the Independent

Executor’s attorney with an offer for sale of the property to Leah Raynes was accepted

by the Independent Executor. Based on this finding, the Court ordered the

Independent Executor to sell the property to Leah Raynes for $121,000.00 on or

before October 2, 2015. The Court also made provisions for appointment of a receiver

and made rulings regarding payment of expenses. The Judgment denied all other relief

not specifically granted.

      On August 20, 2015, the Independent Executor filed a Request for Findings of

Fact and Conclusions of Law. On September 10, 2015, the Independent Executor filed

a Notice of Past Due Findings of Fact and Conclusions of Law.

Undisputed and Uncontroverted Facts

      It is undisputed that a jury demand was made, the jury fee was paid, and the
case was set for jury trial on October 12, 2015. (TAB 3) (RR 2:210, 212).

      It is undisputed that the major asset of the Estate of Maria L. Raynes was her
residence located at 6307 Handsome Lake Drive, San Antonio, Texas. (RR 1: 9).

      It is undisputed that Leah Raynes and her two adult sons, Samuel Barta and
Todd Barta, resided without paying rent at 6307 Handsome Lake Drive, San Antonio,
Texas since the death of Maria L. Raynes on January 27, 2013. (RR 1:9, 20, 21, 25,
27; RR 2:114-115).

      It is undisputed that Leah Raynes and her two adult sons, Samuel Barta and
Todd Barta, refused to vacate the house located at 6307 Handsome Lake Drive, San
Antonio, Texas as requested by the Independent Executor. (RR 1:11, 24, 29; RR
2:123-124, 125, 127).


                                         -6-
       It is undisputed that Samuel Barta and Todd Barta did not pay to the Estate any
rent or any of the ongoing expenses for the house located at 6307 Handsome Lake Dr.,
Leon Valley, Texas 78238. (RR 1:1:20, 21, 25,27; RR 2:135-136).

     It is undisputed that Leah Raynes did not pay to the Estate any rent and did not
pay most of the ongoing expenses while living in the house located at 6307 Handsome
Lake Dr., Leon Valley, Texas 78238. (RR 1:20, 21, 25, 27, 38-40; RR 2:128, 133;
P-Ex1).

       It is uncontroverted that there is no written Contract of Sale signed by both
parties for sale of the real property located at 6307 Handsome Lake Dr., Leon Valley,
Texas 78238 to Defendant Leah Raynes. (RR 1:5-6, 13-15, 18; RR 2:5, 165).

B. ENTITLEMENT TO MANDAMUS RELIEF

      Mandamus issues to correct a violation of duty imposed by law or a clear abuse

of discretion when there is no adequate remedy by appeal. Johnson v. Fourth Court

of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A trial court has no discretion in

determining what the law is, or in applying the law to the facts. A failure by the trial

court to analyze or apply the law correctly will constitute an abuse of discretion.

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

      In the Final Judgment, the trial court made rulings that are prohibited by

Constitutional provisions regarding jury trials, due process, Texas Business &

Commerce Code §§ 26.01 and 26.02(b), fundamental contract law regarding the sale

of real property, and provisions of the Estates Code. In addition, the trial court failed

to correctly analyze or apply the law by: (1) denying the right to a jury trial on

material issues of fact; (2) determining that a Contract existed; (3) ordering the



                                           -7-
Independent Executor to sell the house for an amount below fair market value to Leah

Raynes based on a nonexistent contract; (4) appointing a Receiver if the sale is not

concluded by October 2, 2015; and (5) rendering a Final Judgment not supported by

the pleadings.

C. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 1

The trial court abused its discretion by denying the Independent Executor’s
constitutional right to a jury trial on material issues of fact.

      “The right to jury trial is one of our most precious rights, holding ‘a sacred

place in English and American history.’” Gen. Motors Corp. v. Gayle, 951 S.W.2d

469, 476 (Tex. 1997); Accord In re M.G.N., 401 S.W.3d 677, 679 (Tex.App.–San

Antonio 2013), rev’d on other grounds, 441 S.W.3d 246 (Tex. 2014); Accord Guerra

v. Alexander, 04-09-00004-CV (Tex App.—San Antonio May 26, 2010, no pet.)

