In Re Frances Spanos Shelton v. the State of Texas

ACCEPTED
15-25-00152-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
10/6/2025 12:28 PM
No. 15-25-____-CV CHRISTOPHER A. PRINE
CLERK
FILED IN
IN THE COURT OF APPEALS 15th COURT OF APPEALS
FOR THE FIFTEENTH DISTRICT AUSTIN, TEXAS
10/6/2025 12:28:00 PM
AT AUSTIN
CHRISTOPHER A. PRINE
Clerk

IN RE FRANCES SPANOS SHELTON,
Relator.

On Mandamus from the 414th District Court
of McLennan County, Texas, Cause No. 2024-3035-5

PETITION FOR WRIT OF MANDAMUS

Kirk L. Pittard Craig D. Cherry
State Bar No. 24010313 State Bar No. 24012419
kpittard@dpslawgroup.com ccherry@cjsjlaw.com
Rick Thompson Ryan C. Johnson
State Bar No. 00788537 State Bar No. 24048574
rthompson@dpslawgroup.com rjohnson@cjsjlaw.com
DURHAM, PITTARD & SPALDING, LLP Scott H. James
P.O. Box 224626 State Bar No. 24037848
Dallas, Texas 75222 sjames@cjsjlaw.com
(214) 946-8000 CHERRY JOHNSON SIEGMUND
(214) 946-8433 (fax) JAMES, PLLC
7901 Fish Pond Road, 2nd Floor
Waco, Texas 76710
(254) 732-2242
(866) 627-3509 (fax)

COUNSEL FOR RELATOR
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL

As required by Texas Rule of Appellate Procedure 52.3(a), Relator

hereby identifies all parties and their appellate and trial counsel as well as

other parties to the trial court’s order:

RELATOR APPELLATE COUNSEL

Frances Spanos Shelton Kirk L. Pittard
(“Fran”) State Bar No. 24010313
Rick Thompson
State Bar No. 00788537
DURHAM, PITTARD & SPALDING, LLP
P.O. Box 224626
Dallas, Texas 75222
(214) 946-8000
(214) 946-8433 (fax)

TRIAL & APPELLATE COUNSEL

Craig D. Cherry
State Bar No. 24012419
ccherry@cjsjlaw.com
Ryan C. Johnson
State Bar No. 24048574
rjohnson@cjsjlaw.com
Scott H. James
State Bar No. 24037848
sjames@cjsjlaw.com
CHERRY JOHNSON SIEGMUND JAMES, PLLC
7901 Fish Pond Road, 2nd Floor
Waco, Texas 76710
(254) 732-2242

ii
IDENTITY OF PARTIES AND COUNSEL (CONT’D)

REAL PARTIES IN INTEREST TRIAL & APPELLATE COUNSEL

Vernon Leuschner Andy McSwain
State Bar No. 1361100
mcswain@thetexasfirm.com
Mark E. Firmin
State Bar No. 24099614
mfirmin@thetexasfirm.com
BEARD KULTGEN BROPHY BOSTWICK &
DICKSON PLLC
220 South 4th Street
Waco, Texas 76701
(254) 776-5500
(254) 776-3591 (fax)

Robert Spanos, Christopher Spanos, Jim Dunnam
Katherine Leuschner, and State Bar No. 06258010
Katherine Nicole Lawrie jimdunnam@dunnamlaw.com
Andrea Mehta
State Bar No. 24078992
andreamehta@dunnamlaw.com
Mason Vance Dunnam
State Bar No. 24108079
masondunnam@dunnamlaw.com
DUNNAM & DUNNAM LLP
4125 West Waco Drive
Waco, Texas 76710
(254) 753-6437
(254) 753-7434 (fax)

iii
IDENTITY OF PARTIES AND COUNSEL (CONT’D)

RESPONDENT

Hon. Judge Ryan Luna
414th Judicial District Court of McLennan County
501 Washington Avenue
Suite 307
Waco, TX 76701
414th@mclennan.gov

APPOINTED RECEIVER

Aubrey R. Williams
Law Office of Aubrey R. Williams
P.O. Box 20156
Waco, Texas 76702
(254) 722-3331
aubreyw9000@yahoo.com

iv
TABLE OF CONTENTS

Page(s)

Identity of Parties and Counsel............................................................................ ii

Table of Authorities ............................................................................................ viii

Statement of the Case ........................................................................................ xvii

Statement of Jurisdiction ......................................................................................xx

Statement Regarding Oral Argument .............................................................. xxi

Issues Presented ................................................................................................. xxii

Statement of the Record ................................................................................... xxiii

Introduction ............................................................................................................. 1

Statement of Facts ................................................................................................... 2

Summary of the Argument .................................................................................... 9

Argument and Authorities .................................................................................. 10

I. The District Court’s Order Appointing Receiver Is Void
Because It Enforces Aspects of Orders Issued by County
Court at Law No. 1, Which Had No Jurisdiction Over Trust
Disputes ........................................................................................................13

A. County Court at Law No. 1 Had No Jurisdiction
Over the Administration of a Trust in 2022 ................................. 13

1. Section 25.1572 of the Texas Government Code Did
Not Confer Jurisdiction on County Court at Law
No. 1 to Exercise Jurisdiction Over Disputes
Involving the Trust ................................................................... 14

2. County Court at Law No. 1 Did Not Have Original
Probate Jurisdiction Over the Trust Claims............................. 14

v
TABLE OF CONTENTS (CONT’D)

Page(s)

3. The County Court at Law No. 1 Did Not Have
Pendent or Ancillary Jurisdiction Over the Trust
Claims ....................................................................................... 16

B. Assuming Arguendo the County Court at Law No. 1
Had Some Sort of Ancillary Jurisdiction Over the
Trust Claims, the County Court Lost That
Jurisdiction No Later Than May 18, 2022 ..................................... 19

II. The Real Parties in Interest Failed to Present Any Evidence
to Support the Appointment of a Receiver Under Texas
Law ................................................................................................................21

A. The Appointment of a Receiver Under Texas Civil
Practice and Remedies Code § 64.001 Was an Abuse
of Discretion Because the Appointment Was Not
Supported by Any Evidence ........................................................... 22

1. Section 64.001(a)(2) does not apply here ....................... 23

2. Section 64.001(a)(3) does not authorize the
district court’s appointment of the receiver.................... 25

3. Section 64.001(a)(6) does not authorize the
district court’s appointment of the receiver
either ............................................................................... 29

B. The Appointment of a Receiver Under Texas
Property Code § 114.008 Was an Abuse of Discretion
as Well ................................................................................................ 33

C. The “Rules of Equity” Did Not Justify the
Appointment of the Receiver.......................................................... 36

D. Mandamus Relief Is Proper Because the Benefits of
Review at This Time Outweigh Any Detriments of
Immediate Review............................................................................ 38
vi
TABLE OF CONTENTS (CONT’D)

Page(s)

III. The Order Appointing Receiver Requires Fran to Pay the
Bills of the Trust, Which Violates Texas Law and Results in
an Unconstitutional Taking of Fran’s Property ..................................... 39

IV. The Order Appointing Receiver Also Improperly Enjoins
any Beneficiary from Directly or Indirectly Taking Any
Actions That Would Hinder the Receiver from Selling
Trust Property ............................................................................................. 41

V. Mandamus Relief Is Not Barred by Principles of Equity ..................... 42

Conclusion and Prayer ......................................................................................... 44

Texas Rule of Appellate Procedure 52.3(j) Certification ................................. 46

Certificate of Compliance .................................................................................... 46

Certificate of Service ............................................................................................. 47

vii
TABLE OF AUTHORITIES

Cases Page(s)

Abila v. Miller, 683 S.W.3d 842 (Tex. App.—Austin 2023, no pet.).................25

Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) ..............................12

Benefield v. State, 266 S.W.3d 25
(Tex. App.—Houston [1st Dist.] 2008, no pet.) ...................................... 32, 38

Bridas Corp. v. Unocal Corp., 16 S.W.3d 887
(Tex. App.—Houston [14th Dist.] 2000, writ dism’d w.o.j.) ........................42

Brown v. Peters, 94 S.W.2d 129 (Tex. Comm’n App. 1936) ..............................13

Castaneda v. Chapa, No. 13-22-00537-CV, 2024 WL 2197216
(Tex. App.—Corpus Christi-Edinburg May 16, 2024, pet. denied) ............17

City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014) .....................................40

Commons of Lake Houston, Ltd. v. City of Houston,
711 S.W.3d 666 (Tex. 2025) ................................................................................40

CSR Ltd. v. Link, 925 S.W.2d 591 (Tex. 1996) .....................................................39

Elliott v. Weatherman, 396 S.W.3d 224
(Tex. App.—Austin 2013, no pet.) ............................................................ 12, 22

Estate of Benson, No. 04-15-00087-CV, 2015 WL 5258702
(Tex. App.—San Antonio Sept. 9, 2015, pet. dism’d) ...................................22

Estate of Hoskins, 501 S.W.3d 295
(Tex. App.—Corpus Christi-Edinburg 2016, orig. proceeding) ..................34

Estate of Martinez, No. 01-18-00217-CV, 2019 WL 1442100
(Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.).................................23

viii
TABLE OF AUTHORITIES (CONT'D)

Cases (cont'd) Page(s)

Estate of Price, 528 S.W.3d 591 (Tex. App.—Texarkana 2017, no pet.) ...........31

Estate of Vines, No. 01-21-00003-CV, 2022 WL 1085624
(Tex. App.—Houston [1st Dist.] Apr. 12, 2022, no pet.)...............................22

Ex parte Fernandez, 645 S.W.2d 636 (Tex. App.—El Paso 1983, no writ) .......11

Fallon v. MD Anderson Physicians Network, 586 S.W.3d 58
(Tex. App.—Houston [1st Dist.] 2019, pet. denied) ......................................25

Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc.,
262 S.W.3d 813 (Tex. App.—Fort Worth 2008, no pet.) ................................27

Floyd v. MMWKM Advisors, LLC, No. 05-23-00638-CV,
2024 WL 549036 (Tex. App.—Dallas Feb. 12, 2024, no pet.) ........................23

Fortis Benefits v. Cantu, 234 S.W.3d 642 (Tex. 2007) ..........................................31

Franks v. Hovey, No. 10-18-00218-CV, 2022 WL 395228
(Tex. App.—Waco Feb. 9, 2022, pet. denied) .................................................12

Gilbreath v. Horan, 682 S.W.3d 454
(Tex. App.—Houston [1st Dist.] 2023, pet. denied) ......................................38

Goodman v. Summit at West Rim, Ltd., 952 S.W.2d 930
(Tex. App.—Austin 1997, no pet.) ............................................................ 19, 20

Greiner v. Jameson, 865 S.W.2d 493
(Tex. App.—Dallas 1993, writ denied)............................................................42

Guardianship of Fairley, 650 S.W.3d 372 (Tex. 2022) ..........................................20

In re AutoZoners, LLC, 694 S.W.3d 219 (Tex. 2024) .................................... 11, 21

ix
TABLE OF AUTHORITIES (CONT'D)

Cases (cont'd) Page(s)

In re Bent, 487 S.W.3d 170 (Tex. 2016).................................................................10

In re Breviloba, LLC, 650 S.W.3d 508 (Tex. 2022) ................................................13

In re Columbia Medical Center of Las Colinas, Subsidiary, L.P.,
290 S.W.3d 204 (Tex. 2009) ................................................................................10

In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)
(orig. proceeding) (per curiam)........................................................................11

In re Estate of Hallmark, 629 S.W.3d 433
(Tex. App.—Eastland 2020, no pet.) ................................................................17

In re Estate of Martinez, No. 01-18-00217-CV, 2019 WL 1442100
(Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.).................................30

In re Giles, 675 S.W.3d 37
(Tex. App.—Corpus Christi-Edinburg 2023, orig. proceeding) ..................43

In re Harrison, No. 14–15–00370–CV, 2015 WL 5935816
(Tex. App.—Houston [14th Dist.] Oct. 13, 2015, orig. proceeding) ............11

In re Int’l Profit Assocs., Inc., 274 S.W.3d 672 (Tex. 2009) .................................42

In re Kelly, 399 S.W.3d 282
(Tex. App.—San Antonio 2012, orig. proceeding) ........................................42

In re McCray, No. 05–13–01195–CV, 2013 WL 5969581
(Tex. App.—Dallas Nov. 7, 2013, orig. proceeding) .....................................11

In re Panchakarla, 602 S.W.3d 536 (Tex. 2020)
(orig. proceeding) (per curiam)........................................................................11

x
TABLE OF AUTHORITIES (CONT'D)

Cases (cont'd) Page(s)

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

In re Southwestern Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000)
(orig. proceeding) (per curiam)................................................................. 11, 18

In re Tex. Conference of Seventh-Day Adventists, 652 S.W.3d 136
(Tex. App.—Fort Worth 2022, orig. proceeding) ..........................................18

In re Toyota Motor Corp., No. 10–11–00050–CV, 2011 WL 5830468
(Tex. App.—Waco Nov. 16, 2011, orig. proceeding) ....................................19

In re Vaishangi, Inc., 442 S.W.3d 256 (Tex. 2014)
(orig. proceeding) (per curiam)........................................................................11

In re Valliance Bank, 422 S.W.3d 722
(Tex. App.—Fort Worth 2012, orig. proceeding) ..........................................43

Interest of J.S., 670 S.W.3d 591 (Tex. 2023) ..........................................................29

Jay & VMK, Corp. v. Lopez, 572 S.W.3d 698
(Tex. App.—Houston [14th Dist.] 2019, no pet.) ...........................................24

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) ....................27

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1995) .......................10

Junkin v. Sterchi Furniture Co., 92 S.W.2d 1098
(Tex. Civ. App.—San Antonio 1936, no writ) ................................................24

Krumnow v. Krumnow, 174 S.W.3d 820
(Tex. App.—Waco 2004, pet. denied) .............................................................21

xi
TABLE OF AUTHORITIES (CONT'D)

Cases (cont'd) Page(s)

Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer,
904 S.W.2d 656 (Tex. 1995) ................................................................................31

Lawton v. Lawton, No. 01–12–00932–CV, 2014 WL 3408699
(Tex. App.—Houston [1st Dist.] Jul. 10, 2014, no pet.) .................................20

