                                                                                                        ACCEPTED
                                                                                                   01-15-00322-CV
                                                                                         FIRST COURT OF APPEALS
                                                                                                 HOUSTON, TEXAS
                                                                                               4/9/2015 3:03:35 PM
                                                                                              CHRISTOPHER PRINE
                                                                                                            CLERK
                                           01-15-00322-CV
                                    NO. _________
______________________________________________________________________________
                                                             FILED IN
                                                      1st COURT OF APPEALS
                        IN THE FIRST COURT OF APPEALS     HOUSTON, TEXAS
                             AT HOUSTON, TEXAS        4/9/2015 3:03:35 PM
              ______________________________________________
                                                      CHRISTOPHER A. PRINE
                                                              Clerk

                          IN RE ERNESTO CARRILLO AND
                         TEXAS LPG STORAGE COMPANY,
                                   RELATORS
                ____________________________________________
                     From the 245th District Court of Harris County, Texas
                             The Honorable Roy Moore, presiding
                               Trial Court Cause No. 2014-30215
  In the Matter of the Marriage of Evangelina Lopez Guzman Zaragoza and Miguel Zaragoza
  Fuentes and Co-Respondents, Elsa Esther Carrillo Anchondo, Robert Dale Caucom, Ernesto
 Carrillo, Raoul Gisler, Abbingdon Marine, Inc., Cadogan Properties, Inc., Dade Aviation, Inc.,
        Ezar Management, LLC, Ezar Properties, LP, Texas LPG Storage Company, and
                                   Texas Overseas Gas Corp.
              ______________________________________________

   RELATORS ERNESTO CARRILLO’S AND TEXAS LPG STORAGE COMPANY’S
                  PETITION FOR WRIT OF MANDAMUS
         ______________________________________________

Ricardo L. Ramos                                            Lucy H. Forbes
State Bar No. 24027648                                      State Bar No. 24007321
RICARDO L. RAMOS, PLLC                                      THE FORBES FIRM, PLLC
440 Louisiana, Suite 1450                                   2114 Woodcrest Drive
Houston, Texas 77002                                        Houston, Texas 77018
Telephone: (713) 227-7383                                   Telephone: (832) 620-3030
Facsimile: (713) 227-0104                                   Facsimile: (832) 532-3789
rick@rr-familylaw.com                                       lucy@forbesfirm.com

 ATTORNEYS FOR RELATORS, ERNESTO CARRILLO AND TEXAS LPG STORAGE CO.

                           ** ORAL ARGUMENT REQUESTED **

***EMERGENCY STAY OF THE UNDERLYING PROCEEDING AND TRIAL REQUESTED BY
         MOTION AND URGENT NOTIFICATION SENT TO COUNSEL***
______________________________________________________________________________

  PREVIOUS MANDAMUS FILED IN THIS COURT: 01-14-00624-CV                             April 9, 2015
                      IDENTITY OF PARTIES AND COUNSEL

Counsel for Relators, Ernesto Carrillo and
Texas LPG Storage Company
                                                 Appeal:
Trial:
                                                 Lucy H. Forbes
Rick Ramos                                       THE FORBES FIRM, PLLC
RICARDO L. RAMOS, PLLC                           2114 Woodcrest Drive
440 Louisiana St., Suite 1450                    Houston, Texas 77018
Houston, Texas 77002                             832-620-3030 - Tel
713-227-7383 – Tel                               832-532-3789 - Fax
713-227-0104 – Fax
rick@rr-familylaw.com

Counsel for Real Party in Interest, Evangelina
Lopez Guzman Zaragoza
                                                 Appeal:
Trial:

Jeanne Caldwell McDowell                         Unknown
jcm@houstontrialattorneys.com
Rebekah H. Birdwell
rhb@houstontrialattorneys.com
The Law Offices of Jeanne Caldwell McDowell
603 Avondale
Houston, Texas 77006
Tel: (713) 655-9595
Fax: (713) 655-1725

Mary Olga Lovett
lovettm@gtlaw.com
Greenberg Traurig, L.L.P.
1000 Louisiana, Suite 1700
Houston, Texas 77002
Tel: (713) 374-3500
Fax: (713) 374-3505




                                       i
Respondent in mandamus proceeding

The Honorable Roy L. Moore
Presiding Judge, 245th District Court
Harris County Civil Courthouse
201 Caroline, 15th Floor
Houston, Texas 77002

Counsel for Miguel Zaragoza Fuentes and
Co-Respondent at trial, Myrna Zaragoza

Kevin D. Jewell
Chamberlain, Hrdlicka, White, Williams &
Aughtry
1200 Smith Street, Suite 1400
Houston, Texas 77002
Telephone: 713-658-1818
Facsimile: 713-658-2553

Counsel for Co-Respondent at trial, Raoul
Gisler1

Lindsey Short
Adam J. Morris
Short Carter Morris, LLP
1177 West Loop South, Suite 700
Houston, TX 77027
Telephone: 713-626-3345
Facsimile: 713-759-9650




1
    Other than Relators, Ernesto Carrillo and Texas LPG Storage Company, Co-Respondent,
    Raoul Gisler, is the only Co-Respondent who has entered an appearance in the trial court.

                                              ii
                                              TABLE OF CONTENTS

Identity of Parties and Counsel .................................................................................. i

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. vi
Statement of the Case............................................................................................... xi
Statement of Jurisdiction........................................................................................ xiii

Statement Regarding Oral Argument .................................................................... xiv
Issues Presented ..................................................................................................... xiv

Statement of Facts ......................................................................................................1

1.       The facts pertaining to Carrillo and Texas LPG Storage Company’s
         Plea to the Jurisdiction are undisputed, thus there is no impediment to
         this Court’s granting this Petition. ...................................................................1

2.       The trial court was obligated to take judicial notice of the Mexican
         Divorce Records, which showed that they have been divorced since
         1959, thus, the 245th has no subject matter jurisdiction. ................................7

3.       Evangelina initiated a simultaneous proceeding in Juárez, Chihuahua,
         Mexico to adjudicate the legitimacy of the 1959 Mexican divorce,
         which is pending; and every expert Evangelina presented at the
         hearing (all of whom were from Mexico) agreed that Mexico is the
         proper forum. .................................................................................................17

4.       Evangelina’s lawyer in the simultaneous Mexican proceeding, Luis
         Alfonso Cervantes Munoz testified: Under current Mexican law,
         Evangelina’s challenge to the 1959 Mexican divorce, (the annulment
         of divorce), to render that decree null and void, has to be made in a
         civil court in Mexico......................................................................................17

5.       Evangelina’s expert, Ignacio Morales Lechuga testified: “Well,
         [Evangelina’s challenges on his perceived “irregularities” with the
         1959 Mexican divorce] is under the jurisdiction of the Chihuahua
         court.” ............................................................................................................23


                                                             iii
6.       Evangelina’s expert, Miguel Alessio Robles testified: The proper
         jurisdictional court, in order to adjudicate the legitimacy of the 1959
         Mexican divorce, is “a civil court in Chihuahua.” ........................................29

7.       Evangelina’s witnesses at the Plea to the Jurisdiction hearing
         primarily reside in Juárez or in other parts of Mexico; none reside in
         Harris County.................................................................................................32

Summary of Argument ............................................................................................34

Argument..................................................................................................................36

I.       Mandamus standard of review.......................................................................36
II.      The trial court failed to apply the law correctly by refusing to take
         judicial notice of a foreign country’s court records establishing the
         adjudicative fact that Evangelina and Miguel are divorced. .........................38

         A.        Rule of Evidence 201 mandates judicial notice when the court
                   is supplied with the necessary information. ........................................41

         B.        Relators supplied the court with the necessary information,
                   which Evangelina did not dispute. ......................................................42

                   1.       The Mexican Divorce Records are authentic............................42

                   2.       The Mexican Divorce Records were translated in strict
                            compliance with the Rules of Evidence. ...................................44

         C.        The trial court failed to comply with its mandatory duty to
                   judicially notice the Mexican Divorce Records ..................................46

III.     The trial court abused its discretion by denying Relators’ Plea to the
         Jurisdiction. ....................................................................................................47

         A.        A Plea to the Jurisdiction is a proper procedural vehicle to
                   challenge subject matter jurisdiction. ..................................................48

         B.        Evangelina has already initiated a simultaneous proceeding in
                   Juárez, Chihuahua for adjudication on the legitimacy of the
                   1959 Mexican divorce and may not collaterally attack that
                   decree or the Mexican Divorce Records in the 245th. ........................49


                                                            iv
         C.        The 245th has no jurisdiction over Evangelina’s claims
                   against Relators, which are based on a fiduciary relationship
                   that ceased to exist in 1959. ................................................................52

Conclusion ...............................................................................................................56

Certificate of Service ............................................................................................. xvi
Certification .......................................................................................................... xvii
Certificate of Compliance ..................................................................................... xvii




                                                             v
                                            INDEX OF AUTHORITIES

Cases
Attorney General of Texas v. Litten,
      999 S.W.2d 74 (Tex. App.—Houston [14th Dist.] 1999, no pet.) ................ 46

Barr v. Resolution Trust Corp.,
      837 S.W.2d 627 (Tex. 1992) .........................................................................51

Berry v. Berry,
      786 S.W.2d 672 (Tex. 1990) (per curiam) ....................................................49

Bland I.S.D. v. Blue,
      34 S.W.3d 547 (Tex. 2000) .....................................................................48, 49

Boyd v. Boyd,
      67 S.W.3d 398 (Tex. App.—Fort Worth 2002, no pet.) ...............................53

Bruton v. State,
      428 S.W.3d 865, 879 n. 69 (Tex. Crim. App. 2014) .....................................43

Carrillo v. Garzon,
      No. 14-94-00630-CV, 1995 WL 628156, 1995 Tex.App.LEXIS
      2714 (Tex. App.—Houston [14th Dist.] October 26, 1995, no
      writ)..........................................................................................................50, 51

City of El Paso v. Fox,
       No.     08-12-00264-CV,                    2014           WL          5023089,             2014
       Tex.App.LEXIS 11157 (Tex. App.—El Paso October 8, 2014,
       no pet.) ...........................................................................................................47

Drake v. Holstead,
     757 S.W.2d 909 (Tex. App.—Beaumont 1988, no writ) ..............................46

Flores v. Contreras,
      981 S.W.2d 246 (Tex. App.—San Antonio 1998, pet. denied) ....................43

Getty Oil Co. v. Ins. Co. of N. Am.,
      845 S.W.2d 794 (Tex. 1992) .........................................................................51

                                                             vi
Heafner & Assocs. v. Koecher,
     No. 01-91-01075-CV, 1994 WL 389030 1994 Tex.App.LEXIS
     1868 (Tex. App.—Houston [1st Dist.] July 28, 1994, writ
     denied) ...........................................................................................................55

Hill v. Heritage Resources, Inc.,
       964 S.W.2d 89 (Tex. App.—El Paso 1998, pet. denied)...............................46

In re Am. Nat’l County Mut. Ins. Co.,
       No. 14-12-01135-CV, 2013 Tex.App.LEXIS 1278, at *4 (Tex.
       App.—Houston [14th Dist.] Feb. 6, 2013, orig. proceeding) .......................36

In re Barnes,
       127 S.W.3d 843 (Tex. App.—San Antonio 2003, orig.
       proceeding) ....................................................................................................37

In re John G. and Marie Stella Kenedy Memorial Foundation,
       315 S.W.3d 519 (Tex. 2010) .........................................................................37

In re JP Morgan Chase Bank, N.A.,
       No. 14-10-01124-CV, 2011 Tex.App.LEXIS 414 (Tex. App.—
       Houston [14th Dist.] Jan. 20, 2011, orig. proceeding) (per
       curiam) ...........................................................................................................37

