                                                                                    ACCEPTED
                                                                                01-15-00471-CV
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           7/10/2015 3:31:35 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                      NO. 01-15-00471-CV
          __________________________________________
                                                               FILED IN
                                                        1st COURT OF APPEALS
              IN THE FIRST COURT OF APPEALS                 HOUSTON, TEXAS
                    AT HOUSTON, TEXAS                   7/10/2015 3:31:35 PM
                                                        CHRISTOPHER A. PRINE
                                                                Clerk
IN RE DANIEL W. WARREN, BENEFICIARY OF THE DANIEL STEVEN
                WEINER 1996 TRUST, RELATOR


                On Petition for Writ of Mandamus
                   From Probate Court No. 4
                    Of Harris County, Texas
             The Honorable Christine Butts, Presiding
                    Cause No. 425,576-401


 REAL PARTY IN INTEREST ANDY I. WEINER, AS CO-TRUSTEE OF
         THE DANIEL STEVEN WEINER 1996 TRUST’S
      RESPONSE TO PETITION FOR WRIT OF MANDAMUS


                                   Sarah Patel Pacheco
                                   (State Bar No. 00788164)
                                   C. Henry Kollenberg
                                   (State Bar No. 11667800)
                                   Kathleen Tanner Beduze
                                   (State Bar No. 24052205)
                                   CRAIN, CATON & JAMES, P.C.
                                   1401 McKinney St., Suite 1700
                                   Houston, Texas 77010
                                   (713) 658-2323 (Telephone)
                                   (713) 658-1921 (Facsimile)
                                   spacheco@craincaton.com
                                   hkollenberg@craincaton.com
                                   kbeduze@craincaton.com

                                   ATTORNEYS FOR REAL PARTY
                                   IN INTEREST ANDY I. WEINER
                                        TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT REGARDING RECORD AND PARTY REFERENCES .............. iv
STATEMENT REGARDING ORAL ARGUMENT ...............................................v
ISSUE PRESENTED ............................................................................................... vi
OVERVIEW ..............................................................................................................1
STATEMENT OF FACTS ........................................................................................4
         A.      Facts Relating to the Mandamus Proceeding. .......................................5
         B.      Procedural Background of Trial Court Proceeding...............................7
ARGUMENT AND AUTHORITIES ......................................................................13
         A.      Standard of Review. ............................................................................13
         B.      A nonsuit under Rule 162 does not dismiss cross-claims
                  between co-defendants. .......................................................................14
         C.      After Daniel’s nonsuit, Judge Butts properly conducted
                  hearings relating to the cross-claims by Mr. Weiner
                  against Ms. Warren..............................................................................15
CONCLUSION AND PRAYER .............................................................................22
CERTIFICATE OF SERVICE ................................................................................23
CERTIFICATION ...................................................................................................24
INDEX TO APPENDIX ..........................................................................................25




                                                           i
                                          TABLE OF AUTHORITIES

Cases
Ault v. Mulanex, 724 S.W.2d 824 (Tex. App.—Texarkana 1986, orig.
       proceeding) ............................................................................................. 18, 19
Beacon Nat’l Ins. v. Montemayor, 86 S.W.3d 260 (Tex. App.—Austin
     2002, no pet.) .................................................................................................16
BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838 (Tex. 1990) ................. 15, 17
Braden v. Marquez, 950 S.W.2d 191 (Tex. App.—El Paso 1997)..........................14
Christus Health v. Ragsdale, 2011 WL 3854145 (Tex. App.—Corpus
      Christi, 2001) .................................................................................................21
Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982)................................... 18, 19
In re Bennett, 960 S.W. 35 (Tex. 1997) ...................................................................16
In re El Paso Healthcare Sys., 969 S.W.2d 68 (Tex. App.—El Paso
       1998) ..............................................................................................................14
In re Ford Motor Co., 988 S.W.2d 714 (Tex. 1998) ...............................................13
In re Kuntz, 124 S.W.3d 179 (Tex. 2003)......................................................... 13, 14
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004)...............................13
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) ........................13
Peek v. Equip. Serv., 779 S.W.2d 802 (Tex. 1989) .................................................16
TDCJ v. Miller, 51 S.W.3d 583 (Tex. 2001) ...........................................................16
Tex. Mutual Insurance Company v. Ledbetter, 251 S.W.3d 31 (Tex.
      2008) .................................................................................. vi, 3, 14, 15, 16, 21
Ulloa v. Davila, 860 S.W.2d 202 (Tex. App.—San Antonio 1993, no
      writ) ................................................................................................................17
Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel.
      Shultz, 195 S.W.3d 98 (Tex. 2006)................................................................15
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ......................................................13
Zanchi, M.D. v. Lane, 349 S.W.3d 97 (Tex. 2001) .................................................20
                                      




                                                              ii
Statutes
TEX. PROP. CODE § 115.011 .......................................................................... 3, 16, 20
Rules
Rule 2.2, Rules of the Probate Courts of Harris County, Texas ..............................16
TEX. R. CIV. P. 162 .................................................................................. 3, 14, 15, 17





                                                        iii
    STATEMENT REGARDING RECORD AND PARTY REFERENCES

      Relator filed a Petition for Writ of Mandamus with Exhibits identified as

Tab A through O attached as Relator’s mandamus record. References to these

exhibits comprising the Relator’s record in support of his Petition for Writ of

Mandamus are shown as (“Rel. Tab ___, Ex. ___”) with the Tab letter and Exhibit

letter, as appropriate, in the blanks.

      References to the Appendix to this brief will be listed by the corresponding

exhibit number, i.e., App. 1, and refers to the exhibits attached in the Appendix to

this Response comprising the Real Party in Interest’s record in support of his

Response to Relator’s Petition for Writ of Mandamus.

      Relator Daniel W. Warren f/k/a Daniel Steven Weiner, as beneficiary of the

Daniel Steven Weiner 1996 Trust is referred to as “Daniel” in this Response.

      Respondent The Honorable Christine Butts of Probate Court No. Four (4) of

Harris County, Texas is referred to as “Judge Butts” in this Response.

      Real Party in Interest Andy I. Weiner, as Co-Trustee of the Daniel Steven

Weiner 1996 Trust, is referred to as “Mr. Weiner” in this Response.

      Katherine Warren f/k/a Katherine Weiner, as Co-Trustee of the Daniel

Steven Weiner 1996 Trust, is referred to as “Ms. Warren” in this Response.




                                         iv
               STATEMENT REGARDING ORAL ARGUMENT

      Mr. Weiner believes that oral argument is not necessary in this proceeding,

but requests the opportunity to present oral argument if the Court determines it is

appropriate.