(mem. op.). The denial of a trial by jury has been determined by the Texas Supreme

Court to be reviewable by mandamus. In re Prudential Ins. Co. of America, 148

S.W.3d 124, 139 (Tex. 2004) (holding “[t]he denial of trial by jury is also reviewable

by mandamus.”); Accord In Re Fallis, No. 04-08-00781-CV (Tex App.—San Antonio

Feb. 4, 2009, no pet.) (mem. op.).

      The Texas Constitution provides that “[t]he right of trial by jury shall remain

inviolate.” Tex. Const. art. I, § 15. The Texas Constitution and Texas Rules of Civil

Procedure require that when a jury demand has been made and the jury fee paid,


                                         -8-
questions of facts must be submitted to the Jury. Tex. Const. art. I, § 15; Tex. Est.

Code § 55.002; Tex. R. Civ. P. 216 and 220.

      In the present case, Defendant Leah Raynes filed a jury demand and paid the

jury fee. (Tab 3). Samuel Barta and Todd Barta also filed a jury demands in their

Original Answers. (Tab 8). On April 16, 2015, the Court entered a Docket Control

Order scheduling a jury trial for October 12, 2015. (Tab 4). The Independent Executor

was entitled to rely on the jury demands and payment of the jury fee. Tex. R. Civ. P.

220; Mercedes-Benz Credit Corp. V. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

      On June 16, 2015, at the request of the parties, the trial judge held a hearing

on the Independent Executor’s Motion for Eviction and Request for Injunction and

Leah Raynes’ Request for Injunction. Because of time limitations, the trial court

continued the matter until July 22, 2015, at which time it concluded the hearing on

these matters. During the two hearings on these preliminary matters, the trial court

repeatedly stated that only the requests for Injunction and Eviction were before the

Court and that the other issues would be decided at the jury trial on the merits. (RR

1:4-6; RR 2:43-44, 77, 89-90, 106, 108, 112, 135, 143, 169-170). During these

hearings, both attorneys acknowledged that damages and other issues would be

presented at the jury trial. (RR 2:210, 212). On July 22, 2015, in closing argument,

Leah Raynes attorney stated, “We’ve got a jury demand. And I believe in an eviction

suit, since there’s no contract, it’s either got to be determined by summary judgment


                                         -9-
or before a jury.” (RR 2:210). Under these circumstances, the trial court may not take

the case from the jury where there are material fact issues over the objection of the

opposing party. Mercedes-Benz Credit Corp. V. Rhyne, at 666 (Tex. 1996).

       Nevertheless, on August 17, 2015, the trial court arbitrarily entered a Final

Judgment disposing of all issues and parties. (Tab 1). The Independent Executor was

not aware that the trial court intended to remove the case from the jury and rule on all

of the issues until he received the Final Judgment.

       It is well established that the denial of trial by jury is harmless error only if

there are no material fact issues to submit to a jury and an instructed verdict would

have been justified. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 138 (Tex.

2004); Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991). The Independent

Executor’s pleadings present several causes of action and requests for damages that

contain material issues of fact to be submitted to the jury. Halsell at 372 (Tex. 1991).

In the present case, the following material fact issues were required to be submitted

to the jury: (1) the existence of a contract for sale of the real property if not determined

by Summary Judgment; (2) the fair market value of the house; (3) the amount of

damages to the Estate caused by Defendants’ failure to properly maintain the property;

(4) reimbursements for rental value and expenses from Defendants for the more than

two years they occupied the Handsome Lake Dr. property without consent of the

Independent Executor and other heirs; (5) fraud by Leah Raynes against the Estate;

                                           -10-
and (6) the award of attorneys fees to the Estate.

      The Final Judgment entered on August 17, 2015, arbitrarily denied the

Independent Executor’s right to a jury trial on the material issues of fact. In depriving

the Independent Executor of the constitutional right to a jury trial on these issues, the

trial court clearly abused its discretion.

D. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 2

The trial court abused its discretion by limiting the subject of the hearings to the
Requests for Injunction filed by the Independent Executor and Leah Raynes and the
Petition for Eviction from the Estate’s real property filed by the Independent Executor
and then entering a Final Judgment on all requests for relief.

      The trial court abused its discretion by entering a Final Judgment which

disposed of all issues after limiting the scope of two hearings on June 16, 2015, and

July 22, 2015, to only three issues: (1) the eviction of Leah Raynes, Samuel Barta, and

Todd Barta; (2) the Independent Executor’s request for an injunction; and (3) Leah

Raynes’ request for an injunction. (RR: 1:4-6). The trial court repeatedly confirmed

that the requests for an injunction and the request for an eviction were the only two

issues before the court and that the hearings were not a “trial on the merits.” (RR 1:4-

6; RR 2:1, 43-44, 77, 89-90, 106, 108, 112, 135, 143, 169-170). The Independent

Executor relied upon the court’s directive to confine the evidence and testimony to the

need for an eviction and injunction. (RR 1:6; RR 2:89-90, 149, 195-196).

      Because the trial court ruled on all issues in the Final Judgment, the



                                             -11-
Independent Executor, on behalf of the Estate, was denied due process to present his

evidence on all the issues at two hearings. Further, the record for any appeal in this

case is incomplete and inadequate because the Independent Executor was not allowed

to present his entire case and witnesses at the jury trial which was scheduled for

October 12, 2015.

E. ARGUMENT AND AUTHORITY UNDER ISSUE NUMBER 3

The trial court abused its discretion by finding that a letter written by an attorney for
the Independent Executor on June 5, 2013, offering to sell the Estate’s real property
was an enforceable Contract where the offer was not accepted by Leah Raynes and
negotiations regarding essential terms continued after that date.

      Mutual assent concerning material terms is a prerequisite to the formation of a

binding, enforceable contract. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d

218, 221 (Tex. 1992) (where essential term is open for future negotiation, no binding

contract exists). To form a binding contract, the following elements must be present:

(1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a

meeting of the minds; (4) each party's consent to the terms; and (5) execution and

delivery of the contract with the intent that it be mutual and binding. Roman v.

Roman, 193 S.W.3d 40, 50 (Tex.App.–Houston [1st Dist.] 2006, pet. filed); citing

Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex.App.–Houston [14th

Dist.] 2002, no pet.).

      A Contract for sale of real property must be in writing and signed by the person



                                          -12-
to be charged with the promise or agreement or by someone lawfully authorized to

sign for him. Tex. Bus. & Com. Code § 26.01. The written Contract must contain all

material and essential terms of the agreement.1 T.O. Stanley Boot Co. at 221. The

Independent Executor never signed a contract to sell the house to Leah Raynes. (RR

2:7). At the hearings on June 16, 2015, and July 22, 2015, Leah Raynes and her

attorney admitted that there is no Contract signed by both parties, but only proposed

Contracts submitted by her. (RR 1:5-6; RR 2:165). In response to a question from the

trial court regarding whether there is written documentation of an agreement to sell

the property to Leah Raynes, her attorney replied, “No. There is no actual written

contract, that’s correct.” (RR 1:5-6).

       On June 5, 2013, the Independent Executor’s previous attorney sent a letter to

Leah Raynes’ attorney offering to sell the house to Leah Raynes “as is” for

$121,000.00 to close within 25 days or she was to vacate the property within 25 days,

pay for all utilities/bills incurred on her behalf and her two adult children living there,

and “no longer hinder the sale of such property that will be under contract with a real

estate agent and sold for fair market value.” (RR 1:11; R-Ex 4, Tab 5).

       Leah Raynes did not accept this proposal and it expired 25 days later on June


       1
         During the hearing on June 16, 2015, Judge Kelly seemed to recognize these requirements
when she asked Leah Raynes’ attorney, “If there is no written agreement that was signed by both sides,
why are you wasting all of our time? Do you have a letter where you have made an offer and they have
accepted? I asked you about the June 5th 2013 agreement to sell the house for 121,000 as what was in
your pleading. And you said there was no written agreement, right?” (RR 1:33).