Matter of Bumstead Family Irrevocable Trust, No. 13-20-00350-CV,
2022 WL 710159 (Tex. App.—Corpus Christi-Edinburg
Mar. 10, 2022, pet. denied) ................................................................................32

Matter of Marriage of Pinkston and Smith, No. 12-24-00185-CV,
2024 WL 3858474 (Tex. App.—Tyler Aug. 15, 2024, no pet.) ......................21

Mexico Foods Holdings, LLC v. Nafal, No. 05-23-00108-CV,
2023 WL 6284705 (Tex. App.—Dallas 2023, no pet.) ....................................12

Moody Nat’l Bank v. Moody, No. 14-21-00096-CV, 2022 WL 14205534
(Tex. App.—Houston [14th Dist.] Oct. 25, 2022, pet. denied) .....................34

Mueller v. Beamalloy, Inc., 994 S.W.2d 855
(Tex. App.—Houston [1st Dist.] 1999, no pet.) ....................................... 12, 30

Pajooh v. Royal West Invs. LLC, Series E, 518 S.W.3d 557
(Tex. App.—Houston [1st Dist.] Mar. 30, 2017, no pet.) ..............................33

Peek v. Mayfield, No. 02-22-00492-CV, 2023 WL 5967886
(Tex. App.—Fort Worth Sept. 14, 2023, pet. denied) ....................................34

Rivercenter Assocs. v. Rivera, 858 S.W.2d 366
(Tex. 1993) (orig. proceeding) ..........................................................................42

Rogers v. Daniel Oil & Royalty Co., 110 S.W.2d 891 (Tex. 1937) .......................37

xii
TABLE OF AUTHORITIES (CONT'D)

Cases (cont'd) Page(s)

Safeco Ins. Co. of Am. v. Clear Vision Windshield Repair, LLC,
564 S.W.3d 913 (Tex. App—Houston [14th Dist.] 2018, no pet.) ................12

San Antonio River Auth. v. Austin Bridge & Road, L.P.,
601 S.W.3d 616 (Tex. 2020) ................................................................................20

Schuchmann v. Schuchmann, 193 S.W.3d 598
(Tex. App.—Fort Worth 2006, pet. denied) ....................................................17

Schuld v. Dembrinski, 12 S.W.3d 485 (Tex. App.—Dallas 2000, no pet.) ........20

Spiritas v. Davidoff, 459 S.W.3d 224 (Tex. App.—Dallas 2015, no pet.) ..........21

TC & C Real Estate Holdings, Inc. v. ETC Katy Pipeline, Ltd.,
No. 10–16–00134–CV, 2017 WL 7048923
(Tex. App.—Waco Dec. 20, 2017, pet. denied)...............................................12

Tex. Unemployment Comp. Comm’n v. Metropolitan Bldg. & Loan Ass’n,
139 S.W.2d 309 (Tex. Civ. App.—Austin 1940, writ ref’d)...........................37

Thompson v. Consolidated Gas Util. Corp., 300 U.S. 55 (1937) ............................40

Thompson v. Winkelmann, No. 01-06-00457-CV, 2008 WL 921041
(Tex. App.—Houston [1st Dist.] Apr. 3, 2008, no pet.).................................40

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) .....................................................11

Welch v. Milton, 185 S.W.3d 586
(Tex. App.—Dallas 2006, pet. denied) ............................................................27

Zimmerman v. Ottis, 941 S.W.2d 259
(Tex. App.—Corpus Christi 1996, orig. proceeding) ....................................43

xiii
TABLE OF AUTHORITIES (CONT'D)

Statutes Page(s)

TEX. CIV. PRAC. & REM. CODE § 51.014(a) ............................................................41

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(1) .........................................................7

TEX. CIV. PRAC. & REM. CODE § 64.001 ......................................................... 22, 33

TEX. CIV. PRAC. & REM. CODE § 64.001(a) ............................................................30

TEX. CIV. PRAC. & REM. CODE § 64.001(a)(2) ................................................ 23, 24

TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3) .......................................... 23, 25, 30

TEX. CIV. PRAC. & REM. CODE § 64.001(a)(6) .......................................... 23, 29, 30

TEX. CIV. PRAC. & REM. CODE § 64.001(b) ............................................... 23-25, 30

TEX. ESTATES CODE § 31.002(a) .............................................................................15

TEX. ESTATES CODE § 32.001(b) ...................................................................... 16, 19

TEX. ESTATES CODE § 31.002(b)(2) ........................................................................15

TEX. ESTATES CODE § 31.002(b)(3) ........................................................................15

TEX. ESTATES CODE § 31.002 ..................................................................................14

TEX. ESTATES CODE § 32.001(a) .............................................................................14

TEX. GOV’T CODE § 22.220(d) ................................................................. xiii, xiv, 8

TEX. GOV’T CODE § 22.221(c)............................................................................... xiii

TEX. GOV’T CODE § 22.221(c-1) ............................................................... xiii, xiv, 8

xiv
TABLE OF AUTHORITIES (CONT'D)

Statutes (cont'd) Page(s)

TEX. GOV’T CODE § 22.201(p) .............................................................................. xiii

TEX. GOV’T CODE § 25.003 ............................................................................... 9, 14

TEX. GOV’T CODE § 25.0003(e) ................................................................................1

TEX. GOV’T CODE § 25.0003(d) ................................................................................1

TEX. GOV’T CODE §§ 25.0041-.2512.......................................................................13

TEX. GOV’T CODE §§ 25.1571-.1572.......................................................................14

TEX. GOV’T CODE § 25.1572 ....................................................................................9

TEX. GOV’T CODE § 73.001(a)...................................................................................8

TEX. GOV’T CODE § 311.011(a) ..............................................................................29

TEX. GOV’T CODE § 311.021(2) ..............................................................................29

TEX. GOV’T CODE § 312.005 ...................................................................................29

TEX. PROP. CODE § 114.008(a)(5).............................................................. 22, 33, 34

Other Authorities

BLACK’S LAW DICTIONARY (12th ed. 2024) ................................................... 18, 36

TEX. CONST. art. 1, § 17(a) .....................................................................................40

Rules

TEX. R. APP. P. 28.1 ...................................................................................................7

xv
TABLE OF AUTHORITIES (CONT'D)

Rules (cont'd) Page(s)

TEX. R. APP. P. 29.3 ...................................................................................................7

TEX. R. APP. P. 52.3(k) ......................................................................................... xvii

TEX. R. APP. P. 52.7 .............................................................................................. xvii

xvi
STATEMENT OF THE CASE

Nature of the Case: This case arises from a dispute regarding
administration of the Dorothy Spanos
Living Trust (“Trust”) (Tab B) (CR 460-
552).

This mandamus arises from the district
court’s order appointing a receiver,
which gives effect to earlier void orders
issued by the County Court at Law No. 1
of McLennan County. Those orders
appointed former Judge Robert Stem as
trust advisor, who then removed Ms.
Frances Spanos Shelton (“Fran”) as
trustee of the Trust.

Respondent District Court: Hon. Judge Ryan Luna, 414th Judicial
District Court of McLennan County

Course of Proceedings: Fran, the original trustee following the
death of Ms. Spanos, sued for the
removal of her successor trustee, Mr.
John Malone, due to his alleged breaches
of fiduciary duties and moved to
reinstate herself as trustee. In turn, Real
Parties in Interest sued Fran for alleged
breaches of trust during her prior tenure
as trustee.

Mr. Malone resigned as trustee. The Real
Parties moved for the appointment of a
receiver over the Trust.

Disposition: On March 2, 2025, following a hearing on
the motions, the district court issued its
Order Appointing Receiver. See Tab A
(CR 1291-99).
xvii
STATEMENT OF THE CASE (CONT’D)

Fran filed an interlocutory appeal in the
Waco Court of Appeals and sought
temporary emergency relief from the
Order Appointing Receiver, pending
resolution of the appeal. The court
granted the requested relief.

The Texas Supreme Court transferred the
case from the Waco Court to this Court
for purposes of docket equalization on
May 1, 2025.

Although it has statewide jurisdiction,
the Court’s authority to issue mandamus
relief in cases over which it does not have
exclusive appellate jurisdiction is not as
clear. See TEX. GOV’T CODE §§ 22.201(p),
22.221(c), (c-1), 22.220(d).

Consequently, Fran filed her petition for
writ of mandamus in the Waco Court
and filed a motion to transfer this appeal
back to the Waco Court for resolution of
the related issues in a single forum. In its
correspondence to the Supreme Court,
the Court noted its belief that it may have
jurisdiction to issue mandamus relief in a
transferred case. The Supreme Court
denied Fran’s motion to transfer and
consolidate.

Given the Court’s belief that it may have
jurisdiction to issue mandamus relief

xviii
STATEMENT OF THE CASE (CONT’D)

and the Supreme Court’s ruling, Fran,
out of an abundance of caution, is filing
this largely identical petition for writ of
mandamus in this Court as well.

xix
STATEMENT OF JURISDICTION

Section 22.221(c-1) of the Texas Government Code provides that this

Court’s jurisdiction “to issue writs is limited to writs arising out of matters

over which the court has exclusive intermediate appellate jurisdiction under

Section 22.220(d).” Section 22.220(d) does not expressly state that a case

transferred for docket equalization purposes is part of the Court’s exclusive

intermediate appellate jurisdiction. Thus, Relator filed her mandamus

petition in the Waco Court along with a motion to transfer and consolidate

the case in a single forum with jurisdiction to grant all of the relief sought—

i.e., the Waco Court.

This Court corresponded with the Supreme Court and noted its belief

that the Court may indeed have jurisdiction to grant mandamus relief in a

case transferred for docket equalization purposes. Thereafter, the Supreme

Court denied Fran’s motion to transfer and consolidate. Given the denial of

the motion and this Court’s belief that it may possess jurisdiction to grant

mandamus relief, Fran is filing her petition for writ of mandamus in this

Court as well. The issues presented in this petition largely overlap with the

issues presented in the interlocutory appeal already pending before this

xx
Court and are identical to the issues in the mandamus action pending in the

Waco Court.

STATEMENT REGARDING ORAL ARGUMENT

Given the many moving parts and complex jurisdictional provisions

at play in this case, Fran believes that oral argument will materially assist the

Court in sorting through the underlying void orders that were issued years

earlier by McLennan County Court of Law No. 1 and were given effect by

the district court’s Order Appointing Receiver.

xxi
ISSUES PRESENTED

1. Whether County Court of Law No. 1 had jurisdiction to
issue orders in the case regarding the administration of Ms.
Spanos’s Trust.

2. Whether the County Court at Law’s earlier orders are void.

3. If the County Court at Law’s orders are void, including the
orders appointing Judge Stem as the trust advisor, the
issue becomes whether all actions taken by Judge Stem as
trust advisor, including the removal of Fran as trustee, are
also void.

4. Whether Respondent’s Order Appointing Receiver, which
gives effect to the void orders issued by the County Court
at Law No. 1, is therefore void as well.

5. Whether the district court’s findings and conclusions in the
Order Appointing Receiver are supported by any legally
sufficient evidence, whether the district court abused its
discretion by so ruling, and whether Fran has an adequate
remedy by appeal from the court’s order.

6. Whether the Order Appointing Receiver would result in
an unconstitutional taking of Fran’s property.

7. Whether Respondent abused its discretion by issuing its
Order Appointing Receiver, which enjoined Fran from
exercising her statutory right to challenge the rulings of the
district court and the actions of the receiver.

8. Whether Respondent abused its discretion by issuing the
Order Appointing Receiver.

xxii
STATEMENT OF THE RECORD

The Mandamus Record is identical to the materials presented in the

attached Appendix. The Mandamus Record and Appendix contain sworn

copies of the district court’s order appointing the receiver for the Trust, the

document creating the Trust, the void orders of the county court at law on

which the district court’s order is based, and other documents material to

the legal issues presented. See TEX. R. APP. P. 52.3(k), 52.7. The documents

in the mandamus record and appendix shall be referred to by tab letter and,

when available, page numbers from the Clerk’s Record from the related

interlocutory appeal pending in this Court—e.g., Tab A (CR 1291-99).

Fran opted not to attach all documents in the Clerk’s Record from the

related interlocutory appeal because it is rather voluminous—i.e., it contains

over 1,350 pages of documents. However, when necessary to provide the

Court with background information, Fran refers the Court to cites from the

clerk’s record on file in the related interlocutory appeal.

The Mandamus Record and Appendix also include a sworn copy of

the transcript from the hearing on the parties’ motions to appoint a receiver

and to designate a trustee. The transcript shall be referenced by tab letter

and page number—e.g., Tab L at 3.

xxiii
INTRODUCTION

This is a complicated family dispute regarding the appointment of a

receiver for the Dorothy Spanos Living Trust (“Trust”). This case is further

complicated by the fact that County Court at Law No. 1 of McLennan County

issued numerous orders in an earlier proceeding that purport to govern the

current administration of the Trust—even though that court never had

subject matter jurisdiction over the administration of the Trust. Fran attacks

the district court’s Order Appointing Receiver as void because it gives effect

to the void orders issued by the county court at law.

The court also abused its discretion by issuing the order appointing a

receiver over certain real property in the Trust and directing the receiver to

take possession of, and sell, that property because there is no evidence to

support the district court’s findings or its order appointing the receiver. The

Order Appointing Receiver also includes mandates that do not comport with

Texas law or the state and federal constitutions. Thus, the Order Appointing

Receiver, even if not void, constitutes an abuse of discretion for which there

would be no adequate remedy on appeal, and the Court should grant

conditional mandamus relief.

1
STATEMENT OF FACTS

On December 19, 2007, Ms. Dorothy Spanos transferred much of her

real and personal property into the Dorothy Spanos Living Trust. See Tab B

(CR 467, 551). Ms. Spanos appointed herself trustee. See CR 466. She then

appointed the Relator, her daughter Fran, to serve as co-trustee. Ms. Spanos

named Fran’s husband, Mr. Ricky Shelton, to serve as substitute trustee, if

necessary. Tab B (CR 470-71). Ms. Spanos did not appoint Ms. Katherine

Leuschner, her other daughter and Appellee, to serve as trustee or substitute

trustee. Ms. Spanos also signed the First Amendment to the Trust. See Tab

C (CR 553-60). Upon Ms. Spanos’s death, Fran became the sole trustee.