                                        v
                             ISSUE PRESENTED

      Pursuant to Rule 162 and the Texas Supreme Court’s decision in Tex.
Mutual Insurance Company v. Ledbetter, 251 S.W.3d 31 (Tex. 2008), after Daniel
nonsuited his claims, pending cross-claims between the defendants still remained.
Did Judge Butts abuse her discretion by following the law and continuing to
exercise jurisdiction in the claims between the two co-defendants?




                                       vi
                           NO. 01-15-00471-CV
               __________________________________________

                    IN THE FIRST COURT OF APPEALS
                          AT HOUSTON, TEXAS


  IN RE DANIEL WARREN, BENEFICIARY OF THE DANIEL STEVEN
                WEINER 1996 TRUST, RELATOR


  REAL PARTY IN INTEREST ANDY I. WEINER, AS CO-TRUSTEE OF
          THE DANIEL STEVEN WEINER 1996 TRUST’S
       RESPONSE TO PETITION FOR WRIT OF MANDAMUS


TO THE HONORABLE JUDGES OF THE FIRST COURT OF APPEALS:

      Real Party in Interest Andy I. Weiner, as Co-Trustee of the Daniel Steven

Weiner 1996 Trust, files this Response to Relator Daniel Steven Weiner’s Petition

for Writ of Mandamus, and respectively shows the Court as follows:

                                  OVERVIEW

      In 2013, Daniel’s mother, Ms. Warren, as next friend of Daniel and as co-

trustee of the Daniel Steven Weiner 1996 Trust (the “Trust”), instigated a lawsuit

in Probate Court No. 4 of Harris County, Texas (the “Probate Court”) against Mr.

Weiner, as co-trustee of the Trust. Initially, due a separate lawsuit pending in

family court, the Probate Court granted Mr. Weiner’s Plea to the Jurisdiction,




                                        1
dismissing Daniel’s lawsuit. At that time, Ms. Warren argued that this case

belonged in Probate Court. 1

      On April 22, 2014, upon turning 18, Daniel intervened in his older brother

David Warren f/k/a David Weiner’s lawsuit against Mr. Weiner.2 After several

months of motion practice with Daniel as an intervenor, including Mr. Weiner’s

cross-claims against Ms. Warren, Daniel was ordered to re-file his claims under a

new cause number in Probate Court No. 4 – Cause No. 425,576-401.

      Now, after successfully arguing that the Probate Court had jurisdiction and

causing Mr. Weiner to incur thousands of dollars of defense costs – at both the trial

court level and appellate level – Daniel (and his brothers who had likewise filed

lawsuits against Mr. Weiner with Ms. Warren’s assistance) attempted to suddenly

nonsuit his claims and initiate a duplicate suit in the 133rd Judicial District Court of

Harris County, Texas, Cause No. 2015-19320 (the “District Court Lawsuit”).

Daniel did so on March 10, 2015, two and a half years later and less than four

months before trial was to begin in the Probate Court.


1
      Cause No. 425,578 is a lawsuit similar to Daniel’s, brought by his younger brother,
      M.H.W., against Mr. Weiner. Like Daniel’s lawsuit, the Probate Court granted Mr.
      Weiner’s Plea to the Jurisdiction due to jurisdictional defects. However, unlike Daniel,
      M.H.W., by and through Ms. Warren as next friend, appealed the Court’s Order. Cause
      No. 01-13-01077-CV; Katherine R. Warren, as next friend of M.H.W., a minor,
      beneficiary of the M.H.W. 2000 Trust v. Andy I. Weiner, Trustee of the M.H.W. 2000
      Trust. The First Court of Appeals agreed with M.H.W.’s argument in the Probate Court,
      holding that the Probate Court, not the Family Court, had jurisdiction.
2
      Cause No. 425577; In re: David Abraham Weiner 1994 Trust, pending in the Probate
      Court No. 4 of Harris County, Texas (“David’s Case”).

                                             2
      Despite Daniel’s attempt to shop for a new judge/court, a nonsuit did not

strip the Probate Court of jurisdiction, as Mr. Weiner had pending counterclaims

and also filed a new pleading, immediately rejoining Daniel as a party.

      The basis for this mandamus is that Daniel’s nonsuit dismissed the entire

case, including the affirmative claims pending at the time by Mr. Weiner against

his co-defendant, Ms. Warren. This theory flies in the face of the text of Rule 162

of the Texas Rules of Civil Procedure and has specifically been rejected by the

Texas Supreme Court as recently as 2008, as follows:

      … Rule 162 is not limited to affirmative claims against the nonsuiter;
      it prohibits dismissal if the effect would be to prejudice any pending
      claim for affirmative relief, period.

Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 38 (Tex. 2008) (emphasis in

original). In short, this mandamus proceeding is based upon a misinterpretation of

Rule 162. TEX. R. CIV. P. 162. And, appears to be the latest tactic to drive up

court costs in an attempt to forum shop, which has been the pattern of practice of

Daniel, Ms. Warren and Daniel’s brothers over the past two years.

      Daniel also complains about a hearing on Mr. Weiner’s request for

substituted service relating to his Counter and Cross-Petition in the Probate Court.3

This hearing occurred after Daniel’s nonsuit, when he claims he was not a party to


3
      Daniel is a necessary party to the Counter and Cross-Petition because he is the primary
      beneficiary of the Trust at issue in the litigation. See TEX. PROP. CODE § 115.011.


                                             3
the Probate Court proceeding, but prior to a hearing on Daniel’s Plea to the

Jurisdiction, which Judge Butts denied. The Probate Court had jurisdiction to

conduct the hearings that it did.

      Significantly, Ms. Warren is not a party to this Petition for Writ of

Mandamus.

      Daniel’s explanation for his forum shopping is not made part of his appellate

record, but, what is clear is that Daniel, by and through his counsel of record, Carol

Cantrell, has egregiously misused the legal system with his vexatious attacks

fraught with unsupported allegations against his father, Mr. Weiner.4

                              STATEMENT OF FACTS

      Daniel’s Petition for Writ of Mandamus has an extensive discussion of the

entire history of this litigation. This brief will first summarize the facts and

procedural history actually relating to the instant mandamus proceeding, and,

thereafter, provide a thorough procedural history, so that this Court is fully aware

of the litigious nature of this case and those closely intertwined to it.




4
      In addition to Daniel’s lawsuit, Mr. Weiner has been sued by his other two sons, David
      Warren and M.H.W., a minor child, in Probate Court No. 4 of Harris County, Texas. The
      three lawsuits are factually and legally similar, as they relate to trusts with provisions
      similar to those in the Trust.


                                              4
      A.     Facts Relating to the Mandamus Proceeding.

      On April 22, 2014, upon turning 18, Daniel filed his Petition in Intervention

in Cause No. 425,577, in Probate Court No. 4 of Harris County, Texas (“David’s

Case”). Rel. Tab K.