In re Marriage of J.B. and H.B.,
       326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. granted) .............................49
In re Park Memorial Condo. Assoc., Inc.,
       322 S.W.3d 447, 448 (Tex. App.—Houston [14th Dist.] 2010,
       orig. proceeding) ............................................................................................37

In re Sw. Bell Tel. Co.,
       35 S.W.3d 602 (Tex. 2000) (orig. proceeding) (per curiam) ..................37, 38

In re Vaishangi, Inc.,
       442 S.W.3d 256 (Tex. 2014) (per curiam) ....................................................38

Jacobs v. Cude,
     641 S.W.2d 258 (Tex. App.—Houston [14th Dist.] 1982, writ
     ref’d n.r.e.) .....................................................................................................49


                                                            vii
Kern v. Gleason,
      840 S.W.2d 730 (Tex. App.—Amarillo 1992, no writ) ................................55

Langdal v. Villamil,
     813 S.W.2d 187 (Tex. App.—Houston [14th Dist.] 1991, no
     writ)................................................................................................................41

Lazarides v. Farris,
      367 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, no
      pet.) ................................................................................................................47

Magee v. Ulery,
     993 S.W.2d 332 (Tex. App.—Houston [14th Dist.] 1999, no
     pet.) ................................................................................................................46

Matter of Marriage of Moore,
      890 S.W.2d 821 (Tex. App.—Amarillo 1994, no writ) ................................54

Moreno v. Alejandro,
     775 S.W.2d 735 (Tex. App.—San Antonio 1989, writ denied) ....................49

Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Texas,
      878 S.W.2d 598 (Tex. 1994) .........................................................................46

Old Republic Surety Co. v. Bonham State Bank,
     172 S.W.3d 210 (Tex. App.—Texarkana 2005, no pet.) ..............................41

Parker v. Parker,
     897 S.W.2d 918 (Tex. App.—Fort Worth 1995, writ denied),
     overruled on other grounds, Formosa Plastics Corp. USA v.
     Presidio Engineers & Contractors, Inc., 960 S.W.2d 41 (Tex.
     1998) ..............................................................................................................53

Purcell v. Bellinger,
      940 S.W.2d 599 (Tex. 1997) (per curiam) ....................................................51

Sagebrush Sales Co. v. Strauss,
     605 S.W.2d 857 (Tex. 1980) .........................................................................55



                                                            viii
Tex. Ass’n of Business v. Air Control Bd.,
      852 S.W.2d 440 (Tex. 1993) .........................................................................36

Texas Dep’t of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004) .........................................................................48

Toles v. Toles,
      113 S.W.3d 899 (Tex. App.—Dallas 2003, no pet.) .....................................53

Walker v. Walker,
     619 S.W.2d 196 (Tex. App.—Tyler 1981, writ ref’d n.r.e.) .........................49

Weiman v. Addicks-Fairbanks Road Sand Co.,
     846 S.W.2d 414 (Tex. App.—Houston [14th Dist.] 1992, writ
     denied) ...........................................................................................................51

Zisblatt v. Zisblatt,
      693 S.W.2d 944 (Tex. App.—Fort Worth 1985, writ dism’d
      w.o.j.) .............................................................................................................55

Statutes
TEX. GOV. CODE § 22.221 ........................................................................................ xi

TEX. GOV. CODE §22.201(b), (o).............................................................................. xi

Rules
TEX. R. EVID. 201 .................................................................... ii, x, xi, xii, 34, 41, xiv

TEX. R. EVID. 201(b) ................................................................................................41

TEX. R. EVID. 201(d) ......................................................................................... 41, 46

TEX. R. EVID. 201(f) .................................................................................................41
TEX. R. EVID. 902(3) ......................................................................................... xii, 42
TEX. R. EVID. 1009 .................................................................................. xii, 8, 44, 45

TEX. R. EVID. 1009(a) ..............................................................................................45


                                                             ix
TEX. R. EVID. 1009(c). .............................................................................................45

Treatises
RESTATEMENT (SECOND) OF JUDGMENTS §24(1)-(2)................................................51




                                                          x
                                    NO. _________
______________________________________________________________________________

                        IN THE FIRST COURT OF APPEALS
                             AT HOUSTON, TEXAS
              ______________________________________________

                          IN RE ERNESTO CARRILLO AND
                            TEXAS LPG STORAGE CO.,
                                   RELATORS
                ____________________________________________
                     From the 245th District Court of Harris County, Texas
                             The Honorable Roy Moore, presiding
                               Trial Court Cause No. 2014-30215
  In the Matter of the Marriage of Evangelina Lopez Guzman Zaragoza and Miguel Zaragoza
  Fuentes and Co-Respondents, Elsa Esther Carrillo Anchondo, Robert Dale Caucom, Ernesto
 Carrillo, Raoul Gisler, Abbingdon Marine, Inc., Cadogan Properties, Inc., Dade Aviation, Inc.,
        Ezar Management, LLC, Ezar Properties, LP, Texas LPG Storage Company, and
                                   Texas Overseas Gas Corp.
              ______________________________________________

       RELATORS ERNESTO CARRILLO’S AND TEXAS LPG STORAGE CO.’S
                   PETITION FOR WRIT OF MANDAMUS
           ______________________________________________

       Relators, Ernesto Carrillo and Texas LPG Storage Company, would show

this Honorable First Court of Appeals as follows:

                                STATEMENT OF THE CASE

       This Petition for Writ of Mandamus arises from the 245th District Court’s

denial of Relators’ Plea to the Jurisdiction. The underlying matter is a Petition for

Divorce, filed by Real Party in Interest, Evangelina Lopez Guzman Zaragoza, to

dissolve a marriage from 1953 between she and Miguel Zaragoza Fuentes.



                                               xi
       Evangelina filed for divorce in Juárez in 1959, and the Second Civil Court,

in the City of Ciudad Juárez, 2 in the State of Chihuahua, Mexico dissolved her

marriage to Miguel Zaragoza Fuentes in 1959.

       Relators supplied the 245th with the necessary information under Texas

Rule of Evidence 201. The trial court’s duty to take judicial notice was mandatory.

The Mexican Divorce Records establish that there is no marriage, which deprives

the 245th of subject matter jurisdiction over a divorce action. Moreover,

Evangelina’s Texas counsel presented for admission into evidence P-2, which is

the original and translated versions, of the Mexican Divorce Sentence and the

Mexican Divorce Certificate, at the Plea to the Jurisdiction hearing, and had no

objections to Relators’ translations. (1-RR-34-35, 67, 161, 16-67). Yet, the 245th

refused to take judicial notice of the Mexican Divorce Records, which showed they

have been divorced since 1959, and the 245th lacks subject matter jurisdiction to

divorce them; thereby abusing its discretion.

       Evangelina has initiated two proceedings pending in two different countries:

in Juárez, Mexico, she wants the 1959 Mexican divorce annulled, and in the 245th

in Harris County, she claims she is still married, and wants a divorce. She cannot

collaterally attack the Mexican Divorce Records in the 245th.




2
    The city of Ciudad Juárez is commonly referred to as Juárez.

                                               xii
      All of her experts who testified at the Plea to the Jurisdiction hearing agreed

that the Juárez courts are the proper forum, and the only court with jurisdiction, for

an annulment of 1959 Mexican divorce, under Mexican law and procedure, where

Evangelina’s annulment proceeding is ongoing.

      The Relators have no legitimate connection to this family matter. Ernesto

Carrillo is Miguel’s employee and Texas LPG Storage is Carrillo’s company.

      Evangelina is forum shopping. Only one of these countries’ courts can have

subject matter jurisdiction over the legitimacy of the 1959 Mexican divorce. And

that court, according to Evangelina’s own experts, is the one in Juárez.

      Relators seek to have this Court grant this Petition for Writ of Mandamus,

command that the 245th vacate its Order Denying the Plea to the Jurisdiction, and

mandate that it sign an Order dismissing the lawsuit and all its claims so that the

court with jurisdiction in Juárez can adjudicate Evangelina’s claims.

                           STATEMENT OF JURISDICTION

      This Court has jurisdiction to issue a writ of mandamus against a judge of a

district court in the court of appeals district. TEX. GOV. CODE § 22.221 (writ

power); §22.201(b), (o) (courts of appeals districts). The Honorable Roy L. Moore

is a district court judge presiding over the 245th District Court, which is situated in

Harris County, and is within the First and Fourteenth Courts of Appeals districts.

Id.


                                         xiii
                    STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would aid the court’s decisional process.

                                 ISSUES PRESENTED

      A Texas family court does not possess subject matter jurisdiction over a

purported divorce action when the parties are not married. Here, the putative

spouses to the underlying proceeding, who are both life-long residents of Mexico,

were divorced in Mexico in 1959. Relators brought the divorce records to the trial

court’s attention through a plea to the jurisdiction, and requested dismissal of the

lawsuit. The trial court refused to take judicial notice of the divorce records and

denied the plea to the jurisdiction.

      With that background in mind, the issues include:

1.     Whether the trial court erred in refusing to judicially notice the properly
       certified and translated Mexican divorce records, to which Real Party in
       Interest did not object? TEX. R. EVID. 201, 902(3), 1009.
2.    Whether the trial court erred in denying the plea to the jurisdiction? Because
      the court had a mandatory duty to judicially notice the Mexican divorce
      records, and because they conclusively state that the alleged spouses are in
      fact divorced, the Harris County family court lacks subject matter
      jurisdiction.

3.     Whether the trial court possesses subject matter jurisdiction over the
       underlying purported divorce action?

4.    Whether Real Party in Interest’s challenges to the Mexican Divorce Records
      constitute an impermissible collateral attack on the validly certified divorce
      judgment of a foreign nation?




                                        xiv
                                   STATEMENT OF FACTS

1.      The facts pertaining to Carrillo and Texas LPG Storage Company’s
        Plea to the Jurisdiction are undisputed, thus there is no impediment to
        this Court’s granting this Petition.
        The facts relevant to Ernesto Carrillo’s and Texas LPG Storage Company’s

(collectively, “Carrillo” or “Relators”) Plea to the Jurisdiction are undisputed and

follow. 3 (2-CR)

        On March 11, 2015, the trial court signed its Order Denying Plea to the

Jurisdiction, thereby denying Ernesto Carrillo’s and Texas LPG Storage

Company’s Plea to the Jurisdiction. (1-CR). It is copied below:




3
     Attorney Ricardo Ramos filed the Plea to the Jurisdiction on behalf of both of his clients,
     Ernesto Carrillo and Texas LPG Storage Company. (1-RR-18); (2-CR). Myrna Alicia
     Zaragoza Lopez also joined the Plea to the Jurisdiction. (2-CR). As of the morning of the
     hearing, however, Myrna advised her attorney, Kevin Jewell, that she wanted to withdraw
     her assertion of the Plea to the Jurisdiction. (1-RR-10, 19). Therefore, counsel Jewell,
     advised the court that Myrna Lopez had withdrawn her assertion of the Plea to the
     Jurisdiction. (1-RR-10, 19).

                                                1
2
3
4
       The underlying action, in which Relators finds themselves unsuspectingly

embroiled in, is a family matter between Evangelina and Miguel, for a marriage

long ago dissolved, on May 27, 1959, by the Second Civil Court, in the City of

Juárez, in the State of Chihuahua, Mexico. (1-RR-CE-1, 2); (3-CR, 4-CR).4 Real

Party in Interest, Evangelina Lopez Guzman Zaragoza (“Evangelina”) filed for

divorce from Miguel Zaragoza Fuentes in Juárez in 1959. (1-RR-CE-1, 2).

       Recently, Evangelina filed an action to annul the 1959 Mexican divorce,

which is currently pending in Juárez. (1-RR-114).