In March 2022, Ms. Leuschner filed an application in the County Court

at Law No. 1 of McLennan County for the appointment of Retired Judge

Robert Stem as the temporary administrator of Ms. Spanos’s estate as well

as the trust advisor for the Trust. See Tab D (CR 801-11). Under the terms of

the Trust, a trust advisor acts as a “super-trustee” vested with the power to,

among other things, remove a trustee with or without just cause, appoint a

successor trustee, direct a trustee to execute any documents necessary to

carry out his will, and, if any conflicts arise, overrule and trump the

authority and actions of any trustee. See Tab B (CR 476-78).

2
On March 8, 2022, the county court at law entered an order appointing

Judge Stem as the temporary administrator of Ms. Spanos’s estate and trust

advisor to the Trust. See Tab E (CR 817-19). His term was set to expire on

September 5, 2022. See Tab E (CR 817). On May 18, 2022, the county court

at law discharged Judge Stem as the temporary administrator and ended the

administration of the estate. See Tab F (CR 821-23). However, Judge Stem

remained the purported trust advisor under the county court’s earlier order.

On September 1, 2022, the county court signed an order extending the

appointment of Judge Stem as trust advisor until Judge Stem “determines

that there no longer exists a necessity for a Trust Advisor, by agreement of

the Parties, or if the Court, in the best interest of the Trust, determines cause

exists for the removal of the Trust Advisor.” See Tab G (CR 827-28). On May

3, 2023, Judge Stem removed Fran as trustee of the Trust, skipped over Mr.

Shelton, who was named the successor trustee by the terms of the Trust, and

appointed his colleague Mr. John Malone, a Waco attorney, as the trustee.

See Tab H (CR 923).

On October 25, 2024, Fran filed the underlying lawsuit against Mr.

Malone for breach of his fiduciary duties in the district court. See Tab I (CR

9-19). On February 3, 2025, the Real Parties in Interest filed a joint petition

3
in intervention, seeking damages from Fran for alleged self-dealing and

breaches of trust during her stint as trustee. See CR 385-569. On February

24, 2025, Mr. Malone resigned as trustee. See Tab J (CR 990). Thus, currently,

the Trust is effectively without a trustee.

Fran filed a motion to re-affirm herself as Trustee or, in the alternative,

to properly designate a trustee of the Trust. CR 787-928. On February 25,

2025, the Real Parties in Interest filed an application to appoint a receiver

over all Trust property. See Tab K (CR 956-1019, 1061-65).

On March 4, 2025, the district court conducted an evidentiary hearing

on the parties’ motions. See Tab L at 1. The Real Parties opened the hearing

by calling Judge Stem as a witness. See Tab L at 77. Judge Stem is a highly

esteemed, former judge in the Waco legal community, and his reputation

and credentials followed him into the courtroom during the hearing. The

district court permitted Judge Stem to testify, over Fran’s objections, as an

apparent expert, albeit undesignated as such, on the legal effect of the Trust

document, the jurisdiction of the county court at law that appointed him, the

merits of Fran’s pending claims, and whether Fran’s attorneys violated

professional legal ethics. See Tab L at 79, 93-95. The district court also

permitted Judge Stem to admonish Fran and her attorneys in open court for

4
filing the lawsuit to remove Mr. Malone as Trustee, which he considered

“ridiculous, baseless, [and] spiteful lawsuit conduct.” Tab L at 101. Judge

Stem also testified that he believed Fran’s actions violated the terms of the

trust. See Tab L at 92, 101.

Judge Stem’s testimony at the hearing directly conflicted with prior

statements that he made to Fran before she filed the motion to remove Mr.

Malone as trustee (who Judge Stem appointed). Before Fran filed the motion

to remove Mr. Malone, Judge Stem informed her that she was not being

removed as trustee for cause, but rather to shield her from the “enormously

difficult situation” she found herself in “through no fault of [her] own,”

which was created by the actions of Ms. Leuschner, which Judge Stem

characterized as “firing laser beams at [Fran].” Tab L at 103, 112.

Judge Stem ultimately conceded that his testimony in the district court

conflicted with his remarks made many months earlier. See Tab L at 113.

Judge Stem also admitted that, even though he testified that an unidentified

cause existed to remove Fran as trustee, he continued to allow Fran to

“handle all the finances for the Trust” until a couple of months before the

hearing—i.e., for almost a year and a half after she was removed by Judge

Stem as trustee. See Tab L at 92, 116-17. The district court concluded the

5
hearing following the testimony of Judge Stem and arguments of counsel.

See Tab L at 137. Fran was not similarly afforded the opportunity to present

any witnesses, testimony, or other evidence on her behalf.

On March 31, 2025, based on the testimony of Judge Stem, the district

court partially granted Real Parties in Interest’s motion for the appointment

of a receiver and issued its Order Appointing Receiver. See Tab A (CR 1291-

99). The trial court made the following finding in support of its ruling:

Due to the extraordinary controversy surrounding the sale of the
Front 45 Acres, there is a material risk of harm, injury, damage
and/or loss to the Property and/or Trust funds, as well as the
various beneficiaries, if a Receiver is not appointed to carry out
the terms of the Trust.

Tab A (CR 1292). The district court concluded that “[i]rreparable damage

will ensue to the beneficiaries of the Trust unless there is an immediate sale

of the Front 45 Acres pursuant to the terms of the Trust.” Tab A (CR 1292).

Although the Order Appointing Receiver is “supported” by 11 findings of

fact and conclusions of law, the district court did not identify any alleged

harm, damage, or loss to the property, trust funds, or the beneficiaries that

would result from its failure to appoint a receiver. See Tab A (CR 1292).

The order directed the receiver to take possession of, and sell, the 45-

acre tract of Trust property in Crawford, Texas. Tab A (CR 1291). The order

6
effectively denied Fran’s motion to re-affirm or designate a trustee for the

Trust. The district court appointed attorney Aubrey R. Williams to serve as

the receiver. See Tab A (CR 1293).

The Order Appointing Receiver not only appointed the receiver and

set forth his powers and obligations, but also directed Fran, who has been

purportedly removed as Trustee by Judge Stem, to turn over “all documents

and materials representing all interests of the Trust in the Front 45 Acres”

within 10 days. Tab A (CR 1295). The Order also requires Fran, who is no

longer a signatory on the Trust’s bank account, to “continue to make regular

and routine payments of any bills or invoices incurred by the Trust in the

ordinary course of business.” Tab A (CR 1295).

On April 3, 2025, Fran filed an interlocutory appeal from the district

court’s Order Appointing Receiver in the Waco Court of Appeals. See TEX.

CIV. PRAC. & REM. CODE § 51.014(a)(1) (“A person may appeal from an

interlocutory order of a district court . . . that appoints a receiver or trustee.”).

She concurrently filed an emergency motion for temporary relief because the

order required her to pay the bills of the Trust even though she is neither a

trustee nor a signatory to the Trust’s bank account. See TEX. R. APP. P. 28.1,

29.3. On April 9, 2025, the Waco Court granted the requested temporary

7
relief and stayed the Order Appointing Receiver pending resolution of the

appeal or further order of the court.

On May 1, 2025, the Texas Supreme Court transferred the appeal from

the Waco Court to this Court for docket equalization. See TEX. GOV’T CODE §

73.001(a) (“Except as provided by Subsection (b), the supreme court may

order cases transferred from one court of appeals to another at any time that,

in the opinion of the supreme court, there is good cause for the transfer.”).

Because this dispute involves jurisdictional challenges to the county court’s

orders and involves requests for mandamus relief, Fran filed a motion to

transfer the interlocutory appeal back to the Waco Court for the efficient

resolution of these related disputes in a single forum. Fran feared that this

Court may not have jurisdiction to grant the requested mandamus relief

because the case did not appear to technically fall under this Court’s

exclusive appellate jurisdiction. See TEX. GOV’T CODE 22.220(c-1),(d).

The Supreme Court ultimately denied Fran’s motion. Given counsel’s

fear that the Court could resolve the interlocutory appeal without granting

mandamus relief to remedy the void nature of the county court at law’s

orders, and a paranoia that the Waco Court could deny the mandamus

before them because of this Court’s representation to the Supreme Court that

8
it may indeed have jurisdiction to grant mandamus relief—i.e., the existence

of another potential appellate remedy—Fran is filing this largely duplicative

petition for writ of mandamus in this Court as well.

SUMMARY OF THE ARGUMENT

The County Court at Law No. 1 had no jurisdiction over the Trust or

the related disputes when it issued its orders related to the administration of

the Trust. In 2022, when it issued its order appointing Judge Stem as the

trust advisor, county courts at law in McLennan County were permitted to

exercise jurisdiction “in third degree felony cases” and were authorized to

conduct arraignments, pretrial hearings, accept guilty pleas, and conduct

probation revocation hearings in felony cases. TEX. GOV’T CODE § 25.1572

(2022). The county court also possessed jurisdiction over cases within its

amount-in-controversy jurisdiction. TEX. GOV’T CODE § 25.003 (2022). The

county court did not have jurisdiction to make rulings involving the

administration of a trust.

Because the county court at law did not have jurisdiction, its orders

appointing Judge Stem and extending his term as the trust advisor, and—as

a consequence—all decisions made by Judge Stem on behalf of the Trust

pursuant to those orders, are void. Although these orders were issued, and

9
acts were taken, in 2022 and 2023, the district court’s Order Appointing

Receiver adopts and incorporates aspects of the 2022 and 2023 orders issued

by the county court at law. The district court’s order is, therefore, void as

well.

Mandamus relief is the proper remedy for the issuance of void orders.

This Court should make clear that the orders of the County Court at Law

No. 1, the actions taken by Judge Stem, and the district court’s order were all

void. The Court should grant conditional mandamus relief.

ARGUMENT AND AUTHORITIES

To obtain mandamus relief, a relator normally must show that the trial

court abused its discretion and that it has no adequate appellate remedy. See

In re Bent, 487 S.W.3d 170, 177-78 (Tex. 2016); In re Columbia Medical Center of

Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209 (Tex. 2009). A trial court

abuses its discretion when it makes a ruling “so arbitrary and unreasonable

as to amount to a clear and prejudicial error of law.” Johnson v. Fourth Court

of Appeals, 700 S.W.2d 916, 917 (Tex. 1995). A relator has an adequate remedy

by appeal when the benefits from mandamus review are outweighed by the

detriments from immediate review. See In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 136 (Tex. 2004).

10
A court also abuses its discretion if it issues an order that exceeds its

jurisdiction. Such an order is considered void ab initio, and mandamus relief

is the proper remedy. See In re Panchakarla, 602 S.W.3d 536, 539 (Tex. 2020)

(orig. proceeding) (per curiam); In re Southwestern Bell Tel. Co., 35 S.W.3d 602,

605 (Tex. 2000) (orig. proceeding) (per curiam); In re Dickason, 987 S.W.2d

570, 571 (Tex. 1998) (orig. proceeding) (per curiam). In seeking relief from a

void order, a relator need not show that she lacks an adequate remedy by

appeal. In re Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (orig. proceeding)

(per curiam); In re Southwestern Bell Tel. Co., 35 S.W.3d at 605. Mandamus

relief also protects a relator from an order that enforces another void order.

See Ex parte Fernandez, 645 S.W.2d 636, 639 (Tex. App.—El Paso 1983, no

writ); In re Harrison, No. 14–15–00370–CV, 2015 WL 5935816, at *5 (Tex.

App.—Houston [14th Dist.] Oct. 13, 2015, orig. proceeding); In re McCray,

No. 05–13–01195–CV, 2013 WL 5969581, at *2 (Tex. App.—Dallas Nov. 7,

2013, orig. proceeding).

Finally, a court abuses its discretion if no evidence supports a finding

of fact upon which its ruling rests. See In re AutoZoners, LLC, 694 S.W.3d 219,

223 (Tex. 2024); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A district

court’s findings and conclusions in support of the appointment of a receiver

11
“are not binding on [this Court] but may be helpful in determining if the trial

court exercised its discretion in a reasonable and principled fashion.” Mexico

Foods Holdings, LLC v. Nafal, No. 05-23-00108-CV, 2023 WL 6284705, at *4

(Tex. App.—Dallas 2023, no pet.); see Elliott v. Weatherman, 396 S.W.3d 224 at

228. Such findings “do not carry the same weight on appeal as findings

made under rule 296,” even if they are not challenged on appeal. Mueller v.

Beamalloy, Inc., 994 S.W.2d 855, 858–59 (Tex. App.—Houston [1st Dist.] 1999,

no pet.).

If challenged, however, as they are in this case, the Court reviews the

findings by the standards used for reviewing the sufficiency of the evidence.

See Franks v. Hovey, No. 10-18-00218-CV, 2022 WL 395228, at *5 (Tex. App.—

Waco Feb. 9, 2022, pet. denied); Beaumont Bank, N.A. v. Buller, 806 S.W.2d

223, 226 (Tex. 1991). A legal sufficiency challenge to findings of fact fails if

there is more than a scintilla of evidence to support the findings. See Safeco

Ins. Co. of Am. v. Clear Vision Windshield Repair, LLC, 564 S.W.3d 913, 918-19

(Tex. App—Houston [14th Dist.] 2018, no pet.); TC & C Real Estate Holdings,

Inc. v. ETC Katy Pipeline, Ltd., No. 10–16–00134–CV, 2017 WL 7048923, at *1

(Tex. App.—Waco Dec. 20, 2017, pet. denied). No evidence supports the

district court’s key findings of fact.

12
I. THE DISTRICT COURT’S ORDER APPOINTING RECEIVER IS VOID
BECAUSE IT ENFORCES ASPECTS OF ORDERS ISSUED BY COUNTY COURT
AT LAW NO. 1, WHICH HAD NO JURISDICTION OVER TRUST DISPUTES.

Pursuant to the terms of the Trust, a trust advisor “must be appointed

by a court of competent jurisdiction on petition of a Trustee or beneficiary.”

