in Re Charles Storer, Agent Under a Power of Attorney for Kenneth Cooper McAfee

ACCEPTED 01-15-00838-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/2/2015 10:38:19 AM CHRISTOPHER PRINE CLERK No. -01-15-00838-CV ----- FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1st IN THE COURT OF APPEALS 10/2/2015 10:38:19 AM FOR HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk INRE: CHARLES STORER, AGENTUNDERAPOwtROFATTORNEYFOR KENNETH COOPER MCAFEE, RELATOR PETITION FOR WRIT OF MANDAMUS Respectfully Submitted, ANDERSON PFEIFFER, PC Esther Anderson SBN: 00792332 Robert Teir (of Counsel) SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Telephone: (281) 488-6535 Facsimile: (281) 488-0625 Email: esther@probateguardianship.com Attorneys for Relator, Charles Storer, Power of Attorney for Kenneth Cooper McAfee IDENTITY OF PARTIES AND COUNSEL Relator, Charles Storer, Agent under a Power of Attorney for Kenneth Cooper McAfee, certifies that the following is a complete list of the parties, the attorneys and any other persons who have any interest in the outcome of this lawsuit. 1. Relator: Charles Storer, Agent under a Power of Attorney for Kenneth Cooper McAfee Counsel: Esther Anderson Anderson Pfeiffer, PC SBN: 00792332 845 FM 517 West, Suite 200 Dickinson, Texas 77539-2903 Office: 281-488-6535 Facsimile: 281-614-5205 Email: esther@probateguardianship.com Of Counsel: Robert Teir (of Counsel) SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832-365-1191 Facsimile: 832-550-2700 Email: rob@teirlaw.com 2. Respondent: Honorable Loyd Wright Judge, Probate Court No. 1 Harris County, Texas 201 Caroline, 6th Floor Houston, Texas 77002 ii 3. Real Party in Interest: Rosemary Foltyn and Jake Foltyn Counsel: Dean M. Blumrosen SBN: 02517900 4615 Southwest Freeway, Suite 850 Houston, Texas 77027 Office: 713-524-2225 Facsimile: 713-524-5570 Email: Dblumrosenlaw@aol.com 4. Real Party in Interest: Rosemary Foltyn, Administratrix of The Estate of Janet Foltyn McAfee, Deceased Counsel: Mary Elizabeth Duff Mitchell & Duff, LLC SBN: 06166880 21 0 Main Street Richmond, Texas77469 Office: 281-341-1718 Facsimile: 281-239-7928 Email :eduff@mitchellandduff.com iii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................................................. II, III TABLE OF CONTENTS ............................................................................................... IV, v INDEX OF AUTHORITIES ...................................................................... VI, VII, VIII, IX, X STATEMENT OF THE CASE .......................................................................................... XI STATEMENT OF JURISDICTION ............................................................................... XIII ISSUES PRESENTED ................................................................................................... XIII 1. Does the Probate Court have jurisdiction to act without a pending cause of action? (No.) 2. Without a pending cause of action, are the June 8, 2011 temporary injunction and the May 18, 2015 Orders void? (Yes.) 3. Do the doctrines of collateral estoppel and res judicata bar re-tracing of the Woodforest account? (Yes.) 4. Do the two Orders amount to a violation of K. McAfee's due process rights? (Yes.) 5. Do the two Orders amount to an abuse of discretion? (Yes.) STATEMENTOFFACTS .................................................................................................. 1 SUMMARY OF ARGUMENT ......................................................................................... 11 iv ARGUMENT .................................................................................................................... 13 I. This case warrants mandamus relief. II. The Probate Court does not have jurisdiction to act without a pending cause of action. III. Without a pending cause of action, the temporary injunction and the May 18, 2015 Order are void. IV. Res Judicata and Collateral Estoppel barre- tracing of the Woodforest account. V. The Estate's claims cannot be satisfied from the Woodforest account or assets stemming from the Woodforest account and continued obstruction of these funds violates due process and constitutes an abuse of discretion. PRAYER ...........................................................................................................................45 CERTIFICATE OF SERVICE ......................................................................................... 47 CERTIFICATE OF COMPLIANCE ................................................................................. 48 RULE 52.3(1) CERTIFICATION ..................................................................................... .49 APPENDIX ....................................................................................................................... 50 v INDEX OF AUTHORITIES CASES PAGE(S) 360 Degree Commc 'ns Co. v. Grundman, 937 S.W.2d 574 (Tex. App.-Texarkana 1996, no writ) ............................ 22 Amstadt v. US. Brass Corp., 919 S.W.2d 644 (Tex. 1996) ........................................................................ 37 Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992) ..................................................... 25, 26, 38, 42 Benson v. Wanda Petroleum Co., 468 S.W.2d 361 (Tex. 1971) ........................................................................ 37 Big D Props., Inc. v. Foster, 2 S.W.3d 21 (Tex. App.-Fort Worth 1999, no pet.) .................................. 22 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) .......................................................................... 21 Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995) ........................................................................ 40 Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex. 1983) ............................................................. 17, 18,19 Dionne v. Bouley, 757 F.2d 1344 (1st Cir. 1985) ...................................................................... 44 Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714 (Tex. 1990) .................................................................. 35,37 Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5 (Tex. App.-Houston [1st Dist.] 1988, no writ) ................... 25 EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50 (Tex. App.-San Antonio 2002, no pet.) .............................. 22 vi Evans v. C. Woods, Inc., 34 S.W.3d 581 (Tex. App.-Tyler 1999, no pet.) ....................................... 22 Goldstein v. Comm 'n for Lawyer Discipline, 109 S.W.3d 810 (Tex. App.-Dallas 2003, pet. denied) ............................. 38 Houtex Ready Mix Concrete & Materials v. Eagle Canst. & Envtl. Servs., L.P., 226 S.W.3d 514 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ............... 38 In re Cerberus Capital Mgmt., L.P. 164 S.W.3d 379 (Tex. 2005) (orig. proceeding) .................................... 14,45 In re Dickason, 987 S.W.2d 570 (Tex. 1998) .................................................................. 13, 15 In re Francis, 186 S. W.3d 534 (Tex. 2006) ........................................................................ 16 In re Mask, 198 S.W.3d 231 (Tex. App.-San Antonio 2006, orig. proceeding) .......... 15 In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638 (Tex. App.-Corpus Christi Aug. 10,2012, orig. proceeding) (mem. op.) .................................................................................. 14, 15, 16, 45 In re Sw. Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000) (orig. proceeding) (per curiam) .................. 13, 15 InterFirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640 (Tex. 1986) (per curiam) ............................................. 13,22 Johnson & Higgins ofTex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998) ...................................................... 27, 32, 33,36 Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) .......................................................................... 40 vii Logan v. McDaniel, 21 S.W.3d 683 (Tex. App.-Austin 2000, pet. denied) ............................... 40 Lozano v. Lozano, 975 S.W.2d 63 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) ........ 28 Lucik v. Taylor, 596 S.W.2d 514 (Tex. 1980) ........................................................................ 18 Murray v. 0 & A Express, Inc., 630 S. W.2d 633 (Tex. 1982) ........................................................................ 18 Parklane Hosiery Co. v. Shore, 439 u.s. 322 (1979) ..................................................................................... 37 Phillips v. Allums, 882 S.W.2d 71 (Tex. App.-Houston [14th Dist.] 1994, writ denied) ........ 37 Quinney Elec., Inc. v. Kondas Entm 't, Inc., 988 S.W.2d 212 (Tex. 1999) (per curiam) ................................................... 26 Qwest Commc 'ns Corp. v. AT&T Corp., 24 S.W.3d 337 (Tex. 2000) (per curiam) ............................................... 13, 22 Rexrode v. Bazar, 37 S.W.2d 614 (Tex. App.-Amarillo 1997, no writ) ........................... 34,41 Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) ........................................................................ 18 Robbins v. HNG Oil Co., 878 S.W.2d 351 (Tex. App -Beaumont 1994, writ dism'd w.o.j.) ............ 37 Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex. 1986) ............................................................................ 38 Smith v. Lanier, 998 S.W.2d 324 (Tex. App.-Austin 1999, pet. denied) ........................ 17,18 viii State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693 (Tex. 2001) .......................................................................... 28 State v. Traylor, 374 S.W.2d 203 (Tex. 1963) .................................................................. 17, 19 Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796 (Tex. 1994) ................................................ 26, 27, 32, 37,38 Tankersley v. Durish, 855 S.W.2d 241 (Tex. App.-Austin 1993, writ denied) ............................ 38 Tex. Dep 't ofPub. Safety v. Petta, 44 S.W.3d 575 (Tex. 2001) ............................................................... 27, 28,37 Texas Natural Res. Conservation Comm 'n, 85 S.W.3d 201 (Tex. 2002) (orig. proceeding) ............................................ 15 Walling v. Metcalfe, 863 S.W.2d 56 (Tex. 1993) (per curiam) ..................................................... 24 ix RULES TEX. R. CIV. P. § 2 ........................................................................................................................... 18 § 22 ......................................................................................................................... 18 § 97 ......................................................................................................................... 42 § 683 ................................................................................................................. 18, 24 STATUTES TEXAS ESTATE CODE § 22.029 .................................................................................................................. 24 § 31.001 ............................................................................................................. 17, 18 § 31.002 ............................................................................................................ 17, 18 § 32.001 .................................................................................................................. 17 § 402.001 ............................................................................................................... 17 TEXAS PROP. CODE § 42.0021(a) 42 U.S.C. 407 ................................................................................................... 12, 31, 32,44 X STATEMENT OF THE CASE Nature of the Case The Probate Court granted an independent estate administration m one cause number, and heard a wrongful death proceeding in another cause number. The Probate Court issued a temporary injunction in the estate administration. A final judgment was entered in the wrongful death proceeding, but no claims were filed in the estate administration. Probate Court Probate Court No. 1 of Harris County, Texas Hon. Loyd Wright, Presiding Disposition Below The Probate Court refused to fully lift the temporary injunction and instead ordered that a portion of funds in an account containing only social security benefit proceeds be turned over to the County Clerk's registry. xi STATEMENT OF JURISDICTION The Court has jurisdiction to issue a writ of mandamus under TEX. Gov'T CODE §22.22l(b)(l). xii ISSUES PRESENTED The Probate Court entered an order declaring Kenneth McAfee's account at Woodforest National Bank ending in -404 exclusively holds his social security benefit proceeds that are exempt from garnishment. Subsequently, the Probate Court refused to fully lift a temporary injunction on this account and ordered a portion of such funds to be turned over to the County Clerk's registry for the benefit of the estate of Janet Foltyn McAfee, Deceased until the nature of two deposits at issue has been determined. 1. Does the Probate Court have jurisdiction to act without a pending cause of action? (No.) 2. Without a pending cause of action, are the June 8, 2011 temporary injunction and the May 18, 2015 Orders void? (Yes.) 3. Do the doctrines of collateral estoppel and res judicata bar re-tracing of the Woodforest account? (Yes.) 4. Do the two Orders amount to a violation ofK. McAfee's due process rights? (Yes.) 5. Do the two Orders amount to an abuse of discretion? (Yes.) xiii STATEMENT OF FACTS Kenneth Cooper McAfee ("K. McAfee" herein) was convicted of a criminal offense involving the death of his wife, Janet Foltyn McAfee, and is currently serving his sentence at a Texas correctional institution. Janet McAfee died on May 8, 2010. On June 8, 2010, Janet McAfee's mother, Rosemary Foltyn, was appointed Independent Administrator of Janet McAfee's estate by the Probate Court No. 1 of Harris County, Texas under Cause no. 396,935. Rosemary Foltyn, in this capacity, will be referred to herein as "the Estate." On February 23, 2011, Janet McAfee's parents, Rosemary and Jake Foltyn, individually, and the Estate brought a wrongful death action against Kenneth McAfee in the same Court, under the ancillary Cause no. 396,935-401. On March 31, 2011, the Estate obtained a Temporary Restraining Order in the estate administration under Cause no. 396,935, which was eventually converted to the June 8, 2011 Agreed Order for Temporary Injunction. Tab 1. The Temporary Injunction enjoins K. McAfee from the use and control of his assets and assets he shared with Janet McAfee and states that it is to remain in place until the Court makes a determination of what property belongs to the Estate of Janet McAfee or renders a full and final judgment in the wrongful death suit. Tab 1, at p. 9. PAGE 1 On March 21, 2014, the Probate Court granted a summary judgment in the wrongful death action in favor of the Foltyns and awarded them each $1,000,000.00. Tab 2. The June 8, 2011 Temporary Injunction remains in place today and affects K. McAfee's Woodforest National Bank account that is the subject of this mandamus proceeding and his 401(k) account at GMS. The Foltyns seek writs ofgarnishment; two of K. McAfee's accounts are exempt. On October 9, 2014, the Foltyns sought Writs of Garnishment against K. McAfee's bank accounts at The GMS Group, L.L.C., and Woodforest National Bank under the ancillary wrongful death cause of action no. 396,935-401. Tab 3. Charles Storer, as agent under a power of attorney for K. McAfee, acted on behalf ofK. McAfee in the 401 garnishment proceedings. On November 19, 2014 Storer filed a Motion to Quash Writs of Garnishment only to the extent that they reached two particular accounts: a GMS account ending in -606 holding only K. McAfee's tax-deferred retirement benefits from his previous employer, and the Woodforest account ending in -404 holding only K. McAfee's Social Security Disability Insurance benefits, claiming both are exempt from judgment creditors. Tab4. PAGE2 On January 7, 2015, the Estate entered the 401 garnishment proceedings by filing a Notice to Court wherein the Estate objected to Storer's Motion to Quash and claimed a community property interest in the two accounts Storer sought to protect from garnishment. Tab 5. The Foltyns, individually, also filed a Response to Charles Storer's Motion to Quash Writs of Garnishment, claiming that Charles Storer did not have standing, and seeking a stay pending K. McAfee's compliance with post-judgment discovery. Tab 6. On January 8, 2015, the parties attended a hearing, which was ultimately continued by the Court until the issues of standing and post judgment discovery were addressed. Tab 7. 1 On January 22, 2015, the Court heard arguments of counsel regarding the writs and Storer's Motion to Quash. Tab 8. All counsel agreed that the writs on the Woodforest -404 account should be quashed because it held K. McAfee's 401(k) and social security benefits. Tab 8, at p. 4, Ins. 1-9; at p. 8, Ins. 11-15 and at p. 18, Ins. 15-18. All counsel also agreed the Foltyns should receive the balance in all of the remaining accounts. Tab 8. However, there was disagreement over whether the Order should include language to release the temporary injunction, and to what extent. Tab 8. 1 The January 8, 2015 Reporter's Record states Cause No. 396,935, when it should actually state Cause No. 396,935-401. PAGE3 The Estate did not want to release the temporary injunction on the 401(k) account (GMS -606) because of its alleged verbal claim for Janet McAfee's potential community property interest. Tab 8. The Foltyns did not want to release either of the two accounts, their reason being, "I don't think [the Estate] has had a complete [opportunity] to review and look at everything on the Woodforest account." Tab 8, at p. 3, Ins. 21 through p. 4, ln. 1. The Court inquired more than once if the Estate had enough information to determine its claims. Tab 8. The Estate's response was that it was "reasonably sure" that the 401(k) was the only issue and that the Woodforest account held only K. McAfee's social security benefits, to which they had no claim. Tab 8, at p. 17, throughp.18, lns.1-25. The Foltyns and the Estate made no argument contrary to Storer's argument in his Motion to Quash or his oral arguments that the Woodforest -404 account held only K. McAfee's social security benefits and the Court considered the proposed orders. Tab 8, at p. 21, Ins. 6-8. On January 27, 2015, the Probate Court entered an Order Partially Granting Motion to Quash Writs of Garnishment. Tab 9. The Probate Court found that both the GMS -606 account and the Woodforest -404 account were exempt from garnishment and the writs against these two accounts were quashed. Tab 9, at p. 2. The Probate Court further found that K. McAfee's remaining accounts at GMS PAGE4 (ending in -008 and -628) remained subject to the writs and that payment from such accounts shall issue to the Foltyns "upon receipt of an order releasing the Agreed Order for Temporary Injunctions in Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased, dated June 8, 2011." Tab 9, at p. 3. Specific language of the Order, as it relates to the Woodforest social security account, reads: "On this day came to be considered the Motion to Quash Writs of Garnishment filed by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review and consideration of said Motion, the evidence, the responses, and the arguments of counsel, the Court finds the following: 5. The Woodforest account ending in 404 holds, exclusively, social security benefit proceeds of Kenneth C. McAfee which benefits are exempt from garnishment under 42 U.S.C. 407. 42 U.S.C. provides an absolute exemption and there are no statutory exceptions to same. Because the Woodforest account ending in 404 contains only funds exempted from garnishment, the writ directed at Woodforest as to Kenneth McAfee's account ending in 404 should be quashed." Tab 9, at p. 2. The parties deal with the temporary injunction in the estate administration. On February 10, 2015, Storer filed a Motion to Partially Release Temporary Injunction in the estate administration cause (396,935) regarding the exempt Woodforest social security account and the non-exempt GMS accounts payable to the Foltyns (ending in -008 and -628). Tab 10. On March 6, 2015, the Estate filed its own Motion to Partially Release Temporary Injunction, in which it sought PAGES release of only the non-exempt GMS accounts payable to the Foltyns (ending in - 008 and -628), and requested the temporary injunction otherwise remain in place, without stating any reason why. Tab 11. On March 12, 2015, a hearing was held to consider the partial release of the temporary injunction. Tab 12.2 The Estate now resisted lifting the temporary injunction as to the Woodforest social security account because it questioned the characterization of two deposits that were made in the amounts of $25,162.66 on April 23, 2010, and $9,735.92 on May 4, 2010. Tab 12, at p. 3, Ins. 10-24; at p. 8, Ins. 16-25; at p. 9, Ins. 1-7; at p. 10, Ins. 13-21; at p. 15, Ins. 17-24; at p. 17, Ins. 6-10. The Estate claimed it might have an interest of at least 50% in these deposits if they were community property, and that this potential claim should be considered "completely separate" from the garnishment proceedings brought by the Foltyns, individually. Tab 12, at p. 8, Ins 16-25; at p. 9, Ins. 5-7. 