                                                                         ACCEPTED
                                                                     04-15-00615-CV
                                                         FOURTH COURT OF APPEALS
                                                              SAN ANTONIO, TEXAS
                                                                10/1/2015 9:18:35 AM
                                                                      KEITH HOTTLE
                                                                              CLERK

                 NO. 04-15-00615-CV

                                               FILED IN
                                        4th COURT OF APPEALS
                                         SAN ANTONIO, TEXAS
              IN THE COURT OF APPEALS   10/1/2015 9:18:35 AM
       FOR   THE FOURTH DISTRICT OF TEXAS KEITH E. HOTTLE
                                                Clerk
                  AT SAN ANTONIO


        IN RE ESTATE OF MARIA L. RAYNES


FROM PROBATE COURT NO. 1 OF BEXAR COUNTY, TEXAS



     RELATOR’S MOTION FOR EMERGENCY STAY




                       Per Hardy, SBN: 08986500
                       James E. Hoffman, SBN: 09781750
                       418 East Park Avenue
                       San Antonio, TX 78212
                       Phone: (210) 226-8890
                       Facsimile: (210) 222-1891
                       perhardylawofc@sbcglobal.net
                       Attorneys for Relator
                       Arthur Raynes, Independent Executor
TO THE HONORABLE COURT OF APPEALS:

      Relator, Arthur Raynes, Independent Executor, requests the Court for an
emergency stay of all proceedings in the trial court and to prohibit the enforcement
of the trial court’s Final Judgment dated August 17, 2015, pending this Court’s action
on Relator’s Petition for Mandamus and Prohibition.
                                A. INTRODUCTION
      1. Relator certifies that the following is a complete list of all parties, attorneys,
and any other persons who have any interest in the outcome of this Motion for
Temporary Relief regarding the trial court’s Final Judgment entered on August 17,
2015. For clarity, Relator, Arthur Raynes, Independent Executor, will be referred to
as the “Independent Executor”; Respondent, the Honorable Kelly Cross, will be
referred to by name; and the Real Parties in Interest, Leah Raynes, Todd Barta, and
Samuel Barta will be referred to by name.
             PARTIES                                   COUNSEL

Relator:     Arthur Raynes,                      Per Hardy, SBN: 08986500
             Independent Executor                James E. Hoffman, SBN: 09781750
                                                 418 East Park Avenue
                                                 San Antonio, Texas 78212
                                                 Phone: (210) 226-8890
                                                 Fax: (210) 222-1891
                                                 perhardylawofc@sbcglobal.net

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

                                           -2-
Real Parties in Interest:
             Defendant Leah Raynes             Cecil Bain, SBN: 015500
                                               The Forum, Suite 600, 8000 IH 10 West
                                               San Antonio, Texas 78230
                                               Phone: (210) 344-1700
                                               Fax: (210) 344-1700
                                               cecilbain@yahoo.com

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

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

      2. Relator, Arthur Raynes, Independent Executor, filed his Petition For Writ

of Mandamus and Writ of Prohibition on September 30, 2015.

      3.    Relator, Arthur Raynes, Independent Executor attaches a certificate of

compliance certifying that on September 30, 2015 and October 1, 2015, his attorneys

notified all parties that a Motion for Emergency Stay would be filed. Tex. R. App. P

52.10(a).

      4. Supporting Facts

      On June 16, 2015, and July 22, 2015, the probate trial court held hearings on

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

the Petition for Eviction regarding the real property owned by the estate, located at

6307 Handsome Lake Drive, Leon Valley, Bexar County, Texas. A jury demand was

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made, the jury fee was paid, and the case was set for jury trial on the remaining issues

on October 12, 2015.

      On August 17, 2015, the trial court signed a Final Judgment denying Arthur

Raynes, Independent Executor, the right to a jury trial on material issues of fact. In

this Final Judgment, the trial court ordered the sale of the property to Leah Defendant

Raynes on or before October 2, 2015, an amount far below market value, based on a

nonexistent contract.

      On June 5, 2013, the Independent Executor’s previous attorney sent Leah

Raynes’ attorney a letter proposing general terms for the sale of the property to Leah

Raynes or that she and her two adult sons vacate the property within 25 days. The

letter also stated that if a final resolution was not reached within 25 days of the date

of the letter, then the Independent Executor was prepared to file a suit for partition.

Leah Raynes did not accept the proposal contained in this letter, but she and her two

adult sons refused to vacate the property. Leah Raynes and her adult sons have not

paid rent or expenses to the Estate for their use of the house. The expenses for the

property have been paid by loans to the Estate from the other heirs.

      The trial court found that the proposal letter dated June 5, 2013 was accepted

by the Independent Executor and constituted an enforceable Contract for the sale the

Handsome Lake Drive property to Leah Raynes. Based on this finding, the trial court

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ordered the Independent Executor to sell the real property of the Estate to Leah

Raynes on or before October 2, 2015 for a price well below fair market value. If

there is no closing by October 2, 2015 at 5:00 p.m. or the parties do not agree to a

later date, then the Court will schedule a hearing for the appointment of a receiver.