Tab B (CR 845). Although the Real Parties stated in their application for the

appointment of a trust advisor that County Court at Law No. 1 was a court

of competent jurisdiction to hear their action, it clearly was not. CR 801; see

Brown v. Peters, 94 S.W.2d 129, 130 (Tex. Comm’n App. 1936) (jurisdiction is

based on allegations in the petition unless a lack of jurisdiction is apparent

from the face of the petition).

A. County Court at Law No. 1 Had No Jurisdiction Over the
Administration of a Trust in 2022.

County courts at law in Texas have varying jurisdictions dependent on

statutes enacted by the Legislature. See In re Breviloba, LLC, 650 S.W.3d 508,

511 (Tex. 2022) (citing TEX. GOV’T CODE §§ 25.0041-.2512). No statute in effect

in 2022 conferred jurisdiction on McLennan County Court at Law No. 1 to

exercise jurisdiction over cases involving the administration of a trust.

13
1. Section 25.1572 of the Texas Government Code Did Not Confer
Jurisdiction on County Court at Law No. 1 to Exercise
Jurisdiction Over Disputes Involving the Trust.

In 2022, a county court in McLennan County had “jurisdiction in third

degree felony cases,” as well as authority “to conduct arraignments, conduct

pretrial hearings, accept guilty pleas, and conduct probation revocation

hearings in felony cases.” TEX. GOV’T CODE §§ 25.1571-.1572 (2022). The

county court also possessed limited amount-in-controversy jurisdiction. See

TEX. GOV’T CODE § 25.0003 (2022). Cases involving the administration of a

trust were not within the jurisdiction that was expressly granted to County

Court at Law No. 1 by statute.

2. County Court at Law No. 1 Did Not Have Original Probate
Jurisdiction Over the Trust Claims.

Ms. Leuschner moved to appoint Judge Stem as trust advisor while her

motion for a temporary administration of Ms. Spanos’s estate was before the

country court at law. Thus, the county court at law was exercising probate

jurisdiction. 1 The county court at law’s probate jurisdiction included “all

matters related to probate proceedings” as specified in Section 31.002 of the

Estates Code. See TEX. ESTATES CODE §§ 31.002, 32.001(a). Section 31.002(a)

1 County Court at Law No. 1 had probate jurisdiction because McLennan County did not

have a statutory probate court. See TEX. GOV’T CODE § 25.0003(d), (e).

14
defines “matters related to probate proceedings” to include many different

types of claims; however, a claim related to trust administration is not one

of them. 2

Section 31.002(b)(2) states that matters related to probate proceedings

include “the interpretation and administration of a testamentary trust if the

will creating the trust has been admitted to probate in the court.” TEX.

ESTATES CODE § 31.002(b)(2) (emphasis added). Section 31.002(b)(3) provides

that matters related to probate proceedings include “the interpretation and

administration of an inter vivos trust created by a decedent whose will has

been admitted to probate in the court.” TEX. ESTATES CODE § 31.002(b)(3)

(emphasis added). Section 31.002(b)(3) is the only basis that even arguably

vests the county court at law with jurisdiction over Ms. Leuschner’s 2002

trust claims; however, at bottom, that section does not apply either.

2 Section 31.002 defines matters related to a probate proceeding to include: (1) an action
against a personal representative or former personal representative arising out of the
representative’s performance of the duties of a personal representative; (2) an action
against a surety of a personal representative or a former personal representative; (3) a
claim brought by a personal representative on behalf of an estate; (4) an action brought
against a personal representative in his capacity as personal representative; (5) an action
for trial of title to real property that is estate property, including the enforcement of a lien
against the property; and (6) an action for trial of the right of property that is estate
property. TEX. ESTATES CODE § 31.002(a).
15
On March 2, 2022, Ms. Leuschner filed a motion for the appointment

of a temporary administrator for Ms. Spanos’s estate and for appointment of

a trust advisor. Tab D (CR 801-11). Although the Dorothy Spanos Living

Trust is an inter vivos trust, Ms. Spanos’s will has never been admitted to

probate in any court. Tab D (CR 803) (“Applicant is not contesting the

validity of the Will.”).

Indeed, Ms. Leuschner recognized as much when, on September 17,

2025, she filed an application to probate Ms. Spanos’s will and to appoint yet

another temporary administrator of Ms. Spanos’s estate. See Tab M. Thus,

Ms. Leuschner’s claim seeking the appointment of a trust advisor in 2022,

was not a matter related to a probate proceeding as a matter of law, and the

county court did not have probate jurisdiction over the trust claims.

3. The County Court at Law No. 1 Did Not Have Pendent or
Ancillary Jurisdiction Over the Trust Claims.

Statutory county courts acting as probate courts can exercise “pendent

and ancillary jurisdiction as necessary to promote judicial efficiency and

economy.” TEX. ESTATES CODE § 32.001(b). However, the county court at law

16
could not exercise pendant or ancillary jurisdiction over Ms. Leuschner’s

trust claims. 3

A county court exercising its original probate jurisdiction may exercise

pendent or ancillary jurisdiction “when a close relationship exists between

the non-probate claims and the matter pending in the probate court” and

doing so “will aid in the efficient administration of a matter pending in the

probate court.” Schuchmann v. Schuchmann, 193 S.W.3d 598, 603 (Tex. App.—

Fort Worth 2006, pet. denied); see In re Estate of Hallmark, 629 S.W.3d 433, 438

(Tex. App.—Eastland 2020, no pet.). A close relationship between probate

and non-probate proceedings exists, for example, when the matters involve

the same parties, the same causes of action, and the same underlying facts.

See, e.g., Castaneda v. Chapa, No. 13-22-00537-CV, 2024 WL 2197216, at *5 (Tex.

App.—Corpus Christi-Edinburg May 16, 2024, pet. denied).

The County Court at Law No. 1’s exercise of jurisdiction over the trust

claims did not and could not have “aid[ed] in the efficient administration of”

3 In its order appointing the trust advisor, the County Court at Law No. 1 never stated

that, and likely never considered whether, it had jurisdiction over the Trust. Rather, the
court found “that this Court has jurisdiction and venue over this estate, and the interest
of this estate and trust requires the immediate appointment of a Temporary
Administrator and Trust Advisor.” Tab E (emphasis added) (CR 817). This language
suggests that the county court knew it lacked jurisdiction over the Trust and, at best,
simply assumed ancillary jurisdiction over the trust claims.

17
any estate claims. Ms. Spanos’s will is a simple “pourover will”—i.e., a “will

giving money or property to an existing trust.” Tab D (CR 802-03); BLACK’S

LAW DICTIONARY Will (12th ed. 2024). Thus, the only administration of the

estate that was required was the transfer of Ms. Spanos’s assets that had not

already been transferred to the Trust into the Trust.

Ms. Leuschner’s claims, on the other hand, related to the temporary

administration of the Trust and were not related to the estate proceedings

before the county court. The administration of the Trust did not aid in Judge

Stem’s administration of the estate—i.e., collecting, accounting for, or

transferring the remaining assets in Ms. Spanos’s estate to the Trust.

Although Ms. Leuschner asserted estate and trust claims in the county court

that involved some of the same parties, those claims sought to enforce two

different documents that governed different parties and different property,

and those two documents were written to serve two very different functions.

For these reasons, the county court’s exercise of pendant or ancillary

jurisdiction over Ms. Leuschner’s trust claims would not have been proper.

See In re Southwestern Bell Tel. Co., 35 S.W.3d at 605; In re Tex. Conference of

Seventh-Day Adventists, 652 S.W.3d 136, 142 (Tex. App.—Fort Worth 2022,

orig. proceeding); In re Toyota Motor Corp., No. 10–11–00050–CV, 2011 WL

18
5830468, at *1 (Tex. App.—Waco Nov. 16, 2011, orig. proceeding). Because

the county court had no jurisdiction over the trust claims, no pendent or

ancillary jurisdiction, and the district court’s Order Appointing Receiver

incorporates and gives effect to the county court’s void orders, its order is

likewise void, and this Court should grant conditional mandamus relief. 4

B. Assuming Arguendo the County Court at Law No. 1 Had Some
Sort of Ancillary Jurisdiction Over the Trust Claims, the
County Court Lost That Jurisdiction No Later Than May 18,
2022.

Assuming arguendo that County Court at Law No. 1 could have

exercised pendant or ancillary jurisdiction over the trust claims, the court

lost authority to exercise such jurisdiction no later than May 18, 2022—i.e.,

the date on which the county court discharged Judge Stem as the temporary

administrator and terminated the temporary administration of Ms. Spanos’s

estate.

“In Texas, the pendency of a probate proceeding is a requisite for a

court’s exercise of jurisdiction over matters related to it.” Goodman v. Summit

at West Rim, Ltd., 952 S.W.2d 930, 933 (Tex. App.—Austin 1997, no pet.)

(applying the predecessor to Section 32.001(b) of the Estates Code); see Schuld

4
The district court’s Order Appointing Receiver acknowledges, sanctions, and approves
the county court at law’s appointment of Judge Stem as trust advisor and the county
court’s extension of his service as trust advisor. See CR 1292, 1295.
19
v. Dembrinski, 12 S.W.3d 485, 487 (Tex. App.—Dallas 2000, no pet.). Once an

estate is closed, a court loses any probate or ancillary jurisdiction over any

claims. See Lawton v. Lawton, No. 01–12–00932–CV, 2014 WL 3408699, at *2

(Tex. App.—Houston [1st Dist.] Jul. 10, 2014, no pet.); Dembrinski, 12 S.W.3d

at 487; Goodman, 952 S.W.2d at 933.

County Court at Law No. 1 signed an Agreed Order Approving the

Discharge of the Temporary Administrator and Termination of Temporary

Administration on May 18, 2022. Tab F (CR 821-23). On that date, County

Court at Law No. 1 terminated its jurisdiction over the probate proceeding

and lost any pendant or ancillary jurisdiction. See Goodman, 952 S.W.2d at

933; Lawton, 2014 WL 3408699, at *2; Dembrinski, 12 S.W.3d at 487. As a result,

the County Court at Law No. 1’s September 1, 2022, Agreed Order to Extend

the Appointment of Judge Stem as the trust advisor is void for want of

jurisdiction, as are his acts taken after September 1, 2022, including the

removal of Fran as trustee on May 3, 2023. See Tab G (CR 827-28).5

5 In the district court, the Real Parties made much of the fact that this order was agreed;
however, that fact is irrelevant because “subject-matter jurisdiction cannot be conferred
on a court by consent or waiver.” Guardianship of Fairley, 650 S.W.3d 372, 379 (Tex. 2022);
see San Antonio River Auth. v. Austin Bridge & Road, L.P., 601 S.W.3d 616, 627 (Tex. 2020).
Although the Real Parties relied on Guardianship of Fairley to support their argument that
the agreed order somehow vested the county court with jurisdiction, that case is totally
distinguishable because the county court here, unlike the court in Guardianship of Fairley,
formally terminated the administration of the estate.
20
Because the County Court at Law No. 1 could not exercise jurisdiction

over Ms. Leuschner’s trust claims, its appointment of Judge Stem is void, its

order extending Judge Stem’s tenure as trust advisor is void, Judge Stem’s

removal of Fran as trustee is void, and the district court’s order giving effect

to those orders is likewise void. Accordingly, this Court should grant

mandamus relief to vacate these void acts and orders.

II. THE REAL PARTIES IN INTEREST FAILED TO PRESENT ANY EVIDENCE TO
SUPPORT THE APPOINTMENT OF A RECEIVER UNDER TEXAS LAW.

In Texas, a court’s appointment of a receiver is a “harsh, drastic, and

extraordinary remedy,” which district courts should be “particularly loathe

to utilize.” Matter of Marriage of Pinkston and Smith, No. 12-24-00185-CV, 2024

WL 3858474, at *2 (Tex. App.—Tyler Aug. 15, 2024, no pet.); see Spiritas v.

Davidoff, 459 S.W.3d 224, 232 (Tex. App.—Dallas 2015, no pet.); Krumnow v.

Krumnow, 174 S.W.3d 820, 828 (Tex. App.—Waco 2004, pet. denied). The

district court’s appointment of Mr. Williams to serve as receiver and sell the

front 45-acres of Trust property, and its findings of fact and conclusions, are

not supported by any evidence. Rulings made with no evidence to support

the findings and conclusions upon which the rulings rest constitute abuses

of discretion that support mandamus relief. See In re AutoZoners, LLC, 694

S.W.3d at 223.
21
The Real Parties sought the appointment of a receiver under Texas

Civil Practice & Remedies Code § 64.001 and Property Code § 114.008(a)(5).

See Tab K (CR 957-62, 1061-62). As requested by the Real Parties and Judge

Stem, see Tab L at 101, the district court appointed a receiver “[p]ursuant to

Texas Civil Practice & Remedies Code § 64.001, Texas Property Code §

114.008(a)(5), and/or the rules of equity.” Tab A (CR 1292).

The parties seeking the appointment of the receiver, in this case the

Real Parties, had the burden “to demonstrate that the circumstances justify

the appointment of a receiver.” Estate of Vines, No. 01-21-00003-CV, 2022 WL

1085624, at *5 (Tex. App.—Houston [1st Dist.] Apr. 12, 2022, no pet.); see

Estate of Benson, No. 04-15-00087-CV, 2015 WL 5258702, at *5 (Tex. App.—

San Antonio Sept. 9, 2015, pet. dism’d); Elliott v. Weatherman, 396 S.W.3d 224,

230 (Tex. App.—Austin 2013, no pet.). That burden was never met.

A. The Appointment of a Receiver Under Texas Civil Practice and
Remedies Code § 64.001 Was an Abuse of Discretion Because
the Appointment Was Not Supported by Any Evidence.

The Real Parties in Interest alleged that Sections 64.001(a)(2), (3), and

(6) authorized the district court to appoint Mr. Williams as the receiver for

the Trust. See Tab K (CR 959-60). Those sections provide that a “court of

competent jurisdiction” may appoint a receiver “in an action by a creditor to

22
subject any property or fund to his claim,” “in an action between partners or

others jointly owning or interested in any property or fund,” and “in any

other case in which a receiver may be appointed under the rules of equity.”