      On July 2, 2014, Mr. Weiner filed his Cross-Claims against Ms. Warren in

David’s Case (in which Daniel was an intervenor), seeking to hold Ms. Warren

equally responsible for (1) all actions and alleged inactions of the trustees, (2) all

claimed damages and relief sought by David and Daniel, (3) all violations of the

Trust agreements, including any scheme of collusion, (4) the preparation of an

accounting, and (5) payment of one-half of Mr. Weiner’s attorneys’ fees and costs.

App. 1.

      On October 24, 2014, Mr. Weiner filed his Second Amended Cross-Claims

against Ms. Warren. Rel. Tab. M.

      On December 1, 2014, per Court order, Daniel filed his Original Petition in

Cause No. 425,577-401. Rel. Tab L.

      On March 10, 2015, Daniel nonsuited his claims against Mr. Weiner in the

Probate Court. Rel. Tab A.

      On March 24, 2015, Mr. Weiner further clarified his claims and sought a

construction of various disputed provisions of the Trust by filing his Counter and




                                          5
Cross-Petition in the Probate Court, which joined Ms. Warren and Daniel, primary

beneficiary of the Trust, as parties to the lawsuit. Rel. Tab B.

      Thereafter, Mr. Weiner immediately requested for service to be initiated on

Daniel and Ms. Warren.

      On April 2, 2015, Daniel, along with his brothers, David Warren f/k/a

Daniel Weiner (“David”) and M.H.W.5, jointly filed an Original Petition in the

District Court Lawsuit, asserting the exact same claims he had nonsuited a month

before. App. 2.

      On April 9, 2015, Mr. Weiner filed a Motion for Substituted Service,

requesting alternate service of his Cross and Counter-Petition on Daniel, as Daniel

was actively evading service of process. Rel. Tab C.

      On April 17, 2015, Daniel filed his Plea to the Jurisdiction. Rel. Tab F.

      On April 21, 2015, Judge Butts conducted a hearing on Mr. Weiner’s

Motion for Substituted Service and granted same. Rel. Tab C. Carol Cantrell was

in attendance at this hearing and appeared on behalf of her client, Daniel.

      On May 13, 2015, Judge Butts conducted a hearing on Daniel’s Plea to the

Jurisdiction and denied same. Rel. Tab C. Carol Cantrell likewise attended and

made an appearance at this hearing on behalf of her client, Daniel.

      On April 29, 2015, Daniel filed his Petition for Writ of Mandamus.


5
      Ms. Warren has appeared as next friend of M.H.W., a minor child.

                                             6
      B.     Procedural Background of Trial Court Proceeding.
      On March 20, 1996, Mr. Weiner and Ms. Warren established the Trust for

the benefit of their then-minor son, Daniel. Rel. Tab G, Ex. A. The irrevocable

Trust agreement provides that Daniel is the primary beneficiary and Mr. Weiner

and Ms. Warren are the original co-trustees. Rel. Tab G, Ex. A. In the event they

are not able to serve, the Trust agreement provides that Bayle Weiner Drubel, Mr.

Weiner’s sister, shall serve as successor trustee. Rel. Tab G, Ex. A.

      Mr. Weiner’s parents, Daniel’s grandparents, primarily funded the Trust

with the desire to provide for Daniel’s education.

      After Daniel’s grandparents’ generous gifts, Ms. Warren systematically

excluded Mr. Weiner and his family from Daniel’s life, as well as the lives of his

two brothers, David and M.H.W.

      On January 6, 2011, Ms. Warren filed for divorce from Mr. Weiner.

Pursuant to an Agreed Decree of Divorce (the “Divorce Decree”) entered into by

the 309th Judicial District Court of Harris County, Texas in Cause No. 2011-01040

(the “Family Court”), Mr. Weiner and Ms. Warren were divorced on March 29,

2012. Rel. Tab G, Ex. B. Prior to and subsequent to the parties’ divorce, Ms.

Warren has alienated Daniel and his brothers from Mr. Weiner and she has failed

to comply with the terms of the Divorce Decree.




                                          7
      On September 30, 2013, Ms. Warren, as next friend of Daniel and as co-

trustee of the Trust, filed a lawsuit against Mr. Weiner. She sought to terminate

the Trust and distribute the Trust funds to a Uniform Transfers to Minors Act

account, so she could have sole and exclusive control of the trust assets in

contradiction to the terms of the Trust agreement and the Divorce Decree. Rel.

Tab G.

      On October 23, 2013, Mr. Weiner filed a Plea to the Jurisdiction, Plea in

Abatement and, subject thereto, Answer to Petition for Termination of Trust,

alleging that the Family Court had jurisdiction over the claims brought by Daniel

and M.H.W. because they related to the divorce proceeding. App. 3.

      On November 21, 2013, the Probate Court granted Mr. Weiner’s Plea to the

Jurisdiction. App. 4.

      On April 22, 2014, after turning 18, Daniel filed his Original Petition in

Intervention in David’s Case.6 Rel. Tab. K. Daniel named both Mr. Weiner and

Ms. Warren as parties, as both are co-trustees of the Trust, but only alleged claims

against Mr. Weiner.

      On July 2, 2014, Mr. Weiner filed his Cross-Claims against Ms. Warren

seeking to hold Ms. Warren equally responsible for (1) all actions and alleged

inactions of the trustees, (2) all claimed damages and relief sought by David and


6
      Daniel had attained the age of eighteen prior to intervening in David’s Case.

                                              8
Daniel, (3) all violations of the Trust agreements, including any scheme of

collusion, (4) the preparation of an accounting, and (5) payment of one-half of Mr.

Weiner’s attorneys’ fees and costs. App. 1.

      On July 8, 2014, Mr. Weiner filed his First Supplement to Original Answer,

alleging, among other claims and defenses, that Daniel has no standing to intervene

in David’s case. App. 5.

      On July 15, 2014, Mr. Weiner filed his Motion for Partial Traditional

Summary Judgment. App. 6.

      On August 7, 2014, Mr. Weiner filed his First Supplement to Cross-Claims

against Ms. Warren, incorporating, by reference, the cross-claims and factual

background supporting same contained within his Motion for Partial Traditional

Summary Judgment. App. 7.

      Also on August 7, 2014, David and Daniel (as Intervenor in David’s Case)

nonsuited their claims against Ms. Warren in Cause No. 425,577. Rel. Tab J.

      On August 26, 2014, Mr. Weiner filed his First Amended Cross-Claims

against Ms. Warren. App. 8

      On August 27, 2014, the Court signed an Agreed Docket Control Order,

binding on Mr. Weiner, David and Daniel (as intervenor), in Cause No. 425,577.