                                                -13-
30, 2014. (RR 1:13, 60; RR 2:88). During the hearing on June 16, 2015, the trial

court acknowledged that the Defendant Leah Raynes “didn’t do her part” in response

to the offer in the letter dated June 5, 2013. (RR 1:49). In this regard, the trial court

stated, “Now, it does not look—cause it’s June 2015–that, A, your client bought this

property; and B, it does not look like this offer was accepted because the terms were

not completed...it does not look like your client accepted and did her part.” (RR 1:49-

50). Therefore, the Final Judgment finding that the June 5, 2013 letter was a Contract

was not supported by the trial court’s own assessment of the evidence.

       After the offer in the June 5, 2013 letter was not accepted, the Independent

Executor did not make any other proposals to sell the property to Leah Raynes (RR

1:17, 50-52), but a series of letters were exchanged between the Independent Executor

and her attorney with negotiations regarding the sale of the property to her. In his

letters to Leah Raynes’ attorney, the Independent Executor demanded payment to the

Estate for expenses and rent, but never agreed to extend the deadline for the offer

contained in the June 5, 2013 letter and never agreed to a price for the sale of the

house. (RR 1:18, 53; RR 2: 4-5, 19, 94-95). Negotiations do not constitute agreement.

Consider Estate of Eberling v. Fair, 546 S.W.2d 329 (Tex. Civ. App.–Dallas 1976,

writ ref'd n.r.e.) (holding four letters not a binding contract because essential terms not

agreed and letters did not satisfy the Statute of Frauds and Tex. Bus. & Comm. Code

Ann. § 26.01(b)(4)). Even though the parties engaged in negotiations, they never


                                           -14-
reached agreement on the essential terms, including price, of this real estate

transaction and “thus never concluded an agreement.”Id at 331.

      Mutual assent or agreement is the essence of a contract. W. E. Grace Mfg. Co.

v. Levin, 506 S.W.2d 580, 584 (Tex.1974). There was obviously no mutual agreement

in this case. After the June 2013 deadline expired, Leah Raynes made several offers

to purchase the property for prices ranging from $116,000 to $130,000, but none of

these offers were accepted by the Independent Executor. (RR 1:78, 81; RR 2:20, 25,

63, 94-95, 109-111; R-Ex 11; R-Ex 35). Leah Raynes’ first offer to purchase the

house was made in October 2013, three months after the June 5th offer had expired.

Subsequently, she made several additional offers, all of which were rejected by the

Independent Executor. (RR 1:14-15; 16, 57; RR 2:63-64, 94-95, 109-111). Some of

the proposals were “as is” and others contained special provisions. (RR 2:42-43, 45).

At the hearing on July 22, 2015, Leah Raynes testified that her proposed Contracts

were never “finalized.” (RR 2:165).

      The June 5, 2013 letter is not an enforceable Contract because:

      1.     Leah Raynes did not consent to the initial terms proposed by the attorney
             for the Independent Executor in the June 5, 2013 letter, but subsequently
             rejected that proposal and instead made other offers to purchase the
             property which were not accepted. (RR 1:13; RR 2:20, 21, 25, 94-95,
             109-111).

      2.     There was clearly no meeting of the minds or mutual assent.
             Negotiations regarding essential terms of the sale, including price,
             continued after the proposal in the June 5, 2013 letter was not accepted

                                        -15-
             by the deadline on June 30, 2013. Estate of Eberling at 331;T.O. Stanley
             Boot Co. at 221. (RR 2:25)

      3.     It is uncontroverted that there no written Contract signed by the parties
             for sale of the real property to Defendant Leah Raynes. (RR 1:5-6).

      The trial court cannot thwart the mandatory requirements for a written Contract

for the sale of real property by declaring that the Independent Executor accepted his

own offer contained in the letter from his attorney dated June 5, 2013. (Tab 1). Courts

cannot make contracts for the parties. Guzman v. Acuna, 635 S.W.2d 315, 319 (Tex.