2 The March 12, 2015 Reporters Record states Cause No. 396,835-401 when it should actually state Cause No. 396,935 or include both. PAGE6 The Foltyns' argument to keep the temporary injunction in place was based upon (1) the language in the January 27, 2015 Order was overbroad, and (2) the Court should use its inherent authority to rule for the Estate's claim due to the purported lack of information from K. McAfee. Tab 12, at p. 9, Ins. 21-25; at p. 10, Ins. 1-3; at p. 6lns. 10-25; at p. 7, Ins. 1-6; at p. 13, Ins. 23-25; at p. 14, lns. 1- 8. The language in the January 27, 2015 Order is not overbroad. It is true that the Estate may have a community property interest inK. McAfee's 401(k) account but the Woodforest social security account is different because it was traced and found to include only K. McAfee's social security benefits, which benefits are his separate property. Tab 9. Additionally, the Estate's own Inventory reveals the Estate has had the information they are now seeking since at least August 26, 2011. Tab 16, at p. 2. Storer reminded the Court that, under the doctrine of res judicata, it had already found that every dime in the Woodforest account is K. McAfee's social security benefits. Tab 12, at p. 7, Ins. 14-25; at p. 8, Ins. 1-13. In fact, the two deposits in question were specifically traced in Storer's Motion to Quash and they were shown to have been withdrawn close to the time of the deposits, leaving only social security benefits in the social security account. Tab 4, at p. 10, ~25, and Exhibit "A" to such Motion; Tab 12, at p. 11, Ins. 18-25. And with no objection or PAGE? contrary evidence to Storer's tracing, or arguments of counsel, the Estate previously admitted it was reasonably sure the Woodforest account held only K. McAfee's social security benefits. Tab 8, at p. 18, Ins. 13-18. The Woodforest social security account was traced, and that is what the Court found. Tab 9. That was indeed the purpose of Storer's Motion to Quash Writs of Garnishment, to prove that the entire Woodforest account was made up only of his social security benefits and nothing else. Tab 4. The Estate took the additional step to voluntarily enter the garnishment proceeding, make its claim, and to sit silent as to any of the details regarding the Woodforest social security account. Tab 8, at p. 5, Ins. 5-18; at p. 12, Ins. 10-23; at p. 17, Ins. 18-24; at p. 18, lns. 13.23. Their new challenge to the characterization of two deposits is waived and is ban·ed by collateral estoppel and res judicata. Nevertheless, on March 16, 2015, the Probate Court granted Rosemary Foltyn's Motion, releasing only the non-exempt GMS accounts that were ordered to be paid to the Foltyns (ending in -008 and -628), and continued the temporary injunction. Tab 13. The Probate Court did not release K. McAfee's exempt Woodforest -404 account. Tab 13. PAGES Storer tries again. On April 15, 2015, Storer filed a Motion for Reconsideration ... and Motion for Entry of Order Releasing Social Security Proceeds from Injunction, which was amended on May 4, 2015. Tab 14 (First Amended Motion). 3 Storer urged the Court again to release K. McAfee's social security proceeds and reminded the Probate Court that a determination regarding the tracing of the funds in the Woodforest account had already been made. Tab 14. On May 14, 2015, the Probate Court heard the matter again, and specifically reconsidered the tracing of the two deposits and withdrawals at issue in the Woodforest account. Tab 15, at p. 16, Ins. 15-25; at p. 17, Ins. 1-17. Again, there was no contrary evidence presented against Storer's tracing, just arguments that Storer should have to re-prove his tracing with clear and convincing evidence. Tab 15, at p. 10, Ins. 12-24. Storer explained some of the lingering questions that had been raised: First, because social security benefits are not community property, any claim the Estate might have in the two deposits/withdrawals cannot be satisfied from the social security account, but must be satisfied from other assets of K. McAfee. Tab 15, at p. 14, Ins. 6-15; Tab 14, at p. 9, ~iii. 3 Because the parties and discussions had started to comingle between the attorneys involved in the base and ancillary case, the First Amended Motion for Reconsideration was filed in both causes, but the May 18, 2015 Order on same was signed in the wrongful death ancillary case (396,935-401). PAGE9 Second, the Estate indeed had possession of records showing the source of the deposits since at least the time of filing the Estate inventory on September 26, 2011. Tab 16; Tab 15, at p. 12, Ins. 4-25; at p. 13, Ins. 1-17. Third, everyone participated in the January 22, 2015 hearing and had the opportunity to propose language for the Court's January 27, 2015 Order that Mr. Blumrosen claims is too broad. Tab 15, at p. 27, Ins. 11-25. The Probate Court releases part of the social security account to K. McAfee, but takes control of the remaining social security proceeds. On May 18, 2015, the Probate Court signed the Estate's Order on First Amended Motion for Reconsideration ... and Motion for Entry of Order Releasing Social Security Proceeds from lrifunction.... Tab 17. The Court found that Storer did not prove the characterization of the two deposits by clear and convincing evidence and ordered the Woodforest funds be released to K. McAfee, but for $34,898.58 to be made payable to the County Clerk, for the use and benefit of the Estate of Janet F oltyn McAfee, Deceased, until the nature of two deposits at issue has been determined. Tab 17. PAGE10 The Probate Court not only refuses to lift the temporary injunction as to all of K. McAfee's social security benefits, but now has essentially garnished a large part of the account ($34,898.58) to satisfy the Estate's alleged verbal claim. These acts exceed the Court's authority and discretion over K. McAfee's social security funds. SUMMARY OF ARGUMENT Mandamus is appropriate to compel a trial court to rescind a void order, to correct a clear abuse of discretion, and to preserve important substantive and procedural rights from impairment and loss when appellate remedy to cure the error is not adequate. These criteria are present here. The Probate Court does not have jurisdiction to act without a pending cause of action. There are no pleadings filed in the estate administration against K. McAfee, and there are no live pleadings remaining in the wrongful death/garnishment proceedings at all. The Probate Court does not have jurisdiction to handle estate claims sua sponte. Therefore, the temporary injunction should be dissolved and the May 18, 2015 Order should be set aside for lack of jurisdiction. Additionally, without a pending cause of action, the temporary injunction and the May 18, 2015 Order are void because an order for an injunction must set a cause for trial. This requirement is mandatory and failure to comply makes the temporary injunction and the order void, as they have turned into nothing short of a PAGE 11 permanent injunction. Therefore, the temporary injunction should be dissolved and the May 18, 2015 Order should be set aside, both for being void. Furthermore, res judicata and collateral estoppel bar re-tracing of the Woodforest account. Storer previously put on tracing evidence, without question or objection, to show the Woodforest account holds only K. McAfee's social security benefits, and nothing else. The Court heard and decided that this account in fact holds only McAfee's social security benefits and is exempt from creditors, no exception. Any later "questions" the Estate may have that the Woodforest account needs to be traced again are waived and are barred by the doctrines of collateral estoppel and res judicata. The Probate Court's most recent May 18, 2015 Order ignored Storer's arguments concerning res judicata and invited further litigation. Although the Probate Court released a portion of the Woodforest account to K. McAfee, the Court took a drastic step by ordering Woodforest to turn over $34,898.58 of such account to the County Clerk's registry for the benefit of the Estate of Janet Foltyn McAfee. This was a violation of due process and contrary to the protections provided by 42 U.S.C. 407. Such actions have amounted to an abuse of discretion that needs to be conected. PAGE 12 ARGUMENT & AUTHORITIES I. This case warrants mandamus relief. Mandamus is appropriate to compel a trial court to rescind a void order, to correct a clear abuse of discretion, and to preserve important substantive and procedural rights from impairment and loss when appellate remedy to cure the error is not adequate. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam) (adding that "mandamus is proper if a trial court issues an order beyond its jurisdiction") (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)). Void order The June 8, 2011 temporary injunction is void because the Probate Court does not have jurisdiction, there are no pleadings on file, and there is no cause set for trial. See Qwest Commc 'ns Corp. v. AT&T Corp., 24 S.W.3d 337, 337 (Tex. 2000) (per curiam); InterFirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640 (Tex. 1986) (per curiam). The requirement for setting a cause for trial is mandatory and must be strictly followed, or else the order is subject to being declared void and dissolved. See Qwest Commc 'ns Corp., 24 S.W.3d at 337; InterFirst Bank San Felipe, 715 S.W.2d at 641. The temporary injunction should have been rescinded by the trial Court and should be set aside by the Court of Appeals. PAGE 13 The May 18, 2015 Order directing $34,898.58 from K. McAfee's social security account be deposited into the registry of the court for the benefit of Janet Foltyn McAfee is void for the same reasons: the Probate Court does not have jurisdiction, there are no pleadings on file, and there is no cause set for trial on the determination of to whom the funds belong. This Order should be set aside by the Court of Appeals. Clear abuse of discretion A court abuses its discretion "if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law." In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10, 2012, orig. proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)). The law was clearly laid out as to why the temporary injunction should be dissolved, at least in regards to the Woodforest account, for lack of jurisdiction - no pleadings being on file and no cause being set for trial. Furthermore, it is clear that the issue of tracing the Woodforest account had already occurred through the Probate Court's January 27, 2015 Order, which determined that 100% of the funds were K. McAfee's social security benefits, and nothing else. PAGE14 The Probate Court's refusal to lift the temporary injunction, and instead to take control of K. McAfee's funds and to hold them for the use and benefit of the Estate, before it even receives what is being asked for, constitutes an abuse of discretion. Appellate remedy not adequate Because the June 8, 2011 temporary injunction and the May 18, 2015 Order are void, Storer need not show lack of an adequate appellate remedy, and mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam) (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)). 4 Nevertheless, at this point in time, there will never be a final order to appeal on the Probate Com1's seizure of K. McAfee's social security benefits because there are no claims on file by the estate and because Storer can no longer obtain a hearing with the Court. That is also why this proceeding is not subject to an accelerated appeal, because there is no pending claim. See Texas Natural Res. Conservation Comm 'n, 85 S.W.3d 201, 206-07 (Tex. 2002) (orig. proceeding) (holding mandamus was available when "a restraint on conduct ... has yet to be subject to a truly adversarial proceeding"); See In re Pierce, 2012 WL 3525638, at 4 See also In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *4 (Tex. App.-Corpus Christi Aug. 10, 2012, orig. proceeding) (mem. op.) ("temporary injunctions which do not comply with 683 are void, and when the trial court's order is void, mandamus relief is available regardless of whether there is an adequate remedy by appeal"); In re Mask, 198 S.W.3d 231,233 (Tex. App.-San Antonio 2006, orig. proceeding) (concluding that when an order is void, then "mandamus relief is available regardless of whether there is an adequate remedy by appeal") . PAGE 15 *4 (writ of mandamus may be appropriate for reviewing a temporary injunction) (citing In re Francis, 186 S.W.3d 534,538 (Tex. 2006)). There are also significant benefits to mandamus relief in this matter, due to the federally mandated protection provided to K. McAfee's social security benefits, which would be rendered moot absent review by mandamus. 5 The Probate Court has seized money that it had previously declared to be K. McAfee's social security benefits. The United States legislature and Supreme Court have made it painstakingly clear that social security proceeds are prohibited from seizure in the legal process, regardless of the merits of the claim, including community property claims. The Probate Court's rulings defeat the purpose of these laws and place Storer in the position of having to continuously re-litigate the exempt status of his social security benefits. Appellate remedy would be inadequate for K. McAfee to protect his social security funds, even if the Court had seized them with jurisdiction and a proper order. Therefore, mandamus relief is appropriate in this matter. II. The Probate Court does not have jurisdiction to act without a pending cause of action. According to arguments of the Foltyns and the Estate's counsel, the only reason they sought to keep the temporary injunction in place was due to alleged 5 See In re Pierce, 2012 WL 3525638, at *4 (discussing the benefits of mandamus relief when there are other claims raised which would be rendered moot if not reviewed by mandamus). PAGE 16 community property claims the Estate may have against K. McAfee. 6 But without any live pleadings on file, the Probate Court lacks jurisdiction to take any action in this case, including the issuance of injunctive relief or taking control of an individual's assets to hold in the registry of the Court for the benefit of someone else. Texas Estates Code section 402.001 states that after the inventory has been approved in an independent administration, the Probate Court can take no further action of any nature unless specifically provided for by the Texas Estates Code. See also State v. Traylor, 374 S.W.2d 203, 204 (Tex. 1963) (probate court has only that jurisdiction conferred upon it by the Probate Code). The probate court is then vested with substantial "potential jurisdiction" to hear almost any issue involving the estate or the personal representative, even matters related to the settlement and partition of an estate. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983); TEX. ESTATES CODE§§ 32.001, 31.001, 31.002. The probate court can even have the power to determine community property claims, characterize separate and community property interests, and order the surrender of property held by a party to the suit. Smith v. Lanier, 998 S.W.2d 324, 332, 336 (Tex. App.-Austin 1999, pet. denied) (probate 6 Tab 8, at p. 3, Ins. 20-25; at p. 4, Ins. 1-7; at p. 5, Ins. 5-l 0; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4; at p. 11, Ins. 4-16; at p. 17, Ins. 18-25; at p. 18, Ins. 1- 24; Tab 12, at p. 3, Ins. 13-22; at p. 6, Ins. 10-25; at p. 7, Ins. 1-6; at p. 8, Ins. 16-25; at p. 9, Ins. 1-7; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21; at p. 12, Ins. 1-25; at p. 13, Ins. 1-6; at p. 15, Ins. 4-25; at p. 16, ln. 1; Tab 15, at p. 10, Ins. 1-21; at p. 10, Ins. 7-24; at p. 11, Ins. 10-16; at p. 14, Ins. 16-25. PAGE17 court can issue injunction against survivor's separate property pending declaratory judgment action); Lucikv. Taylor, 596 S.W.2d 514,516 (Tex. 1980) (probate court can issue injunction over estate property pending contest to administration). But there is no authority for a court to act on estate issues sua sponte. A probate court's potential jurisdiction is "activated and becomes actual jurisdiction" only after the filing of a petition, the subject matter of which is within the jurisdiction of the court. Cunningham, 660 S.W.2d at 812 (probate court did not have jurisdiction to enter judgment against independent administrator based solely on substance of final account; pleadings required). Just as in any other type case, a party must invoke a probate court's jurisdiction by filing an application, petition, motion, action, claim, cause of action, or request of some nature. See TEX. ESTATES CODE§§ 31.001, 31.002. Pleadings create the foundation of due process: they defiJ!.e the issues and give the opposing party information sufficient to enable him to prepare a defense. Cunningham, 660 S.W.2d at 812-13 (citing Murray v. 0 & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)). There is no exception simply because we are in probate court: "The Texas Rules of Civil Procedure govern proceedings in probate matters except in those instances in which a specific provision has been made to the contrary. Tex.R.Civ.P. 2. In Texas, '[a] civil suit in the district or county court shall be commenced by a petition filed in the office ofthe clerk.' Tex.R.Civ.P. 22." ld. PAGE18 The Estate has no live pleadings in this case asking the Probate Court to do anything or decide any matter. In fact, the Estate has never even asked the Court to determine a marital property claim; it has only alluded throughout the hearings that there may be claims. The Probate Court cannot provide the Estate any relief to which it has not requested in writing. !d. at 813 ("a party may not be granted relief in the absence of pleadings to support that relief'). This is because an independent administration is managed at the direction of the personal representative, not by the probate court. The Texas Supreme Court has explained that a probate court cannot take on duties of the independent executor. In State v. Traylor, the independent executors asked the probate court to order a partition and distribution, giving the decedent's widow a compromised community property distribution, which they had chosen not to trace for economic reasons, and which was opposed by the other beneficiary. 374 S.W.2d 203 (Tex. 1963). While a probate court has statutory authority to order a partition and distribution, the executors were essentially asking for the court's stamp of approval on their decision to not trace the community property interest, instead of just approving the widow's claim (and facing suit) or having the widow's claim established by judgment. !d. The Supreme Court said this was not something the Court could do, even at an executor's request, and the executors must act on the claim before coming to the Court for a partition and distribution. PAGE 19 In the present case, the independent administrator must first act on its alleged claim by filing a pleading seeking relief. The Probate Court has no power to seize or continue an injunction over K. McAfee's assets until after the Estate has acted. The fact that the Estate has no pleadings on file was argued by Storer multiple times: 1. January 8, 2015 hearing:" ... there's nothing to intervene in, because there is no pending action." Tab 7, at p. 10, Ins. 7-12. 2. January 22, 2015 hearing: " ... I can't even learn what the base lawsuit is that the Temporary Injunction was filed for." Tab 8, at p. 7, Ins. 1-5. 3. May 14, 2015 hearing: "this Temporary Injunction that everyone IS talking about and relying on, you know has been going on for a very long time without a cause of action, without a trial date. It's basically an agreement for everyone to have a standstill. And that's fine. We intend to honor it. But it's time to separate these parties." Tab 15, at p. 7, Ins. 3-5. With no pleadings on file, the injunction should be dissolved entirely. It is however, even more serious that a portion ofK. McAfee's social security benefits were ordered to be turned over to the Clerk for the use and benefit of the Estate of Janet Foltyn McAfee. The Probate Court's taking of the $34,898.58 from K. PAGE 20 McAfee's social security account IS essentially a further injunction with no pleadings on file and no jurisdiction. Therefore, the temporary injunction should be dissolved and the May 18, 2015 Order should be set aside for lack of jurisdiction. III. Without a pending cause of action, the June 8, 2011 temporary injunction and the May 18, 2015 Order are void. The lack of pleadings makes the temporary injunction void in its entirety, as well as the May 18, 2015 Order that directs Woodforest to turn over $34,898.58 to the registry of the court. The parties can enter an agreement outside of Court to freeze the remaining assets, but the temporary injunction, especially in this new form, has been taken too far. "A temporary injunction's purpose is to preserve the status quo of the litigation's subject matter pending a trial on the merits." Butnaru v. Ford Motor Company, 84 S.W.3d 198, 204 (Tex. 2002). "To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Id. The Estate has no cause of action on file against K. McAfee, and, even if it did, there is no probable right to the relief sought because the facts are what they are. The evidence that has already been considered will always yield the same result-that all of the money in the Woodforest account is federally protected social security proceeds. PAGE 21 Texas Rule of Civil Procedure 683 further states that "every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought." This requirement is mandatory and must be strictly followed, or else the order is subject to being declared void and dissolved. Qwest Commc 'ns Corp., 24 S.W.3d at 337 (Tex. 2000); InterFirst Bank San Felipe, 715 S.W.2d at 641 (Tex. 1986). An error of such kind is so critical that it has been held by many Texas appellate courts as "fatally defective and void, whether specifically raised by point of error or not." 7 The Estate sought a temporary restraining order in the estate administration cause (396,935) to preserve its community property interests and anticipated recovery from the wrongful death proceedings pending against K. McAfee in the ancillary cause (396,935-401). Tab 18. The Estate's Application states, "the nature of the lawsuit is Probate, with an additional wrongful death suit pending." Tab 18, at p. 2, ~5. The June 8, 2011 Agreed Order for Temporary Injunction also states: 7 EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 52-53 (Tex. App.-San Antonio 2002); Evans v. C. Woods, Inc., 34 S.W.3d 581, 582-83 (Tex. App.-Tyler 1999, no pet.); Big D Props., Inc. v. Foster, 2 S.W.3d 21, 23 (Tex. App.-Fort Worth 1999, no pet.); 360 Degree Commc'ns Co. v. Grundman, 937 S.W.2d 574, 575 (Tex. App.