       On May 27, 2014, Evangelina also filed a petition for divorce here, in the

245th District Court in Harris County, seeking a divorce, claiming to still be

married.

       Evangelina is forum shopping. All of her experts testified that the court with

jurisdiction to address her issues with the 1959 Mexican divorce is situated in

Juárez, Chihuahua, in Mexico.

       Following the divorce, Evangelina and Miguel continued to live together in

Juárez, where they were domiciled until some point in the 2000s, perhaps as late as

2009, with Evangelina and Miguel living as concubines together. (1-RR-110).

4
    This citation refers to Carrillo’s Exhibit 1, introduced at the March 4, 2015 Plea to the
    Jurisdiction hearing. All citations to (1-RR-CE) are to Carrillo’s exhibits 1-4, which are the
    same as Exhibits A-D, attached to his Plea to the Jurisdiction. The parties agreed to re-
    designate them at the hearing and they appear in the reporter’s record as “Castillo Exhibits 1-
    4.” (RR March 4, 2015, pp. 164-65). The trial court acknowledged that they are one in the
    same. (1-RR-161-62).

                                                5
Evangelina’s son, Miguel Lopez, testified that his parents lived in Juárez for close

to 50 years. (1-RR-131). Miguel Lopez testified that as of around 2000, his father,

Miguel, was “not with her [Evangelina] anymore.” (1-RR-130). Evangelina

testified the last time she physically saw Miguel was in San Diego because one of

her children underwent surgery around March of the previous year, “It’s been a

year ago, around there.” (1-RR-53).

       Thus, there was no informal marriage. Evangelina’s live pleading supports

this, as she alleged that they “ceased to live together as husband and wife on or

about September 1, 2009.”5 (8-CR-5); (9-CR).

       Despite having successfully divorced Miguel over fifty years ago,

Evangelina seeks to re-litigate her claim in two countries, this time also attempting

to reach into the pockets of Relators, Ernesto Carrillo (“Carrillo”) and Texas LPG

Storage Company (“Texas LPG”). Carrillo is alleged to be Miguel’s employee, and

Texas LPG is alleged to be Miguel’s alter ego—though there is no evidence

supporting either contention. (9-CR). Evangelina alleges in her First Amended

Petition with the 245th, alleging that Carrillo is “the third party employee of

5
    While Evangelina has not alleged the existence of an informal marriage, it bears noting that
    Mexico does not recognize common law or informal marriages as a matter of law. Nevarez
    v. Bailon, 287 S.W.2d 521, 522-23 (Tex. Civ. App.—El Paso 1956, writ ref’d) (no common
    law in the Republic of Mexico, State of Chihuahua; only valid legal marriage in Mexico is
    one performed by and through civil authorities). See also Gonzalez v. Viuda de Gonzalez,
    466 S.W.2d 839, 841 (Tex. Civ. App.—Dallas 1971, writ ref’d n.r.e.) (Mexico recognizes
    “concubinage,” which is not a marriage).



                                               6
Miguel.” (8-CR-2). Carrillo and Texas LPG have no legitimate connection to this

family matter.

2.    The trial court was obligated to take judicial notice of the Mexican
      Divorce Records, which showed that they have been divorced since
      1959, thus, the 245th has no subject matter jurisdiction.
      Relators filed a Plea to the Jurisdiction seeking a dismissal of the lawsuit for

lack of subject matter jurisdiction, and attached certified, and translated, records

from the Juárez court that issued the Divorce Sentence in 1959. (2-CR, 3-CR, 4-

CR, 5-CR, 6-CR). The 245th should have taken judicial notice of these documents.

      The relevant documents (the “Mexican Divorce Records”), which: (1)

Relators filed with their Plea to the Jurisdiction, (2) the trial court admitted into

evidence during the March 4, 2015 Plea to the Jurisdiction hearing, (3)

Evangelina’s lawyer admitted into evidence as P-2 (the Mexican Divorce Sentence

and Mexican Divorce Certificate) during the March 4 hearing, and (4) Relators

requested that the 245th take judicial notice of, are:

      Exhibit 1 (or A):    the Mexican Divorce Sentence, File No. 1783/1959,
                           dissolving the marriage “with all its legal consequences”;

      Exhibit 2 (or B):    the Divorce Certificate evidencing the divorce between
                           Evangelina and Miguel;

      Exhibit 3 (or C):    Miguel’s Mexican Birth Certificate (containing a
                           notation regarding the divorce); and

      Exhibit 4 (or D):    Evangelina’s Mexican Birth Certificate (containing a
                           notation regarding the divorce).

(2-CR-6-CR); (1-RR-CE-1, 2).

                                           7
      Evangelina’s counsel presented for admission into evidence, P-2, which is

the original and translated versions, of the Mexican Divorce Sentence and the

Divorce Certificate, at the Plea to the Jurisdiction hearing. (1-RR-67, 166); (1-RR-

P-2). She asked the 245th to admit the very documents she refused to let the trial

court take judicial notice of. (1-RR-67, 166-67). Evangelina’s counsel also had no

objection to the Mexican Divorce Records translations:

      MR. RAMOS: Judge, on the plea to the jurisdiction, we have one request.
           This has not been objected to, is the documents that accompany the
           plea to the jurisdiction that were attached as Exhibit A, B, C and D.
           They were the translations of the underlying legal documents from
           Mexico. There were translated 45 days prior to. There was never an
           objection filed to them. I think in their response to the plea to the
           jurisdiction, they've accepted the translations of those documents as
           true, so I think we can stipulate to that pursuant to a judicial admission
           in their response.

      MS. LOVETT: Your Honor, I think the judicial admission complies with
           Rule 1009 and therefore we do not object.

(1-RR-161) (emphasis added); see also (1-RR-34-35).

      Still, the trial court refused to take judicial notice of them and refused to

accept them as “valid.” (1-RR-166). Further, despite a lack of objection to the

translations, the court refused to take judicial notice that the translations were

accurate. (1-RR-167). A week later, the 245th signed the Order Denying the Plea

to the Jurisdiction, denying judicial notice of the Mexican Divorce Records, but

finally finding “that the requirements of Texas Rule of Evidence 1009 as related to

Exhibits A-D were met.” (1-CR).

                                         8
      Though named as Co-Respondents in Evangelina’s live pleading, Carrillo

and Texas LPG are tied to this lawsuit only as putative alter egos of Miguel for the

breach of fiduciary duty and constructive fraud claims Evangelina asserts against

Miguel. (8-CR). But, as explained subsequently, neither of them could have been

an alter ego of Miguel during the time of the marriage (from 1953 to 1959), the

only time when a fiduciary relationship existed between Evangelina and Miguel.

      The “Divorce Sentence” from Second Civil Court of Bravos District, in the

City of Juárez, in the State of Chihuahua, in Mexico, sets out that Evangelina filed

for divorce from Miguel “from the marriage that took place on the 14th day of

October of 1953, in Las Cruces, State of New Mexico, United States of America.”

(1-RR-CE-1); (3-CR). The Divorce Sentence “dissolved with all its legal

consequences” the marriage, on May 27, 1959. (1-RR-CE-1).

      It acknowledged three of the four minor aged children of the marriage and

ordered they “shall remain under the custody and care of their mother.” (1-RR-CE-

1). It ordered: “Register this resolution, publish it, provide to the interested parties

with certified copies they request, and in due time, file this sentence.” Id.

      “And finally tried and sentenced, it was signed by Carlos Martinez Alvidrez,

Second Civil Judge of the Bravos District in the City of Juárez, in the State of

Chihuahua, in Mexico, with its Secretary with whom he acts and he attests.” Id. It

then ordered the “writ filed by MR. MIGUEL ZARAGOZA FUENTES, writ filed


                                           9
before this Court on the 7th day of October, 2014, agreed on October 7, 2014, the

attached certified copies are issued which are exact, true and correct copies taken

from its original ….” Id.

       This Divorce Sentence follows:




                                        10
11
12
13
(1-RR-CE-1); (3-CR).

       Next, the Divorce Certificate from the Second Civil Court, in the State of

Chihuahua, Mexico, Civil Registry, provides that Evangelina filed for divorce

against Miguel. (1-RR-CE-2); (4-CR). The place of registration of the divorce is

Juárez, Chihuahua and it acknowledges “Resolution Date” of May 27, 1959. (1-

RR-CE-2).

       The Registration Date is October 7, 2014, 6 in the State of Chihuahua as

follows:

       Resolution:

       Contentious divorce necessary proceedings promoted by Mrs.
       Evangelina Lopez de Zaragoza filed a divorce against Miguel
       Zaragoza Jr. before the Second Judge of the Bravos Civil District,
       Chihuahua, relative to file number 1783/59, dated May 27, 1959, it is
       resolved the following:

       First - It is decreed dissolved with all its legal consequences, the
       marriage between MIGUEL ZARAGOZA JR and EVANGELINA
       LOPEZ, on October 14, 1953, in Las Cruces, State of New Mexico,
       United States of America, being both parties legally able to marry;

       Second - The minor children of the marriage named: EVANGELINA,
       CESAR AND MYRNA ALICIA, of last name Zaragoza Lopez
       remain under the legal custody of the mother MRS. EVANGELINA
       LOPEZ DE ZARAGOZA;
       Third - Proceed with the registration of this resolution, publish it,
       provide the interested parties with certified copies as they require and
       file same. . . .


6
    This coincides around the time that Miguel filed his lawsuit in Juárez related to the 1959
    Mexican divorce.

                                              14
Id.

      The Divorce Certificate follows:




                                         15
(1-RR-CE-2); (4-CR).

                       16
3.    Evangelina initiated a simultaneous proceeding in Juárez, Chihuahua,
      Mexico to adjudicate the legitimacy of the 1959 Mexican divorce, which
      is pending; and every expert Evangelina presented at the hearing (all of
      whom were from Mexico) agreed that Mexico is the proper forum.
      There are two simultaneous proceedings, both initiated by Evangelina, on

the very same issue, contesting the legitimacy of the 1959 Mexican divorce.

Evangelina filed one proceeding in Juárez and the other in the 245th. Every one of

her experts, all from Mexico, testified that Mexico has jurisdiction and is the

proper forum to adjudicate Evangelina’s claim that the divorce is illegitimate.

      The 245th District Court has no subject matter jurisdiction over this matter.

      Carrillo and Texas LPG have no legitimate connection to this family matter

between Evangelina and Miguel.

4.    Evangelina’s lawyer in the simultaneous Mexican proceeding, Luis
      Alfonso Cervantes Munoz testified: Under current Mexican law,
      Evangelina’s challenge to the 1959 Mexican divorce, (the annulment of
      divorce), to render that decree null and void, has to be made in a civil
      court in Mexico.
      Evangelina’s lawyer in the Juárez proceeding, Luis Alfonso Cervantes

Munoz, is a lawyer in Mexico City and represents her in two related underlying

proceedings pending in Mexico. (1-RR-108). Munoz testified at the Plea to the

Jurisdiction hearing that he represents Evangelina in the an ongoing lawsuit that

she filed in Juárez, Chihuahua in Mexico, whereby she is attempting to annul the

1959 Mexican divorce. (1-RR-112). He testified, “It’s an ordinary civil lawsuit

attending to the annulment of a concluded lawsuit….” (1-RR-114).

                                         17
      He is also defending her in a lawsuit filed by Miguel, where Miguel is

attempting to enforce the 1959 Mexican divorce. (1-RR-110, 113). Miguel lives in

Juárez. (1-RR-154).

      With respect to the lawsuit Evangelina filed in Juárez, Munoz confirmed that

he is aggressively representing Evangelina in the lawsuit, and she has the resources

to do so. (1-RR-114-18). He explained Evangelina wants from the Juárez court, an

annulment of the 1959 Mexican divorce that the Second Civil Court, in Juárez,

Chihuahua granted.