App. 9.




                                        9
      On September 8, 2014, pursuant to an order of the Probate Court, Daniel

filed a Motion to Sever in David’s Case. App. 10.

      On September 25, 2014, the Probate Court partially granted and partially

denied Mr. Weiner’s Motion for Partial Traditional Summary Judgment finding,

pursuant to the terms of David’s Trust (which are identical to the provisions of

Daniel’s Trust), that: (i) a trustee of the trust may retain, invest or reinvest in assets

unproductive of interest and wasting assets, (ii) the diversification required under

the Texas Trust Code and Texas common law, if any, does not apply to the Trust;

(iii) Mr. Weiner and Ms. Warren had a duty to jointly administer the Trust; (iv) in

order to delegate her powers or duties to Movant as co-trustee of the Trust, Ms.

Warren must have filed a written instrument with the records of the Trust; and (v)

Mr. Weiner has no liability relating to his actions as trustee other than for acts and

omissions found to be made with gross negligence, bad faith or fraud. App. 11.

      On October 24, 2014, Mr. Weiner filed his Second Amended Cross-Claims

against Ms. Warren in Cause No. 425,577. Rel. Tab M. As clearly expressed in

the Second Amended Cross-Claims, Mr. Weiner’s cross-claims relate to both the

Trust and the David Abraham Weiner 1994 Trust because, at the time of filing,

Daniel’s intervention had not yet been severed into its own cause of action. Rel.

Tab M.




                                           10
      On November 5, 2014, the Probate Court granted Daniel’s court-ordered

Motion to Sever, severing out the claims he had filed in David’s Case, as an

intervenor. App. 12.

      On November 17, 2014, the Probate Court signed an Amended Order on

Motion to Sever. Rel. Tab F, Ex. B.

      On December 1, 2014, per Court order, Daniel filed his Original Petition in

Cause No. 425,577-401. Rel. Tab L.

      On February 20, 2015, the Probate Court compelled Ms. Warren to appear

for her deposition. App. 13.

      On March 10, 2015, Daniel nonsuited his claims in in the Probate Court

against Mr. Weiner. Rel. Tab A.

      On March 18, 2015, Ms. Warren cross-noticed her own deposition, advising

that Carol Cantrell, counsel for Daniel and David, would be in attendance at Ms.

Warren’s court-ordered deposition. App. 14. Despite her clients having nonsuited

his claims against Mr. Weiner, Ms. Cantrell attended Ms. Warren’s court-ordered

deposition.

      On March 24, 2015, Mr. Weiner filed his Counter and Cross-Petition. Rel.

Tab B. In his Counter and Cross-Petition, Mr. Weiner (1) asked for the Court to

construe the language of the Trust agreement; (2) alleged the following

cross/counterclaims    against    Ms.   Warren:   breaches   of   fiduciary   duty,


                                         11
reimbursement, removal as trustee, tortious interference with administration; and

(3) requested the appointment of a corporate trustee. Rel. Tab B, p. 5-11. While

no monetary claims were brought against Daniel, he was joined as a necessary

party because he is the primary beneficiary of the Trust and construction of the

Trust agreement was one of the issues raised in the Counter and Cross-Petition.

Rel. Tab B, p. 1.

      On March 24, 2015, Mr. Weiner’s counsel took Ms. Warren’s court-ordered

deposition, attended by Ms. Cantrell. App. 13.

      On April 2, 2015, Daniel, alongside his brothers David and M.H.W. filed the

District Court Lawsuit against Mr. Weiner, asserting the very same claims they had

each alleged in their respective lawsuits in the Probate Court.7 App. 2.

      On April 9, 2015, Mr. Weiner filed his Motion for Substituted Service,

requesting alternate service of his Cross and Counter-Petition on Daniel, as he was

actively evading service of process. Rel. Tab C.

      On April 29, 2015, Daniel filed his Petition for Writ of Mandamus.

      Trial in the Probate Court proceeding was originally set to begin the week of

July 6, 2015, but has been passed because this Court granted Daniel’s Emergency

Motion to Stay pending resolution of his Petition for Writ of Mandamus.


7
      Cause No. 2015-19320; David W. Warren, Daniel W. Warren, and Katherine R. Warren,
      as next friend of M.H.W., a minor, v. Andy I. Weiner, trustee; In the 133rd Judicial District
      of Harris County, Texas.

                                               12
                      ARGUMENT AND AUTHORITIES

      A.    Standard of Review.
      Mandamus relief is appropriate when a trial court abuses its discretion and

there is no adequate remedy by appeal. In re Kuntz, 124 S.W.3d 179, 180 (Tex.

2003); In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998); Walker v. Packer,

827 S.W.2d 833, 839–40 (Tex. 1992) (mandamus will issue only to correct clear

abuse of discretion). The Texas Supreme Court has held that “[a]n appellate

remedy is ‘adequate’ when any benefits to mandamus review are outweighed by

the detriments. When the benefits outweigh the detriments, appellate courts must

consider whether the appellate remedy is adequate.” In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 136 (Tex. 2004). A clear abuse of discretion, warranting

correction by mandamus, occurs when a court issues a decision which is without a

legal basis, or support in guiding principles of law. See Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

      A trial court's determination of a factual issue is entitled to deference in a

mandamus proceeding and should not be set aside unless it is clear from the record

that only one decision could have been reached. In re Kuntz, 124 S.W.3d at 181;

Walker, 827 S.W.2d at 839–40. Even if the reviewing court would have decided

the issue differently, it cannot disturb the Probate Court's decision unless it is

shown to be arbitrary and unreasonable. Walker, 827 S.W.2d at 840. In contrast, a


                                        13
trial court has no discretion in determining what the law is or in applying the law to

the facts. In re Kuntz, 124 S.W.3d at 181; Braden v. Marquez, 950 S.W.2d 191,

193 (Tex. App.—El Paso 1997). Therefore, a failure by the Probate Court to

analyze or apply the law correctly, as when a discovery order conflicts with the

Texas Rules of Civil Procedure, constitutes an abuse of discretion. In re Kuntz,

124 S.W.3d at 181; In re El Paso Healthcare Sys., 969 S.W.2d 68, 72 (Tex.

App.—El Paso 1998).

      Daniel’s complaint in his Petition is that Judge Butts lacked jurisdiction to

conduct hearings on Mr. Weiner’s Motion for Substitute Service and Daniel’s Plea

to the Jurisdiction. As further discussed below, this complaint is not appropriate

for mandamus relief and, accordingly, Daniel’s Petition should, in all respects, be

denied.

      B.       A nonsuit under Rule 162 does not dismiss cross-claims between co-
               defendants.
      The thrust of this mandamus is based upon a completely erroneous legal

proposition.