-Texarkana 1996, no writ). PAGE22 "this Temporary Injunction Order ... shall continue in force and effect until the Court makes a determination of what property belongs to the Estate or the Court renders a full and final judgment is in the pending wrongful death suit associated with this matter, whichever is later, or by further order of this Court." Tab 1, at p. 9 of 10. A full and final judgment was entered in the wrongful death suit on March 21, 2014. Tab 2. The Court, however, has made clear that the injunction remains in effect in the estate administration until a determination of what property belongs to the Estate has occurred. Tab 17, last paragraph. Whether the temporary injunction has ever been effective in the past may be a moot issue. The temporary injunction was filed only in the estate administration, where no pleadings were ever filed. On January 22, 2015, the parties argued over whether the order on the garnishment proceeding (395,835-401) should require a release of the temporary injunction in the estate administration. Tab 8, at p. 3, Ins. 20-25; at p. 4, Ins. 1-7; at p. 8, Ins. 2-4; at p. 9, Ins. 14-17; at p. 11, Ins. 4-16. Storer argued to release the temporary injunction: "The other thing, Judge, is I don't even think there is a Temporary Injunction in place. I think everyone has honored it because everyone understood what the intent was of the parties and the intent of the Court but I can't even learn what the base lawsuit is that the Temporary Injunction was filed for. It's my understanding also that there is no ending to the Temporary Injunction and the only way one can be valid is if there is a final trial date that says on this date this Temporary Injunction ends and PAGE 23 will either go away or tum into a Permanent Injunction. So I believe there is not even a Temporary Injunction in place. I will go along with what's been going on but we were here two weeks ago and the issue garnishment was decided. That's over. The only thing that needed to be added was to make the payment to Mr. Blumrosen and/or his client. That's been done. And so this is the Proposed Order that covers both parties and both banks in the garnishment proceeding." Tab. 8, at p. 6, ln. 25; at p. 7, Ins. 1-16; at p. 14, Ins. 15-19. Regardless of how the estate administration and wrongful death proceedings were intertwined, today there are clearly no actions being pursued in any cause against K. McAfee. This makes the temporary injunction fatally void and it should be dissolved. TEX. R. CIV. P. 683. Additionally, "Probate" is not a cause of action. Probate is a general description for all matters or proceedings that relate to a decedent's estate. TEX. ESTATES CODE§ 22.029. The Texas Supreme Court has clarified, "the issue in determining whether an applicant has met the first qualification for a temporary writ of injunction is not whether the prayer seeking the writ and the ultimate cause of action is 'related,' but whether the applicant has a cause of action at all." Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (considering whether applicant's live pleadings supported the temporary injunction). With no cause of action at all on PAGE 24 file, there is no matter to set for trial and the injunction in whatever form it has now taken, must be dissolved. And if there were a cause of action on file, the reason for strict compliance m setting a trial date "is to prevent the temporary injunction from becoming effectively permanent, without a trial having occurred." Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5, 6 (Tex. App.-Houston [1st Dist.] 1988). Such would be contrary to the purpose and procedure of obtaining a temporary injunction, yet this is exactly what has happened in this case, because a determination of all Estate property may never occur. Therefore, the temporary injunction should be dissolved and the May 18, 2015 Order should be set aside for being void. IV. Collateral Estoppel and Res Judicata bar re-tracing of the Woodforest account. Even if the Probate Court were to obtain jurisdiction to enjoin or take control over K. McAfee's assets, the Woodforest account cannot be subject to any further authority of the Probate Court because the funds have already been traced and found to be solely K. McAfee's social security benefits. Tab 9; Tab 14, at p. 6-8. Since the Estate can have no claim against K. McAfee's social security benefits, all of such assets must be released to K. McAfee. The well-known case of Barr v. Resolution Trust Corp. describes "res judicata" as a generic term for two types of conclusive effects given to final PAGE 25 judgments: res judicata precludes relitigation of claims, and collateral estoppel prevents relitigation of particular issues. 837 S.W.2d 627, 628 (Tex. 1992). This mandamus involves both. The Estate would like the Court to believe that the garnishment proceedings were completely separate from the Estate's purported community property claims in the estate administration. Tab 12, at p. 8, Ins. 16-25; Tab15, at p. 11, Ins. 22-25; at p. 12, Ins. 1-3. This, however, is not accurate. First, the issue of tracing the Woodforest account was actually litigated in the garnishment proceeding (collateral estoppel). Second, the Estate should have brought its claims against Kenneth McAfee for the funds in the Woodforest account during the garnishment proceedings (res judicata). 1. Collateral Estoppel The doctrine of collateral estoppel or issue preclusion is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation of issues a party previously litigated and lost. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994); Quinney Elec., Inc. v. Kondas Entm 't, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per curiam). "A party seeking to assert the bar of collateral estoppel must establish that ( 1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first PAGE 26 action; and (3) the parties were cast as adversaries in the first action." Sysco Food Servs., Inc., 890 S.W.2d at 801. "Fairness" may also be considered, but it is narrowly applied in only the most unique circumstances. !d. at 805. Collateral estoppel can apply even if the causes of action are different in the first and second proceedings. Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 577 (Tex. 2001) (criminal defendant was convicted of fleeing and attempting to elude a police officer; because the issue of whether she faced imminent harm was a fact that was litigated in her criminal trial, she was barred from bringing a civil action for assault against the officer who tried to stop her). "If a cause of action in the second lawsuit involves an element already decided in the first lawsuit, that cause of action is barred" if the issue decided in the first action was actually litigated, essential to that lawsuit's judgment, and is identical to the issue in the pending action. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 521 (Tex. 1998). Element 1: the facts sought to be litigated in the second action are identical to the facts litigated in the first action "Collateral estoppel applies when an issue decided in the first action is actually litigated." Tex. Dep't of Pub. Safety, 44 S.W.3d at 579. "Actually litigated" means the issue was properly raised (by pleadings), submitted for determination, and determined. Johnson & Higgins of Tex., Inc., 962 S.W.2d at 521. The issues must be identical and must have been fully and fairly litigated. PAGE 27 State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Tex. Dep't ofPub. Safety, 44 S.W.3d at 579. What the Estate is seeking now is identical to what was before the Court in the garnishment proceedings, a tracing of the Woodforest account. The tracing that was necessary to establish protection in the garnishment proceedings is the very same tracing that would be necessary to prove the Woodforest account is solely K. McAfee's social security benefits. Tex. Dep 't of Pub. Safety, 44 S.W.3d at 577 (collateral estoppel applied because same facts were necessary to prove first and second claims). In the garnishment proceedings, Storer sought to quash two writs the Foltyns had obtained, one against a 401(k) Savings Plan and one against a social security account. Tab 4. Both accounts needed to be established as exempt accounts in order to quash the writs. While the funds in the 401(k) were protected merely by being in a tax-deferred retirement account, 8 the social security funds were held in an ordinary checking account and Storer had to show that every penny in the Woodforest account was attributed to his social security benefits. Tab 4, at rs 22- 25 (regarding need to trace comingling of social security benefits). Had there been 8 TEX. PROP. CODE§ 42.0021(a); see also Tab 4, at p. 13, footnote 12: Unlike with social security benefits, it is the account that is exempt; the source of the funds is irrelevant. Lozano v. Lozano, 975 S.W.2d 63, 68 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). PAGE 28 any funds that were not social security benefits, those funds would have been subject to garnishment. Tab 4, at 'if 23. The nature of the Woodforest funds was plead in Storer's Motion to Quash, which also provided copies of the bank statements, and an account detail sheet showing the source of all deposits and withdrawals. Tab 4, at Exhibits A, B. Storer agreed the tracing rules in his Motion, and identified the funds all as coming exclusively from the Social Security Administration. Tab 4, at 'if 25. At the first hearing on January 8, 2015, the Foltyns did not challenge the protected status of a person's 401(k) or social security benefits, but argued that they did not have sufficient information to determine the character of the funds at issue due to outstanding discovery requests. Tab 7, at p. 4, lns. 1-9; at p. 5, lns. 2- 17; at p. 6, Ins. 9-20; at p. 8, Ins. 12-25; at p. 9, Ins. 1-24. The Probate Court reset the matter for two weeks to specifically allow time for exchanging information. Tab 7, at p. 27, Ins. 5-6. On January 22, 2015, the parties and the Estate returned. Tab 8. Again, quashing the writs on the two accounts was never challenged. Tab 8; at p. 3, Ins. 5-7. However, because Storer sought to include language in the proposed order to also release the temporary injunction as to the two accounts, the Foltyns and the Estate resisted, in order to preserve the Estate's potential community property claims against the 401(k). Tab 8, at p. 3, Ins. 20-25 through at p. 4, Ins. 1-7; at p. PAGE29 5, Ins. 5-10; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4; at p. 9, Ins. 14-15; at p. 11, Ins. 4- 16; at p. 14, Ins. 15-19; at p. 17, Ins. 18-25, at p. 18, Ins. 1-24. At both hearings, no one challenged the character of the funds that made up the Woodforest social security account (see Tab 7 and Tab 8); this was not done until months after the Court signed the January 27, 2015 Order. See Tab 12 and Tab 15. Had any contrary evidence been offered, Storer could have orally argued his tracing evidence that was filed in his Motion to Quash Writs of Garnishment because that was the very subject matter of that hearing, to prove that all funds in the Woodforest account were social security benefits. Tab 7, at p. 5, Ins. 12-15. But the Foltyns specifically said that was not necessary (Tab 7, at p. 5, Ins. 16-17) and the Estate raised no issues as to Storer's accounting (Tab 8, at p. 18, Ins. 13- 23). Based upon the patties' pleadings and arguments, the Probate Court detetmined that the Woodforest account contained only K. McAfee's social security benefits and signed the January 27, 2015 Order: "On this day came to be considered the Motion to Quash Writs of Garnishment filed by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review and consideration of said Motion, the evidence, the responses, and the arguments of counsel, the Court finds the following: PAGE 30 5. The Woodforest account ending in 404 holds, exclusively, social security benefit proceeds of Kenneth C. McAfee which benefits are exempt from garnishment under 42 U.S.C. 407. 42 U.S.C. 407 provides an absolute exemption and there are no statutory exceptions to same. Because the Woodforest account ending in 404 contains only funds exempted from garnishment, the writ directed at Woodforest as to Kenneth McAfee's account ending in 404 should be quashed." Tab9. The Estate now questions the characterization of two deposits that were made into the Woodforest social security account and that were identically withdrawn from the account days later, arguing these might be deposits of community property and withdrawals of social security funds that would give the Estate a one-half interest in the deposits of community property depending on what method of tracing is used (first in/first out, or last in/first out). Tab 12, at p. 3, Ins. 13-22; at p. 6, Ins. 14-21; at p. 7, Ins. 1-6; at p. 7, Ins 14-21; at p. 8, Ins. 19-25; at p. 9, Ins. 7-9; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21; at p. 12, Ins. 1-25; at p. 13, Ins. 1- 6; at p. 15, Ins. 4-25; at p. 16, ln.1; Tab 15, at p. 10, Ins. 6-24; at p. 11, Ins. 1-16; at p. 14, Ins. 18-25. This is a tracing issue that has already been litigated and determined by the Court. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25; Tab 15, at p. 4, Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p. 7, Ins. 17-25; at p. 7, Ins. 17-25; at p. 8, Ins. 1-25; at p. 9, Ins. 1-17; at p. 13, lns. 13-17; at p. 15, Ins. 1-9; at p. 16, Ins. 3-25; at p. 17, lns. 1-14. PAGE 31 Storer does not dispute the 401(k) is funded with some community property. But the social security benefits are federally protected separate property, so there is nothing left to fight over. 42 U.S.C. 407; Tab 15, at p. 15, Ins. 10-14; at p. 15, Ins. 22-25; at p. 16, Ins. 1-25; at p. 17, Ins. 1-17. To have this fight again (to trace the Woodforest social security account) would require an identical trial to the one already had, with the exact same tracing evidence and burden of proof (Sysco Food Servs., Inc., 890 S.W.2d at 802 (in considering collateral estoppel, similarity of each action's burden of proof was a factor));it would just be for a different purpose, but with the same result as to the Woodforest assets. Although Storer's tracing evidence was not challenged in the garnishment proceeding, that does not mean the issue was not actually litigated. "Actually litigated" does not require a contested proceeding, but merely that the issue was pled, considered and decided. Johnson & Higgins ofTex., Inc., 962 S.W.2d at 521. These criteria have all been met. The transcripts show that it was put before the Court by all counsel, repeatedly, and that there was no issue that the Woodforest account contained anything other thanK. McAfee's social security benefits. The Estate specifically said, "the two issues, which one we could see, the Woodforest, is that's all SSI money. My client has no claim to that. We can see that. As long as that's an accurate statement, it's all SSI." Tab 8, at p. 18, Ins. 13-25, at p. 19, line 1; Tab 4, Exhibit A & B. PAGE 32 In Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., the Supreme Court considered "fully and fairly litigated" and rejected a party's argument that they had no real incentive in the first action to develop their claims in the second action. 962 S.W.2d 507, 525 (Tex. 1998). When the plaintiff lost a significant portion of his profits in oil he was transporting across the Atlantic, he used his insurance agent as a witness to recover from another insurance company based on agreements that had been discussed between multiple insurance companies to insure the cargo. Id. at 511-513. As to at least one claim, the Supreme Court found that the testimony of the plaintiffs insurance agent supported the court's detennination that there were no insurance agreements for the extra loss coverage the plaintiff was seeking. I d. at 524. The plaintiff was later barred from suing his own insurance company because the issue had already been decided that there were no valid insurance agreements for the extra loss coverage. Id. The plaintiff argued that had he known he would be precluded from suing his own insurance company, he would have further developed the testimony to prove his insurance agent represented to him that he was covered. Id. at 525. The Supreme Court said he had missed his chance because he had every incentive in the first suit to establish an agreement since his claims in the first suit depended on that agreement. Id. Likewise, the Estate's purported community property claims to the Woodforest account depend 100% on what type funds are in the account. The PAGE 33 tracing was just as essential to the garnishment proceeding as it is to the Estate's purported community property claims. The Estate's agreement and/or inaction when the issue of tracing was before the Court precludes the Estate's later developed arguments. Additionally, in Rexrode v. Bazar, collateral estoppel was applied even in a situation where no evidence was ever admitted. 937 S.W.2d 614 (Tex. App.- Amarillo 1997, no writ). A plaintiff sued a defendant for negligence and also sued his own insurance company under the uninsured/underinsured motorist provision of his auto insurance policy. Id. at 615-16. When the insurance company failed to answer requests for admissions, the plaintiff nonsuited his case against the defendant and went to trial against the insurance company. ld. at 616. At trial, the plaintiff offered only the deemed admissions. ld. at 617-18. The insurance company was granted leave to prepare responses to the requests for admissions. ld. at 618. The plaintiff rested. ld. The insurance company prepared responses, and the Court withdrew the deemed admissions. Jd. The Court then issued a directed verdict against the plaintiff, having rested with no evidence. Jd. The plaintiff was later bmred from bringing suit against the original defendant because he had "failed to prevent the issue ... from being submitted for determination and determined adversely to him. That being so, the issue was "actually litigated" in the first suit." ld. at 620. That is exactly what has happened in this case-the PAGE 34 Estate's agreement and/or inaction failed to prevent the tracing issue from being submitted for determination and determined adversely to their current purported claims, if any. The opportunity to fully and fairly litigate the issue of tracing existed, but the Estate chose not to act. This opportunity is all that is required. See Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990) (collateral estoppel applies when the party against whom it is asserted had a full and fair opportunity to litigate the issue in the prior suit). Because the issue of tracing the Woodforest social security account was actually litigated, fully and fairly, and is identical to the claims the Estate makes now, the first element of collateral estoppel has been met. Element 2: those facts were essential to the judgment in the first action When the Probate Court examined whether or not the Woodforest social security account should be exempt from garnishment, the sole issue was the nature of the funds in the account. It may be redundant to keep saying that it was already established and unopposed that the funds were 100% K. McAfee's social security benefits. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25; Tab 15, at p. 4, Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p. 7, Ins. 17-25; at p. 7, Ins. 17-25; atp. 8, Ins. 1-25; atp. 9, Ins. 1-17; atp. 13, Ins. 13-17; atp. 15, Ins. 1-9; at p. 16, Ins. 3-25; at p. 17, Ins. 1-14. But there was simply no other purpose to the garnishment proceeding in regards to the Woodforest account other than to PAGE 35 trace the funds, which is exactly what the Estate seeks to do again. See above, Johnson & Higgins of Tex., Inc., 962 S.W.2d at 525 (establishment of insurance agreement was essential to first claim against 3rd party insurance company; plaintiff could not bring action against his own insurance company because court already found there was no insurance agreement). Because the issue of tracing was essential to the Probate Court's January 27, 2015 Order, the second element of collateral estoppel has been met. Element 3: the parties were cast as adversaries in the first action All parties involved today also participated in the garnishment proceeding that resulted in the January 27, 2015 Order. The parties in the estate administration proceedings are K. McAfee, the Estate, and the Foltyns, individually, who are participating herein as interested parties. Tab 18. The garnishment proceeding did not originally involve the Estate; it involved only K. McAfee and the Foltyns, individually, who sought to recover on their wrongful death judgment. Tab 3. However, the Estate made a voluntary appearance in the garnishment proceeding by filing a Notice to Court in which the Estate objected to Storer's Motion to Quash and claimed an interest in the two accounts Storer sought to protect from garnishment. Tab 5; Tab 7, at p. 9, Ins. 1-8. The Estate further participated in the garnishment hearings, not challenging the PAGE 36 quashing of the writs, but alluding to their community property claims that might exist post-garnishment. Tab 7, at p. 8, Ins. 15-25; at p. 9, Ins. 1-2; Tab 8, at p. 2; at p. 5, Ins. 5-10, Ins. 16-18; at p. 12, Ins. 10-17; at p. 17, Ins. 21-24; at p. 18, Ins. 18- 23. Regardless of what happened thereafter, it cannot be disputed that all parties involved today actually participated in the garnishment proceedings that (1) considered the tracing of the Woodforest social security account and (2) resulted in the January 27, 2015 Order. 9 Because the same parties were cast as adversaries in the garnishment proceeding, the third element of collateral estoppel has been met. Consideration of Fairness The nature of the wrongful death proceeding is not a factor the court can consider in deciding whether to apply collateral estoppel. Fairness factors involve unique procedural and evidentiary burdens that defeat the design of collateral estoppel, and that are not caused by the party seeking to avoid the preclusive effect 9 Nevertheless, collateral estoppel does not even require direct participation by the Estate, only that the Estate be in privity with the Foltyns. Tex. Dep 't of Pub. Safety, 44 S.W.3d at 577; Sysco Food Servs., Inc., 890 S.W.2d at 801; Eagle Props., Ltd., 807 S.W.2d at 721. Privity cannot be disputed because the Estate and the Foltyns both share interests in the Woodforest account that are directly affected by its tracing. See Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971). They are merely acting in two different capacities, individually and as beneficiaries of the Estate, to recover the same interests under different theories of recovery. See Robbins v. HNG Oil Co., 878 S.W.2d 351, 357-58 (Tex. App -Beaumont 1994, writ dism'd w.o.j.) (Robbins as attorney-in-fact in second suit was certainly in privity with Robbins, individually, in first suit). PAGE 37 of a prior judgment. See Sysco Food Servs., Inc., 890 S.W.2d at 804-05 (party was prevented from filing all of their claims in one suit by case law that has subsequently been overruled by statute; procedural predicament is not of their own making; then holding is narrow, given the unusual procedural posture of the case); Phillips v. Allums, 882 S.W.2d 71, 75 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (because party was nonsuited, party was deprived of the opportunity to litigate; "Mary Carter" agreements violate public policy). None of these type .c: 1actors • are present m th"IS case. 10 2. Res Judicata Res judicata precludes relitigation of claims that have been finally adjudicated, and claims that arise out of the same subject matter that could have been litigated in the prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628, 631 (Tex. 1992). The elements of res judicata are: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action." Amstadt v. US. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); see also Houtex Ready Mix Concrete & Materials v. 10 See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31 (1979) (noting when offensive collateral estoppel may be unfair); Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 7 (Tex. 1986) (holding when fairness factors are applicable); Goldstein v. Comm 'nfor Lawyer Discipline, 109 S.W.3d 810, 813 (Tex. App.-Dallas 2003, pet. denied) (observing the factors when offensive collateral estoppel may be applied); Tankersley v. Durish, 855 S.W.2d 241, 245-46 (Tex. App.- Austin 1993, writ denied) (noting applicable fairness factors). PAGE 38 Eagle Canst. & Envtl. Servs., L.P., 226 S.W.3d 514, 519 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Element 1: there is a final judgment on the merits The January 27, 2015 Order is a final judgment on the merits of tracing the Woodforest social security account. Tab 15, at p. 6, Ins. 4-10. It specifically and correctly states, "the Woodforest account ending in 404 holds, exclusively, social security benefit proceeds of Kenneth C. McAfee." Tab 9. The wrongful death and estate administration claims, if any, are and/or will be separate actions. In the wrongful death action, a final judgment was entered against K. McAfee on March 21, 2014, that disposed of all parties and was appealable. Tab 2. The Foltyns' Application for Writ of Garnishment was initiated in the wrongful death proceeding on October 9, 2014 to collect on the judgment. Tab 3. The Probate Court had jurisdiction over the garnishment proceedings because there were garnishment pleadings and notices (Tab 3), not because the wrongful death action was on-going. Thereafter, Storer's Motion to Quash Writs of Garnishment was filed in the garnishment proceeding and the Probate Court properly acted on those pleadings after two hearings on the merits. Tab 9. When the Probate Court signed the January 27, 2015 Order Partially Granting Motion to Quash Writs of Garnishment, there were no more issues pending in the garnishment proceeding, however the Court did direct the PAGE 39 temporary injunction to be lifted as to the GMS accounts in favor of the Foltyns, even though the temporary injunction was in a separate proceeding. Tab 9, at p. 3. (The remaining accounts were still subject to the temporary injunction in the separate estate administration cause, just as they were before the Foltyns' Application for Writ of Garnishment was filed.) On March 16, 2015, the Probate Court signed its Order Partially Releasing Temporary Injunction in regards to the GMS accounts in favor of the Foltyns, (Tab 9), and the January 27, 2015 became final as it disposed of all issues and parties in the garnishment proceeding. This January 27, 2015 judgment was never appealed, and cannot be appealed now. The judgment is also not interlocutory because "a probate order is final if it adjudicates a substantial right and disposes of all issues in the phase of the proceeding for which is was brought, even though multiple judgments final for purposes of appeal can be rendered on certain discrete issues." Crowson v. Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001); Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.-Austin 2000, pet. denied) ("An order rendered in a probate proceeding need not finally dispose of the entire proceeding ... A probate proceeding consists of a continuing series of events, in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based."). Although the Estate Independent Administration is still open (without PAGE40 Court supervision), the January 27, 2015 Order resolved all issues and pleadings in the garnishment proceeding, in which it participated. Therefore, even if the garnishment proceeding had been tied to the Estate administration, which it was not, this phase of the garnishment proceeding has been disposed of and is final, even though the Estate independent administration may continue. Because there is a final judgment on the merits of tracing the Woodforest account, the first element of res judicata has been met. Element 2: same parties As discussed above, the same parties involved today actually participated in the garnishment proceedings that resulted in the January 27, 2015 Order, and the Estate is "in privity" with the Foltyns. See collateral estoppel, element 3 above. Because the same parties are involved in both proceedings, the second element of re judicata has been met. Element 3: same claims Res judicata provides broader relief than collateral estoppel since it allows preclusion of claims that not only were adjudicated, but claims that could have been litigated in the prior suit. Rexrode, 937 S.W.2d at 616 ("unlike the broader res judicata doctrine, collateral estoppel analysis does not focus on what could have been litigated, but what was actually litigated"). PAGE 41 "A subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit." Barr, 837 S.W.2d at 631. "A determination of what constitutes the subject matter of a suit necessarily requires an examination of the factual basis of the claim or claims in the prior litigation. It requires an analysis of the factual matters that make up the gist of the complaint, without regard to the form of action. Any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit." !d. at 630. The Barr standard "is substantially similar to the rule of compulsory counterclaims embodied in the rules of civil procedure. A party defending a claim must bring as a counterclaim any claim that "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." !d.; TEX. R. CIV. P. 97. While the issue of tracing was actually litigated on more than one occasion, the Estate still has never filed its community property claims. The garnishment proceeding was the proper time to have brought such claims. As discussed above, the issue in the garnishment proceeding was to trace the funds in the Woodforest account as solely K. McAfee's social security benefits in order to protect the entire account from garnishment. The Estate's purported claim seeks to re-trace the funds in the Woodforest account to see if the funds are all K. McAfee's social PAGE42 security benefits, or if the funds have been comingled with community property. While the purpose for tracing may be different, the issues, facts and evidence that make up both claims are identical-what is the character of the funds in the Woodforest account? The issue of the Estate's potential community property claims was known and discussed in the garnishment proceedings. Tab 7, at p. 8, lns. 15-25; Tab 8, at p. 4, lns. 1-7; at p. 5, lns. 5-19; at p. 8, lns. 2-4; at p. 9, lns. 14-19; at p. 11, Ins. 4- 16; at p. 12, lns. 10-25; at p. 13, lns. 1-11; at p. 14, lns. 15-19; at p. 17, Ins. 18-25; at p. 18, Ins. 1-24. The Estate argued for the protection of its community property claims against the 401(k) account, yet made no mention of potential claims to the social security account. Tab 8. Knowing that tracing in the garnishment proceeding directly affected the Estate's community property interests, the Estate had the burden to bring its claim at the time the issue of tracing was first before the Court. It is not enough to merely say they want to litigate the claims in the future. Because the same claims that the Estate alleges now could have been litigated in the prior suit, the third element of res judicata has been met. V. The Estate's claims cannot be satisfied from the Woodforest social security account and continued obstruction of these funds violates due process and constitutes an abuse of discretion. K. McAfee's social security benefits are his separate, federally protected property that cannot be used to satisfy the Estate's alleged community property PAGE43 claims. 42 U.S.C. 407 ("none of the moneys paid or payable ... shall be subject to execution, levy, attachment, garnishment, or other legal process .... "). Storer has explained this protection provided by the Social Security Act, and its lack of exceptions, in great detail. 11 The F oltyns and the Estate do not disagree that any funds that are social security benefits are protected. See Tab 7, at p. 4, Ins. 1-6; Tab 8, at p. 18, Ins. 13- 18;seeTab 12,atp.3,Ins.15-17;atp.9,lns.1-7;atp.15,lns.ll-13;atp.17,Ins. 6-10; see Tab 15, at p. 14, Ins. 17-19; at p. 24, Ins. 16-18. Since the nature ofthe funds in the Woodforest account have already been traced, and found to be social security benefits, there is nothing left to fight over. If the Estate has claims, they can only be satisfied from other accounts made up of community property assets of Janet and K. McAfee, not from the Woodforest account that holds only K. McAfee's social security benefits. Tab 15, at p. 9, Ins. 18-22; at p. 13, Ins. 1-17; at p. 13, Ins. 2-25; at p. 14, lns.1-15; at p. 17, Ins. 8-11. The Court's continued obstruction of these funds violates due process rights and the supremacy clause. Dionne v. Bouley, 757 F.2d 1344, 1354 (1st Cir. 1985) (social security account was exempt from attachment, procedural issues that prevented access to the account violated due process right and perhaps even the 11 See Storer's Motion to Quash Writs of Garnishment, Tab 4, ~'s 11-29; Tab 7, at p. 5, Ins. 2-17; at p. 11, Ins. 2-4; at p. 18, Ins. 9-23; Tab 8, at p. 5, Ins. 20-25; at p. 6, Ins. 1-24; Tab 14, at p. 9; Tab 12 and Tab 15. PAGE44 supremacy clause.) These violations are further reason why the May 18, 2015 Order should be set aside and the temporary injunction dissolved. Last, the Probate Court has abused its discretion by failing to correctly analyze and apply the law in regards to Storer's arguments of lack of jurisdiction, no pleadings being on file, and no cause being set for trial. See In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10, 2012, orig. proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)) (court abuses its discretion "if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law."). PRAYER For the reasons stated above, Relator, respectfully requests that the Court grant his Petition for Writ of Mandamus; direct the Honorable Loyd Wright to set aside the May 18, 2015 Order on First Amended Motion for Reconsideration of March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction and Motion for Sanction; direct the Honorable Loyd Wright to dissolve the June 8, 2011 Agreed Order for Temporary Injunction, and grant Relator such other relief, at law or in equity, to which Relator may be justly entitled. PAGE45 Respectfully Submitted, ANDERSON PFEIFFER, PC Esther Anderson SBN: 00792332 Robert Teir (of Counsel) SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Telephone: (281) 488-6535 Facsimile: (281) 488-0625 Email: esther@probateguardianship.com Attorneys for Relator, Charles Storer, Power of Attorney for Kenneth Cooper McAfee PAGE46 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the forgoing Petition for Writ of Mandamus was delivered via the electronic service provider and/or certified mail, return receipt requested on this 1st day of October, 2015, to all parties/and or counsel of record: cc: Honorable Loyd Wright Judge, Probate Court No. 1 Harris County, Texas 201 Caroline, 6th Floor Houston, Texas 77002 Dean M. Blumrosen, Esq. 4615 Southwest Freeway, Suite 850 Houston Texas 77027 Counsel for Rosemary Foltyn and Jake Foltyn Mary Elizabeth Duff 21 0 Main Street ~chmond, Texas77469 Counsel for Rosemary Foltyn, Administratrix of the Estate of Janet Foltyn McAfee, Deceased Esther Anderson PAGE47 CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i) This brief complies with the word limitation of Tex. R. App. P. 9.4 (i) because the brief contains 10,912 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1). This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14 point Times New Roman font. Dated: October 1, 20 15. Esther Anderson PAGE48 RULE 52.3(j) CERTIFICATION I have reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record. Esther Anderson PAGE49 APPENDIX TO PETITION FOR WRIT OF MANDAMUS 1. Agreed Order for Temporary Injunction 2. Order 3. Application for Writ of Garnishment 4. Motion to Quash Writs of Gmnishment 5. Notice to Court 6. Response to Charles Storer's Motion to Quash Writs of Garnishment 7. January 18,2015 Transcript 8. January 22, 2015 Transcript 9. Order Partially Granting Motion to Quash Writs of Garnishment 10. Motion to Partially Release Temporary Injunction 11. Motion to Partially Release Temporary Injunction 12. March 12, 2015 Transcript 13. Order Partially Releasing Temporary Injunction 14. First Amended Motion for Reconsideration of March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction and Motion for Sanctions 15. May 14,2015 Transcript 16. Inventory, Appraisement and List of Claims 17. Order on First Amended Motion for Reconsideration of March 16, 2015 Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction and Motion for Sanctions 18. Application for Temporary Restraining Order and Temporary Injunction PAGE 50 TABl Agreed Order for Temporary Injunction ~··--"""" 06/08/2011 WBD 9:20 PAX 7132243111 Law Office ~002/0~1 06/07/2011 10:58 Mitchell & Duff Attorneys at Law (FAX)281341S517 P.002/011 D~BATE COURT 1 ·~Jltrli'~Ji; 998~91 No. 396,935 IN THE ESTATE OF § IN THE PROBATE COURt § JANET FOLTYN MCAFEE, § N0.1 § DECEASED § HARRIS COUNTY, TEXAS AGBEED ORDER FOR TEMPORARY :INJUNCTION On Maroh 31, 2011 the Application for a Temporary Restraining Ot·der of Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee (the ..Estate"), was beard and granted before this Court. OnApril14 and May 5, 2011 the Courtultimatelyol·dered the Temporary Restraining Ordet• be extended and Temporary Injunction hearlng be rescheduled to June 9, 2011 at 2:00P.M. On May 18, 2011 the Application for a Supplemental Temporary Restraining Order of Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee, was heard and gtanted before this Court. The Temporary Injunction hearing was scheduled for June 1, 2011 at 12:00 PM. On June 1, 2011 the Cowt ordered the Supplemental Temporary Restraining Order be extended and Temporary Injunction be extended and Temporary Injunction hearing be rescheduled to June 9, 2011 at 2:00P.M. On June 7, 2011, tho parties agreed to the entry of a Temporary Injunction, andtopasson the hearing on June 9, 2011. This agreement is evidenced by counsels' signatures below. The Court finds that all necessnry prerequisites of the law have been legally satisfied and that the Court has jurisdiction in this case and of all the parties. The Court finds that Rosemary Foltyn, as Adnlinistratrix of the Bstate of JBJI.et Foltyn McAfee, is entitled to a Temporary Injunction. Agreed Temporary JbjUDCI1on 1 Df10 Confidential information may have been redacted from the document in compliance with the Public Information Act. ,,,,,11111111111 A Certified Copy ~''' \ OF /fA,,,/. Attest: 9/29/2015 ~"" " ••••••••"'·rr,r~~ §-~v· b L1 '//. Stan Stanart, County Clerk S" .·•••• ~·· ~,..... ~ ••·.;,rc~ ::~: ·.o::; Harris County, Texas :: ...... : - - ~ c::= .··~~ -o. . - -...- ... - .·~=... ">"&, . • :z- AA-J_ _,S.,t""' eu ' n'l:!g'-'G r h'""" ....,_,S UJe c.Jn Q i-Uec;uCI.4:h.~ea~I-IJIIa.:.. l _ _ _ _ _ _Deputy :u. ~ ~. ~~'OJ~···········~~~~ ,,, ,, fT,J 'Illy ~ ~ "' ,1- .......;::' \\"" ~ ''''" ""''' ·-· · r 06/08/2011 WED ' 061071201 1 9:20 FAX 7132243111 Law Office 1o:sa Mitchell & Duff Attorneys at Law (FAX)281341 5517 ~003/011 . ?.003/011 IT IS THEREFORE ORDERED that Kenneth McAfee and all of his officers, agents, servants, employees, agents, servants, successors, assigns, representatives, and attorneys are ordered to immediately cease and desist from the use and control of the following accounts a:od property: THE GMS GROUP, LLC 1, Any and all funds in OMS Group, LLC accounts, including but not limited to the following, all of which are pl'esumed to contain community funds and/or funds belonging to the Estate: a. SSH-004628 b. 55H-OS6008 ~ . c. 551·660606 ~ iW'I d. SSH-003612 JO ,.,I e. SSH-034914 ~ f. SSH~850012 I g. SSH-042479 .; j ~ ql h. SSH-008207 i. 989~03491 j. 996·66060 k. 989-03500 2. Any and all funds in GMS Group, LLC accounts, all of which are presumed to contain commwlity :funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee j· i or Janet F. McAfee, Individuallyi (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which Ii i names one or both of them as a signatory: (iv) which contains fuuds In the care, custody, co.c.trol, for iI ! i the bc.mefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) ,\greed 'l"c111porary lnJun~lloll :z. or tO Confidential information may have been r edacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk :;li::i:d__o ----~S~ t e~d~ir~lQ ~GL~ SKe~n~ec~~ ~~aL II~II~--------Deputy ,....-------··---- 06/08/2Gll WED 9:20 FAX 7132243111 Law Office ~004/.011 06/07/201 1 10:58 Mitchell & Duff Attorneys at Law (fAX)2813415517 P.004/01 1 under any address related to eitherofthem~ such as a previous residence~ relative, representative, or attorney's address, or company which did business on behalf of either Kenne1h McAfee or Janet F. McAfee or which was owned in whole or in part by either Ol' both of them. The addresses include, but are not limited to, the following; 1. PO Box 66352, Houston Texas, 77266 2. PO Box. 460786 Houston, Texas, 77056 3. 6650 Fairfield Street Houston, Texas, 77023 4. 21 I 9 Tangley Houston, TexllB, 77005 WOODFOREST NATIONAL BANK 3. Any and all funds in Woodforest National Bank accounts, all of which are presumed to contain conummity funds and/or funds belonging to the .Estate, (I) :in the name of Kenneth McAfee or Janet F. McAfee, Individually; (il) Kenneth McAfee 11Dd Janet F. McAfee jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care, custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) under any address related to either of them, such as a previous residence, relative, representative, or attorney's address, or company which clid business on behalfof either Kenneth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both of them. The adch·esses include, but are not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460786 Houston, Texas1 77056 e. 6650 Faid'ield Street Houston, Texas, 77023 d. 2119 Tangley Houston, Texas, 77005 .Agrulf Temporary Illjuncdoll 3or10 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ,.,11;_--dd Ster11ng G. Senechal II! Q Deputy 0~/0812011 WBD 9121 FAX. 7132243111 Law Office ~005/011, 06/07/2011 10:58 Mitchell & Dutt Attorneys at Law (FAX)281341S517 P.OOS/011 BANI{ OF AMERICA, N.A. 4. Any and aU funds .in Bank of America, N.A. accounts, all of which are .• presumed to contain community funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, lndividually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care, custody, control, for the beoe.fit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) under any address related to either of them, such as a previous residence, relative, representative, or attorney's address, or company which rud business on behalf of either Kenneth McAfee o.l' Janet F. McAfee or which was owned in whole or in part by elther or both of them, The addresses include, but are not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460786 Houston, Texas) 77056 o. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tangtey Houston, Texas, 77005 BBVA COMPASS BANK 5. Any and all funds in BBVA Compass accounts, including Laredo National Bank, including but not limited to the tollowing, all of which are presumed to contain community funds and/or funds belonging to the Estate: a. 113010547049~023 j b. 00810028023 I 6. /uly and all funds in BBVA Compass aooounts, including Laredo National I· Bank. all of which are presumed to contBin commwuty funds and/or funds belonging to the Estate, i ! j, (i) in the name ofKenneth McAfee or JIUlot F. McAfee, Individually; (ii) Kermeth McAfee and Janet Asretd Temporary IIIJun~don 4 of 10 I· J Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Har ris County, Texas .Lf;_A,J___a stenmg G: S8neclial II! Deputy 06/DS/2011 WBO 9t21 FAX 7132243111 Law Office ll!D06/01l OS/07/2011 10:SB Mitchell & Duff Attorneys at Law (FAX)281J415517 P.0061011 F. McAfee jointly; (iii) which names one or both ofthllm as a signatory; (iv) which contains funds in the care, custody, control) for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually Ol' jointly; and (v) under any address related to either of them, such as a previous residence) relative, representative, or attorney's address, or company which did business on behalfof either Kermetb.McAfee or Janet F, McAfee or which was owned in whole or in part by either or both of them. The addl'esses include, but are not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460786 Houston, Texns, 77056 c. 6650 Fairfield Street Houston, Texas,.77023 d. 2119 Tangley Houston, Texas, 77005 WELLS FARGO BANK, N.A. 7. Any and all fUnds in Wells Fargo Bank, N.A. accounts, all of which are presumed to contain· community funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McMee jointly; (iii) which names one or both ofthem as a signatory; (iv) which contains funds in the care, custody, control, for the benefit. or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) under any address related to either of them, such as a :preVious residence, relative, representative, or attomey's address, or ~ompany which did business on behalfof either Kenneth McMee or JanetF. McAfee or which wa~ owned in whole or in part by either or both of them. The addresses include, but arc not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460785 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 Asrced Temporary Jlljuner!o11 5of10 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A-44 Sterling G. Senechal 111 £;( Deputy .--------------·-·---·-------------------------------- 06/08/2011 WBD 9~21 FAX 71322431ll Law Office fZJO 07/011 06/07/2011 10:58 Mitchell & Duff Attorneys at Law (F~13415517 P.007f011 d. 2119 Tangley Houston, Texas, 77005 CITIZENS FINANCIAL GROUP, INC. 8, Arly and aU funds in Citiz~::mJ Financial Group, Inc. accounts, all ofwhich are presumed to contain community funds and/or funds belonging to tho Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a signatory; (iv) whioh contains funds in the care, custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee. individually or jointly; and (v) under any address related to either of them, such as a previous 1·esidence, rela1ive, representative, or attorney's addtess. or company which did business on behalfof either Kenlleth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both of them. The addresses include, but are not limited to, tho following: a. PO Box 66352, Houston Texas. 77266 b. PO Box 460786 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tat~gley Hou.ston, Texas. 