      From the 245th in Houston, she wants her “marriage” dissolved and to be

divorced. (1-RR-113).

      Yet, only one court can have subject matter jurisdiction, and all of

Evangelina’s experts agreed, that it is the Juárez, Chihuahua court that has subject

matter jurisdiction.

      Q.     Sir, have you filed a -- or made a request from the court in Juárez to
             grant the decree of divorce null and void from 1959?

      A.     I filed a lawsuit for the annulment of the divorce decree in 1959.

      Q.     And that is currently still pending in Juárez; is that correct?

      A.     Yes, that is correct.

      Q.     And have you had any hearings or any submissions in that
             proceeding?

      A.     Yes. We filed the claim. The claim has been admitted --

      Q.     Okay?

                                         18
A.   -- and is in process.

Q.   Okay. What process is it in right now?
A.   It’s an ordinary civil lawsuit attending to the annulment of a
     concluded lawsuit. Technically that is a legal action that anyone can
     file when a lawsuit has been fraudulently filed, prosecuted and
     sentenced, as we believe is the case of the divorce.

Q.   Have you represented to the judge down in Juárez that there’s an
     ongoing proceeding here in Harris County in order to obtain a
     similar ruling or in order to obtain a ruling on a similar issue?
A.   No, because it’s not correct.

Q.   What’s not correct?

A.   What you are saying.
Q.   Why?
A.   Because this procedure is not tending to a new divorce.
Q.   So the judge in Juárez, safe to say, you can agree to disagree, has no
     knowledge that this case is going on here in the 245th?
A.   Yes. The Juárez -- there are courts in Ciudad Juárez that know
     about this case being tried here in Houston.
Q.   Okay. Have you attempted to stop the proceeding in Juárez in order to
     allow Judge Moore to take --

A.   Which proceeding because there are four proceedings in Juárez.
Q.   You have four proceedings in Juárez. Please tell Judge Moore about
     all of the proceedings that are ongoing in Juárez.

A.   Three are brought by Mr. Zaragoza.

                                      ***

Q.   Okay. And the one proceeding that Mrs. Zaragoza has in Juárez, Mr.
     Zaragoza has three, Mrs. Zaragoza has one; is that true?


                                 19
A.   That’s correct.

Q.    And the one that she has ongoing in Juárez is to render the
      judgment for 1955 -- 1959 null and avoid; is that true?

A.    That’s correct. Not the judgment, the whole proceeding.

Q.    The whole proceeding?

A.    Yes.

                                        ***
Q.    Okay. There’s also resources involved from your law office or your
      law firm engaging a lawsuit against Mr. Zaragoza to render an
      order null and void in Juárez; is that true?

A.    That’s true.
Q.    There was some testimony about the court ultimately that would have
      jurisdiction is the Juárez court to render the judgment decree of
      divorce null and void; is that true?
A.    Can you please repeat the question?
MS. LOVETT: Objection, vague, misstates the testimony.

THE COURT: Sustained.

MR. RAMOS: I’m sorry, let me rephrase my question.
Q.   (BY MR. RAMOS) Pursuant to your law, okay? Your laws, I’m sorry,
     the court that has jurisdiction --
THE COURT: Mr. Ramos, when you say “your law,” could you be more
    specific for the record?

MR. RAMOS:           Yes, sir.

THE COURT:           Thank you, sir.

Q. (BY MR. RAMOS) Under current Mexican law and the law that I’m
     referring to, I guess is the statute that was passed from 1988 that
     allows the challenge to be made to the decree of divorce, okay, to

                                   20
             render that decree null and void, okay, that challenge has to be
             made in a civil court in Mexico; is that true?

      A.     That’s -- the annulment of the divorce?

      Q.     Yes, sir.

      A.     Yes.

(1-RR-114-18) (emphasis added).

      Thus, Evangelina is prosecuting the legitimacy of the 1959 Mexican divorce

in a simultaneous lawsuit that she filed in Juárez. Munoz, who represents her in

that lawsuit, testified that the annulment of divorce challenge that she filed had

to have been brought in civil court in Mexico.

      Both the Juárez court and the 245th cannot have subject matter jurisdiction

over the legitimacy of the 1959 Mexican divorce.

      Munoz also represents Evangelina in a lawsuit, filed by Miguel, around

October of 2014, in Juárez, whereby Miguel has alleged the parties have been

divorced since 1959. (1-RR-110, 113). Munoz testified in the Mexican proceeding

that Miguel initiated, “Basically, what [Miguel] is arguing, in a manner in the

Court, is that he has been the concubine for his wife for more than five decades,

that he lived with her and had children with a concubine, formerly the wife, that he

registered his children as the father of those children, husband to Mrs. Evangelina.”

(1-RR-110) (emphasis added).




                                         21
      And then, Munoz explained Evangelina’s strategy in the simultaneous

Mexican proceeding, in the lawsuit filed by Miguel:

      A.    So in that procedure we are representing Mrs. Zaragoza basically
            alleging that that court has no jurisdiction over that issue on the
            grounds that the Zaragoza couple, the Zaragoza marriage had their
            domicile in Texas and that’s why this court had knowledge of the
            issues related to the matrimony or the marriage of the Zaragozas
            earlier in the year and that’s why, in our opinion, and that’s what we
            are arguing in that lawsuit is that this court should sustain jurisdiction
            over the court in Mexico, in Ciudad Juárez as that court has no points
            of contact and this court have knowledge of the issues prior to,
            months before that.
(1-RR-110-11) (emphasis added).

      To sum it up, Munoz explained Evangelina’s position as: the Juárez court in

which she seeks the annulment of the 1959 Mexican divorce has jurisdiction

(because this serves her forum shopping interests); but the Juárez court in which

Miguel seeks to have that divorce enforced, does not (because that doesn’t serve

her forum shopping interests); and the 245th has jurisdiction to divorce her

(because that serves her forum shopping interests).

      The standard for subject matter jurisdiction is not based on what serves

Evangelina’s forum shopping interests. The 245th has knowledge over a 12-month

period over Evangelina and Miguel; versus the Juárez jurisdiction and courts have

had 50+ years knowledge over them in Mexico. Additionally, there are at least two

ongoing proceedings in Juárez.



                                         22
      The Chihuahua court that issued the Divorce Sentence and Divorce

Certificate has ongoing, continuing, exclusive jurisdiction, when at the time of the

divorce, they represented to that court that they had three minor children.

      The only court with jurisdiction to decide the legitimacy of the 1959

Mexican divorce is the Juárez court, which is considering the issue already. The

245th has no subject matter jurisdiction.

5.    Evangelina’s expert, Ignacio Morales Lechuga testified: “Well,
      [Evangelina’s challenges on his perceived “irregularities” with the 1959
      Mexican divorce] is under the jurisdiction of the Chihuahua court.”
      Evangelina’s expert, Ignacio Morales Lechuga, is a lawyer licensed to

practice law in Mexico, and teaches contract law at the Escuela Libre de Derecho

(in Mexico), practiced family law as a district attorney and notary public in

Mexico. (1-RR-57-58). He does not, however, represent private clients in a

courtroom. (1-RR-81).

      Evangelina designated Lechuga to testify regarding Mexican law, the

Mexican court system, and past and present litigation. (1-RR-60). Lechuga did not

go to the divorce court in Chihuahua, where all the relevant documents are located.

(1-RR-82). Instead, to present his testimony to the Harris County court, Lechuga

reviewed documents that Evangelina’s Houston and Mexican lawyers sent to him,

as well as some from the Chihuahua government, such as: Evangelina’s Mexican

Original Petition for Divorce from 1953, filed in the State of Chihuahua, Mexico;


                                            23
the trial documents in the Court in Mexico where Evangelina filed her Petition; two

witness’ testimonies; Miguel’s answer to her Petition; payment of the costs; the

verdict; a petition for certified copies from 1914 (witness later clarified, from

2014); executory resolution; and other certifications. (1-RR-61, 63, 64, 82).

      Lechuga explained how a Mexican divorce proceeds from entry of a decree

to the entry of a final unappealable judgment. (1-RR-76-78). He reviewed the

Chihuahua divorce findings in this cause. (1-RR-84-87).

      He testified as to: the law in effect in Chihuahua, Mexico in 1959 (1-RR-

64); the procedure for obtaining a divorce in Mexico in 1959 (1-RR-66-67); the

proper stamp that might appear on a document filed in 1959 in a Mexican

proceeding in Chihuahua, under Mexican law (1-RR-69); the Mexican Civil Code

of 1942 and the laws of Chihuahua (1-RR-70-73); an executory declaration

proceeding and the consequences of that (1-RR-74); Article 159 of the Chihuahua

Civil Procedures Code, published on July 11, 1942 (1-RR-85); Article 185 of the

Chihuahua Civil Code (1-RR-87); the 1988 law requiring publishing of divorces

(1-RR-75); and the final judgment was entered in their cause in 2014. (1-RR-75).

He testified:

      A.        In 1988 a law was published, a law that modifies to establish the
                Court’s jurisdiction or competency and that law in the transitory
                article states that for cases that are pending will continue to be
                resolved through the Court in which the case was filed originally. In a
                way that the executory takes place in 2014, then that means that the
                second court continued to recognize them as husband and wife.
                                           24
(1-RR- 75-76).

      With all this testimony on Mexican law and Mexican proceedings, of course,

Evangelina’s challenge to the legitimacy of the 1959 Mexican divorce is properly

before the Juárez court, which has jurisdiction and dissolved the marriage in the

first instance. Counsel notified the court during the Plea to the Jurisdiction hearing

that: “Judge, it’s a collateral attack on the underlying Mexican judgment . . . .”

(1-RR-51-52) (emphasis added). The 245th has no subject matter jurisdiction over

these issues.

      Lechuga acknowledged that in the Divorce Sentence, the judge made

findings pursuant to the divorce. (1-RR-86-87). The “irregularities” in the 1959

Mexican divorce about which he testified were that the “stamp” “looks a little bit

weird for the time” that appears on page 3 of Evangelina’s Original Petition for

Divorce from 1953 that she filed in the Second Civil Court, in Juárez. (1-RR-67-

68). The “little bit weird for the time” stamp should be a different type of stamp on

a document filed in 1959, according to Lechuga. (1-RR-69). He also testified that:

under the civil law of 1942 in Chihuahua, both marriage and birth certificates

should have been attached, and witnesses could not be used to prove the existence

of the marriage (1-RR-70-71); Evangelina and Miguel had four children in 1959,

but only three were mentioned in the petition for divorce (1-RR-71); under the law

at the time, provisions must have been made for the support of the minor children,


                                         25
and none were made in the decree (1-RR-71-72); and although he acknowledged

that the decree granted custody of the children to Evangelina, he claims child

support was not addressed. (1-RR-72-73). Evangelina did not ask for child support

in her Petition, but he testified that regardless, the court had to have given child

support under the Chihuahua Civil Procedures Code. (1-RR-85). He also testified

that an executory declaration that renders the divorce unappealable, and an

executory order, should have issued in a matter of days. (1-RR-74).

      All of these “irregularities” should have been raised at the time in Juárez, not

now, 50+ years later, in the 245th. Counsel notified the court during the Plea to the

Jurisdiction hearing that: “Judge, it’s a collateral attack on the underlying Mexican

judgment . . . .” (1-RR-51-52). Notwithstanding that, Evangelina is raising all these

issues now in Juárez, where this case belongs, and according to her witnesses, the

only court where she can legally achieve an annulment of the 1959 Mexican

divorce.




                                         26
      Lechuga saw no evidence of an appeal of the divorce in the documents. (1-

RR-74). He testified that Miguel requested certified copies of the 1959 Mexican

divorce in 2014. (1-RR-75). He testified that a final judgment was not entered in

the case until 2014. (1-RR-75). He has never seen a delay of 55 years between the

entry of a decree and the entry of a final unappealable judgment. (1-RR-76).