      Daniel alleges that the filing of his nonsuit rendered Mr. Weiner’s cross-

claims against Ms. Warren a nullity. But, Rule 162 does not limit the claims for

affirmative relief to those asserted against the plaintiff. As the Texas Supreme

Court stated in Tex. Mutual Insurance Company v. Ledbetter:



                                         14
      It is true the carrier here sought no affirmative relief from the
      plaintiffs, seeking instead reimbursement from the funds the
      defendants were about to pay them. But Rule 162 is not limited to
      affirmative claims against the nonsuiter; it prohibits dismissal if the
      effect would be to prejudice any pending claim for affirmative relief,
      period.

Ledbetter, 251 S.W.3d at 38 (emphasis in original).

      Rule 162 of Texas Rule of Civil Procedure governs dismissal and nonsuits.

Rule 162 provides that “[a]ny dismissal pursuant to this rule shall not prejudice the

right of an adverse party to be heard on a pending claim for affirmative relief.”

TEX. R. CIV. P. 162. A claim for affirmative relief is one “on which the claimant

could recover compensation or relief even if the plaintiff abandons his cause of

action.” Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel.

Shultz, 195 S.W.3d 98, 101 (Tex. 2006); BHP Petroleum Co., Inc. v. Millard, 800

S.W.2d 838, 841 (Tex. 1990).

      C.     After Daniel’s nonsuit, Judge Butts properly conducted hearings
             relating to the cross-claims by Mr. Weiner against Ms. Warren.
      While convoluted at best, it appears that Daniel’s mandamus petition asserts

that Judge Butts abused her discretion in conducting hearings on Mr. Weiner’s

Motion for Substituted Service and Daniel’s Plea to the Jurisdiction after Daniel’s

nonsuit. She did not.

      Judge Butts conducted a hearing on Mr. Weiner’s Motion for Substituted

Service relating to service of process on Daniel to re-join him as a necessary party


                                         15
to the Cross and Counter-Petition. Rel. Tab E, p. 28-30. Likewise, Judge Butts

conducted a hearing on Daniel’s Plea to the Jurisdiction and denied same on

May 13, 2015. Rel. Tab C; Rel. Tab. E-1.

      While Daniel’s nonsuit may have withdrawn his claims against Mr. Weiner,

it does not affect any pending claims for affirmative relief made by Mr. Weiner,

against his co-defendant, Ms. Warren. Ledbetter, 251 S.W.3d at 37-38; In re

Bennett, 960 S.W. 35, 38 (Tex. 1997). And, while a party has an absolute right to

nonsuit their own claims, a party cannot nonsuit someone else’s claims they are

trying to avoid. Ledbetter, 251 S.W.3d at 37.

      So long as the plaintiff pleads enough facts to affirmatively demonstrate the

Probate Court has jurisdiction over the suit, a court’s jurisdiction attaches upon

filing a lawsuit. TEX. PROP. CODE § 115.011; TDCJ v. Miller, 51 S.W.3d 583, 587

(Tex. 2001). And, unless the pleadings demonstrate the absence of jurisdiction, the

court will assume it has jurisdiction over the case. Peek v. Equip. Serv., 779

S.W.2d 802, 804 (Tex. 1989); Beacon Nat’l Ins. v. Montemayor, 86 S.W.3d 260,

266 (Tex. App.—Austin 2002, no pet.). So, even if the Probate Court had “lost” its

jurisdiction upon Daniel’s nonsuit – which Mr. Weiner vehemently disputes – the

Probate Court “re-gained” jurisdiction upon the proper filing of Mr. Weiner’s




                                        16
Cross and Counter-Petition in the Probate Court.8

         Daniel’s request for dismissal is misguided, as Mr. Weiner’s affirmative

claims against Ms. Warren were properly in front of the Probate Court prior to the

filing of Daniel’s nonsuit. At the time of Daniel’s nonsuit, Mr. Weiner had the

following pending cross-claims against Ms. Warren: (1) contribution, (2) breaches

of fiduciary duty, (3) removal of trustee, (4) tortious interference with

administration, and (5) attorneys’ fees and costs. Rel. Tab M. Despite Daniel’s

argument to the contrary, Mr. Weiner’s claims are claims for affirmative, monetary

relief, not merely derivative claims. TEX. R. CIV. P. 162; Millard, 800 S.W.2d at

840-41 (defendant’s request for declaratory judgment seeking resolution of

continuing issues is not derivative); Ulloa v. Davila, 860 S.W.2d 202, 204 (Tex.

App.—San Antonio 1993, no writ) (counterclaim did more than resist plaintiff’s

suit).

         Daniel alleges that Mr. Weiner’s Second Amended Cross-Claims were not a

part of Daniel’s severed case. Rel. Tab F, Ex. B. This is incorrect. Mr. Weiner’s

Second Amended Cross-Claims were filed on October 24, 2014 – prior to Daniel’s

intervention being severed into its own cause number, Cause No. 425,577-401.

Rel. Tab. M; Rel. Tab. F, Ex. B. The Court signed its Order severing out Daniel’s


8
         In accordance with Rule 2.2 of the Rules of the Probate Courts of Harris County, Texas,
         Mr. Weiner filed the Cross and Counter-Petition in the same Cause Number assigned to
         the Trust.

                                               17
claims on November 5, 2014. App. 10. The Court signed its Amended Order on

Motion to Sever on November 17, 2014. Rel. Tab. F, Ex. B.

      To give credence to Relator’s argument that the Second Amended Cross-

Claims were not a part of Daniel’s severed case would elevate form over

substance. The clear purpose of the Court’s orders was to sever out all claims

Daniel had filed as an intervenor into a new case, which clearly includes Mr.

Weiner’s cross-claims. In fact, the Court’s Amended Order on Motion to Sever

specifically states that “all prior discovery, orders, motions, responses and answers

pertaining to Daniel W. Warren in Cause No. 425,577 shall apply in the same

manner as if such had occurred in Cause No. 425,576-401…” Rel. Tab. F, Ex. B.

Clearly, the Court intended for all filings in David’s Case that related to Daniel’s

intervention, whether specifically delineated or not, to be included in the severed

action, Cause No. 425,577-401. Rel. Tab. F, Ex. B. This includes Mr. Weiner’s

Second Amended Cross-Claims against Ms. Warren.

      In support of his request for the lawsuit to be dismissed, despite Mr.

Weiner’s valid pending claims, Daniel relies upon two cases – Greenberg v.

Brookshire and Ault v. Mulanex. Greenberg v. Brookshire, 640 S.W.2d 870 (Tex.