77005 PERSHIN_G LLC 9. Any and all funds in Pershing, LLC accowtts, all ofwhlch are presumed to contain community fund& and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (Ui) which names one Ol' both ofthem as a signatory; (iv) which contains funds in the care, custody, control, for the benefit, or on behalf ofKenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) Aerced Temporary Jnjuncrloa 6 orxo Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_4d .QSterling G. Senechal II! Deputy 06/09/2011 WED 9:21 FAX 7132243111 Law Office !llo oS/ o11 OS/07/2011 10:59 Mitchell & Duff Attorneys at Law (FAX)2S13415S1 7 P.OOSJ01 1 under any address ~:elated to either of them, such as a previous residence, relative, representative, or attorney's address, or company which did business on beijalfofeither Kenneth McAfee 01' J8IletF. McAfee or which was owned in whole or in pBlt by either or both of them. The addresses include, but are not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460786 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tangley Houston, Texas, 77005 GRUNT,AL & CO•• INC_. 10. Any and all funds in Gruntal & Co., Inc. accounts, including 8DY Gruntal & Co., lltc. subsidiaries Ol' affiliates, inclucfutg but not limited to the following, all of which al'e presumed to contain community funds and/or funds belonging to the Estate: a. 989·03491 . b. 989·05600 11, Any and all funds In Gruntal &. Co., Inc. e.ecoun~, , il1cludlng any Gruntal & Co., Inc. subsidiaries or affiliates, all of which are presumed to contain community funds and/or funds belonging to the Estate, (i) in the name ofKenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds In the care, custody, control, for tho benefit, or on behalf of Kenneth McAfee and/or Jooet F. McAfee, individually or jointly; and (v) under any address related to either of them, such as a previous residence, relative, representative, or attomey's address, or company which did business on behalf of either Kenneth McAfee or Janct F. MoAfoe or which was Agrctll 'l'emporar)' Ih)unctlon 7 utlO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ..fl;4-d Sterling G. Senechal IP Q Deputy 06/08/2011 WED 9:21 FAX 7132243111 Law Office !ll009/0ll 06/07/2011 10:59 Mitchell & Duff Attorneys at Law f AX)281341 5517 P.009/011 owned in whole or in part by either or both of them. The addresses include, but are not lhnited to, tbe following: a. PO Box. 66352, Houston Texas, 77266 · b. PO Box 460786 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tangley Houston, Texas, 7?005 OTIIER ACCOUNTS 12. A!ly and till accounts presumed to contain community funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii) KeMeth McAfee and Janet F. McAfee jointly;. (iii) which name them as a signatory; (iv) which contains funds in the care, custody, control, for the benefit1 or on behalf of Kenneth McAfee and/or Janet F. McAfee. individually or jointly; and (v) under any address related to either ofthem, such as a previous residence, relative, representative1 or attorney's address, or company which did business on behalfof either Kenneth McAfee or Janet F. McAfee, including, but not limited to the following: a. PO Box 66352, Houston Texas, ?7266 b. PO Box 460786 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tangley Houston, Texas, 77005 which contain: (i) Funds transfened from 01· that can be traced to the accom1ts described herein, including but limited to accounts at The OMS Group, LLC, Aem~ Tem-porary lnjunetloo BoflO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A ..d_f_o Starling G: S8n8Challl! Deputy 06/08/2011 WED 9:21 FAX 7132243111 Law Office fili010/011 06/0712011 10:59 Mitchell & Duff Attorneys at Law (FAX)2813415517 P.OlOIOt 1 Woodforest National Bank1 Bank of America. N.A., BBVA Compass Bank1 Wells Fargo Bank, N.A., Citizens Financial Group, Inc., Pershing LLC, and G.nlt'llal & Co,1 Inc.; and/or (ii) Any and all additional funds and assets w,hich arc preswned to contain community funds and/or funds belonging to the Estate. , IT IS THEREFORE ORDERED, AD.nJDGED AND DECREED that any entity or individual, including but not limited to The GMS Group, LLC, Woodforest National Bank, Bank of America, N.A., BBVA Compass Bank, Wells Fargo Bank, N.A., Citizens Financial Group, Inc., Pershing LLC, and Grutnal & Co., Inc., which contains, controls, or possess~s funds presumed to belong to the community and/or Estate, is ordered by the Court to effectuate the terms of tbis Temporary Injunction should Kenneth McAfee, or any officers, agents, servants, employees, agents, servants, successors, assigns, representatives> and/or attorneys acting on ms behalf, attempt to access or obtain accounts or property within that entity or individual's control or possession, which may contain commtmitY funds and/or funds that belong to 'the Estate. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this Temporary Injunction Order is effective immediately and shall continue in force and effect until the Court me.keil a detClmination of what property belongs to the Estate or the Court 1'enders a full and fmaljudgment is in the pending wrongful deatl1 suit associated with this matter, which ever is later, or by further order of this Court. This order shall be binding on Kenneth McAfee, or any officers, employees, agents, servants, successo1·s> assigns, representatives, attorneys acting on his behalf, and on those persons in active concert or participation with him. The bond posted by the Administratrix is required to remain posted. Agreed 'fe111por~ry llljuneclon 9or10 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_Ad .o Sterling G. Senechal II! Deputy 06/08/2011 WED 9:22 PAX 7132243111 Law Office ~011/0ll 06/0712011 10:59 Mitchell & Duff Attorneys at Law (FAX)2813415517 P.011/011 ':X) tI SIGNEDon~~~ at~m. APPROVED AS TO FORM: Duff Texas o.06J66880 21 0 Main Street Richmond, TX 77469 Tel. (281)34IM1718 Fax. (281)34lM5517 Atton1ey for Independent Administratrix Ro~ol~~ By:.___ ~~~--------------- DEAN M. BLUMROSEN, ESQ. State Bar No. 02517900 4615 Southwest Freeway, Suite 850 Houston, Texas 77027 7l3.S24.222SM Telephone 713.524.557~ Faoslmil Attomey for Heirs f et Foltyn McAfee I .;a - r- ro 0 .CN RECORDER'S MEMORANDUM: At tho time of recordation, lhll Instrument was round to be lnadaqusto for the belt photographic reproduction because of Illegibility, carbon or photo copy, dlacolored paper, etc. AIJ blockoull, ,1\groecl 'romporK., lojuoclloo 10 of 10 addlllona and changes were pro~~&nt allhe lima the Instrument was filed and rucordad. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas J,t..Jd Sterling G. Senechal II! _Q Deputy Tab2 Order .. PROBATE COURT I r~ NO. 396,935-401 a c r:: ROSEMARY FOLTYN, Individually § (~. And as Independent Administratrix of the§ \_ 0 Estate of Janet Foltyn McAfee, Deceased; § (\J AND JAKE FOLTYN, Individually § o:l Plaintiffs § 0 § § I - ~ I C'J vs. § § § ,., (\j KENNETH COOPER MCAFEE § N Defendant § HARRIS COUNTY, TEXAS C'l c ORDER On this day the Court considered the Plaintiffs' Second Amended Motion for Summary Judgment on Plaintiffs wrongful death claim. The Court, after considering the pleadings, the motion, the response, if any, and the arguments of counsel, is of the opinion that the Plaintiffs' Second Amended Motion for Summary Judgment is hereby GRANTED. Defendan~, Kenneth Cooper McAfee is liable to the individual Plaintiffs for causing the death of their daughter, Janet McAfee. ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after all offsets and credits, judgment in the amount of $1,000.000.00 for her 1 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4LoSter11ng G. S nechal Ill Deputy .I - ..... emotional pain and suffering due to the death of her daughter, Janet McAfee. It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after all offsets and credits, judgment in the amount of $1,0001 000.00 for his emotional pain and suffering due to the death of his daughter, Janet McAfee. This judgment shall accrue together with interest thereon at the rate of 5% per annum from the date this suit was filed on February 23, 2011, until the date of judgment, post-judgment interest at the rate of 5% per annum, and for all costs of Court expended in this cause, for which let execution issue. This Judgment finally disposes of all parties and is appealable. SIGNED this ~~ ..rr- day of_---=-/-~ ?2ar=--=cb~'----' 2014. JUDGE LOYD WRIGHT 2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A.4d. .a Ster11ng G Senech 1111 Deputy Tab3 Application for Writ of Garnishment FILED 10/9/2014 10:18:51 AM Stan Slanart PROBATE COURT 1 County Cieri CouniY 522CAUSE NO. 396935-401 N c INRE § IN THE PROBATE COURT (). JANET F. McAFEE, § Deceased § NUMBER ONE § ROSEMARYFOLYNand § i JAKEFOLYN § i .. § I~ ~ § OF 10 § iN THE GMS GROUP, LLC and § I~ WOODFOREST NATIONAL BANK, Defendants § § HARRIS COUNTY, TEXAS MOTION TO QUASH WRITS OF GARNISHMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Charles Storer, Power of Attorney for Charles McAfee, Defendant herein, and holder of the accounts Plaintiffs seeks Via the Writs of Garnishment Issued by this Court, who m011es to quash (dissolve} the two Wrfts of Garnishment issued post- judgment in this cause (to Woodforest National Bank and GMS Group}, as the Writs reach accounts andlor assets that are wholly exempt from the reach of judgment creditors (indeed from the reach of all creditors). In support of this Motlon, Mr. storer, would show the following: 1 I. INTRODUCTION AND SUMMARY 1. This Court Issued two writs of garnishment at the request of Plaintiffs. While a judgment creditor has a right to pursue collection on their judgment, including via garnishment upon depository aocounts, Texas and federal law sharply limit what property of a judgment debtor may be taken. Here, both or the accounts are 1 Mr. McAfee deslgnated a Power of Attorney heta\lse he 1s incarcerated. ..... or MOnoN TO QIJ.I.SH WRFT-5 GAAHISHMEJlf Confidential information mar have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy entirely and undividedly, protected from the reach of all creditors. Because these .- N 0 accounts may not be taken by any creditor, with any judgment, the two Writs 0. issued while the Court was unknowing of the exempt status of these accounts, 0 1'1 should and must be quashed. II. FACTS AND PROCEDURAL HISTORY ,... ! 0 §42.0021 (a) (including within exemptions •a person's right to the assets held In or N 0 to receive payments, whether vested or not, under any stock bonus, pension, N annuity, deferred compensation, profit-sharing, or similar plan"). Such funds and such .accounts are "exempt from attachment. execution, end seizure for the satisfaction of debts• so long as the account Is exempt from immediate federal income taxation. /d.; sea a/so Lozano v. Lozano, 875 S.W.2d 63. 66 {TelC.App.- Houston [1411>] 1998). IRAs have been exempt from the reach of creditors in Texas, including judgment creditors, since 1987. See Williams v. Texas Commerce Bank. 766 S.W.2d 344, 346 (Tex.App.- El Paso 1989). 27. The GMS account is, was intended to be, and is set forth by GMS as a tax- deferred rellrement account, and qualifies for exemption under §42.0021(a). See Letter from Matthew E. Lipman (counsel for GMS) to County Clerk (Oct. 23, 2014) (Exhibit 2) (describing garnished account as a 'DLJ Qualified Retirement Plan"); see a/so Summary Plan Description for GMS Group, L.L.C. Salary 10 A spreadsheet showing aH deposits Into the account since December o! 2009 Is attached to !his pleading as Exhibit A. MOTION 10 QUASH WRfTS OF GARHLSHMENl PotQe'11 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas tJ) N Savings Plan, at p. 3, 1)6 (describing employee contributions as 401(k) tax- (IJ 0 deferred contributions). 11 fl. 0 28. The GMS account, therefore, may not be turned over to a creditor, including by "" garnishment. See Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App. - El Paso 1994) {reversing turnover order because account was exempt); accord Nu- ,..'\t c Way Energy Corp. v. Delp, 205 S.W.3d 667, 679 (Tex.App. -Waco 2006); Kent 1\J 0 v. Holmes, 139 S.W.3d 120, 131 (Tex.App. -Texarkana 2004); Bergman v. (\) ... Bagmen, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994); Morgan v. Horton, 675 S.W.2d 602, 604 (Tex.App. - Dallas 1984). The unanimous voice of !he oourts resufts from the clear legislative purpose to 'protect the Interests in the retirement fund from credHors and assignees' Kent v. Holmes, 139 S.W.3d at 131. 29. Like with social security benefits, the exemption for tax-deferred retirement acoounts is read without neither exemptions nor narrowness, to fulfill a state policy favoring debtors that has existed since the nineteenth Century. See Bergmen v. Bergman, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994) ld., 888 S.W.2d at 585. ('the long standing public policy of Texas has favored debtors over creditors) [citing Be// v. Indian Uve-stock Co., 11 S.W. 344, 346 (Texas 1889)]. 30. There can be littte doubt that a firm such as GMS, which represents itself as a full service brokerage house,· and advises people on planning for their retirement, presented their employees w~h anything other than an IRS-qualified plan for their 11 The > ~ S' ~ Q ::!. =: ;. .. ("') 0 ;oo~§i 0 Q ~ l'..,l :> ::! c Ill) "" Q. c. <> 11202014:11SO:P0232 = =;: ; (j :> q'l:o)c:>o =. ... llol! _, "0 '"'! .... Vt...;: ~ a :; (""} ;:;> ....., "' Q a"' = ~ Date Balance on Account SSOI Other Deposits Source Mthdrawal Source/Chk# :> 5I 121281!!9 $4,413.03 - :r 01127110 $6,597.03 $25.00 AcctFee "'! - ., 01127110 $6,57:!.03 $4.35 ~ 01/27110 $6,576.36 '""'""'' t::f' 02/04110 $6,576.36 <> $2,000.00 111007 t'> 02116110 $4,576.36 $2,184.00 SSDI ..,:> 02127110 $6,760.36 $5.03 interest t> c. 02127110 S6,765.41 0 ~ 03/02110 $8,765.41 $6S6.55 4] 03Jit3110 $6,108.fl6 $325.00 #1008 c c. 03105/10 S5,783.fl6 $2,000.00 111010 q 03116110 $3,783.$6 52.184.00 SSDI "= ~~·~·· g l ···.4-'o~ ..........~ 3 ;::.H ~ oE. "g. s-:=. \• : ...,.,= .. ..._:: = ~V':. •• ~;:: > ----·-·----·~· -··-~ .,. . ~··· '"' ··-·- --····-···-· .. -· ~ 'h~· .·: _:::":::";:: ~ ~~-r.:>:·· .. .g;:. ~,~ :·········· ~~ :.U.Nl\0') "'''"11111nuu'''''""!>.'~ ::t:t:Zl>> ~,.....=:(j :-·: = Ci'il::s ~-..,~ .... - l":l 0 (") (/) ~ :::: 0 M- N 5n ::> c 1:1:1 1,0 Q. 0. ,., 11202014:1150:P0233 ==~(") ..'.!~:~:~oo a ......, ., ~ .... Ul ' 16127110 $19,067.27 ..'.! 0 11/1812()1 $19,067.27 $2,164.00 SSOI 9 1111Si201 521,251.27 $55.00 #1029 ;;. 11127110 $21,19627 $0.84 lnlert!$1 11127110 $21,197.11 Q. "' $19,024.63 #1031 0 11129/10 521.197.11 2 12114110 $2,172.48 S2, 164.00 SSDI 12127110 $>11,358.48 $0.16 lnt..,st ..,9 12127110 $4,356.64 a 01118111 $4,358.64 51,842.90 SSOI :;- 01127111 $0,199.54 50.21 Interest 0 01127111 $6,1!19.75 "' 02115/11 56,199.75 $1,842.90 SSOI ..,9 02128111 $8.042.65 S0.31 Interest ;: 02126111 $8.,042.96 03/15111 $8,0 > 1:1) ;:; ("'J "'..,. (") '":::!. Q -- =..=- "'..,. noo~§i ...,. N tlJ Q = :::! c 1:1) '-0 Q, Q, ==t::~n <> l I 112020i4:1150:P0234 •:1' 1:1) c e :::. ~ "'!-., " ~-!JI«: ~ > .."'"' = = . = g. 05127111 $13,572.94 = ll6/14111 $13,572.94 $1,942.90 SSOl ~ 06/27111 $15.415.94 $0.61 tnterest OS/27111 $15,416.45 .,= n ' 07/27111 07119111 07127111 515,416.45 $17,259.35 $17,260.01 $1,942.90 $0.66 SSOI Interest .., 10118111 $20,952.40 51,942-90 SSOI Q $22,795,30 I 3 10121111 10127/11 $22,786.15 $0.89 Interest ;- 10/31111 $22,796.19 $3,758.70 Soc Sec? 11/1S/11 $26,554.89 $1,942.90 SSDI c. Q $28,391.79 S1.18 ln!en>S! ,.. 11127/11 $28,398.97 c 12120111 628,3!18.97 S2, 194.00 SSOI 12127/11 $30,582.97 51.15 Interest "a= 12127111 $30,584.12 s· 01106112 $30,594.12 S86.~0 Soc Sec? ,.. 01117112 $30,650.52 $1,976.60 SSOI 0 01127112 $32,627.12 $1.33 Interest 'E. = 01/Zl/12 $32,628.45 ;;;· 02114112 $~,628.45 $2,043.00 SSOI ,..= 02107112 $34,671.~5 $1.42 Interest ":;; O:V%7112 S34,G72.87 03/0S/12 $34,672.87 $100.00 IRS PtoCC$sing Fee ~ 03120112 $34,572.87 $2,043.00 SSOI 03123/12 $30,615.87 $3,685.80 Tma•u'Y levy ,.;; 03127/12 $32,930.07 $1.37 lnterelll "d 03/27112 $3:1.,931.44 c 04117112 532.931.44 $2,04300 SSOI ,,t\ntllllllltt :r ,.,,,,,~ COUI( ~,,,,.,. ~ #o~"..·········.~ ~% ;' .... §~~.~0~•••. ·;~ ...C' .,3 :,'-: g. :~\ '!. : = : ~== ; ~. .: ;::r:~ > O:::...r.·. ··~;:: ":,'> ~ ~·· •• ~§ ~. . .,,.+: . ~············· ~~ :.Utmo") ),.,,~ "1111111111\1\\\\'i ::t:CI:l>> ~ &t Q "1 ('1 Q ;; rn -· =i;e. . 5 0 ~ t-..J ~ ::! c 1\:1\00.. " Q.. ------------------- :::.=;.::;(") 1l202014:1150:P0235 ' "' :;; ~ ' " ' I - "1:1 ..,,....01' ::r 05127112 $37,020.39 '"'I - 06119112 $37,020.39 S2,043.00 SSO! ~ "'.., 06/:!7112 539,063.39 $1,54 Interest ..."' 06127112 $39,00433 ~ 07117112 $39,004,93 $2,043.00 SSOI .," 07127112 $41,107.93 $1,63 Interest Q.. 07127112 $41,109.56 08/14112 $41,100.56 $2,043.00 SSDI 0 .,"',.. $1.78 tnterest 00127/12 $43,152.56 ~ Q.. 118127112 $43,1$4.34 c SSOI .q ::;' "' 09118/12 $43,154.34 $2,043.00 Q 09127112 $45,197.34 51.66 lntere:st 3 09127112 $45,199.20 g. 10116112 $45,199.20 $2,043.00 SSDI t> 10127112 $47,242.20 S1Jl8 Interest Q.. Q 10127112 $47,244.118 "'c 11120/12 $47,244.08 $2,043.00 SSDI 3t> 11127112 $49,287.08 $2.02 lnlefesl 11127112 $49,289.10 a 12118/12 $49,289.10 $2,043.00 SSDI Ei' $$1,332.10 $2.05 fnloresl t> 12127112 $$1,334.15 0 01115113 $$1,334.15 $2,067.00 SSDI 3 01128/13 $$3,401.15 S2.29 lnte '""' \;j'9~~••••••• ,. ~ S' ~$~.··-~··· 4;(1'-:._ ··...·... ;'*" = : ~ ~ 9 :)'r: ~ o: ~. Q s : : --n: = ~ \ : ;;:,i: > ~~-. ;; ~ ":f~:·· g>~ ..·..:~~ ~~ =········· ~~ ""''"11:.U.NfiOJ ~~ 111mm'''''" ::t: 00 > > e; ...... ~Cj ""t ~ m t't> -·:: ..... ""f en •• l""fo- C"l 0 ("')00~5 :::1 0 ....... N fb ::'1 c Ill) "" Q. Cl. /~~ q= = ;: ; ("') Ill) 0 .., I ::! 11202014!1150:P023G ~ "'j .... 'C ..., ..... Ul ' 09127113 :169,646.81 $2.90 fnterest 0 OS/:!7/13 $69,649.71 I 3 1011St13 $69,649.71 $2,067.00 SSDI ;: 10127113 $71,716.71 $2.90 Interest .., 10127/13 $71,719.61 Q. 0 10131/13 $71,719.61 $2.538.80 SSDI n 11119113 $74,258.41 $2.(lS7.00 SSDI c 11127113 $76,32M1 $3.17 lntetliSI ...3 11127113 $76,328.58 12127/13 $76.326.58 $3.14 ln!l!resl :;· -= 12127113 $76,331.72 01127114 576,331.72 $3.24 lntarost 0 "3 01127114 $76,334.96 "g. 02127114 $76,334.96 $3.24 lnlerest 02127114 $76,338.20 •r= ...n !. Total ss Payments $101,904.35 ;: Shortage $2S,51l6.15 ;: I I .. 'tl c:: \\\\UIIIIfllltr :: :-.''''\~ COUJi/'''"" ;· ::1 0 ::1 ~$ -'S ..·. .. ;:::- ,.......,_,._ ll I ~-- ~~-.,. /~~ - ----- ·---·--...-... ~ ~ .. .. ~~ ;.;..~~-=--······· ~ 4..um !K l!lil> 01 WAI I)ATE ............IW.ANC£ 11\TE ............ ~ 1\\lt, .. .,, ...... BAJ.AHCE OI-l& 6.m.Ja C2·04 4,S16.lB 0 a.OSU!tl M1E. .............. . S !OlD 2.000.00 2 C!EC~S FMO fOit A Tll!!ll. Of 12,325.00 tl'IILY CLOSIIIG IIN.AHCt SUtWII CAll ............ IIN.AHCE !IAJE ............ IIN.AHCE MTL .......... IWJ,If;E 02·28 6.16S.41 03-!ll 6,440.41 OJ.OJ 5.783.!16 01-05 l.!!ll.ll6 03·16 5.91>1.116 OM! ~.968.06 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas AAd__o sterling G. Senechal II! Deputy ~ N 0 0. 0 ~-1 6.16S.4l 2,!&4.20 5,968.06 0 N 0 N ,... Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas 0 1(1 OOWi> 1501323404 27,347.VI 'II 0 N 0 N Pmoow S'lE'lllill N:'IA/f!la- o.~t T: l!l16t.l5 ,JS OE!WI!J 1501J~Il4 llo\Tr ............. . 114·20 21 04·23 zs ~IRE CR 04·11 OA!t ................uoJIIT••Wl1'HliWI.Il.S »«! Ol'IIU 68.06 OAH ... ON& 04·05 l, OHJ 30, Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas AA~ &iefllng G. Senechal Ill Deputy OOA·I50132l404 l.llO.CO ll,9!1.4.! ... 0 (\J 0 N · - Slt!U.ll OSHS Nil! OMl\ CR£orn DO· IS Z,lll4.00 IQl·SIX SEt US I'I!E'AS\RY JOJ 06·2S 1.76 lllmEST P~1D 140.097.91 .41 OCCl.lll!m Oil 01·!8·10 111.19 CAllY C\.OSliiG llAIA'!C£ SUOW!f OAT£.. .......... BAIA'«X 01.1 :) . . . . . . . . . . io:~ ~!k~~~· l«l ............ iS:= 2 OIEC~ PAID fOil A TllTAI. Of $2S,Oil0.00 7'~~ Cll 07·01-10 14.12 OAIU ClllSIIll BAVIlC£ SI,HIAAY ~:~ ........ i~~ ~!~"'"""ib~~~ ~~~f"'" '"i6~i 01·20 18.SU.ll 07-17 li!.SlJ.lO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/2912015 Stan Stanart, County Clerk Harris County, Texas ~OO 'T£ ............ ll'oi.IHC£ 07·1'8 IO.IIl.IO 1!11·11 20.697,10 llll·rl 14,6'17.10 0!1·27 14,697.81 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas 0 l~ 0.~ cttW!il l$DIJ~ ~:}······ .. ·····2:~··~s/i1G~~~ 09·21 0,67 !I!TEREIT FAJD ~~·~~ 01! 08-16·10 II$. 57 !:~'Ill ClllSl!f.l flAIAACt S\WAAY ~~""""'i4~J g;~.......... ii~ ~:~i"''""'ii~J Confidential information may bave been redacted from tbe document in compliance with tbe Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ./&::,.dLo Sterling G. Senechal II! Deputy lli\·1501.'3?.l4fl.! : ... 16.682.&.; Z,!Bol.ll! 0 N 0 N l)t!Wil) l5Cl3~ ~'!i;-········· ..2:~·-~~\~us~~~~ 10·27 0.72 llf!£l!E$T WD ~~ m.sl7.1S .~ OCClllRal 011 ONS·ID $16.29 1141!.1 ClOSJII:l llAI.IH;!. S\IWJIY ~~k ...... i~~~~ ~1 k"""' 'i9~~ ~~i"'""""i9~j Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9129/ZOlS Stan Stanart, County Clerk Harris County, Texas Deputy 001.-!50!3~ 19.067.21 21,191.11 0 N 0 N lli\l!:...............Nill.liT .. O£POSITS IJill OJ'HfR CREillTS 11·16 2.184.00 AC!Htl: SEC liS ~ ll3 11-21 0.&4 lll!£1 \t£ .. 0f:tK 1IJ • • .. ... .. .. .NI:II!IT MTI. .. Clll!X IOQ, ..............MOOIIT U·l9 1029 55.00 1 CH£CKS PAlO FllR A llJTAI. OF 15S,OO &.72 119.8'16.12 .21 OCCIIIII!£0 OH 10·28·10 U7.ll OA!LY t\05111;; BAL/.IICE l\lfi\I.RY OAIE. ........... !!At.ANC£ 04lt, ........... BAL/.IICE MT£............ 1!ALMCE 10·?8 11.~7.21 11-16 Z!.2Sl.27 11-19 11.196.21 11-Zl 21.111.l! Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County CJerk Harris County, Texas N tr'l N 0 i). 0 U'l 21,197.11 2,1114.16 OOWI!l !5013134114 1 £11Ct.011.11fS ~~~··········· .. i:~··=~~~us~v~~ !l•t1 0,15 INTElii'Sf PAID OATE .. C>EC>! !10 ..............MOUNT OAT!' .. tlt:t~ r«l ............... AIIll.lll !H9 lOJl 19,ot4.63 1 om:xs PAIQ r.>1 A TOTAl OF 1!9,024.61 ll.US.SJ ~ OCMA!D ()II !1-29-10 117.29 lli\ILY ttO:I!J 6.48 12·21 4.356.64 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .,h:rA4__o Ste1 ling G Sanechaf Ill Deputy ('i L'l N 0 0. 0.00 1,843.11 0 N c N ,.. OIJoiAIO ISO!l2.141>4 DAT(., ............. A - .. D£1'0.Sffi Nfll I)!!IER tl!llliTS 01•18 01 ·11 l.I!4Z.90 Atli·SOC SEC US Tit.'SU\Y O.Zl JIIT£1!6r PAlO .03 .9SI.l :£ S - Oh•t ......... , .. IIA!Mt! Mit............ IIIJ.NC! III.TE ............8AV/«:£ ~H'8 6.199.75 02-15 8,042.6~ lh!·l8 8,041.96 EffECTIV£ ~>PAIL I. 1911. !AA\'£1.£R5 Ol!ill£5 WILL Ill LOOGER BE OFIEI!fll AT liO ®JI.a:. ~~ OF ~ lYP£. Tli\VmRS CHE!MS lilt !lOT ~YAIIJ.SI E ~r .olL LOCAl!~. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Steriir ;, S&n~llll 't ~- IIOIJ23404 B.Oil.96 0.00 0 N 0 N llD'IIHil l~I)ZJ~I DATE ...............Hilltii ..WOSm Nil Olllfll O!EO!TI OJ.I.S l.i34Z.90 llll-Sl.C Itt II) ~ JOl 01·2!1 0.31 IHTEREST PAlO DAIU ClOSING llA1JII:t ~l ~!~i .......... i~~gf t!k· .. ·····9~ ~!}e··········q~J ConOdential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy Ill 1(1 IXll-l51ll3n!04 N 0 0.. 0 ll'l o;t 1.&43.24 9.686.2D 0 N 0 N Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas 9.1la6.ZO 0.00 u.m.!>l .;r 0 N 0 N C£1\Al P.IJ»>CE SUtWI1 DOTE .. , ....... , .BAtMI:E DATI: ............ BAUIIIC£ MT! ............ BAWl:£ Ol-19 Ua&.lj) D4•19 11.719 10 04·Z7 11,719.53 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~jl;I)-~J~'~~~D.eputy ~0;>4~ sterling G. Senechal Ill ill if1 N 0 0. 0 U1 ... ll.l2MJ o.oo 1.84:1.4\ 13,512.94 .... 0 N 0 N DDW \flf Cl.OSIJ«l £!AI.A'IC£ S\I'>Wil' t>n ............I!AIMC£ OllrE ............ 8AIJH:E 'll.rr ............ tw..IIIC£ 04-:18 !1,729.!\3 05·11 1:1,51Ml 05·77 13,5n,94 Confidential information may have been redacted from the document In compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A~~Ster1inn G. Senechal Ill Q Deputy 01 tn N 0 Kmllm t IQ.ftc a. 6729- llliiSTillll 7ltl23 1!,129.53 1.00 1.1!43. !D IAAY :>\Tt., ...... ., .. 11\11:.,., .. .," .. UAW-tC llo\\'1:. • .. !IA\..111 !fiNifi!J! .II:Oll.lfl 01JWIIl 15lll32:14M ~:1g·•· .. ····· .. d:~:~··~g&~li:~R=l0l ~·V 0.83 IIITERI:ST PAlO 119,184.26 .67 o::MRfJ) 011 08·!8•ll 19.66 OAll! ttOSII!il !W.AIICl: liHWOY g::~"""""'iie;~~ ~:1··· .. "'iO~ ~!if ....... ,.~ Conndcntiallnformation may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy 'It (I) N ~973* 0 Q. ,, 0 09- ti ITS lo-18 1,84?..90 ACH·mtx: SfC liS lRWI.Ill 303 tN1 o.il' l~ST PAlO .70 ~~~·~ Oli 09·211·11 110.55 1>\lLY tLI1SlliG -~ SLiiiWIY DATt ............ I!Al.'llCt QAT[ ............ e.~L~Ja 1>\IF............ OOM::E DNa ;4.89 11·15 28.197.19 !He !&.l98.97 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas roo.-l50llll4~1 ill (j) N 0 0.. 0 Ui .. 2ll,l'18.91 uo 2,185.15 30.584.)2 0 N 0 PWCIW. 51!AI.!HG AIWNITAGE AC«UUl N ...,.. OCJWO IS!lll2l-!04 om ............... ND.I!T .. O£POS!1S Mill ornER cR£Dm 12·20 2,11!4.00 ACII•XXSO: SEC US !Rf.ASUlY 30:! lz.l7 1.15 lli'llli£ST PAlO li!!LT CLOS!Hii ll.\lJIICE 5U'tiAA'I lo\IE ..... ,,.,,.1\A!JitCE W.Tf ............ 6111.»1:1: llAl!; ............ llA!JitCt ll-29 Zb.l!/11.97 12·20 30.582.97 12·21 30,584.)2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy ,. JO.IS4,U C.OQ 32,62£1.45 ,. c (IJ 0 N D£J lSOIJ \TE ••••.•.••••••• ,JUIOUIIT•• DIPOSHS ;.!() OM. ST PMD OllLY CUlSING IIAlNa - O ICE SI"WWV DATE ............ IIAl.NIC[ \lATE .......... .,BALIHCE !lATE ............ twA>££ 05·19 31,02Q.l9 06-19 39.0fl3.39 06·21 39.064.93 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 912912015 Stan Stanart, County Clerk Harris County, Texas 001M0 lSOil2:W04 39,064.93 0.00 41,109.16 DCIWO l50132:H04 ~;'i;············::~·-~~'ticT~5m Ol-?7 1.6:1 !l!"lmST PAlO .03 ~· 8/MiR!ll Ill 06·?8·12 $10.24 llAlLY CLOSI~ IWJ.!t:£ lm!IW 13.\lll N:K·mcc 5U: US ~ 3il3 00·71 1.86 lll'liRim PAID 43,a!J.l' 34 W:UAAW til OtHl!-lZ 113.1!11 DAILY CLOSU UliCE SUflARY OA.TI: ............ &1\.AI«:E 1:»\Tt.., ........ ,JlAlMCE DATI: ............ IWAIICE 011-25 4.34 \IU CLOSllll BAt.Mtt SUfWff g;~a ······ ·4~~ 1'a~k .........,~J ~!ir .......,,~ Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Tens Deputy llllA·l50Jlrn04 41,2+Ul1! 0.0\1 0 N 0 PCRSQII UlA.!5 ''0" .... 0 N 0 P!RSC> 1 ~,5' 2:~· 01·28 !.!9 4.1 ~~·~~to~ !2-28·12 12.2'l llii!LY CtOSli!G !WANC£ S - ~~a·····""§i~~ ~!k···· .. ··i.i~ ~!k ....... ii~J Confidential information may l!avc been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas oo.\·150132:1404 51.334.!5 o.oo ... 6.66 OO.ILY CLOS!!oll II\IJI!t£ SI.H\IIIY ~k ······55~ g;):i9·······--sl~~J ~~r······ .. ~;~l Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas i'- (0 N 0 a. OH7·1J 01-ZT·lJ 0 ~j 5T,S•U.Bl Z.069.48 0 (\J c N D!!VIil) l!dllJ'J400 il:1f"""''"'Z:~ OOlY CLOSJWG - ( StltiAAY '6f~s ......... M~ t:i&......... s~~i g::~r ........ i9~J Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy Qj ro N 0 0. 0 :n 59,6!1.Z9 o.co 151.~.78 ':! 0 N 0 PI.RSalk Slll'liiJG ;.INNI!Io[;£ N;J;W/f N Of1WID lSGIID404 Oo\tt •.. , ,, ..... "'''""'""'!'"' 05·14 • 5~0! o.\!L ........ IWMCt !lATE ............ IWANC£ r,m: ............!WAH::£ OHB 61.680.78 0&•18 63,4l7.7J 06·27 6),4-tD.ll Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A·~Ster11ng G. Senochi!~l Ill Deputy 6l.«o.J1 0.00 ll£IWil) ·~·~ Oo\1£ ........... . 07·16 ~·~EO 01! il6·18·1l U6.9t lllllU CUJSIIJ; ~~'tAla S1ffliJ!I nm ............ !WN!t£ DollE ............ llAwtE DA!'E. ............!1AI.Aia 116·16 6l.«O.ll 07·16 !5,!ro7.37 01·47 65.510.01 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9129/2015 Stan Stanart, County Clerk Harris County, Texas ~t:,.d~ 8. Senechal Stelilnc Ill Deputy ·- 0.00 67.51Ml ~ !"' 0 (IJ 0 PlR5011>1. S!Il!lliG IJ!II>Kf>Si AOO:UII N O!IWIO 1SOl3Z341l4 0,..':'£ ...............- 09-20 Z.011.!!0 •• Olll!•ou:nm S'SA mi:AS 310 13 ll$·21 z.ao AYEF.ItJ:. AVaw;£ •I~I!Ul Yl'AA·TO· UA!Ll CLOSING i!WKE S!HW!Y ~~&......... 6s~i ~~ .........u~i &::!r ..... 6i= Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ft,.J~ Sterling G. Senechal Ill Deputy N m (IJ 0 G. 0 ui 57,519.61 0.00 2.069.90 "'0 ~ 0 PU G 111111 T (\j 0 fffiCT!It SEPllJ!lllll 4. IOU, 1X.1t I1.MlS AVAil.... lllTY !'a.ICT 1\1$ om:ID. (\J ... FIJI05 fROll OEIOSifS KIOC AT A A11' VILLI!E AVAII..\Ilt AS FOlltw.l: CASH DD'OSilH~AIUIBl£ Jt411[01A'f£lY Cll£IX OUOSIJ$-AVAILASLE £11 Tl£ SM!IlUSIHI:S$ MY. TYPICAlLY WllliiH NO IW IXXlfl)R!SI AlMS IC:fPT DEI'OSJn. M Ill£ FULl DISCtOSt.I!E Pl.tASt CCI!Tt.c' IOU! l.llCAL lliWICH. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas VNHJ 10·21>13 XHAHO 15Dl3ZJ404 69,1149.7} 11.719.61 '\I 0 N 0 !\! llOWitl l50ll2J404 Ol.lt ............... NU.IIl .. OEI'OS!TS A'lll OliiER OI!DilS ID·lS 2.061.00 ~H·moc sEC SSA 1'llt 15.41 .11 oct!RI!!O OJ! 09-28-IJ J21.51 DilLY CI.OS!IIG 8I.I.Aia SU\'W!Y DAlE ........... t!AI.AM;t !ll SlTHYAIWLE 1101£lllATELT mf~rOSmlr~·~~ ~t'l'i ~.~"MWl~~l£s. PlWE MOrt 1111\l HOT ALL 1olm'OI!!ST AT>!S ACC£PT O!I'O'l!TS. fOR 1l .U.Y ~llliiN lW'llmlS. l~LESS AN Eltl.l'!ltfl ~l.l!S. PlrAS!i >«lTE lli D 01H£JI ruom IH7 J,l4 lliTfl!EST PAlO 176,J28.Sil ,55 IXCU'II!Ell !IIi 11-ZHJ m.BZ DAllY CtOS!!«i!WAiiCE Sl.lm!l' 0.\TE ............!N.N!Ct 1>\Tt........... tlAIAIC£ D.\TE ............IlAIN!CE u-2a 't6.m.Sil 1?·17 76.JJI.l! Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy 01 ill N 0 n. 0 U'l DEI'MD 150132340 (IJHT •• Dil'OSITS Nil OlliEJl tmliTS W ·21 l.~ l!frniES'I PAlO DAILf CUlS!NQ ll'I.AI!Ct I\.HWif DATI ...........B>LIHC£ ~m ............ ~ ll.\lE .......... ,.Il'I.AACI' OH8 76,314.96 CN7 76,33&.20 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy ·0 FAUST OPPENHEIM LLP i('J ATTOII!IMATLAW 411 MADISON AVEIIUE 0 "EWY0Rt !mloa ofl\ml!y d>y~ !roll! lite dolo ohmi P PJWU1JbdlnD~t 1 ib;fl!dmipcdft11crirt, _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ lbtQ~~.mtyc;f _ _ _ _ _ _ _ _ _ sl*olTeu:s.Oft.dt)'o(_ _ _ _ _ _ ~ 0 U:IK t;t iwtd • f:niC: "'W cfthtat.licla, ~Jtkrwlll 1M dc:fh:mdwtk~dtnlt1t4iabtsenolnlhc~ .... ...... ... N c N ........ """' - """' ~ Pt..\ Cou~ No. On ~l~COW•flM~altlhcr...Uhlhf­ ddJn:n:dtolM: dituW'Ok'W"''cdtllhc"' · 0 ~l 0 ....... N """""'---------------------------.....:.-O:owu:,T_, h:/rlr_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ &wvc.wll:ll'lsbtctib;i4'kltitt'lat.tbb: _ _ _ _ ~ c.m.»t...do.\ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ •• _ _ _ ....... _ _ . . ... u~oo _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ,., _ _ _ o'doc.,___.M.i11 ~t!:rn«lpfUnlof\Gt bc!dOII'--=-==========-•"==--~ _M.vd =~Q:)P'fofl.hc•bovtCf:.tlkmfcfu:n~u. . . or!MUJof~~OttnUD41)'1ha;:(ll~~m. ~t-rCo.t'119'ofKarrit,Str.r.urTo;a,lrMrit: • =----------~----------~M----------------- ·-··------- Shmtr-Cor.Ntll.t, H~Covn!J, Tu•.u Confidential information may have been redacted from the document In compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas starling G. Sanechar Ill Ill 0 (!') 0 PROBATE COURT 1 OM 1). JANET F. MCAFEE, DECEASED 39693>401 0 NO. _ _ __ ~i ROSEMARY I!'OLTYN,lndivldually§ IN THE 1'):\0BATE COURT ANDJAKEFOLTYN,Iadlvlduafly§ ONE '::1' Plalllllffs § § 0 § N § c § § OF N § vs. § § THE OMS GROUP, L.L.C. AND § WOODFORli:ST NATIONAL § BANK § liAl!RIS COtiNTY, TEXAS Defendanr:s 1 PER WRIT BV CERTIFIED MAILED APPLICATION FOR WRlT OF GARNJSBMENT1 PER WRIT11!1 b-1 p)f' 1().!1-2014 TO THE HONORABLE 1UDG!! OF SAID COURT: COMES NOW, Rosemary and Jilke Foltyn (herelnafu:t referYed 10 .. ·~obors") 1111 ibeibis, 25231 (}rogan's Mill !U>ad, So ito !00, The Woodlands, Tw 7138ll. 4. Venue ls appropriate ln Harm County, TCX~~S b,..,ause the Judpenl was rondered in Hwrls County, Texas, n. 5, On or about March 21,20 I4, thls C ial se llect on a Judgment. Garnlsbo11 I request that ifClom!shees, The OMS Group, L.L.C.,lll!d Woodllmst National r l Appllcatlon lorWrtt of Garnishment Pagl3 Confidential information may have been redacted from the document ln compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy ...('1 0 l1 0 Bonk are Indebted !0 Kenneth Cooper McAfee by any ac ! url, oJ\c:r considering 1ht pleadlnp, !he motion, the respo!Ue,lhny, and thcOtEU"""'ts of """'''"'• is ofU.. opinion that rho Plolnlilf•' S l~dptnt lo h,mbr ORAN'I'.lm. DoftndOII~ Kcnl1e!h Coo!"" MoAIU b liable to U.. Individual PWnd!!i for ..,.ing tho doalh oflheit daugbrer, ~en ..d credits, jlldsJneot In !he .lll!Ount of S!,OOO,OOO.OO. !Or hot Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Clllodohal pein and>uffttlng duo 10 the dcelh o!h , judgment In !he Olllount of Sl,OOO.OOO.OO, tor b~ 0 N omotk>nal pain and su(!' m lbo dil romY 23, 2011, unllllho t!llll orjudgmco~ poll·judgm J!IIY ........ ·' ...... ~ ron oma ao• 1m · · HOOilON. mwmsH,.. -------------·····~·-------· Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas m 0 J.ri ... 0 (\J 0 N EXHIBIT 2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas 0 N (") 0 1). 0 iii Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas N (1l 0 ~lllllllliiXY Am>ual Report 0. for 0 1'1 TilE GMS GR01JP L!..C SALARY SAVINGS PLAN This is a O\lllllllary of the annual report for the TilE GMS GROUP LLC SALlll\Y S~VXNGS PLII.li, (Employer Idetxtification No, 22·3505264, Plan No. 051) for the period January 1, 2013 to Deceml;>er 3l, 201 een fi;tei! With th p:iby Adlo1Zlistnti.oll.,. as riilqu.~~! \Wa•r N 0 .·- !{Ge RetireiU&ilt Income Seour:l.ty Aat. <>f :1:974 '('i!!U.SA?. N BAS:tC PINIINCIAl. STA'l'IDIBN'I' senefi ts under the plan are provided by a trust (benefi te are J>rovided in whole from trust funds) • Plan expenses were $948,504. These expenses included $946,504 in benefits paid to participants and beneficiaries. A total of 198 persons we"e participants in or benefioisrieB of the plAn at tbe end of the plan yea>', although not all of these pe'rsoile had. )let ·.·~ariled the right to reaeive benefits. :ir'ne ;'vaJ:ue .i:>f plan IID!'iits, after ~Ubt:ra:otfng>'}ill.bil:i't;l,el\; S~ tolls '·'plu.; 'o1iie'.l~:i,a53,:2ia'· ·as of' Xleoell\ber 3:1, ZOt!f eomparetl·ceo· · · s20,J80,393 as of January 1, 201!. Duri~g the' plan year the plan experienced an increase in its net assets of $2,972,820~ Thi& increaee includes unrealized appreciation or depreciation in the value of pla:D assets 1 that is, thG difference between the value of the plan • s assets at the end of the year and the value of the aosetB at tho begilli1ing of the year, o:r the eoet of aaaet•· acquired dudn!J the year. The plsn had tot.al income ;:>f, ii;!,9'U,32.4,, l,nJ:>lUd.~Ag empl,ayer contributions .of.. $:_~9)~/)0 1.•. e111pl;oyee contribution$ of $1.~63;191, galonii ·of $U3;4.76 ·f~:om·· '·,: . '.~ J::he i>au of usets and· earnings from inveotnieots of ·;; ... , '" ;'$~~~74,85'1. ··z YODR RIGHTS TO ADDITIONAl. INFORMATION, reedve a eopy of the full annual l:"o\1 have the right to report, or any part thereof, ""request. The items listed below are iocluded in that report: Ail accountant • s report' aud A$ sets held' for investll!aDt. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Sterling G. Senechal Ill N .:- ·;,-• N (') 0 To obtain a copy of the full annual report, or any part c. thereof, write or call the office of 0 Mr. Jerry Korn :li 5N Regent Street, Suite 513 .... r..ivingaton, NJ 07039 You also have the· dqht to rec ent should be addr,.ssed to: u.s. Depnrtmant of Labor. Employee Benefit• Seoux:ity Administration, Public Diaclosure Room, 200 Constitution Avenue, Nil, Suite N-1513, Washington, D.c. 20210. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9129/2015 Stan Stanart, County Clerk Harris County, Texas :f{~· ·: TheGI.ISOtouo&~~·;.... I 1) T01'AL PAR11ClPANTS ACCOUNT DAUI'ICES ll0,l5!.59 ~~~~ ----·-- ' nt),l5J~··· ~,.,...,..~.,'i'~ ACCOUN1: CHANGE WAS TB.E RESULT OF TiiE FOLLOWING: :1010 UHREi\1.12£0 AniUI)TMF.NT TO MKT 7.310.65 3070 011110~/ID INCOME :rtO. ii> Pbn C"Pian'l wu "'"'bli,~ed fut s ~tn amelllkd and ~:~ltd to cumply \\t\tb the finaf provisinnx ~nd cff«1ivc d.:!tcs of tlt.: Eeonomk Grawth :md ·ra~ RdidR¢eOll!.::lUalion Ac::t of lUU. ("I!OTRkA") end the prO\Iisiom o(th¢ Jub Crcutlon nnd W-orker ' no:.: Act of200Z ~·JeW A.~ "l. 0 11\!a Sutnlnluy tlimi1h,. )W wilh • descnplioo oflb• PIAn and tb •d uatfdU.oilhls Plan is biiSCd upon tb fe ror FeUcrnl inconw- tu pwpo!e~. 7105 SUMMARY 0\!TLINES Ttlll WOI\K!NtlS ()f THij Pf~'IN ~NO IS NOT INTENDED TO RESTAT1!1HO'fERMSOFT!lijPJ.I\N, THF. RIGHTS OF PARTIC:Il'A!ITS UNDER nlnPLAN'WlLL flE OF.TEIL\iiNF.D SOLP.LY SY THE PROVlS!ONS OF THF. ~LAN OOCUMI!N1. ll' THI!ll~ IS A CONl'LII::-rer:TWR!!NTiliSSUMMARY ANDn-IEP(AN, THENTHETE!tN!SOPTI!l!PLANWltt i~111esnUy gov-•HP!sn op riDN,l>OI\nlc•il"cC:o(•pany1 :Thd'.lm "'')' be read d t; !lie C.omp:my•s ti\lingstnn otlice. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas I. NAME Of PLAN: TilE OMS ORO\JP, L.l..C. SA !.All.Y SA VJNGS PLAN PLAN SER!AL NO.: Oil I ,.. orllst N..ANY8AR: Forpurposc • PI"' · Yeurit a 12·monUi period. C:nding"on the alion t\hh.i~cnraty PAte~ l, 1'RUS7" AND TRUSrEES A Trust hu bect~ t'W~:htfithed to fCCd ..>t CQnlribu!innA mfl.d.e uudl!r the Plan. Al the titTtt lbiJ SummAry w.;u prepar.ed. ihe Collowing fndividUllft w~re :~erving as lhc TNStO'Cfi ofttw Trusr. l:!bMll ll!lJi!NESS 1\l!DllJ!l!S Jl!AAY KOliN S llonh l!egtor Stre 0 ~. 0 N t;;· . WN'iRtiicrriof{s. ( . YOI\r, yoU may btl endll ctlmotb OPI•nY""!•l'®•"' ''"'"'· Th« ills odjustmebro by !be ~of.~. tryou m cUI!Il>i toh--llP )ll' or ""'h olhot timo t> ber of each yevr). AdminisfC¥1\lf' mt'dly~t)tn. $'11$pend wiibbahllnt authnritntinn. you Ny elect to resume 401()) s;ll:l!)' deferml contribuUons at any Entry Date {tbc firJt day of JonU;tl}', April, Jui)l and Oc\Obcr of c.cc:h year).. by notif"yinslhe Plllll Admiu- istmtor ill \Vl'iting nt l¢a.it ten (10) dJ:Iys or such other time ['K:riod rk!!WC'd by tbt Pbtn Admlt;Ut:ator, prior to the tiC."tt Enuy U:ue for whi'h 1M tlcetion (0 rc.5ume suluty dcfcrmJ oonfribtllions U. to be eO"eellve, Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy In accordance. \\itb th~ fk:pAruneol of Ubor•s requircmenU. 4:0l(k} saJary dc:ferrat fl:onttihut.iOnl madt- by yon wiJI bt f'l1'\'l·::uded ro lh~ Trusl"s for investment t.Ui proorprly as pouibft- after lhey bavc been withh¢ld lind crediu:d 10 l'OUt :t:t.lary t.ltJCrniltt~Owt\ und¢r the Plan. The Code pi~ a lin1iLoo the MlOUUl of 40t(k) &DluydcrcrrAI contribution' which nay be m2dc in nn)' ooo Plan. Yut byl\lt!hl1 ccmpe.,.tcd l!"fliciP>nl ised of dlt' iimirtn1 -efl'celh'M'cllclrf!UmYarandiUJ)'EimoWtllC011tributtdtoyours:Waij'~~aecount.wiJI.bQa.dju$.t· .nl m:«mllnply. Ally,~ d Utbcd limitswl!lbOrelll;n"'!f!>.""'.with11tf\'/o . •C:hnd on !£t"\7)moolhonftiot'me' t'llie~ · . : •\;>Jni,inrh 'ihc ti plo)!CC •vllodutiJla th• Plnn y.., orptcceding Pllln Yoatawned mo (S%Jjl0m:ntof.tb«l<>llll YllllllJIPowlll' o(tbc Com-pany; an l!mplo)'t'C wbo dulillp.tlu: ~Plan Year hod ••iul•(Comf'!'~l! .lf ~ Complll)'on ot'"iend'.oryoarha.!io in.:xew ofOne Hundred and'!'.. Tho~s..,d (Sl IMOO} oOUnrs rnrCon~nsotinn corned in 1.009. 2010 Rttd in lOt t forlbt ~or pcdnrm.in~ lhcdb-crimin:~tiontesrtuA .tel fttrthurnier S«tiotu4QI{k)lll'kl411l{m}onhe Code~ was llM rl p , 'lOll ""!Slb J>l~~ a.Yt;or of.~\:o · ~dng!h'ePlM:YilJirtO'i>o.,tiutdi.\sli•relnnliyCoti>p..yllll P ;lt Secllon6o)·wti... co'i"''.~Yl¢·1idllf~"!,C' tf. and !fumt1list n nol'pl..,c tM tmploY"O' a:tola! illon:~ the . . . highly eompen:w..s' emphi)'OC'JcwL The. m:u:inium amoum: o( ecmpt.tt.s:uhm 1hnt fll.ll)' be t:lken into uccoont in detent~iuing ;wdlor aU(tl;atinQ Cntnpo.f'ly .:tJmributions tu tbe Pl;m $halt be: Two Hundred and Forty~F'h-..: Thot1t11nd (Sl4S~000) ';) Dolla~• for tt.. lOIO PIM 'I r!•t~tlllll'l!>n.oam~oo lll!-belirt!ll«ltO OOI~o~cddf!rin¥1~~pcriO fj;~.fin Woli }1>U ore al'.iillc!fuul!·m ihi'J>j'" Mdli>r clii;lbl wniob, '"~' tof >llOh.a Honl.rup dlstribu~on, tb borrulcs oflhcT"""""YR tm . (6) oro.Ua, Th cnti:t lb ; Ap.n, lull' and'Oqobcrof ~·l'Wl id!or tho ~iy sb. (6J monilnv•Pcniion. tb) A GS S~ I>ISTRIHtrrlQNS tf )'OU haw. attained tln! ~~of fifty-nia(l. Md oo.t4udf (:\9!-;). yuu mny requc:st ia 'A'filing that the Plo.n 1\dnlinl:otro~tur apprm f!.d,hy'lf> lian not bo l!l!bjcct to lhio ex ); 0 N Di~tributium, xu: :t result of !.he- P:u"ticlprun'A: denth; !"' :r,•" Db1n"butionsJ~:S a result nf tho Ptlrticipt~lll'r pmnnnevt diubiJlty; O!tlrlbu5ons (tom fhcl'l>n af\cr yaur ,.Wimllon fbam.R!>icl! !Aalllt'C !"!ir!;t~ fQU ill thO " Jbrmofst.i»WI\Ilti oqiml periodic~ JbryaurfifirO..m~ll )'Our l lifi.-d ro!il,.nent ploa orio !l!llndMdtt•l Retirement AC(,O\tnt the Um!tnployrnet\1 COlnpcMntion ~~n1mdn:'1C!nu t~f f992 n-quin.-s \hn1 the Tnuite\ withhold h¥enly {20%) pcrc~lt of IJ:u: di&tributiol\ (()~" inoon~ l!iXts. Und~r '"ertain circum.itJtnca:, all or a punion of a distribution m»y 1101 qtulify !or 3 direct ttotn>rtT or mlltwcr to another plan or l:ndMdualltctirc~ mont Accoon.t. Prior In rc«iving s di.'ltn'bulion fiUl'n !he Plan. th~ Plan Adrnini'fb'ntor will d.::liver to you a mort dt::r3Ucd CJ5planation or the distribution opdou; twaltabft under lhc Pluu. Yotl shoufd n.prmides !Iter dim:jbulions 11 retiteroouf may be nutdeln·U.. fonu ofu !Ulllp""m d!:illilrution. Tho •mount to be dislriblll 1""' JI. •~•• prec Vtioll. SINCB !IACH !NDIV!DUJ\t.'S SlTUATIO!-i IS Jffl~Qt,l.ll;;J'T./S 1\EC!OM'· '\! ME!'IDETl'r!l/I.'TYOUCOIISI.IL'i;Wti:!IYOURTI\X/P!NANC!AL.mV!sGMlt'l'O'rifu1'il\i!NOO~ I'UL"R lllSTRffiUTION FROM TlfE PI..AN'. 0 1.\1 i. llfM Til BltN/JFJT.r 0 N Upon your doo.th, the entire amount ;-lt'dittd to your Accowll und~ tho Phm wut be. dl'>tdhuted lo your bcnr:ficluy in tbo. form of o lutnp-'Sl.lm distribution. You willbcP!"vid m,d. 1>1'1),1ioiuywiU aUIOil!'lricallfbo YG"! SflO'IIf(Uil...,.:\'00 ele .w'O® tii,.su.t!ifh s fl sex. who is lawfUJ1y matriN to)'®, i& dCfittit ak 1n" tM De· fwse ofMillniOSC" Ad i~i~y lf? ·~~ a_ ~~gc of ll rior t1hj'!ih.--aJ satus, iruclletnru ability nnd ~:roperitth:c, duoln rnr:ntal or p.bysiC>~J db:ftbilil)' nnd which will hnve beC'n t¢rtificd: t.:'l: by :u; independent physk.iau, you witi be tOUSUh:ted tube rttittd. UyctJ p~tp00e.y.ouv,¢,tlteme1n ~od yew oonml todrcmt'Jif,datc1 ~-~)'·CctR;lirt'R~·~ke ·;40j (~l••liri·:ddi:mil' f!fT/bNABOUTTlji(JM '!ltc T•~ il9,l!l\Y.:Olld fJ,..f.~bllil)' Aol ITEFM) _, Clll fTI!I'll.A ~ll>i!·.~loyoUo p!'J"ideo• mlnilimm conttlbulion foh!ll.mpioy Jltinghu Pl.. tllat is a 'l''• If, during :.ny nh•en ycur. sixiy (GO%) ~tor murc: urUte tot1d ao:ctl\lnt ~leutes ofal1 Prnici:pant:S arc for the benefit of key em1linyt¢:~. (i.e., .,mc:w:rs. or rub$1anlill owners} the phut wiU be deewcd to bt, top-heavy. 15. /,QANS TO PAR71CUW11Ji With the COUJ'Ult rJ( tlie P.lnu 's TJU!ih!tlit you wiU be entitled to bQ.ftDw. fcol:ll ~ l~ &&J!1~ the v.dut nt,;s-our I!IC:count:b~'!UI.ttr l.lttht Fbm. Theinlnimu.in 3'tl'K)Wlt)•ou wilt bc·.~~tlt~·1.o 'bOJ:tow1fQ.Qi ~¢. Plou LtOn• Thouocnd (Sl,llOO) Dnlbm The !l!!!!iml!!:l!•mo•n• l"'1l wiU t;o.cntl11cMo bomwii<>ttllh o\bn:.. NolwiUtslaudiug Mytbing to the tua~ntry. the Fifl)' Thou,..tul (S~O.OOOl Dollor Otnotlnt shall be rodut !ihe wlu.>tlon·dnte lmme l in availinsyonrselfofthio P!Jo opllon, you sbo)l!d•o l'/l.!lm~· loz.i.......Uota}fln ui)I""IO det.,.;Jiowl\ OI')'O 1ied OV lY with Soelion 41J«e) of tile Employee R~'"'' Ac .~'fmt.h~~'~ o~oose·lil>tll . In''""",Vc;,m J:«>~_for >~o ;j!iwo aW.t 4rolh~•d!fll.Jl!!;f$n \ri a fe. rrom tho end of t.ueh initint -peric.d. T'kc ext~ion nOOec shall il\di~1c ili~ spcciol ci[cumsurnw r.:q.uiri:ug mcro:nJJon i. or lin)~ !md the' d!'\<> l)y whle~ tbo Ploa ~tor '"~"''" to nnultr 1M llnal d~lon. !C lllcn> is a i d iuuawmg. · · Th tlnl i~·ivrnloi:'"d e.omotn liN r-·tbr-wldi>~·Ol!tk elaun is mOilc: 1h it•mm m•yr~)ll! ~I"I~J rovld n pa ilil,. ell pt..,_ di>c:limc""' !nC!odlll!llii>W'IlnU ~lmtn;cl:l; .;iilltotlv~ ·!0 Confidential information may have been redacted from the document in compliance with the Public fnformation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas :""·i. i~ ·:; !D l"'l ti'J 0 C.f!!•lning apm , MU • top)' ortbola!.,.laonual n:port (Fonu SSOO Serl..) Ulc c Pktol ent of Loboran~ u"'ilohlo at tl!o Public Dlsdosure Rootn of thC' Employee Dencftu. St e•PI.,, $Ctipfion. The f'J:nl Adminiflralol' fYPY l'n!l.ke a. I'I:!Ut:.m~blo c:hCif80 for lbo eopits. 'It R~ccive a 11Un1t11ary pfthto Plan'.;; .wwat firuuteitd r.oport. Tite Plnn Adroinisl.r:J.tor is r;:. quired b~·lnw to furn~1 c11eh pmticipinl wilh a copy orthii :'1Ulllmll:f)' a:uwo.J tepan:. 0 t\1 Obtcil'l., stnl¢tntmf tullingyou wbefbt;r you b.1ve n riglu to receive a pcru;ion nl your otmmll 0 t Ohli'"'IO"'o'kl u.h:lve.o~rlJ!~fli> bow, whY thil wu.dol}C, tO o,b~.hs: ~tcs.pfdocumcnu cdndnr to ihc dc,!tiOO·~t~vf,chMsr~· Sn«-to · li.la"it'an'Y atnh,(-at\ Withtn tOrtai"D·ltrnc-~Cb:tnMi;. · · · ·· Under ERJS;\. tbere uc ~tcp:s you. can w~ to enforte i.he llbove rightli, 'for instanc::c, if you request acupy ufl1lundocuments:utd•tt latesiiU\rtu.'ll report &om the Plan ~~nd lionut n.'tclVt: them \~oithin t:h.irty (30) dn.ys:. yuu m•.r m~ sui1 in a tl:dernl court. In .$UCh s cua, the court nu1y mJUirt rhe Tru!itecl to provide the mnlcriuts and pay you np to $ll0 BdA)' unlil yuu receive W m.l1trild:ii. unless the. mtntrloin were not stnt becuuse aff\.'"ll.Sons btyond 1be t-ontml orthc Pl11n Adminil!trnJor. lfyoulmvt->tcf.tim furllaehet'Jcfitswhicb iJ denied ot isnored. in wbuk or in p;lrt. you may 01.: suit in a sL:It0 or (edcrnl court. !n addition. if you di:sngrec wlth the Pion Adminhtm:or't.: detisiort or(J_d thc.rcofccmcerningrbo qbNtiliod s::tnis oh domntk: 'rtlktiol10 oni«'oia modlt.loblld s!lpllorr o!OO, you may ni. suitl~.l\:dei>l 'CilOrl; ' · • . lElt>ll61>ldhor>P"l.'!iulrir1.anlldlleil>t~m1"""ruoP!an~moncy,o>l{X\)Ii~!i>c!ls l¢'ii;Aini nS)•.it.eli o>rlolo!ICe fi f, tmti~.or t1.S. Dtpat1.1Mnt otLabort listed in your ~!~Ph~ ~irtt1(9!YOt,tb~f}iyYitin. · ~·:1'«~n;c.rA$S""~ ril)' Aaruinl,tr.o;,n,~_;!l f. , :·;, :-~~"f~O!J~iilti\'!,~?".;r\v.Uu•·N,W.;W~lbill&tort D.C.10210. YilUtnl!Y'I\hi>'nblaln~nl)Ubli«UjO(Or, ll Confidential information may have been redacted from the document in compliance with the Public To formation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas r... 2 }Jr;~;{,-;;~-)1>uiri£h., ~nsi!lUlllc •rill' 11 v..J of•oyiiability tin riJJ.y llliO.S ymi·i....,f. ..·a'nlslifl or " )'t'urinveatmcm 'in.