      With respect to Evangelina’s and Miguel’s birth certificates, he conceded

that although a 55-year delay in annotating a birth certificate is “irregular” and the

law of 1933 required that both the birth certificates and marriage certificate be

annotated, he never testified that a delay was not permitted. (1-RR-77-78, 92).

There was no testimony about any legal requirement for a time frame for the

annotation of a birth certificate. (1-RR-77-78, 92).

      Lechuga concluded that the delay could be explained by either: these are

authentic documents, presented with false statements, or two, the whole thing is

false. (1-RR-76-77). Yet, he never asked Evangelina whether the signature on the

1953 Petition for divorce is hers. (1-RR-83). The date of the divorce on

Evangelina’s and Miguel’s birth certificates indicates October 7, 2014. (1-RR-77-

78). He also testified that in 1959, it was required that a divorce be published in a

newspaper or periodical and he found no evidence of that. (1-RR-79-80). He

concluded the process did not comply with the Mexican “legal process” and was

“null.” (1-RR-78-80, 88).


                                          27
      Basically, all of Lechuga’s testimony was on Mexico’s laws and procedures,

further reinforcing that Evangelina should continue to pursue her claim in the

Juárez court where it is already pending; not in the 245th District Court in Harris

County, which has no subject matter jurisdiction.

      Lechuga agreed, concluding that: “Well, it is under the jurisdiction of the

Chihuahua court.” (1-RR-89):

      Q.    And in order for someone to challenge this decree of divorce and
            declare it null and void, pursuant to the law of 1988, that challenge
            has to come in the court in which the divorce was declared; is that
            true?
      A.    When the process of the proceedings are still going, going on, yes, but
            once it is finished, no.
      Q.    And in this case is your testimony is that the process is not finished
            because Mrs. Zaragoza was not notified?
      A.    Well, definitely no one can assume defense for himself of something
            that you do not know and according to what she herself has declared,
            she didn’t know anything.

      Q.    So consequently, because it’s still an ongoing case, null and void, a
            finding of null and void has to be made by the court that has
            jurisdiction over this matter, which is the divorce court in
            Chihuahua, Mexico; is that true?

      A.    Well, it is under the jurisdiction of the Chihuahua court.
      Q.    Okay. Now, your opinion in this case, you were retained by Mrs.
            Zaragoza and her attorneys in Mexico and your opinion here today
            you were hired, you are a privately retained expert; is that true?

      A.    Yes, I was retained. Yes.
(1-RR-89) (emphasis added). He conceded that Evangelina has already initiated the


                                        28
process to render the divorce judgment void, in Chihuahua:

      Q. (BY MR. RAMOS) Has the process, lawsuit to render the judgment
           decree of divorce in Chihuahua null and void, has that been
           initiated by Mrs. Zaragoza, “yes” or “no.”

      A.    Yes.

(1-RR-92) (emphasis added).

      He acknowledged that Evangelina has initiated an “annulment of a

terminated process or a concluded process” in Juárez, Chihuahua to render the

1959 Mexican divorce null and void. (1-RR-91-92).

      The 245th does not have subject matter jurisdiction over the legitimacy of

the 1959 Mexican divorce. Evangelina has initiated a simultaneous proceeding in

Mexico, which her own expert testified, is where it must be brought. This is the

epitome of forum shopping and this Court should grant this Petition.

6.    Evangelina’s expert, Miguel Alessio Robles testified: The proper
      jurisdictional court, in order to adjudicate the legitimacy of the 1959
      Mexican divorce, is “a civil court in Chihuahua.”
      Evangelina’s expert, Miguel Alessio Robles, is also a lawyer, in Mexico

City, a professor in family and real estate law in Mexico. (1-RR-93). To testify in

Harris County, he reviewed the “family file,” he studied Mexican divorce law, the

Mexican civil code law, the Mexican procedures civil code that were in effect in

1959, and then he studied their divorce file. (1-RR-96-97). He opined as to the

logistics of the Mexican divorce proceedings and his perceived “irregularities” in

formalities under Mexican law. (1-RR-99-105).
                                        29
      Most importantly, he testified about how to address these supposed

“irregularities,” concluding that Evangelina must raise them in Chihuahua,

Mexico, which not only has jurisdiction over the dissolution of marriage that it

granted, but is the competent court:

      Q.    Okay. That you’re testifying to that had all these irregularities, if
            Mrs. Zaragoza wanted to challenge that decree of divorce, how
            would she go about doing that in Mexico?

      A.    It’s a nullity of a concluded procedure. It’s a new a procedure.

      Q.    Okay. And describe it for us. How would she go ahead and do that?
      A.    Under Article 7 of the Civil Code of Chihuahua.

      Q.    Okay.
      A.    All these irregularities are against law. The procedure is a fraud and
            with all these proofs, we have to notify all the procedure.

      Q.    And these irregularities that you’re referring to, I mean, these are
            major violations. This is essentially a fraud.
      A.    Yes, it is.

      Q.    Okay. And since this is a major fraud or a major irregularity, this
            needs to be raised and brought to the attention of the Chihuahua civil
            court that actually issued this decree of divorce.

      A.    No.
      Q.    How would that go about?

      A.    Under the same jurisdiction, not in the same court.

      Q.    Same jurisdiction?
      A.    Not in the same court.

      Q.    Okay. Why does it have to be in the same jurisdiction?

                                        30
      A.     Because of the competence of the court.

      Q.     Okay.
      A.     The competence of the court is the jurisdiction, the place where the
             trial was taken up.

      Q.     But you say the competence of the court where the trial took place?

      A.     Uh-huh.

      Q.     Is that a “yes”?
      A.     That’s my opinion.

      Q.     So the proper jurisdictional court, in order to take on this issue, is
             the civil court in Mexico?

      A.     A civil court in Chihuahua.
      MR. RAMOS: Thank you.

(1-RR-106-07) (emphasis added). Robles testified the only competent court with

jurisdiction to address the legitimacy of the 1959 Mexican divorce is a civil court

in Chihuahua. Evangelina has already initiated that process. The 245th has no

subject matter jurisdiction.

      The “irregularities” about which Robles testified were that Evangelina and

Miguel donated real estate to one of their children that was under Miguel’s name,

but Evangelina had to sign the contract, because they were married in New

Mexico, which is a community property state. (1-RR-97-99). He testified that:

there was no marriage certificate attached to the petition for divorce, which was

mandatory, and could not be proven with witnesses (1-RR-99); there was no


                                        31
provision in the demand for divorce in the Divorce Sentence for child support or

visitation and no notification to the district attorney, which was also mandatory (1-

RR-101); although the Divorce Sentence was ordered for publication on June 1l,

1959, he saw no evidence of publication in the public gazette of Chihuahua (1-RR-

102); it was irregular for Evangelina’s Petition to have been filed on May 26, 1959

and for the decree to be entered the next day (1-RR-103); the missing child is an

irregularity in the Divorce Sentence (1-RR-103-04); it is not customary to annotate

a birth certificate, such as Evangelina’s and Miguel’s had been done on October 7,

2014, and it is customary only for the marriage certificate to be annotated (1-RR-

105); and for a divorce to be annotated on a birth certificate 55 years later is an

irregularity on its face. (1-RR-105).

      To sum up, Robles, like Evangelina’s other witnesses, concluded that any

“irregularities” must be raised in the same jurisdiction in Chihuahua because that

is the “competence of the court.” (1-RR-106-07) (emphasis added). Evangelina has

already initiated this proceeding, it is ongoing, and 245th has no subject matter

jurisdiction.

7.    Evangelina’s witnesses at the Plea to the Jurisdiction hearing primarily
      reside in Juárez or in other parts of Mexico; none reside in Harris
      County.
      Evangelina has ten living children. Three of them testified at the Plea to the

Jurisdiction hearing. And she called a priest to testify. None of her witnesses have


                                         32
permanent residence in Harris County. Every expert and witness was from Mexico,

and the one son, from San Diego (although he owns two homes in Mexico as well).

This proceeding belongs in Mexico.

      Most of Evangelina’s children live far from Harris County. Her son, Miguel

Lopez, testified that of his siblings, two live in San Diego; a sister lives in Costa

Rica, two live in the State of Querétaro in Mexico; a brother in the City of Saltillo,

in the State of Coahuila, in Mexico; and Evita, Georgina, Myrna, and himself live

in the City of Juárez, in the State of Chihuahua, in Mexico. (1-RR-130).

Evangelina called Jose Maria Rubin, a Catholic priest, to testify, who has not seen

she or Miguel since October 17, 2003, and that was in Juárez. (1-RR-158, 160). He

lives in Mexico City. (1-RR-158). None of these witnesses live in Harris County.

      This case belongs in Mexico where Evangelina’s Mexican lawyer, Munoz,

testified there are five pending lawsuits already, at least two of which are on the

legitimacy of the 1959 Mexican divorce. (1-RR-115-17). He testified that

Evangelina has the resources to pursue her claims there. Id.




                                         33
                            SUMMARY OF ARGUMENT

      The 245th District Court lacks subject matter jurisdiction over this divorce

case because, first, Relators supplied the 245th with the necessary information

under Texas Rule of Evidence 201 for it to take judicial notice of the Mexican

Divorce Records. The trial court’s duty to take judicial notice was mandatory. The

Mexican Divorce Records establish that there is no marriage, which deprives the

245th of subject matter jurisdiction over a divorce action. Moreover, Evangelina’s

Texas counsel presented for admission into evidence P-2, which is the original and

translated versions, of the Mexican Divorce Sentence and the Mexican Divorce

Certificate, at the Plea to the Jurisdiction hearing, and had no objections to

Relators’ translations. (1-RR-34-35, 67, 161, 166-67). Yet, the 245th refused to

take judicial notice of the Mexican Divorce Records, which showed they have been

divorced since 1959, thereby abusing its discretion.

      Second, the matter of the legitimacy of Evangelina’s and Miguel’s 1959

Mexican divorce is pending in a simultaneous proceeding in the City of Juárez, in

the State of Chihuahua, in Mexico, which Evangelina initiated, where she seeks to

annul the divorce under Mexican law. The courts in Juárez, Chihuahua in Mexico,

which dissolved the marriage in 1959, have jurisdiction, not the 245th Judicial

District Court in Harris County.




                                         34
      Evangelina’s own experts all testified that the Juárez, Chihuahua court is

competent and has jurisdiction to decide her annulment of the 1959 Mexican

divorce action, which is pending. And the Mexican lawyer representing her in that

lawsuit testified at the Plea to the Jurisdiction hearing that Evangelina has the

resources and is zealously pursuing her claim to the annul the marriage there.

Finally, that same Mexican lawyer is representing Evangelina in another

proceeding in Juárez, brought by Miguel, to enforce the 1959 Mexican divorce.

      Evangelina initiated the underlying divorce proceeding in the 245th District

Court claiming she is married, when at the same time, she is asking the Mexican

courts to determine whether she really is. She cannot collaterally attack the 1959

Mexican divorce here.

      Evangelina is forum shopping. It’s that simple.

      Both Mexico’s and Texas’ courts cannot have subject matter jurisdiction.

It’s apparent from the witnesses and testimony at the Plea to the Jurisdiction

hearing that only the Juárez court that dissolved the marriage in 1959 has

jurisdiction, and is a competent court, to consider her challenge to the 1959

Mexican divorce.

      Third, and finally, Relators have no legitimate connection to this family

matter between Evangelina and Miguel. Carrillo works for Miguel. Evangelina’s

claims against Relators purport to arise out of or depend upon a matrimonial


                                        35
fiduciary relationship that has not existed for over fifty years, no claims against

them can survive dismissal.