1982); Ault v. Mulanex, 724 S.W.2d 824 (Tex. App.—Texarkana 1986, orig.

proceeding). As discussed below, these cases are readily distinguishable from the

instant case.


                                         18
      Greenberg was a divorce action between two parties wherein the trial court

conducted a hearing on an amended pleading (a counterclaim) after the husband

nonsuited his claims. Greenberg, 640 S.W.2d 870 (parties to lawsuit were husband

and wife). The Texas Supreme Court held that the trial court was in error by

conducting a hearing on the wife’s counterclaim after the husband’s nonsuit

because the husband had an absolute, unqualified right to a nonsuit. Greenberg,

640 S.W.2d at 872. Here, Mr. Weiner does not challenge – and has never

challenged – Daniel’s right to nonsuit his claims. However, at the time of the

nonsuit, Mr. Weiner had valid claims pending against Ms. Warren, which prevents

dismissal of the case in its entirety.

      Ault is also a divorce proceeding, specifically involving custody and child

support issues between two parties.        Ault v. Mulanex, 724 S.W.2d at 828.

Notwithstanding the factual differences, the legal question at issue involved two

court’s competing dominant jurisdiction at the time of the nonsuit. Id. at 828. This

was not the issue in the Probate Court nor is it a proper issue on appeal.

      Neither Greenberg nor Ault are instructive to the Probate Court, as the

factual and legal matters at issue in the respective cases are clearly different and

irrelevant to the case at hand. Simply stated, prior to Daniel’s nonsuit, there were

three parties to the Probate Court proceeding – Daniel (former plaintiff), Mr.




                                          19
Weiner (former defendant, current plaintiff), and Ms. Warren (former defendant

and cross-defendant, current defendant).

      Shortly after Daniel filed his nonsuit, Mr. Weiner filed his pleading entitled

Counter and Cross-Petition against Ms. Warren, as defendant, and Daniel, as a

necessary party.9     In his Counter and Cross-Petition, Mr. Weiner alleged the

following claims against Ms. Warren: (1) construction of the Trust Agreement, (2)

breach of fiduciary duty, (3) reimbursement, (4) removal of Ms. Warren as trustee,

(5) tortious interference with administration, and (6) petition to modify trust and

request for appointment of a corporate trustee. Rel. Tab B.

      Contrary to Daniel’s argument, upon filing the Counter and Cross-Petition,

Ms. Warren and Daniel became parties to the litigation. Zanchi, M.D. v. Lane, 349

S.W.3d 97 (Tex. 2001). Thus, in accordance with the Texas Supreme Court,

Daniel was rejoined as a party to the litigation once the Counter and Cross-Petition

was filed. Though judgment cannot be rendered against a party until the party is

properly served, the instant a case is filed, an individual becomes a party. Zanchi,

349 S.W.3d at 101. Daniel was served with process, albeit through substituted

service, on May 5, 2015. App. 15; App. 16.

      Mr. Weiner filed his Counter and Cross-Petition, reinstituting some of the

same claims originally brought by Daniel, including construction of the Trust. By

9
      Because Daniel is the primary beneficiary of the Trust, he is a necessary and interested
      party to the instant proceeding. TEX. PROP. CODE § 115.011 (b)(1).

                                              20
doing so, the Probate Court “re-gained” its jurisdiction assuming, arguendo, that it

lost such jurisdiction, as Daniel argues.       The Counter and Cross-Petition

constituted a new lawsuit, the filing of which relates back to the original lawsuit

filed by Daniel. Christus Health v. Ragsdale, 2011 WL 3854145 (Tex. App.—

Corpus Christi, 2001).

      As Judge Butts opined:

      …Just quite simply: We view the pleading filed on March 24th by
      Andy Weiner whose counter and cross-petition, we view that as an
      original petition. I mean, I know it’s titled, ‘Counter and Cross-
      Petition’ but we view it as an original petition.

Rel. Tab E-1, p. 21, lines 19-24.

      Thus, even if Daniel’s argument that there was no valid, existing lawsuit

after he filed his nonsuit is valid, Mr. Weiner reinstituted a lawsuit on March 24,

2015 with the filing of his Counter and Cross-Petition, joining Ms. Warren and

Daniel as parties. Thus, the District Court Lawsuit was filed second and the

Probate Court retained its jurisdiction.

      Despite the continued gamesmanship of Daniel and his mother, Ms. Warren,

their persistent litigious acts, blatant misstatements of facts, and desire to forum

shop, Daniel’s nonsuit does not summarily dismiss the claims brought by Mr.

Weiner in the Probate Court. Daniel’s nonsuit only eliminated his claims against

Mr. Weiner. Once again, even though he would prefer to proceed with his lawsuit

in District Court, Daniel cannot – by any fraction of the law – nonsuit Mr.

                                           21
Weiner’s claims against Ms. Warren. Ledbetter, 251 S.W.3d at 38. As Judge

Butts appropriately opined, upon hearing argument relating to Daniel’s Plea to the

Jurisdiction:

             I’m not going to dismiss it. And I could be wrong on when I
      sign this order on the plea to the jurisdiction. I guess, I’m just - - I’m
      frustrated because at the beginning of this case then Andy Weiner
      wanted it moved over to the family court. … So, I thought, well, you
      know, a judge over there [Family Court] is one who signed that order
      or that decree, and they need to go back and determine if this is, in
      fact, a violation of that decree. I was wrong about that. So, that came
      back to us.
             And now the Warren children are wanting to move their cases
      to district court. And it’s, in my view, it doesn’t serve the interest of
      either party or either – or any of the parties to be jumping around
      courts especially you guys have invested a lot of time, energy, and
      money in this court. And it feels like forum shopping to me. And
      they’ve invested a lot of effort and money and time when they, over
      the course of this case, and I can’t just dismiss it. . . . I view this, in
      essence, an original petition being filed. . . .

Rel. Tab E-1, p. 29-30.

      Daniel’s argument that Judge Butts improperly conducted a hearing relating

to such cross-claims is void of any legal support. Judge Butts did not abuse her

discretion and, accordingly, mandamus relief should be denied.

                          CONCLUSION AND PRAYER

      Real Party in Interest Andy Weiner respectfully requests that Relator Daniel

Warren’s Petition for Writ of Mandamus be denied in its entirety. Mr. Weiner

further requests any additional relief to which he is justly entitled.



                                           22
                                     Respectfully submitted,

                                     CRAIN, CATON & JAMES, P.C.