App.–San Antonio 1983, pet dism’d); citing Estate of Eberling v. Fair, 546 S.W.2d

329, 334 (Tex. Civ. App.–Dallas 1976, writ ref'd n.r.e.).

F. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 4

The trial court abused its discretion by entering a Judgment forcing the Independent
Executor to sell the Estate’s real property to Leah Raynes for an amount well below
fair market value based on a nonexistent Contract.

      The trial court abused its discretion by ordering the Independent Executor to

sell the house to Leah Raynes for $121,000, which is below the appraised value of

$151,000. (RR 2:96; P-Ex 2).

      The trial court did not have authority to order the sale of the real property to

Leah Raynes because the sale is not authorized by statute or a contractual agreement

of the parties. Tex. Est. Code § 356.002; see Section E, supra.

      The Will in this case was admitted to Probate and no Contest was filed. (RR

1:8; RR 2:117-118). The Will granted the Independent Executor full authority to

                                         -16-
administer the estate, including “the power to sell, manage, handle, trade, exchange,

mortgage, invest, reinvest, pledge, transfer or assign all property: real, personal, or

mixed on such terms and for such consideration as my Executor may see fit...” (TAB

2). Therefore, the Independent Executor was authorized to sell the real property in

whatever manner he deemed would be in the best interest of the Estate. Tex. Est. Code

§ 356.002. In this case, the Independent Executor determined that listing the house

on the market to obtain the highest price was in the best interest of the Estate and in

her testimony, Leah Raynes agreed. (RR 2:101, 162).

      “If a Will authorizes the executor to sell the testator’s property: (1) A court

order is not required to authorize the executor to sell the property, (2) The executor

may sell the property: A. at public auction or privately as the executor considers to be

in the best interest of the estate; and B. For cash or on credit terms determined by the

executor.” Tex. Est. Code § 356.002.

      As Independent Executor with full unlimited powers, Arthur Raynes has the

authority to list and sell the real property located at 6307 Handsome Lake Dr., Leon

Valley, Texas 78238 for fair market value to a willing buyer without court approval.

Tex. Est. Code §§ 356.002, 402.002 and 402.052.

      Therefore, the trial court exceeded its authority and abused its discretion by

ordering the Independent Executor to sell the property to Leah Raynes at a price below

fair market value.


                                          -17-
G. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 5

The trial court abused its discretion by entering a Final Judgment not supported by the
live pleadings before the Court, including the appointment of a receiver which was not
requested by any party.

      There were no live pleadings to support the trial court’s Final Judgment

ordering a forced sale of the house. Prior to the hearings, Leah Raynes’ attorney had

withdrawn her pleadings that requested a court-ordered sale of the house. (RR 1:4;

Tab 9). “A party may not obtain a judgment based on a theory not plead.” Vincent v.

Bank of America, N.A., 109 S.W.3d 856, 863 (Tex. App. –Dallas 2003, pet. denied).

Tex. R. Civ. P. 301. A judgment not supported by pleadings must be reversed. Vincent

at 863, citing Oil Field Haulers Assoc. v. RR Comm’n, 381 S.W.2d 183, 191 (Tex.

1964).

      The appointment of a receiver was not requested by any party or discussed at

the hearings on June 16, 2015, and July 22, 2015.

H. ARGUMENT AND AUTHORITIES UNDER ISSUE NUMBER 6

The trial court abused its discretion by denying the Independent Executor’s request
for eviction of Leah Raynes and her adult sons from the Estate’s real property and
injunctive relief to protect and preserve the Estate of Maria L. Raynes.

      As soon as the Independent Executor or any of the other Devisees objected to

Leah Raynes’ occupancy of the property, she no longer had a right to continue living

there and should have been evicted. Estate of Casida, 13 S.W.3d. 519, 523, 525 (Tex.

App.–Beaumont 2000).