       Accordingly, the Juárez court is already considering Evangelina’s annulment

of divorce and has jurisdiction to do so. The 245th has no subject matter

jurisdiction.

       Thus, Relators respectfully request that this Court command the 245th to

vacate its Order Denying Relators’ Plea to the Jurisdiction of May 11, 2015, to

command it to dismiss the underlying lawsuit and all claims against them for want

of subject matter jurisdiction, and for all other relief to which they might be

entitled.

                                   ARGUMENT

I.     Mandamus standard of review.
       Subject matter jurisdiction is never presumed and cannot be waived. In re

Am. Nat’l County Mut. Ins. Co., No. 14-12-01135-CV, 2013 Tex.App.LEXIS

1278, at *4 (Tex. App.—Houston [14th Dist.] Feb. 6, 2013, orig. proceeding)

(citing Tex. Ass’n of Business v. Air Control Bd., 852 S.W.2d 440 (Tex. 1993)). A

trial court has no discretion and must dismiss the case as a ministerial act when it

lacks subject matter jurisdiction. Id. Mandamus is available where the trial court’s

action is void as a matter of law, and entitles Relators to mandamus relief. Id.

(citing In re John G. and Marie Stella Kenedy Memorial Foundation, 315 S.W.3d


                                        36
519, 522 (Tex. 2010) (mandamus relief was appropriate in case in which trial court

lacked jurisdiction because plaintiff had no standing)).

      Insofar as the jurisdictional issue is concerned, the existence or absence of

subject matter jurisdiction is a question of law reviewed de novo. In re Barnes,

127 S.W.3d 843, 846 (Tex. App.—San Antonio 2003, orig. proceeding).

      When an order is void, the relator need not show that he does not have an

adequate appellate remedy, and mandamus relief is appropriate. In re Sw. Bell Tel.

Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam). An order

signed when the trial court lacks jurisdiction is void, and thus, subject to

mandamus. See In re Park Memorial Condo. Assoc., Inc., 322 S.W.3d 447, 448,

452 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (conditionally

granting mandamus because the trial court’s orders compelling the Association to

distribute insurance proceeds are void for lack of jurisdiction because the party’s

pleadings did not request the relief the trial court granted, and thus, did not support

the judgment; the trial court had no jurisdiction to render the judgment, and thus,

the order was void.); In re JP Morgan Chase Bank, N.A., No. 14-10-01124-CV,

2011 Tex.App.LEXIS 414, at *2-3 (Tex. App.—Houston [14th Dist.] Jan. 20,

2011, orig. proceeding) (per curiam) (granting mandamus where trial court issued

an order beyond its jurisdiction by signing an order long after its plenary power




                                          37
had expired). Thus, the “adequate remedy at law” prong of the traditional

mandamus test is not in play here.

      When a trial court exceeds its jurisdictional authority, “mandamus is proper

even without a showing that the relator lacks an adequate remedy on appeal.” In re

Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (per curiam) (citing In re Sw.

Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam) (“Mandamus is proper

if a trial court issues an order beyond its jurisdiction . . . . Further, because the

order was void, the relator need not show it did not have an adequate appellate

remedy, and mandamus relief is appropriate.”).

II.   The trial court failed to apply the law correctly by refusing to take
      judicial notice of a foreign country’s court records establishing the
      adjudicative fact that Evangelina and Miguel are divorced.
      The trial court clearly abused its discretion by refusing to judicially notice

the Mexican Divorce Records, and subsequently denying Relators’ Plea to the

Jurisdiction. This Court should grant mandamus relief because:

      (a)    Relators supplied the court with the necessary information;

      (b)    the court’s duty to take judicial notice was mandatory; and

      (c)    the Mexican Divorce Records establish that there is no marriage,
             which deprives the Family Court of subject matter jurisdiction over a
             divorce action.

      Evangelina agreed that taking judicial notice was proper. (7-CR). The first

header and sentence of Evangelina’s Response to Co-Respondent’s Plea to the

Jurisdiction is: “Petitioner does not object to the Court’s taking judicial notice of
                                         38
the Mexican judgment.” (7-CR-2).




                                   39
Evangelina’s Texas counsel also conceded that she is challenging the Final

                                40
Decree in Mexico. (7-CR-2). Thus, the 245th abused its discretion by failing to

take judicial notice of the Mexican Divorce Records.

      A.    Rule of Evidence 201 mandates judicial notice when the court is
            supplied with the necessary information.
      Texas Rule of Evidence 201 requires a court to take judicial notice of an

adjudicative fact “if requested by a party and supplied with the necessary

information.” TEX. R. EVID. 201(d). A judicially noticed fact must be one not

subject to reasonable dispute in that it is either: (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned. TEX. R. EVID. 201(b). Matters of public record are subject to judicial

notice. Id.; see Langdal v. Villamil, 813 S.W.2d 187, 190 (Tex. App.—Houston

[14th Dist.] 1991, no writ). Additionally, a court should take judicial notice of

another court’s records when they are provided by the proponent in an accepted

form (i.e., either sworn or certified). Old Republic Surety Co. v. Bonham State

Bank, 172 S.W.3d 210, 218 n.4 (Tex. App.—Texarkana 2005, no pet.). Judicial

notice may be taken at any stage of the proceeding. TEX. R. EVID. 201(f).

      Relators requested the trial court to take judicial notice of the fact that

Evangelina and Miguel obtained a divorce in Mexico in 1959. It is undisputed that

they were married on or about October 14, 1953. (8-CR-4). However, the

Amended Petition incorrectly asserts that they were, and continue to be, “husband

                                        41
and wife” after October 1953. Id. at 5. In fact, the Second Civil Judge of the

Bravos District, Hon. Carlos Martinez Alvidrez, granted a divorce on May 27,

1959. (3-CR). The court determined it had jurisdiction to resolve the case. Id.

The court then declared the marriage between Evangelina and Miguel “dissolved

with all its legal consequences” and “both parties [were decreed] legally able to

remarry.”   Id.   The court resolved that “there are no common assets of the

community property” and that the children of the marriage who were then minors

“shall remain under the custody and care of their mother.” Id.

      B.    Relators supplied the court with the necessary information, which
            Evangelina did not dispute.

            1.     The Mexican Divorce Records are authentic.
      The accuracy and authenticity of the Mexican Divorce Records cannot

reasonably be questioned. The Mexican Divorce Records comply with applicable

Texas Rule of Evidence regarding judicial notice of foreign-language documents,

in that they are authentic and they have been properly translated. (1-RR-CE-1-4);

(3-6-CR).

      Certified copies of government records are self-authenticating under Texas

Rule of Evidence 902. TEX. R. EVID. 902(3). Foreign public documents that

purport to be executed or attested in an official capacity by a person authorized by

the laws of the foreign country to make the execution or attestation, and

accompanied by a final certification as to the genuineness of the signature and

                                        42
official position of the executing or attesting person, do not require extrinsic

evidence of authenticity. Id. A final certification is unnecessary when, as here,

both the United States and the foreign country (here, Mexico) are parties to a treaty

eliminating the requirement, such as the Hague Convention Abolishing the

Requirement of Legalization for Foreign Public Documents (the “Hague

Convention”). Bruton v. State, 428 S.W.3d 865, 879 n. 69 (Tex. Crim. App. 2014).

See also Flores v. Contreras, 981 S.W.2d 246, 248 (Tex. App.—San Antonio

1998, pet. denied) (United States and Mexico are signatories to Hague

Convention). The Hague Convention replaces the final certification with an

“apostille,” which certifies the signature, official position, and seal of the attesting

officer.

       The Mexican Divorce Records contain the necessary certifications from the

government agency from whom they were requested, namely, the Civil Registry of

Mexico and the Central Archive Department of Mexico. (1-RR-CE-1-4). Each of

the Mexican Divorce Records contains the required apostille, which certifies the

signature, official position, and seal of the attesting officer issuing the document,

as required by the Hague Convention. Id. Therefore, the authenticity of the

Mexican Divorce Records is capable of accurate and ready determination by resort

to sources whose accuracy cannot reasonably be questioned, as required by the

Texas Rules of Evidence. See id.


                                          43
      Evangelina has not disputed what the certified and translated Mexican

Divorce Records say: that she and Miguel were divorced in 1959. While she

challenges the underlying circumstances that led to the divorce judgment, all her

witnesses unequivocally agreed that the only proper forum with jurisdiction to

decide this issue is in Juárez and Evangelina is already prosecuting her annulment

of divorce there. As explained infra, all of her arguments about so-called

“irregularities” are tantamount to a collateral attack on the 1959 Mexican divorce,

which is impermissible.

      Two courts cannot have jurisdiction over the legitimacy of a marriage and

divorce. The Juárez court should be permitted to decide. The 245th has no subject

matter jurisdiction to consider any “irregularities.”

             2.     The Mexican Divorce Records were translated in strict
                    compliance with the Rules of Evidence.
      The trial court acknowledged that Relators met this requirement, as indicated

in the Order: “The Court found that the requirements of Texas Rule of Evidence

1009 as related to Exhibits A-D were met.” (1-CR-2). And, in fact, Evangelina’s

counsel did not object and stipulated several times throughout the hearing that the

Exhibits complied with Rule 1009 and that the trial court could take judicial notice

that the translations were accurate. (1-RR-34-35, 161, 166-67).

      Each of the Mexican Divorce Records was submitted in accordance with

Texas Rule of Evidence 1009, which governs the translation of foreign-language

                                          44
documents. Specifically, translations of foreign-language documents are

admissible “upon the affidavit of a qualified translator setting forth the

qualifications of the translator and certifying that the translation is fair and

accurate.”   TEX. R. EVID. 1009(a). The translations of the Mexican Divorce

Records, contained within each of Carrillo Exhibits 1-4 (also referred to as

Exhibits A-D), were performed by an Official Translator for the State Department

of Professions of the Ministry of Education and Culture of the State of Chihuahua,

Mexico, who certified and attested to the translations. (1-RR-CE-1-4); (3-6-CR).

      As pertaining to translations of foreign documents, Rule 1009 requires any

translation to be served on all parties at least 45 days prior to trial. TEX. R. EVID.

1009(a). The Mexican Divorce Records, translations thereof, and certifications

from a qualified translator (certifying that the translation is fair and accurate), were

served on all parties to this proceeding at least as early as November 11, 2014.

Thus, Evangelina had possession of the translations for over 45 days. And she

never filed an objection to the translations, or offered a counter translation.

Accordingly, by rule, Evangelina is “preclude[d] … from attacking or offering

evidence contradicting the accuracy of such translation at trial.” TEX. R. EVID.

1009(c). Indeed, during the hearing, Evangelina acknowledged as much by

confirming that the translations complied with Rule 1009 and that she did not

object. (1-RR-34-35, 67, 161, 166-67)


                                          45
      C.     The trial court failed to comply with its mandatory duty to
             judicially notice the Mexican Divorce Records
      Having been supplied with the Mexican Divorce Records, the trial court was

obligated to take judicial notice of them and the information contained therein. See

TEX. R. EVID. 201(d) (judicial notice mandatory when supplied with the necessary

information); Attorney General of Texas v. Litten, 999 S.W.2d 74, 77-78 (Tex.

App.—Houston [14th Dist.] 1999, no pet.) (trial court abused discretion in failing

to take judicial notice of other state’s statute when supplied with the information);

Magee v. Ulery, 993 S.W.2d 332, 339 (Tex. App.—Houston [14th Dist.] 1999, no

pet.) (trial court erred in failing to take judicial notice when provided with

necessary information); Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 137 (Tex.

App.—El Paso 1998, pet. denied) (same); Drake v. Holstead, 757 S.W.2d 909, 911

(Tex. App.—Beaumont 1988, no writ) (same); see also Office of Pub. Util.

Counsel v. Pub. Util. Comm’n of Texas, 878 S.W.2d 598, 600 (Tex. 1994) (holding

court of appeals erred in refusing to take judicial notice of published PUC order).