                                     By:     /s/ Sarah Patel Pacheco
                                             Sarah Patel Pacheco
                                             State Bar No. 00788164
                                             spacheco@craincaton.com
                                             C. Henry Kollenberg
                                             State Bar No. 11667800
                                             hkollenberg@craincaton.com
                                             Kathleen Tanner Beduze
                                             State Bar No. 24052205
                                             kbeduze@craincaton.com
                                             1401 McKinney, Suite 1700
                                             Houston, Texas 77010-4035
                                             (713) 658-2323 Telephone
                                             (713) 658-1921 Facsimile

                                             Attorneys for Real Party in Interest
                                             Andy I. Weiner


                        CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing Response to Petition
for Writ of Mandamus and Appendix has been served on the following counsel of
record through the electronic filing system and/or U.S. Mail on July 10, 2015:

       Carol A. Cantrell                   Thomas R. Conner
       Cantrell & Cantrell, PLLC           Conner & Lindamood, P.C.
       3700 Buffalo Speedway, Ste 520      1221 Lamar, Suite 1010
       Houston, Texas 77098                Houston, Texas 77010
       Counsel for Relator                 Counsel for Katherine Warren


                                             /s/ Sarah Patel Pacheco
                                             Sarah Patel Pacheco




                                        23
                              CERTIFICATION

      I certify that I have reviewed the Response to Petition for Writ of Mandamus
and have concluded that every factual statement made in the Response is supported
by competent evidence included in the appendix or record, and that the items
contained in the appendix are accurate copies of pleadings and other court papers.


                                            /s/ Sarah Patel Pacheco
                                            Sarah Patel Pacheco




                                       24
                                INDEX TO APPENDIX

1.       Andy Weiner’s Cross-Claims Against Katherine Warren

2.       Original Petition filed by Daniel Warren, David Warren and Katherine
         Warren, as next friend of M.H.W., a minor child, in the 133rd Judicial
         District Court of Harris County, Texas (without exhibits)

3.       Andy Weiner’s Plea to the Jurisdiction, Plea in Abatement and, subject
         thereto, Answer to Petition for Termination of Trust (without exhibits)

4.       Order granting Plea to the Jurisdiction

5.       Andy Weiner’s First Supplement to Original Answer

6.       Andy Weiner’s Motion for Partial Summary Judgment (without exhibits)

7.       Andy Weiner’s First Supplement to Cross-Claims

8.       Andy Weiner’s First Amended Cross-Claims (without exhibits)

9.       Agreed Docket Control Order, Cause No. 425,577

10.      Daniel Warren’s Motion to Sever (without exhibits)

11.      Order on Andy Weiner’s Motion for Partial Summary Judgment

12.      Order on Daniel Warren’s Motion to Sever

13.      Order on Andy Weiner’s Motion to Compel Deposition of Katherine Warren

14.      Ms. Warren’s Cross-Notice of Third Notice of Intention to Take Oral
         Deposition of Katherine Warren f/k/a Katherine Weiner

15.      Andy Weiner’s Motion for Substituted Service

              a. Exhibit A – Affidavit of Due Diligence

16.      Process Server Affidavit of Successful Service
092865/000001
376 - 1529862v2
                                                                                                                  FILED
                                                                                                  7/2/2014 10:46:22 AM
                                                                                                           Stan Stanart
                                                                    PROBATE COURT 4                        County Clerk
DM                                                                                                        Harris County



                                              NO. 425,577

 IN RE:                                            §                  IN PROBATE COURT
                                                   §
 DAVID ABRAHAM WEINER                              §                  NUMBER FOUR (4) OF
                                                   §
 1994 TRUST                                        §                  HARRIS COUNTY, TEXAS

                              ANDY WEINER’S CROSS-CLAIMS
                   AGAINST KATHERINE WARREN F/K/A KATHERINE WEINER

 TO THE HONORABLE JUDGE OF SAID COURT:

          Andy Weiner (“Mr. Weiner”) brings the following cross-claims against Katherine F.

 Warren f/k/a Katherine Weiner (“Ms. Warren”), and in support thereof respectfully shows the

 following:

                                                  I.
                                               Overview

 1.       Mr. Weiner and Ms. Warren are co-trustees of the David Abraham Weiner 1994 Trust

 (the “Trust”).       As such, Mr. Weiner and Ms. Warren are jointly responsible for the

 administration and liabilities of the Trust, if any.

 2.       Accordingly, Mr. Weiner files his cross-claims against Ms. Warren seeking to hold her

 responsible for 50% of any liabilities assessed against the Trust and/or him relating to the actions

 sought by any beneficiary, including, but not limited to, holding Ms. Warren liable for 50% of

 the attorneys’ fees, accountant fees, and costs incurred by Mr. Weiner as a result of the above-

 referenced litigation.

                                                  II.
                                         Factual Background

 3.       On December 13, 1994, Mr. Weiner and Ms. Warren established the Trust for the benefit

 of their then-minor son, David. The irrevocable trust agreement provides that David is the

 primary beneficiary and Mr. Weiner and Ms. Warren are the co-trustees.



 092865/000002
 376 - 1092540v1                               App. 1
4.       The Trust agreement specifically provides that:

         a. Ms. Warren and Mr. Weiner act jointly as co-trustees;

         b. A trustee shall not be held liable for any act or omission, except in the case of gross

              negligence, bad faith or fraud (Section D-3(b)); and

         c. The overall performance of the Trust shall be taken into account when assessing the

              propriety of any investment of the Trust (Section D-3(b)).

5.       Additionally, the Trust agreement grants Ms. Warren and Mr. Weiner, as co-trustees of

the Trust, the general powers to: (i) invest and reinvest the Trust assets1; (ii) lease, sell, transfer

or encumber, in any manner, all or any part of the Trust2; and (iii) loan or borrow money from

the Trust, in any manner3.

6.       Ms. Warren and David’s original lawsuit, filed solely against Mr. Weiner, sought an

order from this Court to either distribute the Trust funds to David free of trust or, alternatively, to

award Ms. Warren sole and exclusive control over a new account (a Uniform Transfers to

Minors Act account created for David’s benefit), even though the Trust agreement and the

Divorce Decree provide otherwise. In the original Petition, Ms. Warren and David stated that

Ms. Warren would submit an accounting and sought her discharge from any liabilities relating to

the Trust.

7.       Since originally filed, counsel for Ms. Warren and David has filed an amended petition

that now names only David as the Petitioner, and Mr. Weiner and Ms. Warren as Respondents.

In the amended petition, David instead sought to be his own trustee.

8.       David testified in his partial deposition that he is not aware of any breaches of trust by

either Mr. Weiner or Ms. Warren, but has filed yet another amended petition asserting various

1
  Trust agreement, § E-1(a).
2
  Trust agreement, § E-1(c).
3
  Trust agreement, § E-1(c).


                                                   2
092865/000002
376 - 1092540v1
claims solely against Mr. Weiner even though both Mr. Weiner and Ms. Warren have served as

co-trustees since the inception of the Trust.