                                         -18-
      In April 2013, the Independent Executor requested Leah Raynes and her adult

sons to vacate the property by May 6, 2013, so that he could list it for sale. (RR 1:9,

11-13; RR 2:122-123). Instead of moving out of the house as requested, Leah Raynes

hired an attorney who accused the Independent Executor of harassment. (RR 1:10; RR

2:102-103; RR 2:123-124). The Independent Executor did not accept the proposal

from Leah Raynes’ attorney made in May 2013 that she have exclusive possession of

the house because he intended to sell the property in order to distribute the proceeds

to the heirs equally. (RR 1:10-11; RR 2:102-103). Prior to filing this lawsuit, the

Independent Executor had requested that Leah Raynes and her adult sons vacate the

house on three different occasions, but they refused. (RR 2:87, 102). The Independent

Executor notified the other heirs of this request. (RR 1:9-10). On May 15 and 18,

2015, the other heirs filed sworn Affidavits stating their support of the Independent

Executors’s efforts to evict Leah Raynes and her adult sons. (Tab 10).

      As a result of Leah Raynes and her sons’ failure to vacate the premises, the

Estate suffered loss of rental income between $1,360 and $1,400 per month (RR 1:45;

RR 2:99; P-Ex 2) and damages for deferred maintenance because of the failure to

maintain the property. (RR 2:90). The Independent Executor requested the eviction

and Injunction to preserve the Estate and prevent further damages and losses. (RR

1:28-29; RR 2:90).

      As Independent Executor with full authority, Arthur Raynes has the right to


                                         -19-
access and the exclusive possession of the property in order to carry out his duties to

preserve, maintain, and sell the property at the best price for distribution to the

Devisees. Tex. Est. Code §402.052.

      Therefore, the trial court exceeded its authority and abused its discretion by

denying the Independent Executor’s request for eviction of Leah Raynes and her adult

sons from the Estate’s real property and injunctive relief to protect and preserve the

Estate of Maria L. Raynes.

                                      PRAYER

      For these reasons the Independent Executor requests this Court to grant a Writ

of Mandamus to Judge Kelly Cross, Judge of the Probate Court No. 1 of Bexar

County, Texas, requiring her to vacate the Final Judgment and to grant a Writ of

Prohibition to preclude any further action by the trial court regarding the sale of the

house until the case is presented to a jury. The Independent Executor requests this

Court to issue an injunction for the protection of the property of the Estate.

                                        Respectfully submitted,

                                        /s/ Per Hardy
                                        Per Hardy, SBN: 08986500
                                        James E. Hoffman, SBN: 09781750
                                        418 East Park Avenue
                                        San Antonio, TX 78212
                                        Phone: (210) 226-8890
                                        Facsimile: (210) 222-1891
                                        perhardylawofc@sbcglobal.net


                                         -20-
                         MANDAMUS CERTIFICATION

Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I have reviewed
this Petition and that every factual statement in the Petition is supported by competent
evidence included in the appendix or record. Pursuant to Rule 52.3(k)(l)(A), I certify
that every document contained in the appendix is a true and correct copy.


                                                 /s/ Per Hardy
                                                 PER HARDY
                                                 Attorney for Relator Arthur Raynes




                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Petition for Writ of
Mandamus filed on October 1, 2015, has been served on October 1, 2015, to the
following:

      1. Judge Kelly Cross, Judge of the Probate Court No. 1, Bexar County Court
      House, 100 Dolorosa, San Antonio, Texas 78205;

      2.Cecil Bain, Attorney for Defendant Leah Raynes, The Forum, Suite 600,
      8000 IH 10 West, San Antonio, Texas 78230, cecilbain@yahoo.com

      3. Defendant Todd Barta, pro se, 6307 Handsome Lake Dr., Leon Valley,
      Texas 78238

      4. Defendant Samuel Barta, pro se, 6307 Handsome Lake Dr., Leon Valley,
      Texas 78238

                                                 /s/ Per Hardy
                                                 PER HARDY
                                                 Attorney for Relator Arthur Raynes




                                          -21-
                       CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using WordPerfect X5 and
contains 5,233 words, as determined by WordPerfect’s word-count function,
excluding the sections of the document listed in Texas Rules of Appellate Procedure
9.4(i)(1).

                                              /s/ Per Hardy
                                              PER HARDY
                                              Attorney for Relator Arthur Raynes




                                       -22-