      The trial court’s contrary order was a clear abuse, particularly in light of

Evangelina’s lack of objection to the form of the documents, coupled with the fact

that she offered the for admission into evidence, P-2, which is the original and

translated versions, of the Mexican Divorce Sentence and the Divorce Certificate,

at the Plea to the Jurisdiction hearing. (1-RR-67, 166). Because the trial court

clearly failed to correctly apply the law on judicial notice, mandamus is warranted.

                                         46
       Further, this Court has the right, and Relators believe a duty, to take judicial

notice of the Mexican Divorce Records as well. See City of El Paso v. Fox, No.

08-12-00264-CV, 2014 WL 5023089, at *4, 2014 Tex.App.LEXIS 11157 (Tex.

App.—El Paso October 8, 2014, no pet.) (court of appeals took judicial notice of

adjudicative facts sua sponte) (citing Lazarides v. Farris, 367 S.W.3d 788, 799

(Tex. App.—Houston [14th Dist.] 2012, no pet.) (taking judicial notice of meeting

minutes available on city’s website); Langdale v. Villamil, 813 S.W.2d 187, 190

(Tex. App.—Houston [14th Dist.] 1991, no writ) (acknowledging that court may

take judicial notice of matters of public record, whether requested by a party or on

its own motion, for the first time on appeal).

       Therefore, Relators respectfully request that this Court take judicial notice of

the Mexican Divorce Records and grant this Petition.

III.   The trial court abused its discretion by denying Relators’ Plea to the
       Jurisdiction.
       The trial court lacks subject matter jurisdiction, and thus, any order it issues,

including the Order denying the Plea to the Jurisdiction is void. The trial court

lacks subject matter jurisdiction over this divorce case because, the matter of the

legitimacy of Evangelina’s and Miguel’s 1959 Mexican divorce is pending in a

simultaneous proceeding in Juárez, Chihuahua, which Evangelina initiated, where

she seeks to annul the divorce. That Second Civil Court, in Juárez, Chihuahua in

Mexico dissolved the marriage in 1959, and has jurisdiction to consider any

                                          47
“irregularities,” not the 245th in Harris County. The 245th has no subject matter

jurisdiction to consider this collateral attack on the 1959 Mexican divorce.

      Moreover, every expert Evangelina called was from Mexico and agreed that

the Chihuahua, Mexico 1959 Mexican divorce.

      Additionally, the 245th abused its discretion because had it properly taken

judicial notice of the Mexican Divorce Sentence, the Divorce Certificate, and

Evangelina’s and Miguel’s birth certificates, the adjudicative fact that Evangelina

and Miguel are divorced would have been established. Even Evangelina’s Texas

counsel admitted into evidence the Mexican Divorce Sentence and the Mexican

Divorce Certificate as P-2, and had no objections to the translations. (1-RR-34-35,

67, 161, 166-67). Therefore, the 245th District Court has no subject matter

jurisdiction to grant the divorce that was already granted in 1959.

      Hence, if the 245th had taken judicial notice, Evangelina and Miguel are not

married, and it could not exercise subject matter jurisdiction over this divorce

proceeding.

      A.      A Plea to the Jurisdiction is a proper procedural vehicle to
              challenge subject matter jurisdiction.
      Relators challenged the trial court’s subject matter jurisdiction, which “may

be raised by a plea to the jurisdiction.” Bland I.S.D. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000); see also Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 225-26 (Tex. 2004); In re Marriage of J.B. and H.B., 326 S.W.3d 654, 659,

                                         48
662 (Tex. App.—Dallas 2010, pet. granted). Whether a court has subject matter

jurisdiction is a question of law. Miranda, 133 S.W.3d at 226. A party may

challenge subject matter jurisdiction at any time and, when raised, the court should

make the jurisdictional determination “as soon as practicable.” Bland, 34 S.W.3d

at 554.    In considering a jurisdictional plea, the court is not confined to the

pleadings but may consider evidence, and must do so “when necessary to resolve

the jurisdictional issues raised.” Id. at 555.

      B.     Evangelina has already initiated a simultaneous proceeding in
             Juárez, Chihuahua for adjudication on the legitimacy of the 1959
             Mexican divorce and may not collaterally attack that decree or
             the Mexican Divorce Records in the 245th.
      Divorce judgments are not subject to collateral attack in a subsequent suit.

Jacobs v. Cude, 641 S.W.2d 258, 259 (Tex. App.—Houston [14th Dist.] 1982, writ

ref’d n.r.e.); see also Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990) (per

curiam) (divorce judgments are not vulnerable to collateral attack).

      Further, a judgment of a domestic relations court, which finalizes a divorce

and partitions marital property, precludes any attempt to relitigate the division of

property at a later time. Walker v. Walker, 619 S.W.2d 196, 198 (Tex. App.—

Tyler 1981, writ ref’d n.r.e.); see Moreno v. Alejandro, 775 S.W.2d 735, 738 (Tex.

App.—San Antonio 1989, writ denied). This rule applies equally to foreign and

domestic divorce judgments. See Carrillo v. Garzon, No. 14-94-00630-CV, 1995

WL 628156, at *3, 1995 Tex.App.LEXIS 2714 (Tex. App.—Houston [14th Dist.]

                                           49
October 26, 1995, no writ). The Carrillo case is particularly on point, as it barred

a collateral attack on a Mexican divorce settlement in Texas court. Id. There, the

Fourteenth Court of Appeals upheld summary judgment, concluding that res

judicata prevented a former wife from filing a complaint in Texas to re-address the

division of property. Id.

      Evangelina’s challenges to the Mexican Divorce Records in the Plea to the

Jurisdiction hearing pertained to the experts’ testimonies on “weird” stamps, no

child support awarded, no final judgment entered that was unappealable until 2014,

annotated birth certificates for Evangelina and Miguel in 2014, and no publication

of divorce. Yet, all her experts, including the Mexican lawyer representing her in

the annulment of divorce proceeding in Mexico, all agreed that these supposed

“irregularities” must be brought in the Juárez court. Evangelina has done so, and

the proceeding is ongoing.

      These are not valid challenges to raise to the 245th. Instead, any attempt to

do so would be barred by res judicata and collateral estoppel.7 Res judicata bars all

claims related to the subject matter of the original cause of action which could

have been litigated in the original suit. Weiman v. Addicks-Fairbanks Road Sand


7
      Res judicata and collateral estoppel precepts apply in family law cases. Smith v.
      Ferguson, 160 S.W.3d 115, 123-24 (Tex. App.—Dallas 2005, pet. denied); Nelson v.
      Williams, 135 S.W.3d 202, 206 (Tex. App.—Waco 2004, pet. denied) (citing Baxter v.
      Ruddle, 794 S.W.2d 761, 763 (Tex. 1990) (holding res judicata applies to a final divorce
      decree to the same extent that it applies to any other final judgment)).

                                             50
Co., 846 S.W.2d 414, 418 (Tex. App.—Houston [14th Dist.] 1992, writ denied). A

final judgment on an action extinguishes the right to bring suit on the transaction

out of which the action arose. Barr v. Resolution Trust Corp., 837 S.W.2d 627,

631 (Tex. 1992)     (citing RESTATEMENT (SECOND)      OF   JUDGMENTS §24(1)-(2)).

Under the “transactional” approach adopted in Barr, a judgment in an earlier suit

precludes a second action by the parties on issues both actually litigated or which

arise out of the same subject matter. Id.; see also Getty Oil Co. v. Ins. Co. of N.

Am., 845 S.W.2d 794, 798 (Tex. 1992). Under Texas law, “the focus is not on

whether the issue was ever presented to the court [deciding the first judgment] but

whether the action arises out of the same subject matter as the first judgment and

could have been litigated.” Carrillo, 1995 WL 628156, at *3.

      The 1959 Mexican divorce bars re-litigation of the issues that the Mexican

court already decided, or could have decided. See Purcell v. Bellinger, 940 S.W.2d

599, 600 (Tex. 1997) (per curiam) (affirming trial court’s summary judgment

barring family law action in Texas after issue was litigated to final judgment in

New York). The subject matter of Evangelina’s and Miguel’s Mexican divorce

case was the dissolution of their marriage, the division of any assets accumulated

during the marriage, and the custody of their minor children. See Carrillo, 1995

WL 628156, at *3. As her experts all testified, Evangelina had the opportunity to




                                        51
litigate the division of assets during that proceeding, and never challenged the

division of assets in Mexican court after the Mexican divorce became final. See id.

      As the Mexican Divorce Records indicate, Evangelina and Miguel have been

divorced since 1959. The Chihuahua court that issued the Divorce Sentence and

Divorce Certificate has ongoing, continuing, exclusive jurisdiction, when at the

time of the divorce, they represented to that court that they had three minor

children. Evangelina cannot now attempt to circumvent the result of that

proceeding, a divorce that she initiated and never challenged or appealed in a

Mexican court. Emphasizing this point, all of Evangelina’s witnesses agreed that

any action to declare the Mexican divorce judgment invalid must be brought in

Mexico. (1-RR-75-76, 88-89, 105-07, 115-16).

      Until Evangelina does what her own experts said she must do, and secures

an order declaring the divorce judgment invalid from a court in Mexico, the 245th

lacks jurisdiction to adjudicate the alleged divorce because it has already been

adjudicated. She has a simultaneous proceeding pending in Juárez. The 245th has

no subject matter jurisdiction.

      C.     The 245th has no jurisdiction over Evangelina’s claims against
             Relators, which are based on a fiduciary relationship that ceased
             to exist in 1959.
      Carrillo and Texas LPG Storage have no legitimate connection to this family

matter between Evangelina and Miguel. Under Texas law, the fiduciary duty


                                        52
arising from the marital relationship ceases when the husband and wife become

adverse, including during the period when they are divorcing. Parker v. Parker,

897 S.W.2d 918, 924 (Tex. App.—Fort Worth 1995, writ denied), overruled on

other grounds, Formosa Plastics Corp. USA v. Presidio Engineers & Contractors,

Inc., 960 S.W.2d 41 (Tex. 1998) (reversing and modifying award of contractual

alimony based on breach of fiduciary duty relating to settlement between husband

and wife because “[fiduciary] relationship terminates in a contested divorce when a

husband and wife each have independent attorneys and financial advisers”). The

reasons for this well-established point of law becomes particularly apparent in the

context of “hotly contested divorce proceedings.” Toles v. Toles, 113 S.W.3d 899,

916 (Tex. App.—Dallas 2003, no pet.) (holding that, when wife’s allegations of

husband’s breach of fiduciary duty arose in such a context, and husband and wife

were each represented by independent attorneys, husband did not owe wife “a legal

or equitable duty in the conduct of those proceedings”); Boyd v. Boyd, 67 S.W.3d

398, 405 (Tex. App.—Fort Worth 2002, no pet.) (“The fiduciary duty arising from

the marriage relationship does not continue when a husband and wife each hire

independent professional counsel to represent them in a contested divorce

proceeding.”).

      Evangelina’s and Miguel’s fiduciary relationship terminated in 1959 when

they were legally divorced in Mexico. Evangelina’s allegations against the Relators


                                        53
are dependent on these parties’ relationship, if any, to Miguel. (8-CR-7-10).

Because Miguel’s fiduciary duties to Evangelina ceased in 1959, so too did any

possible liability of Relators based on theories of alter ego liability/piercing the

corporate veil, or single business enterprise, or any other derivative theory no

matter how phrased.