9.       Since the filing of David’s second amended petition, Daniel S. Weiner (“Daniel”),

David’s younger brother, filed an original petition in intervention in this proceeding.4

10.      As co-trustees of the Trust, Mr. Weiner and Ms. Warren are jointly responsible for the

administration of the Trust. Accordingly, in the event damages are assessed against Mr. Weiner

due to his role as co-trustee of the Trust and/or the Daniel S. Weiner Trust, Ms. Warren is

responsible for 50% of those damages, in addition to 50% of Mr. Weiner’s attorneys’ fees and

costs incurred in defending this action.

                                                III.
                               Cross-Claims Against Katherine Warren

11.      Mr. Weiner incorporates by reference the allegations contained within the preceding

Paragraphs 1 through 10.

                                                      IV.
                                               Relief Requested

12.      With regard to claims by David and/or related to the Trust, Mr. Weiner, individually and

as trustee, respectfully requests the following relief:

         a.       To the extent of any claims of David, Ms. Warren shall be held responsible for all

                  actions and alleged inactions of the trustees;

         b.       To the extent of any claims of David, Ms. Warren shall be held equally liable for

                  all claimed damages and relief sought by David, as finally determined, if any;

         c.       Ms. Warren shall be held liable for any and all violations of the Trust agreement,

                  including any plan or scheme to collude with David;


4
  Mr. Weiner does not concede Daniel S. Weiner has standing in this proceeding or agree with the alleged legal basis
to intervene in the above-referenced proceeding.


                                                         3
092865/000002
376 - 1092540v1
         d.       Ms. Warren shall be held equally responsible for the preparation and submission

                  of any accounting determined to be due and personally bear one-half of the costs

                  of the accounting pursuant to §113.151 of the Texas Trust Code; and

         e.       Ms. Warren shall be ordered to pay one-half of Mr. Weiner’s attorneys’ fees and

                  costs incurred as a result of defending the lawsuit.

13.      With regard to claims by Daniel and/or related to the Daniel S. Weiner Trust, Mr.

Weiner, individually and as trustee, respectfully requests the following relief:

         a.       To the extent any claims of Daniel are validly asserted in this proceeding, Ms.

                  Warren shall be held responsible for all actions and alleged inactions of the

                  trustees;

         b.       To the extent any claims of Daniel are validly asserted in this proceeding, Ms.

                  Warren shall be held equally liable for all claimed damages and relief sought by

                  David, as finally determined, if any;

         c.       Ms. Warren shall be held liable for any and all violations of the Daniel S. Weiner

                  Trust agreement, including any plan or scheme to collude with Daniel;

         d.       Ms. Warren shall be held equally responsible for the preparation and submission

                  of any accounting determined to be due, and personally bear one-half of the costs

                  of the accounting pursuant to §113.151 of the Texas Trust Code; and

         e.       Ms. Warren shall be ordered to pay one-half of Mr. Weiner’s attorneys’ fees and

                  costs incurred as a result of defending the lawsuit.

         WHEREFORE, Andy Weiner respectfully requests that this Court grant the above-

requested relief, and for such other and further relief as to which he may show himself justly

entitled to receive.




                                                    4
092865/000002
376 - 1092540v1
                                                        Respectfully submitted,

                                                        CRAIN, CATON & JAMES,
                                                        A PROFESSIONAL CORPORATION


                                                        By: /s/ Kathleen Tanner Beduze
                                                            SARAH PATEL PACHECO
                                                            (TBA # 00788164)
                                                            KATHLEEN TANNER BEDUZE
                                                            (TBA # 24052205)
                                                            1401 McKinney, 17th Floor
                                                            Houston, Texas 77010
                                                            (713) 658-2323
                                                            (713) 658-1921 (Facsimile)

                                                        Attorneys for Andy Weiner

                                 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to:

Carol A. Cantrell / Meredith N. McIver                Thomas R. Conner
Cantrell & Cowan, PLLC                                Conner & Lindamood, P.C.
3700 Buffalo Speedway, Suite 520                      1221 Lamar, Suite 1010
Houston, Texas 77098                                  Houston, Texas 77010
Facsimile: (713) 333-0550                             Facsimile: (713) 654-8115


by e-file, facsimile and/or certified mail, return receipt requested, on the 2nd day of July, 2014.


                                               /s/ Kathleen Tanner Beduze
                                               KATHLEEN TANNER BEDUZE




                                                  5
092865/000002
376 - 1092540v1
App. 2
App. 3
App. 4
App. 5
                                   FILED
                    7/15/2014 6:05:08 PM
                            Stan Stanart
                            County Clerk
                           Harris County



         PROBATE COURT 4




App. 6
App. 7
App. 8
App. 9
App. 10
App. 11
App. 12
App. 13
App. 14
                                       FILED
                         4/9/2015 5:04:03 PM
DV                              Stan Stanart
                                County Clerk
                               Harris County

               PROBATE COURT 4




     App. 15
                                    FILED
                     5/7/2015 12:00:25 PM
                              Stan Stanart
                              County Clerk
                             Harris County

          PROBATE COURT 4




App. 16
                                    CAUSE NO. 425576-401
IN RE: DANIEL STEVEN WEINER,                  §
PLAINTIFF                                     §
                                              §                    IN THE PROBATE COURT #4
VS.                                           §
                                              §                            HARRIS COUNTY, TX
N/A,                                          §
DEFENDANT                                     §
                                              §
                                     RETURN OF SERVICE

ON Friday, May 01, 2015 AT 12:15 PM - 106 ORDER, CITATION, ANDY WEINER'S
COUNTER AND CROSS-PETITION, EXHIBIT A, B CAME TO HAND.


ON Tuesday, May 05, 2015 AT 11:40 AM, I, JANET ROBBINS, DELIVERED THE
ABOVE-NAMED DOCUMENTS TO: DANIEL WARREN F/K/A DANIEL STEVEN
WEINER, 1226 MUIRFIELD PLACE, HOUSTON, HARRIS COUNTY, TX 77055 BY
ATTACHING A COPY TO THE FRONT DOOR PER ORDER FOR SUBSTITUTE
SERVICE.


My name is JANET ROBBINS. My address is 1201 Louisiana, Suite 210, Houston, Texas
77002, USA. I am a private process server authorized by and through the Supreme Court of
Texas (SCH 02330, Expires Thursday, March 31, 2016). My date of birth is December 14,
1964. I am in all ways competent to make this statement, and this statement is based on
personal knowledge. I am not a party to this case, and have no interest in its outcome. I declare
under penalty of perjury that the foregoing is true and correct.

Executed in Harris County, Texas on Tuesday, May 05, 2015.


/S/ JANET ROBBINS




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