TEX. CIV. PRAC. & REM. CODE § 64.001(a)(2), (3), (6). 6

Under Sections 64.001(a)(2) and (a)(3), the party seeking appointment

of the receiver must also prove that the property or fund is “in danger of

being lost, removed, or materially injured.” TEX. CIV. PRAC. & REM. CODE §

64.001(b); see Floyd v. MMWKM Advisors, LLC, No. 05-23-00638-CV, 2024 WL

549036, at *2 (Tex. App.—Dallas Feb. 12, 2024, no pet.); Estate of Martinez, No.

01-18-00217-CV, 2019 WL 1442100, at *4–*5 (Tex. App.—Houston [1st Dist.]

Apr. 2, 2019, no pet.) (appointment of a receiver under Section 64.001(a)(3)

requires evidentiary support, not simply allegations and arguments in

pleadings and motions).

1. Section 64.001(a)(2) does not apply here.

Section 64.001(a)(2) permits a court to appoint a receiver “in an action

by a creditor to subject any property or fund to his claim” if the property or

fund is “in danger of being lost, removed, or materially injured.” TEX. CIV.

6 In this section, Fran assumes only for purposes of this argument that County Court at
Law No. 1 was a court of competent jurisdiction. Of course, in light of the arguments
presented above, the Court should never reach this argument.

23
PRAC. & REM. CODE § 64.001(a)(2), (b). Any creditor seeking the appointment

of a receiver under this subsection must be a secured creditor, and the

receivership may only be imposed with respect to the property or fund to

which the lien is attached. See Jay & VMK, Corp. v. Lopez, 572 S.W.3d 698,

703-04 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Junkin v. Sterchi

Furniture Co., 92 S.W.2d 1098, 1101 (Tex. Civ. App.—San Antonio 1936, no

writ).

The Real Parties are not secured creditors of the front 45-acre tract or

any Trust property. The Real Parties certainly did not attach any evidence

to the motion to appoint a receiver that supported a finding that any of them

were secured creditors or that any Trust property or funds were subject to a

lien. See Tab L (CR 956-1018). Likewise, at the hearing on the motion, the

Real Parties did not present any evidence that they were secured creditors

of, or had a lien against, any Trust funds or property. See Tab L at 158; 3 RR

4-21. Accordingly, Section 64.001(a)(2) did not apply, and the district court

abused its discretion to the extent it relied on that subsection as a legal basis

for appointing the receiver.

24
2. Section 64.001(a)(3) does not authorize the district court’s
appointment of the receiver.

Section 64.001(a)(3) does not provide a basis for the district court’s

order either. That section permits a court to appoint a receiver “in an action

between partners or others jointly owning or interested in any property or

fund” when “the property or fund [is] in danger of being lost, removed, or

materially injured.” TEX. CIV. PRAC. & REM. CODE § 64.001(a)(3), (b).

Although the Real Parties have a joint interest in the Trust property, they

wholly failed to present any evidence demonstrating that this property was

in any danger of being lost or materially injured in any way.

The Real Parties did not attach any evidence to their motion or present

any evidence at the hearing showing that the Trust property was in any

danger of being lost or materially injured. To begin, the order is based on

the county court’s orders and the “testimony of the Trust Advisor,” Judge

Stem. Tab A (CR 1292). Although counsel for the Real Parties argued at the

hearing that the “trust is always going to be losing money over time,” it is

well settled that argument of counsel is not evidence. Tab L at 139; see Abila

v. Miller, 683 S.W.3d 842, 848 (Tex. App.—Austin 2023, no pet.); Fallon v. MD

Anderson Physicians Network, 586 S.W.3d 58, 75 (Tex. App.—Houston [1st

Dist.] 2019, pet. denied). And Judge Stem did not testify that the Trust
25
property was in any danger of being lost or materially injured in any way.

Instead, Judge Stem simply believed that a receiver was needed to end the

dispute amongst the beneficiaries regarding the Trust property, based in

large part on his personal frustration with Fran and the fact that he believed

this dispute had gone on too long and should be resolved quickly:

I have thought long and hard on this. The trust is exhausted.
There’s no money left. This is an extraordinary case. And it
requires extraordinary measures. This is a time where we need
to save these people from themselves. There will be nothing left.
All these grandkids will be cheated out of their inheritance. This
ongoing litigation will exhaust this trust. This is an extraordinary
case that requires an extraordinary ruling.

The only way to bring this to conclusion is not through a
successor trustee, but it’s through a receivership with some
judicial protection to get this done. John Malone and I worked
hours and hours and hours trying to get this done. And that man
deserves a medal. He deserves a nod toward the Nobel Peace
Prize, not a ridiculous, baseless, spiteful lawsuit. Shame on you
guys. I’m sorry, Judge, but this is—enough is enough. I’ve seen
these in court.

The only route to get this done is a receivership, bring someone
in with fresh eyes, not connected to anyone. I’ll stay on, if the
Court wants me to, just for background information, but let’s get
someone in here with fresh eyes, that has experience in
receiverships and get this done. . . . Everyone deserves this to be
final.

Tab L at 101-03, 130-31.

26
Although Judge Stem testified that there was only $8,000 or so in cash

left in the Trust, he later admitted that he was personally unaware of the

Trust’s financial position. Tab L at 100, 119. When Fran’s attorney attempted

to show Judge Stem that the balance in just one of the Trust’s accounts was

$615,000, the district court sustained the Real Parties’ objection because

Judge Stem had already admitted that he was unaware of the Trust’s actual

cash position. Tab L at 119-20.

Judge Stem also speculated that, as a result of the ongoing litigation,

there would be nothing left in the Trust to distribute to the beneficiaries. Tab

L at 101. Such pure speculation is not evidence. See, e.g., Fieldtech Avionics

& Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 833 (Tex.

App.—Fort Worth 2008, no pet.) (citing Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 164 (Tex. 2004)); Welch v. Milton, 185 S.W.3d 586, 599 (Tex.

App.—Dallas 2006, pet. denied). Judge Stem’s remarks also ignore the

undisputed fact that the Trust includes real property valued at $1 million or

more. There simply is no evidence to justify the district court’s finding that

the Trust assets were at risk of any harm, injury, damage, or loss. See Tab A

(CR 1292).

27
In theory, the most likely source of potential harm to Trust property

would be a quick, forced sale of the front 45-acres to a non-family member.

There is only one road on the Trust property that is used to access the entire

261-acre tract. If the front 45-acres were sold with easements of access for

each of the Trust beneficiaries, without selling the remainder of the property,

the front 45 acres would likely reap a far lesser sales price as a result of being

burdened by easements to persons with such a litigious history. Likewise,

the value of the remainder of the tract, which would be virtually inaccessible

absent the easements to facilitate construction of new roads or irrevocable

covenants from the purchasers to keep the existing access road as is, would

likely be substantially devalued as a result of the limited access.

At bottom, the Real Parties presented no evidence demonstrating that

any Trust property had deteriorated in any way, had been stolen, had been

vandalized, damaged, or destroyed, was subject to condemnation, was being

misused, was under contract for sale, or was in danger of any “irreparable

damage” as found by the district court. See Tab A (CR 1292). To the extent

the district court determined that it was appropriate to appoint a receiver

under Section 64.001(a)(3), it abused its discretion because there is no

28
evidence to support its factual findings or its legal conclusions justifying its

Order Appointing Receiver.

3. Section 64.001(a)(6) does not authorize the district court’s
appointment of the receiver either.

Section 64.001(a)(6) vests a court with the power to appoint a receiver

“in any other case in which a receiver may be appointed under the rules of

equity.” TEX. CIV. PRAC. & REM. CODE § 64.001(a)(6). In effect, this section

permits a court to appoint a receiver under the equitable common law in

limited circumstances. This section, however, didn’t vest the district court

with authority to appoint the receiver in this case for several reasons.

First, in construing this statute, the Court must give effect to the intent

of the Legislature. See TEX. GOV’T CODE § 312.005. To do so, the Court must

give the words in the statute their plain and common meaning and give

effect to all the statute’s terms. See TEX. GOV’T CODE §§ 311.011(a), 311.021(2);

Interest of J.S., 670 S.W.3d 591, 599 (Tex. 2023). When the Real Parties moved

for the appointment of a receiver, Section 64.001 authorized the appointment

of a receiver in six types of cases. Section 64.001(a)(6), the last in the list of

six, authorized the appointment of a receiver “in any other case in which a

receiver may be appointed under the rules of equity.” See TEX. CIV. PRAC. &

REM. CODE § 64.001(a)(6) (emphasis added).
29
The highlighted language only permits the appointment of a receiver

in “instances beyond” the five situations listed earlier in Section 64.001(a)—

i.e., it does not permit the appointment of an equitable receiver in cases that

would ordinarily be governed by one of the five preceding subsections. See

Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 861 (Tex. App.—Houston [1st Dist.]

1999, no pet.); In re Estate of Martinez, No. 01-18-00217-CV, 2019 WL 1442100,

at *3-*4 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.). To interpret

this section otherwise would fail to give effect to the common meaning of

“any other case.” See Mueller, 994 S.W.2d at 861; In re Estate of Martinez, 2019

WL 1442100, at *4 (“[S]ection 64.001(a)(6) applies to instances beyond the

specific circumstances in subsections (a)(1) through (a)(5). Thus, if

subsection (a)(3) applies, then subsection (a)(6) does not.”).

This case would ordinarily be controlled by Section 64.001(a)(3), given

that Fran and the Real Parties have a joint interest in the Trust property, but

the Real Parties failed to present any evidence that any Trust property was

in danger of being lost, removed, or materially injured. See TEX. CIV. PRAC.

& REM. CODE § 64.001(a)(3), (b).

Second, Section 64.001(a)(6) is a so-called “equitable receivership.” To

plead and prove that such a receivership was required, the Real Parties had

30
to produce evidence—not merely pleadings—supporting imposition of this

harsh, drastic, and extraordinary remedy. See Estate of Price, 528 S.W.3d 591,

594 (Tex. App.—Texarkana 2017, no pet.); Marriage of Pinkston and Smith,

2024 WL 3858474, at *2 n.4 (citing Fortis Benefits v. Cantu, 234 S.W.3d 642, 648

(Tex. 2007)).

The Real Parties did not present any evidence to the district court that

the value of the front 45 acres had lost value or would suffer any potential

devaluation absent an immediate sale. Judge Stem, the only witness allowed

to testify at the hearing on the motion, did speak of unidentified breaches of

trust by Fran as trustee. See Tab L at 82, 88, 98, 119. Such allegations,

however, are the basis for some of Appellees’ unsubstantiated claims at issue

in this lawsuit, not evidence.

Of course, the Real Parties’ counsel repeatedly relied on these alleged

breaches of trust at the hearing on the motion to appoint a receiver; however,

his arguments are not evidence either. Tab L at 139, 140, 141, 143; see Laidlaw

Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).

Moreover, given the fact that Fran is no longer a trustee and has no superior

access to Trust assets (under the County Court at Law No. 1’s void orders),

31
it is hard to imagine how Fran could breach any alleged duty of trust as a

beneficiary.

To the extent that Judge Stem alleged that Fran’s failure to sell the front

45-acres was a past breach of trust, see Tab L at 82, 88, 98, 119, his accusation

is quite rich. Judge Stem has been the trust advisor for years and has not

managed to arrange a sale of the front 45 acres either. In fact, Judge Stem

admitted that it would be best to keep the Trust property in the family and

that Fran had offered to purchase the Trust property for more than market

value. See Tab L at 122-23. (Mr. Malone inexplicably rejected her above-

market offer (which Fran considers a breach of his trust)). There was simply

no evidence that the rules of equity required the appointment of an equitable

receiver to sell the front 45-acre tract.

Third, a court should not appoint an equitable receivership unless

evidence reflects “a threat of serious injury to the applicant.” Benefield v.

State, 266 S.W.3d 25, 31 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see

Matter of Bumstead Family Irrevocable Trust, No. 13-20-00350-CV, 2022 WL

710159, at *17 (Tex. App.—Corpus Christi-Edinburg Mar. 10, 2022, pet.

denied); Pajooh v. Royal West Invs. LLC, Series E, 518 S.W.3d 557, 567 (Tex.

32
App.—Houston [1st Dist.] Mar. 30, 2017, no pet.). As discussed above, no

such evidence exists.

This case is complex. The situation is difficult. The emotions of the

parties run high. But the Trust must be administered properly—i.e., per the

terms of the Trust and per Texas law as interpreted by a court of competent

jurisdiction. The appointment of the receiver is not based on any competent

evidence and cannot be grounded on the unfounded conjecture of a former

judge who has clearly lost his objectivity regarding this situation. To the

extent the district court appointed a receiver based on Section 64.001, the

court abused its discretion because there was no evidence to support the

appointment of the receiver under that statute.

B. The Appointment of a Receiver Under Texas Property Code §
114.008 Was an Abuse of Discretion as Well.

The district court also stated that it was appointing the receiver based

on Section 114.008(a)(5) of the Texas Property Code. Tab A (CR 1292). But

again, in so doing, the district court abused its discretion because there is no

evidence to support its order.

Section 114.008(a)(5) authorizes a court to “appoint a receiver to take

possession of the trust property and administer the trust” if the court finds

it necessary to “remedy a breach of trust that has occurred or might occur.”
33
TEX. PROP. CODE § 114.008(a)(5); see Moody Nat’l Bank v. Moody, No. 14-21-

00096-CV, 2022 WL 14205534, at *6 (Tex. App.—Houston [14th Dist.] Oct. 25,

2022, pet. denied); Peek v. Mayfield, No. 02-22-00492-CV, 2023 WL 5967886, at

*9 (Tex. App.—Fort Worth Sept. 14, 2023, pet. denied). As with Section

64.001, the Real Parties bore the burden to produce evidence demonstrating

the need for the appointment of the receiver under this section. See Estate of

Hoskins, 501 S.W.3d 295, 306 (Tex. App.—Corpus Christi-Edinburg 2016,

orig. proceeding).