\inn:dotu sl'td decistom. To obo!in lhJs rellef. tbe Plan uwsr meet cmnfn oond.mons. Then conditions .uc. tumrnnrit..ad beiO\\I. 0 c-J Rroad fb:pgt:c( Invurattot Aftcrmtth•c:s. To comply wiih Scc:li(m 404(c) ~f ERISA. partic:ip3tUs mun 0 hAve nn opponunity to chom:t fnun a bfolld range t>finveftm~nt Of!tionll thG\ feprtit..'nt a .-o;oftablo dh l!lolp•nlll are. •llow.d lo uw.,lllt I{ rEIUl!A, partioipnnli ~m~«·i>o providclsiiffi. dent tnromu.uion '"make hribm1ed invc&ttntnt ~eisil)tl.S. Sint:t ;he Pbn doe& NO'f pru\'We apro--dcterrointd fiJ:tl1 iis.l ofinvcslmcnt chofc~ you~ the pllrticiptmt. sr t~lus. pe~ncc histar:r~ investment objective$. ~:~o:pcnaes end lbes. vob1Hhy. etc..). Before- you t~k~ Any inmtmtntdodsioa, you $hoWd rtod and study cnrefuUy Wl Ofthe infann.1Uon ~s;arding.tbt ill~mcmt Rcmtmb\!.(, v\tu srf tlie one legaflyra..;n ~·~·1.,\(fvll:o, Silt..,nonha:U..P!an Admllll>irul!tt(lh .n~ ~ .. ~lsti:A.r.i.i!~ot'Ond tlie truucc(a:) do'NOT otftrr nny.ad\1Ct wUh rttpttt to the ln\-ettnlenl oryour 1ecount ~iittllihetf Undettbe Phm. AU int"C!ftmc::ntdeubin:n1 bdona: tn the pt1rtitipan1. 1md sheu1d bt: b·ued un ~ch pun'clp3n\"1 \hart and fnit$·fcrm fin::uu:i:d ~0.11.\ $nd ll'C:cdll. L•r()('e,uing Your frn1:snne:ot hutrutUon5. Your IICC:Otli'U ectiviiy :md account $tlllcuteltlS: mny be viewed by OCi:'C'.S~in~ }'Llttr nr~ount tbroogh the office S)'Stcm. in tq(' JCT'l/CY C'(l)•, 'N'~tw Jmcy office or the Hotmon-. r(::(S$ off"te9t yQ_U am ftq)h) )"llUi J[Viill ltn: Wl;\'rkill}J bt{;tl't~~~l'l~-tte~if~·n;i~r~.S~·~~U,iu:me orcrntklns ~t:lo'cau:d 'ire your offi~ · 13 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~~~~~~~~~----Deputy Stenlng G. Seneohef Ill :; . ~-;l,~ /lf~'linre.wnr!;;i,~ in ·"'!Y of lhoofll.ccslilted b~ow, )'OlLCllll hovo)'OD~ln~.t.l~i!n>,tru'l(~"'\ P.\~ e o«<>niP.1~hei! o7jci:l!iJI!;Iho',\'i\lllii oiii)>b ittg$tM. Mc;w Jr:my Jme,f City. ~cw Jmey Ool;'..ll R.31on~ florida Otccnwieoh. C.onncctiC!ut Ml!tttti, Florida Sptfugficlt!, P'CtiM)'Ivanb 0 N :,.\ttauuf ftois._ 1'1\ero·ara vatitJUs ~~~~~find fcca Wl).eintcdwith.~ &w~rm~t·iQ."'r:utti~.(e.g. 0 jiro;:miny or, a lnd~)·w1Udl i'li~ O.el~rge to N rOnSfOO tllt·fC4i:and·~ru;;s in ·m,il.tinit rour it:t'ltl\mtnt dUifi\OUS. J( you have :ny quc.'!Liml! tt.--g:~.nJing thil Nolk.~ pleUd t-001.1\cl Timathy J. Don Co-owa~C~J: NoM Docedeal'll =crut: SO% ConndcnUallnform•llon ml)' hne been redacted from tho dotument In complhtncc with the fubllc lnform11Uon Act. A Ccruned Copy A nut: 811011014 Stan Stannrt, County Clerk Harris County, Tun ~llNw~ Deputy Consuelo Arroyo Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4d o Sterling G. Senechal 111 Deputy ..., a A~UQtfl ... I.' 0 0 1nntMion: Tho OMS Croup, UC A-I)'PC: B111kuqcAoo>o"" """"">'CDNo: """->ccr911 n. II. ~ Toed \'alue of utat: 50.00 on d~ Q( de.~ Ill l.caa ~-Ma~poua lhn: so.oo SQ.QQ N t:o-.o'M!cn: None v o..cd.,.f,lllmn: SO% ., AcCOWJ~I4 loi!INiior>: Tile OMS Droop, LI.C !!'... 0 A"OUD\ t)'pr. 'Brokcrap Ac:co\m~ N AeeouaiiCONo: DI'-DX612 N ToL&I-..I~tC"ofUMt SO.OO acSac. afde~lh N Leu ~Untvtq lpoult IbM: so.oo so.oo u·1 CO.OW~~Grt: Hoo. OcccdtDI'J1aw-t: SOK AccoW~tMS lrwdnniol\! ln. OMS Orwp, LLC A~\~: Btokcqc AGOOWU ~UDVCD.No: gx ·~ae~:6'0.S ToLil 'W'Ilue ofUkl: $425,03-4.70 oad.ll&: ofdeath ... Lc.usurvtviDa~rJ~CUM~thln: S eo..owncn: Nooe ,,.,,'121-:{.')\ SI70,6Sl.ll "' 1.·• Aooou:zrtl4 ~...~ ~~ ... Oceedcut'alnt~ S~ ofOOZIIInaDI~ ,C.1r\Mo loniMion: Wollo Poup Nallooal BIOI Ca.oWDm: None Dcccdcnl'l (DtuRt SOK AccoWitrt INiil\llloo: Wood !'oral No~onoJ Baolt Acco\1111 type: CbccklDa. opc.gcd by Kcn~~cd! Mt.Afail dllrlas PIUTiqo wilh leU(, on So:piOIIIbco' 29, 200?. Acc;ouar/CD 'No: XJJCaU404 Tc:a&l -,.l~ Dl um: Sll,l.SIS,9l oo ch~ of eSc.til La1 Nnivlri&IIIQWOaben:: S $19,121. c. Q. ~ Will: ''"'''"'"""''nax.m ToW VIJ~Je; Sll,l30.00 an d1tt ofdc:t.th 1.ca NMvtoatpW~e•h..-c~: sq,4Jj.OO> s6,m .oo N co ... t:o-G~:Nont Docadcnr'l fntant: SO'ti C) ... Vohlolci'Z if1 ~ 0 Dcocrlplloo: 1959 Mm 12.m.oo Ill Co-o'llmff'l: NoN 111 0 Ooc:c:dc:Dr. lnlui.C SOM. V~ltU De~Q'tpd 12.145.00 Co-OWDcn: Nont Oa:.dtnl'•ld~: SOY. 3. HOUSI!:IIOLD l'tiiUIISIIINGS; IIOUKJ>old l\lml""' aod 1\Ralolllnp 114,000.00 TOQIV~IIC: Sl4,000CQdalcofclcoll1 Lea l'lln'lvLca rpoUMGlarc: t 11,000 ~Noac DoccdCDI'J l.att:ral: ~ ma.sn.ts oaMirotdutb SEPAJtATE FROWSTY I. REAL PROPERTY! Conndonlh•i information m•r hvt bun rtdlded from tl'lc doc:ument In tompllanc:• 'With lhe Public lnrormnlhm AtL A CcrllOtd Copy Allest: 8/ZO/l014 Stan Stan art, County Clerk Htrrls CaYnty, Texas ~llNw~ Arrovo f"'nnctt<>ln Pcputy Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4d Sterflng G. Sanechallll a Deputy (j) t,:) (; (l u. ul :::..;z ~=:~G b.lw 10 9IOI.o69).7019 ll: m m Sl,49l.OO ToDJ Val~: n,49S.DO C) ,.. Co-aWIIcn: HOM ~tlAitnl\: 100'K Cl .. CASU IN BANXS' Ac;CO\II"'III lolliM!on: Th• OMS O . LtC A.OOOI.IIM t)'pO: Brokmaa: A.t.cDUrtl A~~'No: IOQI;.a;:t479 $3,440.01 To\al Va!•: S :3,440.01 Co-oWDCn: Non• DoccdcDhlalcmt 100l41 A~t•z lAnfiULiOD; 'Jk OMS OraUPI U.C Acco\M\ 1rpc: Brakcnp Aoeo\1111 Al:coaaiiCONo: X'l.:ll·.n.Oil 116, . Certified Copy />.tltot: Bfl0/l014 Stan Stanart, County Clerk He rril County, Teras Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ... ~ 0 _, 0 c. ~'""' ~~~o: 'na!VUut sa ......--ua,..,. .-..-..-......u.o ... ., 'I .N ~­ -·~..... 1(011 " ~ -''" -Dc\01-~ ~""'-la'oDplba U'\ 0 N N "' c:o_,- ~lf'O.IJQIIIICICC+40:f Tooll ..... ll1,711JI ~·-...t:IVOM ~· TOTAL IU.UU.TJ.IIIO'acn' 'J'Plit,yALQ19'J.UAU 1\t--.l"""afatlltl&totl•c~~P.....t»JPIP,n'.n · noiolltpcoiiOI-.IIioaCO!IIIool.,.....,,....,.~.,.slrloaox7, ~-l.lllotc.loo ..'l'l"""'' ....... ol_.. .,?, . ~ ~ ~Dtda•a.tNotJ-a ?ohl~Mo.Mcc. Dt:cautd tlltl JINrl Conndcnf111llr1fonnr\tJon mil)' lrua been ndKctrd rrom lha docunanlln comp11lllntt w~tb tht l'ubllc tnronn11llon Act. A CertiOed Copy AIIOII: 8/l0/.1014 Stan Stnnart, County Clerk Rarrft County, Texu ~Jr~ANwrr Consuelo Arrovo Dcpuly Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .; liTA'IIOP'mW e<>m Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy 0&108/lOH IIKD ''lO ru 7lll243LLl Lov O!fioe llJOOti_Dll 06/07./2011 10:58 lftc:lleU t. Duff Attorneys at Law fAX)m341m7 P.004f011 l[l ,.. CJ (.:l n. Wldlll' any address rela~ to eitheroi'them, wch as a puvlous residence, .rehrtion,repre5c:ntaliw, or 0:.1 sttomey'a addresa, or con1pany which clld buslncas on behalf ofol1her Kenneth McAfee or Janet F. Cl McAfee or which wu owned In wholo or io part by oltber or both of them. The addre&Se8 include, ...Lrl but are not Umlted to, the following; If) I. PO Box 66352, Houston Tmw, 77266 t'· ~· \li 2. PO Box 460786 Hollllo.o, Texes, 770S6 co Cl 3. 66SO Falr11eld Stroet Houston, Tcnc"'• 77023 ,... Cl 4. 2119 Tangloy HoUSion, Tllltas, 7700S WQOJ>liORJ!:ST NATIONAL BANK II) • !JJ 0 Any and· 6:u::~ds Ill WoodforeatNatlonal Bank aocounu, Ill ofwhlQb 11n1 ..•::~~. :::~:. . presumed to 1:011tain cammunltr,:tut~df~l!'i/ar. filllds bclollgina to the Es!ate, (l) in the n11m0 of .!;.::· /;~.'·:~A>. ·'.::=.=:·... .I Kenneth McAfee or Janet F. MoAfoi:.rifiiivlduaJ,bi( {U) K01111ctb McAfee BDd 1anet F. McAfee ~ .·.-.;- .·. ~:~~v . .~ ~;:.~::;;:. Ill jointly; (ill) whloh names one or both ofthem'ull. s!gru11ary;.(iv) v.:hloh conlalns f\mds in the we, I .:·: .~:... .·::.':~~- .~H~i.~.r:- c:ustod)l, control, for the bene.ftt, or on behalf of Ketiil~ McAfee andlor Janet F. McAfee, .. . .. ~~~ .::::. lndlvid\lOily or jointly; and (v). 1111dcr any address related to ''~jJi~ o~.tj~rid~ as II:;JltOVioue ·:.;:)~/f ~~~~:.::::..:;:~:: ..·.·=·;~·. residBDco, relative, repr*ntatlve, or attorney's addreas, or company which clld ~~~:on.,~~~-f .,, either Kenneth MllAfec or JanctP. MoAtie or whleh ~owned In whole or in put·;;~QrJih :f:~: .,i" i ····!>.·!;,OJ ::~?i· !{/t . .:~:e·:r·::~:::: of them. Th~ addres3c.s include, but are not llnllted to, 1bo following: ,;:~[:';' ·~t .,;~~: // a. PO Box 66352, Holl!txln TIIXU, m66 ..:}~ b. PO Box 460786 HoUltOn, Texa3, 77056 c. 6650 Fairfield S~t Holl'ton, TCIXas, 77023 d. 2119 Tangloy HoWJton, Texas, 77005 hrJG Con fidential information m ay have been r edacted fr om the document in complia nce with the P ublic Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Sterling G. & nechallll Of/01/ZOLL no '' n nx. 7132ztllU Lav Otfico lil)005/0LL, 06/0712011 10:58 Mitchell &Duff Attorneys at La11 P.OOS/011 ...11) BANK OF AMERI~,:.·~·t.' . Ci (' • .; 0. 4. Ar.y and all tund.s 111 Bank of ~:~;x: accounts, all of whic:h an: C() ·:;·;:··· ...·.-.·:~/~ .. .i;::· ;:(:,; 0 prwwn~ to contain community funds and/or fundi ~~!IJinll ! 547049..{)23 b. tfun~to;23 ·:v •!~·:'.i\ .-' 6. /Uly and .iiii:~~ In BBVA Compa.n accounts, Including Laredo National ·:.· :/·:,;:.~:·:;; 4 of II i· I Confidential inform ation may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 '''''""""'''/. ~'''' \ OF lf4l'//. .$'~~· •••••••••• '(-?~ Stan Stanart, County Clerk ~;...... .·· ;::.~.·/;..:;.-.~..: .:-~: ·.. ·.~~ ~ Harris County, Texas ::.:::;,:~~9.:. -o· ...... _ - .·. :u: ,. \J.)_ • ~~ :z:: ...·~- • .. ~ ..... ~ ./0;.44 Starting G. Senechal Ill _Q Deputy ~~··. ~~~IJ f:/ .··~~ v~···········~~.Jt.~~ ..,,,,,,,,,~ ,I- ,,,,,,,,,~ o~/0812011 no 1121 ru 1lliUllll wv otUco li)005/0il • :'t' ~·I ('(' a. PO Box 663~21 HoUJton Texas, 77266 (:' ,.. b. PO Box 460786 Houston. Texu,:77056 C1 ;•::/' c. 66SO Flllrfiold StreCI Houstoni'T~!_}7023 ~ d. 2119 Tangley Houatoll;r ;Il&~~ 7700S,,,i' ', :·: .. . ·.·· · :.... I.{J .~ ·I 7. Any and all fUnds·' 11\:Wo;J~.;Farg!l '·'·:;>" ·• .·:... ~~. 'tM. accounts, Ill of which are Ill presumed to contain· commwlit)' funds.~!lt'or fimk~lleiooglng 10 the EaiAtc, (i) In the JWI\O of 'I .:.l;:;~yt... · ·,·,. . ~th McAfee or Janet F. M~~OC;''liiili,Vii!ually; (i!) KC!IIIcth McAfee and Janel P. McAfee ·r-."' jointly; (iii) whi~h niUilOJ o~~,~~;~dt)(lh~ ~a slgualllry; (lv) wblch eontaln31\mds In lh~ care, custody, control, for the benefit, or ~:~n behalf of Ke!IIIOth Mc.Afeo and/or Ianot F. McAfee, individually o~..j~Uy; and (v) under any addrua ~latccl to either of them, BI10h as a pJC'iioua mldonco, ~j~,·~1~01rt4tho, orattl)Juey's addren, orcom,l)toey which did bu5ineu on behalfof . ·.;, e!th~~~iili~: ..,,· ¥~:or Janet F. McAfee or which wu owned In whole or In part by eitheror both 1• : 'of.;lh~'rJJc.~es \naludc, but II%C not limited to, tho following: :~~;:.r:j.:;-;;:'i:..;·:..:.. ..· ::':.,· .:. ·· a. PO Box 66352, Houston Texa9, 77266 b. PO Box 460786 Houston, Toxas, 77056 c. ~650 Fairfiold S~et Houston, Texas, 17023 lotiO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas OHOB/2011 WilD 1121 PAX 7l3U431ll Lov Office ~0071011 0610712011 10:58 Hltchel &DUff Attorneys at Law G'A.Wll13415517 P.0071011 ,.,. V.) C) () d. 21 I9 Tllllg)ey Houston, Texas, 77005 Cl. c; CITJZENS FINANCIAL GROpp. !NC. C) ll1 8. t"' Airy and aU fuod!llu Citi= Financial Group, Inc. 110001111tJ, all ofwhioh arc lii presumed to contain COilllllunlty .funds arliJ/or .funds belong!Da to tho 'Bstete, (l) in tho namo of KCD!lcth MaAf~ or Jlllll:l F. Mt:Afc11, Individually; (il) Kenneth McAfee and Jma1 F. MoAfee joilltlyi (ili) whiQb nmnca ono or both ofthem ualisnatol')'i (iv) whioh contain31lulda in the care, CUS10dy, control, for tho bcnef\1, or on bobalf' of Kenneth MeAfoe and/or Janet F. McAfee, Individually or joilllly; and (v) UDder 110)1 addrcas related to either of IMm, such as a previous residence, telativc, rcpteaontative, or attorney's addrcu, oroompa!IYwhlch did bualness 011 babalfof ;/ .eM~:x~oth:MC4(~.qr J~l!'t~~ MoA!eeorwhlcJI wasownod ill wholeorinpartbyC!ltl!erorboth :'ktb,. ~-~: ~dr~cs'!ncl~1:~~u\~;~~unJ~'~, r-!no:s: ~- PO Bo'x'66~S2·; H~'T~, 1:7266 : . .:- ·~. ,•, b. PO Box 460786 Howton, Texu, 710S6 c. 66SO Palrllold Stmt Houaton, Texu, 77023 d. 2119 T1111gloy Houston, Tow, 77005 PEBS!JINGLLC 9. Arly and a111\ulds In l'cnhlni, LLC acoolll11$, all ofwbiol! aro pn:&Umod to cont&ln community fun~ and/or fun~ ~ltnlgins to tho Estate, (1) Ill. tbo namo ofKcnneth MoAfee ,, or J1111et F. McAfee, Individually; (il) Kenneth MI:Afee 1111d J~tmt F. McAfee joltltly; (Ill) whlcb I namor one: or both ofthem es a.~ign~!OQ'i (iv) whicb oontAilu funds In the care, cuatody, control, for I the banafit, or on behalfofKeiiDOih McAfee and/or Janet F. Mc:Afee, Individually orjointly; and (v) I ~· 6 ofiG _______ ··---- ···-··-·······-··· .... Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Ster11ng G. Senechal Ill ~, • 06/08/1011 IIID I: ll 111~081011 r· FAX 7132163111 Ltv Office 08107/2011 1 .9,i.!i:l!.~ttnell &Duff Attorneys at Law O'A.W813415517 P.OOS/011 · ·:.:- ..::·.· 0') ... 0 (.) Wldcr·~·~d~J~~ to Bither ofthem, such as aprevloua recideru:e, JO!atlvo, representative, or c. m 1\ttamey•;:~~~:o;.:~mpany whioh dld buslncw on be~alfofeither .Kcm!cth Mc:Afeo or 11111Ct F. C) ;r1 •. McAfee or ~~~··.:w ~ in wholo or in part by oitller or both of them. The ad~ Include, ~· but aro notlhn;:~{i~;·;~Ud~s: Jl ~;: ~d Box 66352, Holll10a Texas, 77266 (I C'l :~(: ~gp:~~~!~.60786 Houa1011, Toxu, 170~6 co ·~·c. ~~~0 P~~-d Street Houston, Texas. 77023 Cl ~· '{."j· .... t'· 11. ~119 Twi.li>fijo~~~tan, TaliS, 7700S ·.;~~/~~}/': ·. :·,:-: ·.;:·. .:::GI~ 4 co, INC. tfl •:;::;::-· ·.;.:.~ ~ 10. Art.y a!ld alli\JI~ln Onunat& Co., [IIC, accounts,lncludl!lg aey Or\latal & II) 0 Co., !no, aubsldlarios or atii&tcs, ln~lfina but ~'i:bltod to tho foUowlng, aU of which arc I ;.j pre8\ln\ed to colltain community funds an;~:~~~~~~~g to the &lata: ·:;::· 1/) a, 989·03491 k . b. 9U-oSfiOO .• ·...t·.;;::- ···;::i}./~'· 11. Ally llld all fundt In Gruatal & ~!i}m:. aceoun~,, Including any Orunlal & ·:·:·:. ·:.:· Co., Inc. subsidiaries or af1ili11tcs, all ofwhkb 11n1 preruuied to conlllin .:oliUilunlty funds and/or funds bo!onging to the E,llrte, (i) in tho munc o!Kcllllclh MoAfcc or Ianc:t F. Mo.Aft.j), l!ldlv\duelly; (li) Kenneth McAfee 81111 Janet F. MaAft.j) jointly; (ill) which nll!;!liji' '.'>:·· 't~~:~~~th .:···.· of them 11 a !lgnatory; (lv) which contains fuads In the care, custody, control, ~~fJIIc ~~~J~~ on behalf ~f ! Kc:nnGth McAfee and/or JDnet F. McAfee, individulllyorjointly: and (v).~.· :a;;;~y ·.: ~related ;.;.·... I ''·-;; ., . ,:; ,j' ~' ..·. " to olthet of~. such aa a previous residence, rellltlve, repreaen111tlve, ot-'it!Oriict.t.,:¢~5$, or compaey whlob did busincw on behalf ofellhetKt:Moth MoAfco or 1anot P. M~~~~~~ was l,. AP'CI4 T••Pm'7 lljv..tlu T oliO ····:;:;,,-;>:.- ' I. I I Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas 06/01/lHl IIBD J1 U FU HlZlflLll Lav Oft ice ~OOJ/011 06/0712011 f~81~15S17 P.009/011 owned in who!~ orln~'"''at\!C!T ··:::~;;,::.. ·:::.. ;:::.: ~L' :PO.Bo'N6352, .:;o:::·:::·:· Houston Texu, 77266 . ,.. Cl ~J o:l Cl ,... Cl 12. belonging to the Estate, (I) In 11\C) name ot:~:z.ioAfee ot Janet F. MoAfee, Individually; (!i) ;;/''' '{ t Kenneth Mc.Afoe and J~~not F. McA!oo ')~j~tly;. (lli)'Which o11111e lhOil'l as a aignatmy; ("IV) which contains funds Intbc care, custody, oontrol,;:(ortho.~f!t, or on behalf ofK.ennelh MoAfoo and/or Janet F. MoAfeo,lndlvidually orjollltly; J:(~)'~jy addrcsuoiAtcd to eltbetofthom, suob u a ~vlous res!den~, relative, representative, orilttcmif.l(Sddre!s, or company which did buslness '\::.:·r~::~;}· .., on behalfofcither Kenne11\McAt'te ot Janet F-l4~-~ includlng.butootlimited to the followins: .·::.·•:.~~:!::{::~!·:;\:~:~: a. PO Box 66352, Ho~j).nn Texas, 77266 ·:=::: b. PO Box 460786 Houston, To: o~,':. which coutain: OJ Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas 06/01/ZQLl IIllO 9: Zl PAX lllZH]lll l.av Of he• Q)OlO/OU 0810712011 1O:S91itcnea & DUff Attorneys it Law (J'AX)2813415517 P.OI0/011 (\! C,i (I Woodf'oreAtNBllonal Bank, Bllllk ofAmerica, N.A., BBVA Compass a. 0:) :aenk, Wells 'Pargo Bank, N.A., Cltizons Flnanoial Group, Ino., (I l'crlhlns lLC, and GNtllal & Co., Inc.; and/or if I {U) Any IUld all addition&! fund1 aod BSSetB w.hich - presumed to .... contain commlllllty fund' and/or fwldiJ belonsm1 to the &laiC• IT IS TBERUORE ORDERED, ADJUDGED AND DECREED that any Mtey or lcdividual,lnoludlng but not limited to Tho GMS Otoup, LLC, Woodforo!tNatlon.al Bank, Balik of ..... Cl America, N.A., BBVA Colllp118& Back, Wells Fargo Blllllc, N.A., CitJZOIIII Financial Group, lDo., PC18hlng UC, 1111d Clrutcal & Co., Icc., which contains, controls, or posseases funds preswued to belong to the community and/or Bstate, is ordered by the Co1Ut to tffccl\lale tho .~~IJil'''~f$18' i !' ·'::}: , r :- ·· · ·: ·.:: .. ~ -:· . ,or. any o~ccra, Tc:mpol'lll')' II\Junetlon ehould KonnothMcAfoe, .. \iaents, . servant!, ~plo~=~aUJ . . ,. ·. • .;:: . .,. ·=.~- • .. ·i· ·. ~·-· '•i'.· ';:~. ·:!:;,.,.;•;- . . .. ar.rvants, successon, as.&l8nSi:tiljiresclit&tlvcs, ana/or •c:f.ia.ciibgO)I hl5 bdlalf, attempt to ace= .••. . . ::~::-::;1.... ~-.:~ -:.. \:i: :r. ~:_\.: :· ~:f:i'· .. ';;l; ·····.··· ··· or ob1,lin ilc:C ~···../. ~~: coiilinunl~ 1\lnds and/or funds that belOJJg to 1ho ~tate. IT IS 'X'REREFORE O:RDEREJ>, ADJUDGED AND DECREED chat lhll T~:mporary uyunctlon Ord11r Ia etrectivo immediately and shall cominueill force and dfcct until1ho Courtmaku 11. dctcrmlnAt!on ofwhatproporty belongs to the Eateto or tho Court rcnderla~U acd fhlalJudiPllCDt b In tho pondlng wronlli\ll death .suit woclated with this matter, which over b later, or by t\u1hu ordu of !hill Court. This on!er shall bo binding on Kenneth MoAfcc, or any officers, employees, agents, !ervanls, su=son, assil!lla1 representatives, attomeys acthlg on his behalf, and on those ponons In aetive concert or participation with hlm. Tho bond posted by the Administratrix Is rcqulred to remain posted. JallO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .ft,- 713.524.2225- Tolcphona · •8' '• '.'!':•... 713.524.5~70. Pao.~lmll ··•.•.! Anomoy for Hoin f ct Foltyn McAt'oo IUiCORDER'8 III!MCIWIDIIII: N.lhlllmo of ~nf•Uon, ""ln-.nt- lolnllo be tn.dequalt for lhl bul plla!Dgnplllo nprod...UOO bocauot ollr.glbl!ty, ollt>or! or pholo copy, dlocolorod popar, tla. All bloci alllguan!lenahlp.oom C) Attorney. for Mr. Cherfea storer CERTIFICATE OF 8ERVTCI! . I hereby certify that a true and oo~ copy cit the foregoing haa been fOIWIIrdlld to ~II partlae and/or cciun.,l or reOOid through our electronlo eervjco provider, oerttned mall, return reoelpt req~lld· l!nd/0r .faceimile on !hie 6?6? ~ day of DeOIIllber, 2014. . .. .· .. Ealhe(Ande~on • oo: Matthew E. Upman Fauat Oppenheim LLP 468 Madlton Avenue VI• Eltclrpn!c hrvlct Proyld•r & New Yo111, New Yoi1110022 fllOflml!t 212-f71.f41Q Dean M. Blumroeen, Eeq. ~615 Southwett FI'88WIIy, SuHe 860 Yll Ef!ctron!c 8wry!ptt Provklar A Houa1on Texaa 77027 Ftctlm!lelfH2Hm! Woodfonnt National Bank, through their registered Bgent Jamee D. Orelbelbla 26231 Grogan'• Mill Road, Sui111 100 The Woodlanda, Texaa 77380 Yl• CMBRR 9fN7tO,l. qbl~f!(I"·Uet l.Z ..,.. .. . . . .J _ Confiden tial information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas o/~_Jd_ Q Deputy Sterling G Senechal lit Tab6 Response to Charles Storer's Motion to Quash Writs of Garnishment FILED 1nt2015 2:19:49 PM Stan Stanart County Cieri OA. r~r 6f' a,... order reletJ.st~ k f/t 55H004628 for a total of $8,355.54 tt is further, 1 ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.L.C. shall immediately send $8,355.54 payable to Deam M. Blumrosen, Attorney, at 4 Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further, OROISREO, ADJUDGED AND DEGREISQ tl:lat tre Agreed Order for Temporary Injunctions in Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased, dated June 8, 201 \, ito dissotyed and all assets aeserieed ttlereiA, aAa iA partis~:~lar, the GMS a~~91:1 At 8RGiR~ iR see and Ute 'Nuudforest eeeel:!Rt eAaiAg it I 404, arEfl"eleased. c.. ORDER PAGE3 Confide nt ial in formation may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .11;_-d.d__ . G? Sterling G Senechal Ill Deputy SIGNED this _ ____,2::oL,L7_;it; __ ANDERSON PFEIFFER, PC By: Esther Anderson Wh-~ tn SBN: 00792332 845 FM 517 West, Suite 200 0 Dickinson, Texas 77539 N Office: 281.488.6535 0 Facsimile: 281 .614.5205 ~) Email: esther@probateguardianship. com 0 Of Counsel: Robert Teir, PLLC fo~+ ~~~ W/ ~ ~ Cf ,4 By: Robert Teir SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.1191 Facsimile: 832.550.2700 Email: rob@teirfaw.com Attorneys for Charles Storer, POA for Kenneth Cooper McAfee Mitchell & Duff, LLC By: Mary Elizabeth Duff SBN: 06166880 210 Main Street Richmond, Texas 77469 Office: 281-341-1718 Office: 281 -341-5517 Attorney for Estate of Rosemary F. McAfee, Deceased By: Dean M. Blumrosen SBN: 02517900 4615 Southwest Freeway, Suite 850 Houston, Texas 77027 Office: 713-524-2225 Facsimile: 713-524-5570 Attorney for Plaintiffs/Garnishors, Rosemary and Jake Foltyn N:IStorer, Cha~es\Onlers\Order Granting Motion to Quash (not agreed).docx ORDER PAGE4 Confidential information may have been redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas JA.~~A ~·A~~ f ~Q~Deputy ~rling G. Senechal Ill Tab 10 Motion to Partially Release Temporary Injunction FILED 2110/2015 2:08:22 PM Stan Stanart DATA-ENTRY County Cieri e MOTION TO PARTIALLY RELEASE INJUNCTION Page 4 or4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas JAN-27-2015 15:25 From:7133686701 To:92816145205 \ CAUSE NO. 396936-401 INRE § IN THE PROBATE COURT JANET F. McAFEE, § Deceased § NUMBER ONE Ul § ro ROSEMARY FOLYN and § \J JAKE FOLYN § § Lf1 v. § OF ("j § ( ,, ,, THE GMS GROUP, LLC and § (\J WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS Defendants ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS OF GARNISHMENT,ANC liiiSIOL'ii JUe INIIYIU~'fi9NS.. On this day came to be considered the Motion to Quash Writs of Garnishment flied by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review and consideration of said MoUon, the evidence, the responses, and the arguments of counsel, the Cour1 finds the following: 1. Judgment for damages in the amount of $2,000,000.00 plus pre and post judgment interest and court costs was entered by this Court on March 21, 2014 in Cause Number 396,935-401; Rosemary Foltyn, Individually and as Independent Administratirix of the Estate of Janet Foltyn McAfee, Deceased; and Jake Foltyn, Individually v. Kenneth Cooper McAfee PiaintiffsiGamlshors herein executed two writs of garnishment directed at The GMS Group, LLC, ("GMS") and Woodforest National Bank ("Woodforest"). 2. The GMS account ending in 606 (SSN xxx-xx-4352) and the Woodforest account ending In 404, hold assets in the name of or for the benefrt of Kenneth Cooper McAfee. 3. The GMS account endln In 606 SSN xxx-xx-4352) is an individual retirement EXHIBIT I 1 Confide ntial in formation may have been redacted from the document in compliance with the Public Infor mation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Ha r ris County, Texas AA.d_ .o Sterling G senectlallll Deputy J~N-27-2015 15:26 From:7133696701 To:92816145205 t... account for the benefit of Kenneth McAfee that qualifies for federal income tax (\j () deferral. Such account holds, exclusively, funds exempt from garnishment under 0 Ct. Tex. Prop. Code. §42.0021(a). Because such account is exempt from ll'i ~- garnishment, the writ directed to the GMS as to Kenneth McAfee's account co i) ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GMS If', that hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth ~·· 0 N McAfee remain subject to the writ. C-.! ~~ 4. Further, GMS Group, L.L.C., Is Indebted to Kenneth Cooper McAfee ("Judgment l\1 Q Debtor'') in the amount of $6,694.39 and account number 55H056008 and $1,661.15 In account number 55H004828 for a total of $8,355.54. 