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

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

Conclusions of Law on September 10, 2015.

      The Independent Executor filed his Writ of Mandamus and Writ of Prohibition

contemporaneously with this Motion.

                       B. ARGUMENT AND AUTHORITY

      The Court may grant temporary relief pending its determination of an original

proceeding. Tex. R. App. P. 52.10(b).

      The emergency stay is appropriate in order to maintain the status quo of the

parties and to preserve the court’s jurisdiction to consider the merits of the original

proceeding. In re Reed, 901 S.W.2d 604, 609 (Tex. App.– San Antonio 1995, orig.

proceeding).

      The Independent Executor requests this Court to issue an emergency stay

preventing the trial court from enforcing the Final Judgment to sell the property to

Leah Raynes or from appointing a Receiver to liquidate the property pending this

                                          -5-
Court’s determination on the Independent Executor’s Writ of Mandamus and Writ of

Prohibition. The real property located at 6307 Handsome Lake Drive, Leon Valley,

Bexar County, Texas is the only asset of the Estate. The emergency stay is necessary

to preserve the status quo of the parties and the only asset of the Estate for the

payment of debts of the Estate and distribution to the heirs of the Estate.

      If Handsome Lake Drive property is sold to Leah Raynes at the price ordered

by the trial court, the Estate will be deprived of the benefit of its only asset. In

addition, the heirs of the Estate will be deprived of the fair market value of the

property and of reimbursements and damages from Leah Raynes and her adult sons

for rent and expenses incurred since decedent’s death on January 27, 2013. The

Independent Executor will be deprived of his right and duty to manage the property

of the Estate and to obtain the fair market value of the property for the Estate and

heirs. Further, the Independent Executor, on behalf of the Estate will have been

denied the right to a jury trial on the material issues of fact. In re Prudential Ins. Co.

of America, 148 S.W.3d 124, 139 (Tex. 2004); Accord In Re Fallis, No.

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

      The Final Judgment must be stayed to preserve these rights and to maintain the

status quo and jurisdiction of this Court to consider the merits of the Petition for writ

of Mandamus.

                                           -6-
                                  C. CONCLUSION

      As of the time of filing of the Motion for Emergency Stay, the Independent

Executor has been ordered to sell the property located at 6307 Handsome Lake Drive,

Leon Valley, Bexar County, Texas for a price far below the fair market value on or

before October 2, 2015, and if that sale is not accomplished, the Court will appoint

a Receiver to liquidate the property. Both alternatives defeat the lawful authority of

the Independent Executor and are irreparably harmful to the Estate and the heirs

because the forced sale will deplete the Estate of the only asset available to pay

expenses and distribute proceeds to the heirs. As a result, the Estate will be denied

the ability to recover damages.

      The Independent Executor requests this Court to issue an emergency stay

preventing the trial court from appointing a Receiver pending this Court’s

determination on the Independent Executor’s Writ of Mandamus and Writ of

Prohibition.

                                    D. PRAYER

      For the reasons stated in this Motion, Relator asks this Court for an emergency

stay of the Final Judgment dated August 17, 2015, and all further proceedings in the

trial court in order to maintain this status quo of the parties and to preserve this

Court’s jurisdiction to consider the merits of Relator’s original proceedings.

                                         -7-
                                Respectfully submitted,

                                /s/Per Hardy
                                PER ANN HARDY,
                                JAMES E. HOFFMAN
                                Attorneys for Relator,
                                Arthur Raynes, Independent Executor




                       CERTIFICATE OF COMPLIANCE

      Under Texas Rule of Appellate Procedure 52.10(a), I certify that on September
30, 2015 and October 1, 2015, we made a diligent effort to notify Respondent and
Real Parties in interest that a motion for emergency stay would be filed:

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

2. Cecil Bain, Attorney for Leah Raynes, The Forum, Suite 600, 8000 I.H. 10 West
San Antonio, Texas 78230 78209 by email.

3. Todd Barta, Pro Se, 6307 Handsome Lake Drive, Leon Valley, Texas 78238 by
regular mail – Todd Barta has not provided a telephone number, e-mail address or fax
number as required by Tex. R. Civ. P. 57.

4. Samuel Barta, Pro Se, 6307 Handsome Lake Drive, Leon Valley, Texas 78238 by
regular mail – Todd Barta has not provided a telephone number, e-mail address or fax
number as required by Tex. R. Civ. P. 57.



                                      /s/Per Hardy and /s/James Hoffman
                                      Per Hardy/James Hoffman




                                        -8-
                           CERTIFICATE OF SERVICE

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

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

2. Cecil Bain, Attorney for Leah Raynes, The Forum, Suite 600, 8000 I.H. 10 West
San Antonio, Texas 78230 78209 by email.

3. Todd Barta, Pro Se, 6307 Handsome Lake Drive, Leon Valley, Texas 78238 by
mail.

4. Samuel Barta, Pro Se, 6307 Handsome Lake Drive, Leon Valley, Texas 78238 by
mail.

                                                /s/Per Hardy________________
                                                PER HARDY, Attorney for Relator




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