However, as discussed above, there is no evidence that Fran ever

breached her duty of trust or that her past alleged breaches of trust could be

somehow remedied by the appointment of a receiver. Judge Stem removed

Fran as Trustee pursuant to Section 4.07(c) of the Trust; however, Section

4.07(a) permitted Judge Stem to remove Fran “at any time, with or without

cause,” and Judge Stem did not identify any cause to remove Fran as Trustee

in his notice of removal. Tab B (CR 476-77); Tab H (CR 923).

Judge Stem stated at the hearing that there were unidentified grounds

for removing Fran as trustee for alleged breaches of trust. Tab L at 92. Judge

Stem never identified these alleged breaches of trust, and his testimony was

belied by his own previous statements made to Fran near the time of her

34
removal that she was not being removed for cause. See Audio Exhibit (CR

1051-52). Indeed, Judge Stem conceded at the hearing that he told Fran that

he “did not remove [her] for cause.” Tab L at 92. Any finding of any alleged

breach of trust was also belied by Judge Stem’s decision to permit Fran to

continue to “handle all the finances for the Trust” until a couple of months

before the motions hearing—i.e., for over one and half years after she was

removed as Trustee. Tab L at 116-17. 7

And, of course, a receiver could not have been necessary to prevent

any future breaches of trust by Fran that might occur since Fran was

removed as trustee pursuant to the county court at law’s void orders and

purportedly has no current duties of trust. As stated before, it is difficult to

imagine why a receiver would be necessary to prevent potential breaches of

trust by Fran given the lack of her duty of trust as a beneficiary.

To the extent that the district court appointed the receiver pursuant to

Section 114.008 of the Texas Property Code, the court abused its discretion

because there was no evidence to support the order.

7 Although Judge Stem did discuss Fran’s proposal to partition the Trust property, which

he considered improper, Fran floated that proposal before she was removed as trustee—
i.e., more than two years before the hearing on the motion to appoint the receiver. See
Tab L at 84-88. Once Fran was purportedly removed as Trustee by Judge Stem, her
proposal died.
35
C. The “Rules of Equity” Did Not Justify the Appointment of the
Receiver.

Lastly, the district court’s Order Appointing Receiver stated that it was

authorized by the “rules of equity.” Tab A (CR 1292). Such a receivership

fails because it is unnecessary to protect the Trust assets or the interests of

the beneficiaries.

An equitable remedy is simply one that exists in equity. See BLACK’S

LAW DICTIONARY Equitable (12th ed. 2024). Equity, in turn, is defined as

“[f]airness; impartiality; evenhanded dealing.” Id. Equity. Thus, the rules of

equity permit a court to appoint a receiver whenever circumstances exist that

the court finds require the appointment of a receiver to protect Trust assets,

prevent damage to the Trust, or to protect the interests of the beneficiaries.

When a court is faced with an intractable controversy between parties,

equity “’will take cognizance of a controversy to determine the rights of all

the parties, and grant the relief required to meet the ends of justice in order

to prevent a multiplicity of suits.’” Tex. Unemployment Comp. Comm’n v.

Metropolitan Bldg. & Loan Ass’n, 139 S.W.2d 309, 311 (Tex. Civ. App.—Austin

1940, writ ref’d) (quoting Rogers v. Daniel Oil & Royalty Co., 110 S.W.2d 891,

895 (Tex. 1937)).

36
In this case, however, the appointment of the receiver is based largely

on the testimony of Judge Stem as the trust advisor that was improperly

appointed by the county court at law. This fact, coupled with his continued

administration of the Trust and the court-ordered sale of the Trust property,

will likely multiply future legal proceedings necessary to prevent or remedy

any illegal sale of the trust property, not deter it. Why? Because the district

court’s Order Appointing Receiver enforces the prior void orders of the

county court at law by rubber-stamping the appointment of Judge Stem as

trust advisor. Tab A (CR 1292, 1295-96).

Although the Trust beneficiaries remain at odds, the appointment of a

limited receivership to sell the front 45-acre tract of land will not ease this

tension. More importantly, the rules of equity did not compel the district

court to resort to this harsh and drastic remedy. The appointment of the

receiver to take possession of, and sell, the front 45-acre tract is simply not

supported by the facts, the law, or principles of equity.

“When a court appoints a receiver, the court has determined that

property should no longer be under the control of the parties but instead

within the custody of the court.” Gilbreath v. Horan, 682 S.W.3d 454, 552 (Tex.

App.—Houston [1st Dist.] 2023, pet. denied). If the passage of time alone or

37
a protracted disagreement between trust beneficiaries were sufficient to

justify the appointment of an equitable receiver, then the reality will be that

every sizeable or complex trust is likely to soon be under the supervision of

a Texas court. This result would transmute an equitable receivership from

the “harsh, drastic, and extraordinary remedy” it is intended to be into an

everyday occurrence. See Benefield v. State, 266 S.W.3d 25, 31 (Tex. App.—

Houston [1st Dist.] 2008, no pet.).

D. Mandamus Relief Is Proper Because the Benefits of Review at
This Time Outweigh Any Detriments of Immediate Review.

To the extent the district court’s Order Appointing Receiver is based

on findings of fact that are not supported by any legally sufficient evidence,

the district court abused its discretion. Thus, the question becomes whether

these abuses of discretion also warrant mandamus relief—in addition to the

fact that the district court’s order is void because it gives effect to provisions

of the county court at law’s void orders—because Fran has no adequate

remedy on appeal.

Obviously, Fran’s interlocutory appeal of the appointment of the

receiver is before the Court; however, the Fifteenth Court should resolve this

entire controversy rather than require the piecemeal resolution of different

aspects of the case in different cases. Thus, although the Court can reverse
38
the Order Appointing Receiver for want of evidentiary support, for example,

the Court should also grant conditional mandamus relief, declare the orders

void, and end the use of the county court at law’s void orders in the future

administration of the Trust.

Given that the Court should review the former issues on mandamus

and the latter issues on interlocutory appeal, the Court may now review all

issues presented in this single forum. See CSR Ltd. v. Link, 925 S.W.2d 591,

596 (Tex. 1996).

III. THE ORDER APPOINTING RECEIVER REQUIRES FRAN TO PAY THE BILLS
OF THE TRUST, WHICH VIOLATES TEXAS LAW AND RESULTS IN AN
UNCONSTITUTIONAL TAKING OF FRAN’S PROPERTY.

The district court’s Order Appointing Receiver directs Fran to pay the

Trust’s expenses incurred in the ordinary course of Trust business:

Mrs. Frances Shelton is ORDERED to continue to make regular
and routine payments of any bills or invoices incurred by the
Trust in the ordinary course of business with a copy of any such
invoice or bill and payment thereof relating to or connected with
the Front 45 Acres to be delivered to the Receiver and the parties.

Tab A (CR 1295). Fran was improperly removed as trustee by Judge Stem

and removed as a signatory on the Trust’s bank accounts. Tab H (CR 923).

Thus, to comply with this order, Fran would be required to use her personal

funds to pay Trust expenses. Such would constitute an unconstitutional

39
taking of her private property. See Thompson v. Winkelmann, No. 01-06-00457-

CV, 2008 WL 921041, at *4-*5 (Tex. App.—Houston [1st Dist.] Apr. 3, 2008,

no pet.) (sustaining challenge to the trial court’s order because it did “not

comport with Texas law and result[ed] in an unconstitutional taking of said

land”); see also Thompson v. Consolidated Gas Util. Corp., 300 U.S. 55, 79-80

(1937) (upholding plaintiff’s claim that enforcement of Railroad Commission

order resulted in unconstitutional taking of private property).

The Texas takings clause reflects that the right to own, use, and enjoy

one’s private property is a fundamental right and is “’among our most

cherished liberties.’” Commons of Lake Houston, Ltd. v. City of Houston, 711

S.W.3d 666, 675 (Tex. 2025) (quoting City of Houston v. Carlson, 451 S.W.3d

828, 830 (Tex. 2014)); see TEX. CONST. art. 1, § 17(a). Property is “taken” when

the State transfers property from one owner to another. See Commons of Lake

Houston, 711 S.W.3d at 678 n.34. Ordering Fran to pay the expenses of the

Trust out of her own pocket results in such an unconstitutional taking of her

private property.

The district court abused its discretion by issuing its Order Appointing

Receiver requiring Fran to pay the expenses of the Trust out of her own

pocket. To avoid the unconstitutional effect of the order, the Court should

40
grant conditional mandamus relief requiring the district court to vacate this

portion of its order.

IV. THE ORDER APPOINTING RECEIVER ALSO IMPROPERLY ENJOINS ANY
BENEFICIARY FROM DIRECTLY OR INDIRECTLY TAKING ANY ACTIONS
THAT WOULD HINDER THE RECEIVER FROM SELLING TRUST PROPERTY.

The Order Appointing Receiver also provides that the beneficiaries of

the Trust “are hereby restrained and enjoined from directly or indirectly

taking any action or causing any action to be taken, without the express

written agreement of the Receiver, which would . . . [h]inder, obstruct or

otherwise interfere with the Receiver in the performance of his duties.” Tab

A (CR 1296). This order effectively prohibits any beneficiary, including Fran,

from challenging any act of the district court or the receiver that would slow

the receiver from selling the property. Tab A (CR 1296).

The overly broad language of this injunction would theoretically keep

Fran from filing her notice of interlocutory appeal and prohibit her from

filing this mandamus, or taking any other legal action, even though she has

legal and statutory rights to do so. See TEX. CIV. PRAC. & REM. CODE §

51.014(a). Although the district court’s order is not technically an anti-suit

injunction because the injunction was not issued by a separate court, the

effect is the same—i.e., it would bar Fran’s right to prosecute her appeal or

41
this mandamus. As a consequence, the court’s order is illegal and constitutes

an abuse of discretion that should be corrected by mandamus. See Greiner v.

Jameson, 865 S.W.2d 493, 499 (Tex. App.—Dallas 1993, writ denied)

(observing that a court’s inherent power is not without its limits); see also

Bridas Corp. v. Unocal Corp., 16 S.W.3d 887, 890 (Tex. App.—Houston [14th

Dist.] 2000, pet. dism’d w.o.j.) (same).

V. MANDAMUS RELIEF IS NOT BARRED BY PRINCIPLES OF EQUITY.

Relator acknowledges that County Court at Law No. 1 issued its void

orders as early as 2022; however, this fact does not preclude mandamus

relief here. Ordinarily, such a delay might preclude mandamus relief unless

the delay was justified. See In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 676

(Tex. 2009). In this case, however, delay is not a barrier to mandamus relief.

Although mandamus is not an equitable remedy, its grant is controlled

largely by equitable principles. See In re Kelly, 399 S.W.3d 282, 284-85 (Tex.

App.—San Antonio 2012, orig. proceeding). The Texas Supreme Court has

explained that a party’s unreasonable delay in seeking mandamus relief may

waive the party’s right to such relief. See Rivercenter Assocs. v. Rivera, 858

S.W.2d 366, 367 (Tex. 1993) (orig. proceeding).

42
If, however, the challenged orders are void, then “equitable doctrines

such as delay and laches do not apply to bar mandamus relief.” In re Giles,

675 S.W.3d 376, 387 (Tex. App.—Corpus Christi-Edinburg 2023, orig.

proceeding); see In re Valliance Bank, 422 S.W.3d 722, 728-29 (Tex. App.—Fort

Worth 2012, orig. proceeding); Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex.

App.—Corpus Christi 1996, orig. proceeding) (“Since mandamus relief in

the present case is premised on the entry of a void order, it would not serve

the interests of justice or those of the parties to invoke laches as an excuse to

ignore that order, and thus to allow the parties to expend further time and

effort in connection with a lawsuit that must ultimately be dismissed . . . or

reversed on appeal for want of jurisdiction.”).

County Court at Law No. 1 did not have any jurisdiction to issue

orders related to the administration of the Trust. Therefore, its orders related

to the administration of the Trust, including the order appointing Judge

Stem as the trust advisor and his subsequent decision to remove Fran as

trustee, are void. The Court should grant the mandamus relief sought by

Fran notwithstanding any perceived delay.

43
CONCLUSION AND PRAYER

The Court should declare the orders of the County Court at Law No. 1

and the district court’s Order Appointing Receiver void and conditionally

grant the mandamus relief requested in this petition. Relator also requests

such further relief to which she may be justly entitled.

44
Respectfully submitted,

By: /s/ Rick Thompson
Kirk L. Pittard
State Bar No. 24010313
Rick Thompson
State Bar No. 00788537
rthompson@dpslawgroup.com
DURHAM, PITTARD & SPALDING, LLP
P.O. Box 224626
Dallas, Texas 75222
(214) 946-8000
(214) 946-8433 (fax)

Craig D. Cherry
State Bar No. 24012419
ccherry@cjsjlaw.com
Ryan C. Johnson
State Bar No. 24048574
rjohnson@cjsjlaw.com
Scott H. James
State Bar No. 24037848
sjames@cjsjlaw.com
CHERRY JOHNSON SIEGMUND JAMES,
PLLC
7901 Fish Pond Road, 2nd Floor
Waco, Texas 76710
(254) 732-2242
(866) 627-3509 (fax)

COUNSEL FOR RELATOR

45
TEXAS RULE OF APPELLATE PROCEDURE 52.3(j) CERTIFICATION

Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I
have reviewed this Petition for Writ of Mandamus and every factual
statement in it is supported by competent evidence included in the
Appendix or Mandamus Record.

/s/ Rick Thompson
Rick Thompson

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Texas Rule
of Appellate Procedure 9.4(e) because it has been prepared in a conventional
typeface no smaller than 14-point for text and 12-point for footnotes. This
document also complies with the word-count limitations of Rule 9.4(i)(2)
(D) because it contains 9,927 words, excluding any parts exempted by
Rule 9.4(i)(1).

/s/ Rick Thompson
Rick Thompson

46
CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2025, a true and correct copy of the
foregoing petition for writ of mandamus was served on the following
counsel of record via electronic service, pursuant to the Texas Rules of
Appellate Procedure.