      Evangelina’s First Amended Petition purports to assert claims for

constructive fraud/fraud, piercing the corporate veil/alter ego, single business

enterprise, and breach of fiduciary duty. Relators are mentioned in the portions

regarding piercing the corporate veil/alter ego and single business enterprise,

which allege that Miguel “failed to retain and diverted funds of the community in

order to fraudulently acquire and enhance the value of the Co-Respondent

individuals’ estates and the entities’ holdings” and that Miguel “collects all

revenues and is involved in the oversight and direction of the Third Party Co-

Respondent individuals and entities.” (8-CR-8-9). The remaining claims—

constructive fraud/fraud and breach of fiduciary duty—are necessarily tied to

Miguel’s fiduciary relationship, if any, to Evangelina, by virtue of their marital

relationship.   See Matter of Marriage of Moore, 890 S.W.2d 821, 827 (Tex.

App.—Amarillo 1994, no writ) (under Texas family law, constructive fraud is

based upon the existence of a fiduciary duty requiring utmost good faith).




                                        54
      Relators are not named in these causes of action, except as the alleged

recipients of community property in connection to Evangelina’s fraud claims. (8-

CR-6). Relators’ only potential involvement in this case is as alleged alter egos of

Miguel.   It follows, then, that Relators could be held liable for constructive

fraud/fraud or breach of fiduciary duty only if Miguel is also found to be liable

under these theories.

      Alter ego is an equitable means of imposing individual liability where it

would not otherwise exist. Kern v. Gleason, 840 S.W.2d 730, 736 (Tex. App.—

Amarillo 1992, no writ). Alter ego liability should only be applied in extraordinary

circumstances. Sagebrush Sales Co. v. Strauss, 605 S.W.2d 857, 860 (Tex. 1980);

Heafner & Assocs. v. Koecher, No. 01-91-01075-CV, 1994 WL 389030, at *14

1994 Tex.App.LEXIS 1868 (Tex. App.—Houston [1st Dist.] July 28, 1994, writ

denied) (when wife failed to procure award of actual damages, in tort or otherwise,

against husband, “there is no potential for the kind of ‘injustice’ to which the alter

ego doctrine is addressed”). In order to be properly held an alter ego of Miguel in

this matter, Relators must have been alter egos of Miguel during the time

Evangelina and Miguel were legally married. See Zisblatt v. Zisblatt, 693 S.W.2d

944, 955 (Tex. App.—Fort Worth 1985, writ dism’d w.o.j.) (holding that

corporation was alter ego of respondent because “the evidence overwhelmingly

establishes that [respondent and co-respondent were alter egos] at the time the


                                         55
parties were married, at the time the stock was ostensibly transferred […] and

through the time of the parties’ divorce”).

      Here, if Relators were ever the alter egos of Miguel, which they deny, it was

only after Evangelina and Miguel divorced and any fiduciary relationship between

them ceased to exist. Therefore, Relators could not have a fiduciary duty to

Evangelina based on alter ego, piercing the corporate veil, single business

enterprise, or any other legal theory.

                                    CONCLUSION

      Relators, Ernesto Carrillo and Texas LPG Storage Company, respectfully

request that this Court command the 245th to vacate its Order Denying Relators’

Plea to the Jurisdiction of May 11, 2015, to command it to dismiss the underlying

lawsuit and all claims against them for want of subject matter jurisdiction, and for

all other relief to which they might be entitled.




                                          56
     Respectfully submitted,

     /s/ Ricardo L. Ramos
     ______________________________
     Ricardo L. Ramos
     State Bar No. 24027648
     RICARDO L. RAMOS, PLLC
     440 Louisiana, Suite 1450
     Houston, Texas 77002
     Telephone: (713) 227-7383
     Facsimile: (713) 227-0104
     rick@rr-familylaw.com

     Lucy H. Forbes
     Texas State Bar No. 24007321
     The Forbes Firm, PLLC
     2114 Woodcrest Drive
     Houston, Texas 77018
     Telephone: (832) 620-3030
     Facsimile: (832) 532-3789
     E-mail: lucy@forbesfirm.com

     ATTORNEYS FOR RELATORS, ERNESTO
     CARRILLO AND
     TEXAS LPG STORAGE COMPANY




xv
                             CERTIFICATE OF SERVICE

      I certify that a true and correct copy of Relators Ernesto Carrillo’s and Texas
LPG Storage Company’s Petition for Writ of Mandamus and Record has been
served electronically through the electronic filing manager; in the alternative, it has
been served in person, by mail, by commercial delivery service, by fax, or by
email, as permitted under TEX. R. APP. P. 9.5(b) (1) – (2) and the TEX. R. CIV. P.
21(a)(1) - (2) to the following persons on this the 9th day of April, 2015:

 Jeanne Caldwell McDowell                       Mary Olga Lovett
 jcm@houstontrialattorneys.com                  lovettm@gtlaw.com
 Rebekah H. Birdwell                            Greenberg Traurig, L.L.P.
 rhb@houstontrialattorneys.com                  1000 Louisiana, Suite 1700
 The Law Offices of Jeanne Caldwell             Houston, Texas 77002
 McDowell                                       Fax: (713) 374-3505
 603 Avondale
 Houston, Texas 77006
 Fax: (713) 655-1725


 Lindsey Short                                  Kevin D. Jewell
 Adam J. Morris                                 Chamberlain, Hrdlicka, White,
 Short Carter Morris, LLP                       Williams & Aughtry
 1177 West Loop South, Suite 700                1200 Smith Street, Suite 1400
 Houston, TX 77027                              Houston, Texas 77002
 Facsimile: 713-759-9650                        Facsimile: 713-658-2553


 The Honorable Roy L. Moore
 Presiding Judge, 245th District Court
 Harris County Civil Courthouse
 201 Caroline, 15th Floor
 Houston, Texas 77002




                                                ___________________________
                                                Lucy Forbes

                                          xvi
                                CERTIFICATION

      I certify that I have reviewed the petition and concluded that every factual
statement in the petition is supported by competent evidence included in the
Appendix or Record under TEX. R. APP. P. 52.3(j).



                                              /s/ Ricardo L. Ramos
                                              ___________________________
                                              Ricardo L. Ramos



                         CERTIFICATE OF COMPLIANCE

       As required by Texas Rule of Appellate Procedure 9.4(i)(2), (3), I certify
that this computer generated brief has 10,516 words in the document, having relied
on Microsoft Word 2007.



                                              ______________________________
                                              Lucy H. Forbes




                                       xvii
                                       NO. _________
______________________________________________________________________________

                        IN THE FIRST COURT OF APPEALS
                             AT HOUSTON, TEXAS
              ______________________________________________

                          IN RE ERNESTO CARRILLO AND
                            TEXAS LPG STORAGE CO.,
                                   RELATORS
                ____________________________________________
                     From the 245th District Court of Harris County, Texas
                             The Honorable Roy Moore, presiding
                               Trial Court Cause No. 2014-30215
  In the Matter of the Marriage of Evangelina Lopez Guzman Zaragoza and Miguel Zaragoza
  Fuentes and Co-Respondents, Elsa Esther Carrillo Anchondo, Robert Dale Caucom, Ernesto
 Carrillo, Raoul Gisler, Abbingdon Marine, Inc., Cadogan Properties, Inc., Dade Aviation, Inc.,
        Ezar Management, LLC, Ezar Properties, LP, Texas LPG Storage Company, and
                                   Texas Overseas Gas Corp.
              ______________________________________________

     RELATORS ERNESTO CARRILLO’S AND TEXAS LPG STORAGE COMPANY’S
                              APPENDIX
           ______________________________________________


                               RELATORS’ CLERK’S RECORD

Tab       Description                                                                     Record Cite

1.        Order Denying Plea to the Jurisdiction, March 11, 2015 .................... 1-CR

2.        Plea to the Jurisdiction by Co-Respondents Myrna Alicia
          Zaragoza Lopez, Ernesto Carrillo, and Texas LPG Storage
          Company, February 27, 2015 .............................................................. 2-CR

3.        Exhibit 1 or A to the Plea to the Jurisdiction, Mexican
          Divorce Sentence of May 27, 1959 ..................................................... 3-CR

4.        Exhibit 2 or B to the Plea to the Jurisdiction, Mexican
          Divorce Certificate of 1959 ................................................................. 4-CR

                                                 xviii
5.    Exhibit 3 or C to the Plea to the Jurisdiction, Miguel’s
      Mexican Birth Certificate .................................................................... 5-CR

6.    Exhibit 4 or D to the Plea to the Jurisdiction, Evangelina’s
      Mexican Birth Certificate .................................................................... 6-CR

7.    Petitioner’s Response to Co-Respondent’s Plea to the
      Jurisdiction, March 3, 2015 ................................................................. 7-CR

8.    Evangelina’s First Amended Petition for Divorce, with
      Application for Appointment of Receiver and Motion for
      Expedited Trial Setting, October 9, 2014 ............................................ 8-CR
9.    Evangelina’s Original Petition for Divorce, with Application
      for Appointment of Receiver and Temporary Restraining
      Order with Notice of Hearing, May 27, 2014 ..................................... 9-CR

10.   Ernesto Carrillo’s Respondent’s Original Answer,
      November 11, 2014 ........................................................................... 10-CR
11.   Co-Respondent’s Texas LPG Storage Company’s Original
      Answer, November 10, 2014 ............................................................. 11-CR
12.   Affidavit of Rick Ramos ................................................................... 12-CR




                                               xix
                                       NO. _________
______________________________________________________________________________

                        IN THE FIRST COURT OF APPEALS
                             AT HOUSTON, TEXAS
              ______________________________________________

                          IN RE ERNESTO CARRILLO AND
                            TEXAS LPG STORAGE CO.,
                                   RELATORS
                ____________________________________________
                     From the 245th District Court of Harris County, Texas
                             The Honorable Roy Moore, presiding
                               Trial Court Cause No. 2014-30215
  In the Matter of the Marriage of Evangelina Lopez Guzman Zaragoza and Miguel Zaragoza
  Fuentes and Co-Respondents, Elsa Esther Carrillo Anchondo, Robert Dale Caucom, Ernesto
 Carrillo, Raoul Gisler, Abbingdon Marine, Inc., Cadogan Properties, Inc., Dade Aviation, Inc.,
        Ezar Management, LLC, Ezar Properties, LP, Texas LPG Storage Company, and
                                   Texas Overseas Gas Corp.
              ______________________________________________

     RELATORS ERNESTO CARRILLO’S AND TEXAS LPG STORAGE COMPANY’S
                              APPENDIX
           ______________________________________________


                             RELATORS’ REPORTER’S RECORD

Tab       Description                                                                       Record Cite

1.        Plea to the Jurisdiction and Additional Temporary Orders
          Hearing, March 4, 2015 ....................................................................... 1-RR

2.        Carrillo Exhibit 1 ....................................................................... 1-RR-CE-1

3.        Carrillo Exhibit 2 ....................................................................... 1-RR-CE-2
4.        Carrillo Exhibit 3 ....................................................................... 1-RR-CE-3
5.        Carrillo Exhibit 4 ....................................................................... 1-RR-CE-4


                                                   xx
6.    P-1 ................................................................................................. 1-RR-P-1

7.    P-2 ................................................................................................. 1-RR-P-2
8.    P-5 ................................................................................................. 1-RR-P-5

9.    P-6 ................................................................................................. 1-RR-P-6

10.   P-7 ................................................................................................. 1-RR-P-7
11.   P-8 ................................................................................................. 1-RR-P-8

12.   P-9 ................................................................................................. 1-RR-P-9
13.   P-10 ............................................................................................. 1-RR-P-10
14.   P-11 ............................................................................................. 1-RR-P-11

15.   P-13 ............................................................................................. 1-RR-P-13

16.   P-15 ............................................................................................. 1-RR-P-15

17.   P-19 ............................................................................................. 1-RR-P-19
18.   Entry of Orders on Plea to the Jurisdiction and Additional
      Temporary Orders, March 11, 2015 .................................................... 2-RR




                                                   xxi