Jim Dunnam Andy McSwain
jimdunnam@dunnamlaw.com mcswain@thetexasfirm.com
Andrea Mehta Mark E. Firmin
andreamehta@dunnamlaw.com mfirmin@thetexasfirm.com
Mason Vance Dunnam BEARD KULTGEN BROPHY BOSTWICK
masondunnam@dunnamlaw.com & DICKSON PLLC
DUNNAM & DUNNAM LLP 220 South 4th Street
4125 West Waco Drive Waco, Texas 76701
Waco, Texas 76710

Attorneys for Real Parties Robert Attorneys for Real Party Vernon
Spanos, Chrisopher Spanos, and Leuschner
Nicole Spanos

The Honorable Judge Ryan Luna Aubrey R. Williams
414th Judicial District Court Law Office of Aubrey R. Williams
501 Washington Avenue P.O. Box 20156
Suite 307 Waco, Texas 76702
Waco, Texas 76701 aubreyw9000@yahoo.com
414th@mclennan.gov Appointed Receiver
Respondent

/s/ Rick Thompson
Rick Thompson

47
No. 15-25-______-CV

IN THE COURT OF APPEALS
FOR THE FIFTEENTH DISTRICT
AT HOUSTON

IN RE FRANCES SPANOS SHELTON,
Relator.

On Mandamus Relief from the 414th District Court
of McLennan County, Texas, Cause No. 2024-3035-5

APPENDIX IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS

Tab Document

A March 31, 2025, Order Appointing Receiver

B The Dorothy Spanos Living Trust

C The First Amendment to The Dorothy Spanos Living Trust

D Application for Appointment of Temporary Administrator
and of a Trust Advisor
E March 8, 2022, Order Appointing Temporary Administrator
and Trust Advisor and Authorizing Issuance of Letters of
Administration
F May 18, 2022, Agreed Order Approving the Discharge of
Temporary Administrator and Termination of Temporary
Administration
G September 1, 2022, Agreed Order to Extend the Appointment
of the Trust Advisor of the Dorothy Spanos Living Trust
H Judge Stem’s May 3, 2023, Letter Removing Frances Shelton
as Trustee of the Dorothy Spanos Trust

48
Tab Document

I Plaintiff’s Verified Original Petition and Request for
Temporary Restraining Order, Temporary Injunction, and
Permanent Injunction
J John Malone February 24, 2025, Letter to Judge Stem
Resigning as Trustee
K Motion to Appoint Receiver and Robert Lee Spanos,
Christopher Blake Spanos and Kathryn Nicole Lawrie’s
Joinder to Motion to Appoint Receiver
L March 4, 2025, Hearing Transcript on Motion to Appoint
Receiver and Motion to Re-Affirm and/or Designate Trustee
of the Dorothy Spanos Living Trust
M Ms. Leuschner’s Application to Probate Ms. Spanos’s Will
and for Appointment of Temporary Administrator

49
TAB A
1291
1292
1293
1294
1295
1296
1297
1298
1299
TAB B
460
461
462
463
464
465
466
467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
484
485
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
505
506
507
508
509
510
511
512
513
514
515
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517
518
519
520
521
522
523
524
525
526
527
528
529
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
TAB C
553
554
555
556
557
558
559
560
TAB D
801
802
803
804
805
806
807
808
809
810
811
812
TAB E
817
818
819
TAB F
821
822
823
824
TAB G
827
828
TAB H
923
TAB I
9
10
11
12
13
14
15
16
17
18
19
TAB J
990
TAB K
956
957
958
959
960
961
962
963
964
965
966
967
968
969
970
971
972
973
974
975
976
977
978
979
980
981
982
983
984
985
986
987
988
989
990
991
992
993
994
995
996
997
998
999
1000
1001
1002
1003
1004
1005
1006
1007
1008
1009
1010
1011
1012
1013
1014
1015
1016
1017
1018
1019
1061
1062
1063
1064
1065
TAB L
1
1 REPORTER'S RECORD
VOLUME 2 OF 3 VOLUMES
2 TRIAL COURT CAUSE NO. 2024-3035-5
COURT OF APPEALS CAUSE NO. 10-25-00108-CV
3
FRANCES SPANOS SHELTON, )( IN THE DISTRICT COURT OF
4 Plaintiff, )(
)(
5 VS. )(
)(
6 VERNON LEUSCHNER, )(
AND AS DURABLE POWER OF )(
7 ATTORNEY FOR KATHERINE )(
LEUSCHNER, ROBERT LEE SPANOS, )( 414TH JUDICIAL DISTRICT
8 AND KATHRYN NICOLE LAWRIE, )(
Intervenors, )(
9 )(
VS. )(
10 )(
VERNON LEUSCHNER,INDIVIDUALLY,)(
11 AND KATHERINE LEUSCHNER, )(
Defendants. )( MCLENNAN COUNTY, TEXAS
12 ______________________________________________________

13 MOTION TO RE-AFFIRM AND/OR DESIGNATE TRUSTEE
OF THE DOROTHY SPANOS LIVING TRUST
14

15 MOTION TO APPOINT RECEIVER
______________________________________________________
16

17

18 On the 4th day of March, 2025, the following proceedings

19 came on to be held in the above-titled and numbered cause

20 before the Honorable Ryan Luna, Judge Presiding, held in Waco,

21 McLennan County, Texas.

22 Proceedings reported by oral stenography.

23

24

25

Jennifer Murphy, CSR, CVR
77
1 there been any discussion with Judge Stem about who he thinks

2 ought to replace Malone?

3 MR. MCSWAIN: We're gonna talk about that.

4 That's one of the things. I'm gonna put Judge Stem on the

5 stand. I'm happy to do it now, or I'm happy to do it in

6 connection with the Receivership. Whatever you want to do.

7 THE COURT: Let's do it now.

8 MR. MCSWAIN: Do it now?

9 THE COURT: Yeah.

10 You need a break? Okay. Let's take a

11 five-minute break.

12 MR. MCSWAIN: Okay.

13 (Recess taken from 3:14 p.m. to 3:22 p.m.)

14 THE COURT: We are back on the record in

15 2024-3035-5.

16 (Witness sworn.)

17 THE COURT: If you'll have a seat, please.

18 JUDGE ROBERT STEM,

19 having been first duly sworn, testified as follows:

20 DIRECT EXAMINATION

21 BY MR. MCSWAIN:

22 Q. Would you please state your name for the record,

23 Judge Stem.

24 A. Robert Stem.

25 Q. Okay. How long were you a district judge?

Jennifer Murphy, CSR, CVR
79
1 case. We've got the order that's already in evidence, where

2 you appointed the trust advisor in March of 2022.

3 Did you begin to serve at that point in time?

4 A. I did.

5 Q. As you sit here today, do you believe that that

6 order was issued by Judge Vik --

7 (Speaking simultaneously.)

8 A. Absolutely.

9 Q. (BY MR. MCSWAIN) -- jurisdiction? You think it was

10 issued with jurisdiction --

11 MR. CHERRY: Objection, Your Honor; calls for a

12 legal conclusion.

13 THE COURT: I'm sorry, can you ask the question

14 again so we can have a clean -- please?

15 Q. (BY MR. MCSWAIN) Do you think that Judge Vik had

16 jurisdiction when he issued that order?

17 MR. CHERRY: Objection, Your Honor; legal

18 conclusion.

19 THE COURT: Overruled.

20 A. Yes, sir.

21 Q. (BY MR. MCSWAIN) Have you done a lot of work since

22 March 2022, on this estate and this trust and trying to sort

23 things out?

24 A. Yes, sir.

25 Q. Tell the judge a little bit about what you have done

Jennifer Murphy, CSR, CVR
92
1 powers under 4.7 --

2 A. Yes.

3 Q. -- of the trust?

4 A. Correct.

5 Q. And did you feel, at the time, that -- based on her

6 actions, that you had the ability to remove her for cause?

7 A. Yes.

8 Q. There's been some discussion, and Ms. Shelton has

9 provided an audio recording of you -- I don't know, six or

10 eight or nine months later -- in a discussion with Josh White

11 and Ms. Shelton, where you told Ms. Shelton, "I did not remove

12 you for cause," or words to that effect?

13 A. Words to that effect.

14 Q. Okay. Did you tell her that?

15 A. Yeah.

16 Q. Okay. Why did you tell her that when you felt like

17 you could have removed for cause at the time?

18 A. Well, I mean, that's my nature. I mean, I was

19 practicing some degree of diplomacy at that time. We didn't

20 need to have a hard-hitting session. Kathy's side had

21 outlined -- and Fran had seen it -- a several-page letter

22 detailing what Kathy believed is violations of the trust,

23 okay? Mr. Palmer responded, and I had to make a call, okay?

24 Q. Okay.

25 A. My letter of May the 3rd just simply says, we need a

Jennifer Murphy, CSR, CVR
93
1 neutral, detached, and independent trustee, okay? And she was

2 not a neutral, detached, and independent trustee, okay? And

3 that's as far as I took it, okay?

4 Q. So to Judge Luna's -- so you ended up appointing

5 John Malone, and there's reference made that appointment in

6 this letter?

7 A. Correct.

8 Q. As John Malone served as trustee, did he discuss

9 with you, as trust advisor, on a regular basis, things that he

10 was doing, ought to be doing, thinking about doing? Did he

11 discuss those things with you?

12 A. Yes.

13 Q. Did the two of you work hand-in-hand to try to bring

14 this to a resolution somehow?

15 A. Yes.

16 Q. Did you think that the suit against John Malone was

17 righteous?

18 A. No. Baseless.

19 Q. Okay.

20 A. Clearly baseless.

21 Q. And I want to go back. And we're gonna talk about

22 that in just a minute. I want to go back.

23 Apparently, in the discussion that you had with

24 Mr. White and Ms Shelton five, six, seven, eight months after

25 you removed her as the trustee, your hour-long discussion with

Jennifer Murphy, CSR, CVR
94
1 them -- or at least part of it -- was recorded. Are you now

2 aware of that?

3 A. I am now. I wasn't then.

4 Q. Did Mr. White tell you that he was using his fancy

5 Apple Watch to record everything that y'all were talking

6 about?

7 A. No.

8 Q. Did he disclose to you, at the time, that he was

9 recording?

10 A. No.

11 Q. Okay. If he had told you, "I'd like to record what

12 we're talking about, you know, so that we can have that record

13 of it later, or so that my wife can take notes" -- which

14 apparently was the situation -- "and make sure she's

15 accurate," what would you have said?

16 A. I think John Malone and I would have discussed it

17 with him, and say, "Hey, why do you need to record this?"

18 Q. Okay.

19 A. But the fact is, he never disclosed that to us.

20 Q. Okay.

21 A. That, in my mind -- to everyone in this courtroom --

22 is a breach of a professional courtesy. And anyone who

23 participates in that, that is breach of professional

24 responsibility and courtesy.

25 MR. JAMES: Your Honor, I'm gonna object to

Jennifer Murphy, CSR, CVR
95
1 that last statement and ask it to be stricken from the record.

2 Josh White's not here to defend himself. There's no motion or

3 pleading regarding that. And it's improper for Judge Stem

4 just to make that ex parte statement on the record.

5 MR. MCSWAIN: Judge, they put it into the

6 filings in this court, along with an affidavit from Mr. White,

7 and have repeatedly utilized it in their briefing in this case

8 in front of you, and I think that it's fair for Judge Stem to

9 get to explain himself.

10 MR. JAMES: Your Honor, I'm not objecting to

11 the audio, I'm objecting to what Judge Stem just said on the

12 record.

13 THE COURT: I'll overrule the objection.

14 Mr. McSwain, if you could, if you think it's an

15 appropriate time to turn our attention to the reasons why you

16 think of a receiver is necessary?

17 MR. MCSWAIN: Yes, sir.

18 THE COURT: Thank you.

19 MR. MCSWAIN: I'm sorry. I'm just about there.

20 MR. JAMES: Your Honor, I would request a brief

21 cross-examination before he goes on to the receivership

22 argument, just so the record's clear. If you want me to

23 reserve it until later, that's fine, too. But I do have some

24 questions for Judge Stem.

25 THE COURT: Okay. Well, I'll certainly grant

Jennifer Murphy, CSR, CVR
101
1 issue with accounting when I came on. We got that done.

2 Maybe the attorneys can have an idea how much was in there.

3 Several hundred thousand dollars.

4 Q. Okay. Based on your experience, based on all the

5 discussions you've had with the parties, based on all that you

6 know that has gone on and the decisions that have to be made

7 about this real property, what do you think -- what do you

8 think needs to happen here to get the parties from where we

9 are right now, at each others' throats, to being done?

10 A. I have thought long and hard on this. The trust is

11 exhausted. There's no money left. This is an extraordinary

12 case. And it requires extraordinary measures. This is a time

13 where we need to save these people from themselves. There

14 will be nothing left. All these grandkids will be cheated out

15 of their inheritance. This ongoing litigation will exhaust

16 this trust. This is an extraordinary case that requires an

17 extraordinary ruling.

18 The only way to bring this to conclusion is not

19 through a successor trustee, but it's through a receivership

20 with some judicial protection to get this done. John Malone

21 and I worked hours and hours and hours trying to get this

22 done. And that man deserves a medal. He deserves a nod

23 toward the Nobel Peace Prize, not a ridiculous, baseless,

24 spiteful lawsuit. Shame on you guys. I'm sorry, Judge, but

25 this is -- enough is enough. I've seen these in court.

Jennifer Murphy, CSR, CVR
103
1 I'm gonna show you --

2 MR. JAMES: And if may I approach the witness,

3 Your Honor, this is in the actual trust document. The ELMO

4 seems to be pretty blurry over there, but I wanted to

5 reference Section 3.08 with the witness, if I may, Your Honor.

6 May I approach?

7 THE COURT: Yes.

8 Q. (BY MR. JAMES) There was a lot of talk earlier,

9 Judge Stem, about this real estate and how you believe that my

10 client, Fran Shelton, was not able to divide it appropriately

11 because, you know, she was biased or whatever your words were,

12 correct? Is that a fair summary of what you were saying?

13 A. I didn't say biased. I would say she was not

14 impartial.

15 Q. Would you say that -- again, you said you reviewed

16 the trust and wanted to follow it, that she would be an

17 interested party over that particular transaction because

18 she's always getting some of the land?

19 A. Yeah. She's getting some of the land, but more

20 importantly -- I mean, she put one of her children up front, a

21 clear violation of the trust.

22 Q. And I -- we'll get to that in a minute, the specific

23 language, in a minute. What I'm talking about -- there's a

24 definition in the trust of interested party. Have you read

25 that -- or interested trustee, sorry.

Jennifer Murphy, CSR, CVR
112
1 "her" being Fran, right -- "to be in such a dynamically

2 difficult situation?"

3 A. Yes.

4 Q. You also told my client, face-to-face, just as if

5 just the two of y'all were in the room, "There's an

6 appreciation of what you have done for this trust."

7 A. Correct.

8 Q. Didn't you also tell my client that she was put in a

9 horrible position by no fault of her?

10 A. Exactly.

11 Q. Didn't you also tell her that she's been put in an

12 enormously difficult position?

13 A. Yes.

14 Q. Did you not also say, sir -- and this is a verbatim

15 quote, "This is a family situation that was sideways by no

16 fault of your own"?

17 A. Correct.

18 Q. And then last, but not least, you told my client to

19 her face, seven months and two days after you sent this letter

20 that has no for-cause reason in it whatsoever -- you told her

21 that, "They were throwing laser beams at her." Is that a true

22 quote?

23 A. Yes.

24 Q. And when you're saying, "they," you're talking about

25 her sister Kathy and their side?

Jennifer Murphy, CSR, CVR
113
1 A. Correct.

2 Q. So, in other words, your decision -- not what you're

3 saying here today, but way back to almost over two years

4 ago -- it was 22 years months ago when she was removed,

5 correct?

6 A. May of 2023.

7 Q. Yeah. So around 22 months, a little less than 2

8 years ago; that's correct?

9 A. Correct.

10 Q. Isn't it true, sir, that way back when, you removed

11 Fran as trustee to protect her from all that was going in the

12 trust at that time?

13 A. We talked about it.

14 Q. Okay. That's not my question, though. I said,

15 isn't that true why you removed her?

16 A. That was one of the reasons. You've got my letter.

17 I think it speaks for itself.

18 Q. Well, I don't know that it speaks for itself. And

19 I'm not gonna go through it because the judge can read the

20 letter. But I would presume that if somebody was going to --

21 especially a trust advisor that had the duties that you had --

22 that you're going to put the details of why you were removing

23 a trustee, and you didn't put up that.

24 A. Not necessarily.

25 Q. Okay. Well, forget the "not necessarily" --

Jennifer Murphy, CSR, CVR
122
1 A. It was somewhere a million-two, to a million-five,

2 somewhere in that range.

3 Q. And isn't it true that there actually have been

4 offers to purchase that part, the 40 acres with the house, for

5 $1.45 million?

6 A. Yes. Both sides have made some offers.

7 Q. Exactly. But the highest offer during the time that

8 you've been the trust advisor was $1.45 million, correct?

9 A. I think that's correct. Yes.

10 Q. And, yet, John Malone -- and you acting as trust

11 advisor, did not agree to the sale, correct?

12 A. I don't think the contract was ever submitted.

13 Q. Okay. But an offer was made --

14 A. I think there was an offer made. Yes.

15 Q. But it was rejected by John Malone, correct?

16 A. I don't know that he rejected because it was ever

17 actual -- correct. John asked for a tract form, and it was

18 never submitted.

19 Q. And, again, contract or no contract, do you know who

20 made that offer to purchase that -- the highest offer?

21 A. I think it was Fran.

22 Q. Okay.

23 A. I'm not sure. Both sides made one.

24 Q. Kathy and her husband, Vernon, the opposing side,

25 they made an offer -- and again, let me back up.

Jennifer Murphy, CSR, CVR
123
1 That was agreeable for you as the trust advisor

2 and for John Malone as the Trustee. It was okay for the

3 family to bid on it, and they were gonna sell it to the

4 highest bidder, right?

5 A. Yeah, they should. It's family property.

6 Q. That's right.

7 In your opinion, it would be good to try to

8 keep it in the family if the price was correct?

9 A. That was my initial conversation right after I got

10 here; called everybody together and said, "Does anybody want

11 to buy the other one out? Let's keep this ranch together."

12 Q. And you've testified, and the trust document

13 amendment also says that it's supposed to be sold as

14 reasonable as practicable.

15 A. Sure.

16 Q. And it's your testimony that my clients were the

17 highest bidder on that, but that sale was never consummated?

18 A. Correct.

19 Q. Okay.

20 A. Never a contract submitted.

21 MR. JAMES: Your Honor, I have no further

22 questions at this time. I appreciate your time, Judge Stem.

23 THE WITNESS: Thank you.

24 MR. DUNNAM: Do you have a map, Mr. Firmin?

25 THE COURT: Here you go.

Jennifer Murphy, CSR, CVR
139
1 relate to 64.001 of the Civil Practice and Remedies Code. And

2 they don't relate to 114.008(a)(5) of the Texas Property Code.

3 Neither of those statutes include a requirement that you have

4 to exhaust all other remedies. In fact, under 114, it's just

5 one of many options that you can use to remedy a potential

6 breach of trust.

7 And, in this case, under 64.001, all you have

8 to have in order to be able to get a receivership is you've

9 gotta have a probable interest in the right of the property,

10 okay? All the -- everybody agrees here that the beneficiaries

11 have an interest in that property and in the trust, okay? We

12 talked about a plan of distribution for that. So there's no

13 question there's a probable right in interest of the property,

14 okay? It's part of the trust.

15 Then you have to show that the property or fund

16 must be in danger of being lost, removed, or materially

17 injured, okay? We already had a beneficiary sue an

18 independent special trustee because she didn't like the

19 decision that was going to happen. If you appoint another

20 trustee, it's the same thing. This trust is always going to

21 be losing money over time.

22 In fact, that was a concern Josh White raised

23 in a letter to Judge Stem and John Malone was his concern

24 about all the money being lost if litigation was filed, and

25 then a month later, they filed it, and caused all this other

Jennifer Murphy, CSR, CVR
140
1 money to be spent on 6,000-plus pages in discovery and

2 everything else that forced our hand to go file a lawsuit to

3 try to protect our rights.

4 If you appoint another independent trustee, a

5 corporate one, some other -- A: Judge Stem's already told you

6 that it's gonna be unlikely somebody's gonna want to do it.

7 Why would they want to, if they're going to be able to get

8 sued? If Ms. Shelton doesn't like what's going to happen when

9 someone exercises their discretion, she's gonna file a

10 lawsuit. You cloak someone with immunity as a receiver to

11 sell this property, you avoid that. There's not a way to stop

12 this from just devolving into years of wasted money if a

13 Receiver isn't appointed under 64.101 or under 114.

14 We've asked you to appoint James Volberding.

15 We've attached his exhibit as Exhibit A to our motion -- he's

16 out of Tyler -- as a receiver. He's happy to talk with you,

17 if you like. He's mentioned that to us. I've spoken to the

18 man one time. And his primary practice is on receiverships.

19 That's what he primarily does. He's well-qualified to do

20 this. He's gonna make the decisions that the parties

21 themselves have not been able to agree to.

22 We've given you evidence under 114.008 that has

23 been a breach of trust that has occurred or might occur. You

24 heard Judge Stem talk about things that Fran Shelton did that

25 were violation of the trust or interpretations of the trust

Jennifer Murphy, CSR, CVR
141
1 that were wrong when she was the trustee.

2 From the very beginning, she made accusations

3 of theft against Kathy's children that she had no evidence of

4 whatsoever that were there. That is not the action of a

5 person who can be a trustee or her husband to be a person

6 who's gonna be a trustee. Those are the type of people that

7 are showing vengeance of vindictiveness, for whatever reason

8 you want, trying to give acreage out of -- that clearly has to

9 be sold.

10 Front pasture? And you're gonna get 12 acres

11 there? Another plan was provided. She rejected that one. As

12 soon we request access easements back in January of 2023,

13 which by the way, is seven months before Fran Shelton swore

14 under verified pleading that we first raised that issue, she

15 as trustee, immediately denied the ability for us to get this

16 access easements as trustee because she didn't want to be able

17 to share a road. When you're the trustee and also the

18 beneficiary, you don't have the right to take off your hat,

19 favor some people, and not favor another.

20 Because there's been evidence of a breach of

21 trust, and Judge Stem's talked extensively about how those

22 things that occurred while he was trust advisor before she was

23 removed. Those are in the email. And if I need to prove

24 those up and admit them as evidence, I can. The fact is, a

25 breach of trust has occurred or might occur. If you put her

Jennifer Murphy, CSR, CVR
143
1 she picked the road to benefit herself, when she was serving

2 as trustee. Why does she get the road? The only reason we

3 were even willing to contemplate doing that was because

4 accesses are required by the Texas Supreme Court for easement

5 by necessity for a landlocked property, particularly when

6 there's not one.

7 And that's actually been given -- an

8 ingress-egress easement -- has actually been given by Dorothy

9 and Nick to Kathy Leuschner when she bought the rock house

10 back in the 1990s. We have a certified deed for that that I

11 could put into the record for you, where they granted an

12 easement to Kathy. The same property she's going to get

13 again, her parents gave her an easement. They want to know

14 what Dorothy wanted to do, that's what she did. She gave an

15 easement to Kathy.

16 So there is more than enough evidence here that

17 a breach of trust has occurred. And when a breach of trust

18 occurs, all there has to be is some evidence, and the Court

19 doesn't abuse their discretion. Those three cases that I gave

20 you: The Benson case, the Moody case, and the Price case,

21 dispel this myth that you have to exhaust all of the other

22 remedies.

23 And you've heard Judge Stem, a judge with an

24 impeccable reputation in this county -- and elsewhere -- who

25 told you that he believes that is the only way to get these

Jennifer Murphy, CSR, CVR
159
1 REPORTER'S RECORD
VOLUME 2 OF 3 VOLUMES
2 TRIAL COURT CAUSE NO. 2024-3035-5
COURT OF APPEALS CAUSE NO. 10-25-00108-CV
3
FRANCES SPANOS SHELTON, )( IN THE DISTRICT COURT OF
4 Plaintiff, )(
)(
5 VS. )(
)(
6 VERNON LEUSCHNER, )(
AND AS DURABLE POWER OF )(
7 ATTORNEY FOR KATHERINE )(
LEUSCHNER, ROBERT LEE SPANOS, )( 414TH JUDICIAL DISTRICT
8 AND KATHRYN NICOLE LAWRIE, )(
Intervenors, )(
9 )(
VS. )(
10 )(
VERNON LEUSCHNER,INDIVIDUALLY,)(
11 AND KATHERINE LEUSCHNER, )(
Defendants. )( MCLENNAN COUNTY, TEXAS
12

13 _____________________________________________

14 REPORTER'S CERTIFICATE
_____________________________________________
15

16 I, Jennifer Murphy, Official Court Reporter in

17 and for the 414th District Court of McLennan County, State of

18 Texas, do hereby certify that the above and foregoing contains

19 a true and correct transcription of all portions of evidence

20 and other proceedings requested in writing by counsel for the

21 parties to be included in this volume of the Reporter's

22 Record, in the above-styled and numbered cause, all of which

23 occurred in open court or in chambers and were reported by me.

24 I further certify that this Reporter's Record

25 of the proceedings truly and correctly reflects the exhibits,

Jennifer Murphy, CSR, CVR
160
1 if any, admitted by the respective parties.

2 WITNESS MY OFFICIAL HAND this, the 10th day of

3 April 2025.

4 __________/s/Jennifer Murphy__________

5 Jennifer Murphy, Texas CSR # 11894, CVR
Expiration Date: 09-30-2025
6 Official Court Reporter
414th District Court
7 McLennan County, Texas
501 Washington Avenue, Room 307
8 Waco, Texas 76501
(254)759-5914
9

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Jennifer Murphy, CSR, CVR
TAB M
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Kelly Blackburn on behalf of William Richard Thompson
Bar No. 788537
efile@dpslawgroup.com
Envelope ID: 106480768
Filing Code Description: Original Proceeding Petition
Filing Description: Petition for Writ of Mandamus
Status as of 10/6/2025 1:37 PM CST

Associated Case Party: FrancesSpanosShelton

Name BarNumber Email TimestampSubmitted Status

Kelly Blackburn efile@dpslawgroup.com 10/6/2025 12:28:00 PM SENT

Kirk Pittard kpittard@dpslawgroup.com 10/6/2025 12:28:00 PM SENT

Rick Thompson rthompson@dpslawgroup.com 10/6/2025 12:28:00 PM SENT

Craig Cherry 24012419 ccherry@cjsjlaw.com 10/6/2025 12:28:00 PM SENT

Ryan Johnson 24048574 rjohnson@cjsjlaw.com 10/6/2025 12:28:00 PM SENT

Scott James 24037848 sjames@cjsjlaw.com 10/6/2025 12:28:00 PM SENT

Associated Case Party: Vernon Leuschner

Name BarNumber Email TimestampSubmitted Status

Angus McSwain 13861100 mcswain@thetexasfirm.com 10/6/2025 12:28:00 PM SENT

Mark Firmin 24099614 firmin@thetexasfirm.com 10/6/2025 12:28:00 PM SENT

Associated Case Party: Robert Spanos

Name BarNumber Email TimestampSubmitted Status

James Dunnam 6258010 jimdunnam@dunnamlaw.com 10/6/2025 12:28:00 PM SENT

Andrea Mehta 24078992 andreamehta@dunnamlaw.com 10/6/2025 12:28:00 PM SENT

Mason Dunnam 24108079 masondunnam@dunnamlaw.com 10/6/2025 12:28:00 PM SENT

Associated Case Party: Hon. Judge Ryan Luna

Name BarNumber Email TimestampSubmitted Status

Hon. Judge Ryan Luna 414th@mclennan.gov 10/6/2025 12:28:00 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Kelly Blackburn on behalf of William Richard Thompson
Bar No. 788537
efile@dpslawgroup.com
Envelope ID: 106480768
Filing Code Description: Original Proceeding Petition
Filing Description: Petition for Writ of Mandamus
Status as of 10/6/2025 1:37 PM CST

Associated Case Party: Aubrey Williams

Name BarNumber Email TimestampSubmitted Status

Aubrey Williams 21512500 aubreyw9000@yahoo.com 10/6/2025 12:28:00 PM SENT