5. The Woodforest account ending in 404 holds, exclusively, social security benefit proceeds of Kenneth C. McAfee which benefits are exempt from garnishment under 42 U.S.C. §407. 42 U.S.C. provides an absolute exemption and there are no statutory exceptions to same. Because the Woodforest account ending in 404 contains only funds exempted from garnishment, the writ directed at Woodforest as to Kenneth McAfee's account ending in 404 should be quashed. All other accounts at Woodforest that hold assets of or for the benefit of Kenneth C. McAfee or Kenneth McAfee remain subject to the writ. It Is therefore, ORDERED, ADJUDGED AND DECREED that the writs of garnishment directed at (I) GMS Group, LLC, for the account number ending with 606 (SSN xxx-xx-4352) in the name of and belonging to Kenneth McAfee, and {il) Woodforest National Bank for the account number ending wHh 404 In the name of and belonging to Kenneth C. McAfee are QUASHED. It is further, 01\DER PAOU Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A..d.J .Q Sterflng G. Senechal 111 Deputy JAN-27-2015 15:26 From:7133686701 TD: 92816145205 (0 ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group N Ci LLC, and Woodforest National Bank that hold assets In the name of Kenneth McAfee or 0 a. for the benefit of Kenneth C. McAfee remain subject to the writs. Speclflcally, u: Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, LL.C., (!l (.) the sum of $8,355.54, such sum to be credited to the judgment entered In the wrongful Lr! death judgment. It Is further, ORDREED, ADJUDGED AND DECREED that the payment of such sums as set ('~ forth above shall issue from funds of the judgment debtor, Kenneth Cooper McAfee, "' ',.J currently being held by Garnishee, the GMS Group, L.L.C., from the following accounts: $6,694.39 In account number 55H056006 and $1,661.15 In account number ,1t ~ r~t 6'F tU.. ()rdet rekt1Jrf8 k 55H004628 for a total of $8,355.54 it is further, 1 ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.L.C. shall immediately send $6,355.54 payable to Deam M. Blumrosen, Attorney, at 4 Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further, OR.DsRE[) 1 ABdl:JDOED ANB BECRE!!C.#lat ~Agreed Order for Temporary Injunctions In Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased, dated June 8, 201 ~ Ia dlssol~d and all aisets-de&efibefj thereiAt aRe 11'1 J'BI'tlslllar, the eMS a~::oo~:~Rl &R9iRII iR GOO ar rd ll re Wwdforest eeeo~:~At eAsing iJ • 404, are released. C. DIDI• PAOE3 Confidential infor mation may have been redacted from the document in compliance with t he Public I nfor mation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas --~ Lt; ~,~4, ~·'4- ~~ Ctt~Deputy Sterling G Senechal Ill JAN-27-2015 15:26 From:7133686701 To:92816145205 SIGNED this _ __,2~7-14 __ U'\ ,.~ l'O 0 ANDERSON PFEIFFER, PC \li ~~ By: Esther Anderson 0 SBN: 00792332 C\J 645 FM 517 West. Suite 200 Dickinson, Texas 77539 ,.(I/ Office: 261.488.6535 c~ Facsimile: 261.614.5205 0 Email: estfler@probsteguerdlsnship.com OfCounsei: Rober1 Teir, PLLC fo!uf t.t.-4, V1 ~ ~ 9t4 By: Robert Telr SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.1191 Facsimile: 832.660.2700 Email: rob@telrlew.com Attorneys for Charles Storer, POA lor Kenneth Cooper McAfee Mitchell & Duff, LLC By: Mary Elizabeth Duff SBN: 06166880 210 Main Street Richmond, Texas 77469 Office: 281-341-1718 Office: 281-341-5617 Attomey for Estate of Rosemary F. McAfee, Deceased By: Dean M. Blumrosen SBN: 02617900 4615 Southwest Freeway, Suits 860 Houston, Texas 77027 CHfica: 713-624-2226 Facsimile: 713-524-0570 Attomey for Plalntlffs/Gamishors, Rosemary and Jake Foltyn N:~torer, Charlet\Ordeft\Order Granllng Molioll to Q\lnh (notagreed).doc> .. -----...:P..:;:.0:.:.13:::.1.;;;02;.;4~ 0&/0812.01L 1110 t12a ru U3zz•HL1 Lav Ofrtae [i'J0~2/0~1 ,~ 01!/0712011 10:68 HJ!dlattr.Duff Attomays atLaw P.OOV011 (I) 0 0 c~ No,S,6,93S tn .. w I lNTBEP.ROBATECOUR'l' co f c.; JANB:r li'OX.TYNM~, I N0.1 U'i I -~ J)ECEABED I llA.RlWl COUNTY, TEXAS () r~ t\J r•• l\i () ( c beulnJ onJnn 9, 2011. Thb agreement is ovidonoed by colllllala' •lsnaiiUea bolow. ThoCollriflndathataUnoooPA:yp~wsoftbaiAwbavoboea.lopll.yllt.lbflcdlllldthll tho Court bujutlld.l~tlon{n tbls oue &lid ofa111h•.Partfu. Tb• Court f!D4s tllatRIIaenwyFollyD,aa Adai!IUelratrfx ofthe P.etata oflll!let'FoltynMIIA!oo, it ontltll:d to a TmpotatYJn.lunat!DII. hCID EXHIBIT I 2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas P.0141024 '"'r:t• 011071201 5 o 16:40 DI/GI/20U Will h '&G FAX 7U22UlL1 lAW OUho IIJOtl/011 M 0810712011 1o:ss Hltcllen &DUff ~aw P.otl!/011 Cl \4$1"1 0 .~ n. 't!~jlic:..::.,. .. Ul , lT IS 'l'aJtllUO , 1hat IC.Imne!h McAfee 11111 all ot blc office:r~, epnu, ·~ o:l .""ii.C.lll,lhigns,ra~var,BIIdll10meyaaroCII'Cielcd OllJ.MiliCil'ij o' to imml4latcly OG•Q 111d deallt · d OGallol oflh& foUII'Wina !WOOIIIlllllld FOPIIII11 Lf'J .,.. -·OUP.Llc9 0 ~~ ~,., AD)'IIIldallNiuls1!oMSOnlup,L'LCIO"WDtr,~udlllgbllt.uotJ!mltcdiD ~j.. l. the tbUawing.lll ofwhich m pr1:~4 eomllllllll~ &ndsmdlotfimds WIOIIBiDs to tho , (\j (:) Ba!ato: ~ ~ ( a.5nl~~~- ·r b. SSH·OS6i8 v..:. ~ ~ c. SSL-66060(. . ~~'l,.o•• l ~ cL S5H.00361~. ~ ~ c. S.Slf.034914 ~ f, SSK·850012 B· S5H..Q42479 b. SSH-008207 i. 98!1.034511 ( \. -· J, 996-66060 lc. 989·03SOD 2. AtfoJ 811d.ell ~sln OMS~- all otwhlohatoJIIIIIWIICdto I corrtaln camn:nmltyt\lnda 1.114/or funds bDiouslni to t\s.tatc; ~ th~r~ IIIDU ofKeanelh Mo~c j. or Janet Jl, MoMea,lnd!vld\Wb'i (II) Kalnlllh M~~· MoMoejoii\Uy: (Iii) wlllab DIIIDII one~ ar both ofthem u asl81Jatol)'l (lv)wh!ah~ the aare, ouSIDdy,~:a~~bol, Car Aslelf'I''"'II.,.IY'-JIIUIIea ltfiD ,. tb6 b1!110111. or on behalfof'ICeD!IIIIhMo.Afto 1111dlor111DDI ~lvld\11lly orJDinlly; 1111d (v) 'lll"'l"~- . ~-·~ . ~-~,~~ I ! ;. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas -~ .ft ~_d, ~·'--'J..---.~· -11 Q ~_Deputy Sterling G. Senechal Ill 0110712015 16:40 ....J~'l:!! 23 d. 2! 19 Taqgl&y Houtt~m, Texu, 77005 m&mNGU& !l, kJr1 1114 ell tunda fu Pcnhlni. LLC acoourttt, Q1 ofwhloh arc~ to COIItaia COJmDIIIIify t\snda and/or Aulda belOlleiDB to 1ha Ba1ate, (1) flllho 11111110 otxmno!h M~ Ii· or Janet )", MaAfeo, Jlldlvldually; (II) Xollneth McAfu 1111d Iwt I, MIIAfco jo!Dtlr, (W) wlllob 111111101 on~ Qrboth of!ham u aaigP.tom ('IV) whfob aontain• tlmdl in1h1101110r aatody, OIIIUtOI,fDr I .I tha banllfi~ oren behalfotJCesmetk McAfisa md/or JanttP,McA.feo, ll'ldlvlduallyorjoinlly, ami (v) Ir I Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ./Lt;..Jd . Q Ster11ng G Senechal Ill Deputy 0110712015 16:42 P.019/024 ,Jiii!!I , 01/01/2011 IIID 1121 FAX HS22U~11 lAw OfUce 11)1081011 l-.; • fAl02813415St7 P.OOS/011 r-.. ~ C'l 0 0 ~~ "'Cl to e!lhar otthem1sucb ea aprevlo111 realdens:e, relallvo, ~ve, or U'l ~ llll)'wblahdldbu.rln•onbobaltofdthor~MCIAleeorJ'anctF. (W (I ni wbolo or In part by ehhor or both otthezn. The addrwal !nalwlo, Ui c:: • P Box 66352, HOUJ!On TCDI, 11266 r·.J N ,~ lu~~ ~~-, · ' ., ..60786R'oaa~m~. Tws, 770S6 (\j ~:) o, ~ . F~~ S116et Roii&IDII, ~ 77023 d. ~ouaton, Toxaa, 77005 ( l o. Any aocl all . . ·o·co.,mc. ~~ ~ ~ Co., Inc. IQOOUIIIB,lnaludlnsiii.Y Qnlclll&. 0 "'~ Co,, Irto. aubalc!Jarles or Ufillaw, In~ ~led ro th6 followlns, ali at which 11.1'0 ~ presumod 1o coDIB!n c:Q1111Dlllll1f 1\lnds ~ 'belo~g to ths Bstats: ~ .. 989-03491 . b. 989.05600 ·"f.' 11. Any end all funds' In ODilltal & c;, BCC~~IUI!¥10 bscluc!Jn& any Gtuntet & C..· Co., lil~ llllbaldfllliu or af61iaw, Ill orwhlab 11111 ~d tD CODtsin 001DU111Dil7 fiiDdl and/or r i (tf) KoDIIath MoAt'eo aad 1anol 'F. MaAtbo jolnlly, ~tl) which nAtb 1imds blllonafniJ lo 1MEslato, (i) in tbD namo o!Kcnnolh MaAfoD or laDIItP. MoAtbo, llldlvlduaUyj of lbom ea. a llsnatoJ:Yi (lv) which OO!Ilalnet\.lllds In tho care, oustody, conll'Dl, :tb\l1J:~~ ~ bahalf' of Kcm!Gth MoAfeoand/or 111110tF. MMfeo. lndMdually orJolntlY:IIIlcl (v)~ an!;e"rela!cd ~o elthor or them. lw:.b. as a pzevlous rtsldenu, rellltlve, reproaematlve, ~:c · · ~ ·~ ., 1, or company whlah did buai!IIIIS 011 behalfofellhatXemlollt MoAfco or 1anotP. .. ., wu Apol4\....,"""7b!U.Wo fttll ~ • ., .i~~A ~~l i. ! Confidential in form ation may have been r edacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Har ris County, Texas A- ') 0 U'1 ~ ...- 0 N (\I ~ ... d. 21f~ (\J 0 c aprevious rwd=~rel,tive, reprosenmdve, on balullfofeither KeiiiiCIIh M!:A~e ar J~~~~et'F. ud!Jig, bucuotllmltecl to lhe 1bllDWhlg: ......d~ }.~~..,.,· a. PO Box 66352, Hotn TClC.DI1 17266 b. PO Box 460786 HoUlton, T6lW, 110$6 l· Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A44. o Starting G. Senechal Ill Deputy 16:43 P.0211024 06/08/20U 11110 J12l P.U 1UZ2U1U Z.aw OUf.c• IIJUO/Dll ' ~ P,0101011 0810712011 10:59 Hltchell &Duff Attorneys at LaW IJl CIJ (" ·' () Cl. Wcodfilre.4tNazlaDBI llllllk, Blllk at'America, N.A., BBVA Compw li'i ,.... l!ank, Wells l'qo Bank, N.A.. Cltizenr Pilumclel Group, Inc., co () l'ertlllns tLC. &lld O:ulllll A co., ~no., aud/or li"i ,. (U) Any lllld all e4dlll011111 fimda aiiCl U81111 w,b.lch arc JI1UIDI1ell to 0 llCIIUIIIn OOIDIIUlllltr i\lbds W/t1r timd5 blilvupq io the Bsta1o. (\j CIJ (\) IT IS TBJr.llUOlUt OBDERED1 ADJUDGED AND DECimED that llllJI. or 0 illdlvldllfll, lnollldlng b111110t Umltod to Tb&OMS OIOIIp, LLc, WoodforestNallol!Al"Bmlk,BIIIk ot Amorlct, N.A,, Jl:BVA ConlpSN BaDk, Wella Fargo JIAIIk, N.A., CltJ!lOIIS P'manolll Group, lila., Jnj11110Uan Order ilr ~v~ immediately a~~cllhall c=iinu~Jn!oroo ami a!Jl::ot\llltiltho Co\utlftalce aclclmmlnntion afwhatpiOJlort:)' belonga1o the Esrato ortho Caurttellderl &fillll.tld&aljud&ment I& In the pending wrondul doatl11111lt wollillled wlth thluzullw, which ovar lalatt:r, arb)' :lw1h.e: otdat of tb1l Court. 'Ihls order rhall 'ba DlncliPB !Ill XfOIUictll MoAfc;c, or aey offiCCII'I, Olll,JilCI)'aOI, sgents, .•eryanla, suC~:CSsom, 1111sigll&, J'O,Pmellta!lves, allot118YI aotlDg GD hl5 ~.and on1hDSCI pelfOIII ill active 'Diloort or pa:tldpatl= wilh Jlim, Tbo bDI!d pomd by the Adlllilllmarrlx Ia J'OCjUh'ed to~ poatcd. JaiiO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Jt;_44_ Sterling G Senechal Ill _Q Deputy P.022/024 01/07/2015 16:43 • OS/08120n IIBII PI U PAX 1UZ2U1U Low Dttice I!JOU/GU 1 I 0 0810712011 1o:ss Hltchan& Ouff Attornayut Law P.0111011 l\J' 0 0 [). li: J'\ \oJ (\J (\I (\J 0 . - .. -· --- .. - ----. _..... ~..... - .. ------------ Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~~~ ~·. . ,.-4.m.....J-r;~.4L~~·Q~_Deputy Stfirling G. Senechal Ill Tab 11 Motion to Partially Release Temporary Injunction FILED 3/6/2015 4:35:23 PM DV Sian Stanart DATA-ENTRY County Cieri -- Deputy Summer l ea Willette ... No. 396,935 ... IN'THE ESTATE OF § IN THE PROBATE COURT 0 § ll. JANET FOLTYN MCAFEE, § N0.1 0 § DECEASED § HARRIS COUNTY, TEXAS LI'J .. IJ"l 0 ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION N On _ _ _ _ _ _ __, the Court considered the Motion for Partial Release of the 01 0 Temporary Injunction filed by Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn crl 0 McAfee and the arguments of counsel. After due consideration of the Motion, the Response thereto, and the arguments of counsel, the Court finds the motion is GRANTED and orders the PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumrosen as the attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee as to the accounts referenced below ONLY: 1. Account number 55H056008 holding approximately $6,694.39, or all funds remaining in the account after liquidation and account service fees, at OMS Group, LLC; and 2. Account number 55H004628 holding approximately $1,661.15, or all funds remaining in the account after liquidation and account. service fees, at OMS Group, LLC. IT IS FURTHER ORDERED that the other accounts and assets described in the June 8, 2011 Agreed Order for Temporary Injunction should remain subject to the Temporary Injunction. Signed on: _ _ _ _, 2015. PRESIDING WDGE Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ------\~ L...!..!....:..~·~L..:,=._ h; \{(~-~-·Deputy Summer Lea Willette ---------------------------··· N Approved as to Form Only By: 0 MITCHELL & DUFF, LLC Cl. 0 lll ... !iii/! Attorney for Rosemary Foltyn, Administratrix 210 Main Street ... FUchrnond, Texas77469 0 Tel: (281) 341-1718 N Fax: (281) 239-7928 01 Email: eduff@mitchellandduff.com 0 crJ 0 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas --~ ---"'-~"---- ~V/(_i/JrJJt _ _.Deputy Summer Lea Willette Tab 12 March 12, 2015 Transcript 1 1 TRIAL COURT CAUSE NUMBER 396,835-401 2 IN RE: THE ESTATE OF * IN THE PROBATE COURT OF JANET FOLTYN McAFEE, * 3 * ROSEMARY FOLTYN and * 4 Jake Foltyn * HARRIS COUNTY, T E X AS * 5 THE GMS GROUP, LLC and * WOODFOREST NATIONAL BANK, * 6 Defendants * COURT NUMBER (1) ONE 7 8 MOTION TO PARTIALLY RELEASE FUNDS HEARING 9 10 Came to be heard on this the 12th day of March, 2015, Motion 11 to Partially Release Funds Hearing, in the above-entitled and 12 numbered cause, and all parties appeared in person and/or being 13 represented by Counsel of Record, before the Honorable Ruth Ann 14 Stiles, Associate Judge Presiding. 15 16 VOLUME OF_1_ 17 18 0 R I G I NA L 19 20 21 22 23 24 25 2 1 APPEARANCES 2 ATTORNEY FOR CHARLES STORER: 3 Robert Teir State Bar No. 00797940 4 845 FM 517, Suite 200 Dickinson, Texas 77539 5 Telephone: 831-365-1191 6 ATTORNEY FOR PLAINTIFFS, ROSEMARY FOLTYN AND JAKE FOLTYN: 7 Dean Blumrosen 8 State Bar No. 02517900 4615 Southwest Freeway, Suite 850 9 Houston, Texas 77027 Telephone: 713-524-2225 10 ATTORNEY FOR THE ESTATE OF 11 ROSEMARY F. McAFEE, DECEASED: 12 Mary Elizabeth Duff State Bar No. 06166880 13 210 Main St. Richmond, Texas 77469 14 Telephone: 281-341-1718 15 16 17 18 19 20 21 22 23 24 25 3 1 THE COURT: The McAfee Estate. 2 MR. TEIR: Good afternoon. I should start by 3 explaining that I am not Esther Anderson. 4 THE COURT: I am aware of that. So you are -- 5 could you say your name? 6 MR. TEIR: Robert Teir, T-E-I-R. 7 THE COURT: T-E-I-R? 8 MR. TEIR: All right. So, is there opposition 9 to the Motion to Partially Release? 10 MS. DUFF: We have actually two motions. They 11 have one which includes the Wood Forest Bank account plus two 12 other GMS accounts. We have a motion to partially release 13 which only includes the GMS account. There is some dispute on 14 the Wood Forest account. I have talked to Ms. Anderson about 15 it. There are two -- we agree that it was for the most part 16 SSI deposits into the account which the Estate would have no 17 claim against. However, there are two fairly large deposits 18 that no one has given me backup that happened prior to the date 19 of death that I'm trying to find out what the backup is on 20 those and whether or not those were community so that they 21 could be taken out of what was being distributed out of the 22 Wood Forest account. We are asking that our Motion to 23 Partially Release be signed, which just includes the two GMS 24 accounts. 25 THE COURT: So our only point of contention is 4 1 the Wood Forest account? 2 MS. DUFF: Yes, Your Honor. 3 THE COURT: Okay. So would you like to proceed 4 on your motion? 5 MS. DUFF: I don't think they filed an 6 appearance into the probate, which this is under the probate 7 cause number. And which cause number are they filing 8 appearance under? 9 UNIDENTIFIED PERSON: 401, Wrongful death. 10 MS. DUFF: The wrongful death matter. So that's 11 just the trial. Storer as the Power of Attorney, I don't know 12 that he would necessarily have standing in the probate matter 13 at this point in time. 14 THE COURT: Well, in regard to the Injunction, 15 clearly, Mr. McAfee is the person -- 16 MS. DUFF: But it's Mr. Storer as the Power of 17 Attorney. That's who they represent. 18 THE COURT: Right. Which is representing -- who 19 represents Mr. McAfee? Is that a point of contention? 20 MS. DUFF: That's a little bit of a point of 21 contention. It has been over these two cases. They have 22 entered an appearance in the wrongful death case but no one has 23 entered an appearance, unless they consider this their entering 24 of an appearance, in the probate estate itself. Mr. McAfee has 25 entered one but Mr. Storer as his Power of Attorney hadn't. 5 1 THE COURT: Okay, so are you contesting that Mr. 2 Store has Mr. McAfee's Power of Attorney? 3 MS. DUFF: I'm just contesting his standing to 4 make an appearance today. I believe Mr. Blumrosen has also 5 contested that in the wrongful death case as well. 6 MR. BLUMROSEN: The wrongful death issues were 7 basically I believe that Ms. Anderson indicates that she is 8 only representing Mr. Storer, she is not entering an appearance 9 on behalf of Mr. McAfee. But the issues in this, Your Honor, 10 are quite simple. Everybody agrees that the two accounts, the 11 GMS accounts are subject to garnishment, that they have been 12 garnished, and all we are waiting on now is the Court to 13 release the Injunction. And it would appear to me that the 14 only person that may have authority to do that would be someone 15 who has been involved in representing the Estate which is Ms. 16 Duff. The other language that is contained in Ms. Duff's Order 17 is language that I have spoken to the GMS attorney, that he 18 said that the only way they would ever release the funds in the 19 GMS accounts is if that language was contained in the Order. I 20 sent that to opposing counsel and indicated as such, and again, 21 even though they don't even contest the fact that those 22 accounts are subject to garnishment, that language is not 23 contained in there. So if the Court signs their motion, the 24 GMS counsel, Mr. Lipman has indicated to me he can't release 25 the funds because, since the market fluctuates, that has a 6 1 specific dollar amount in it as of whatever the date that we 2 last were provided information on those accounts. The language 3 that's proposed in Ms. Duff's Order indicates that amount plus 4 whatever amount is left in the account after liquidation and 5 fees. And for whatever reason, Mr. Lipman, as attorney for 6 GMS, indicated he must have that language in the Order or he 7 would not be able to release the funds. 8 MS. DUFF: So my motion is specific to the GMS 9 accounts. 10 MR. BLUMROSEN: And as I see it, Your Honor, the 11 only contention here is that they are claiming that the Wood 12 Forest account should also be released. All Ms. Duff is saying 13 is she has asked for, and I believe it's been documented, she 14 has asked for backup. We agree if it's Social Security 15 benefits, I have already pulled the garnishment. We are not 16 entitled to garnish that because it had Social Security 17 benefits in it. However, the Estate may or it may not have 18 claims to it, depending on the character of those assets, and 19 all we are simply asking is on behalf of the Estate, since this 20 case has been going for five years anyway, that the Estate be 21 entitled to look at the character and the backup so that Mr. 22 McAfee, who is now a convicted murderer and doesn't get the 23 benefit of money that he shouldn't get, and it seems pretty 24 easy if they would provide us the backup if it was there, and 25 then we would have no problem and release the Wood Forest 7 1 account to them. That's hasn't been done. And as I 2 understand, all she has asked for is some backup, and if they 3 provide it and show that it is Social Security benefits, then 4 according to Ms. Duff, the Estate will walk away from their 5 claims of it because they won't have any. That's really the 6 only issue of this hearing. 7 MR. TEIR: I don't want to interrupt the dueling 8 monologue. Continue. 9 MR. BLUMROSEN: I'm finished. 10 MR. TEIR: Because it seems like they are 11 arguing against what they perceive our position is but didn't 12 want to hear it. 13 THE COURT: Right. 14 MR. TEIR: Your Honor, the issue of the Wood 15 Forest account is res judicata, respectfully, in this Court. 16 This Honorable Court ordered and held that the account is 17 completely one hundred percent exempt from garnishment in its 18 January 27th, 2015 Order. The Court did so because of its 19 inherent finding that every dime in the account is exempt from 20 the reach of the Plaintiffs and is Mr. McAfee's Social Security 21 income. That issue is decided and we say what's good for the 22 goose is good for the gander if we are going to tinker with the 23 Temporary Injunction that was agreed for the sole purpose of 24 counsel getting paid a fee of eight thousand, that's all that's 25 going on here, then allowing Mr. McAfee access to what all 8 1 agreed is his money so he can have an occasional stamp and 2 piece of paper and Amazon book while in prison seems very fair 3 and is the only result, respectfully, consistent with the Order 4 quashing the Writ of Garnishment. The Order held that the 5 Plaintiffs can't get at that account. Therefore, the only 6 party that can is the Defendant, Mr. McAfee. And right now he 7 can only access it through my client, Mr. Store. So we ask 8 respectfully to allow the learned opposing counsel to be paid 9 their approximately eight thousand dollars they have been 10 waiting for from this other account, which we have no objection 11 to. They are correct. But also to release the injunction to 12 the funds that this Court has ruled belongs to Mr. McAfee, and 13 to do both. 14 THE COURT: Okay. 15 MR. TEIR: Nothing further, Your Honor. 16 MS. DUFF: The only thing, Your Honor, the Wood 17 Forest account was held to be exempt from garnishment. The 18 Estate has a TRO covering all the assets and that's what we are 19 here today on, a completely separate claim. I discovered that 20 there is about $35,000 that was deposited, $25,162 was 21 deposited on April 23rd, 2010, and $9,735 was deposited on May 22 4th of 2010. Both prior to death. Those are different than 23 the normal SSI deposits that were coming into the account. My 24 question is, where did those two deposits come from in the 25 amount of $35,000 and was it community property? That's my 9 1 only question. If we can show that it was not community 2 property, that it was separate property for whatever reason, 3 then I understand the rest of that account is SSI, and is not 4 subject to the TRO or to the garnishment. We don't like 5 letting it go but we understand that it has to be let go 6 because of federal law. So my question is on those two 7 deposits. 8 MR. TEIR: I respectfully feel a little bit 9 about hearing by ambush. Ms. Anderson, my colleague, filed our 10 motion. There was no opposition although there was a 11 counter-motion but no pleading offered any objection to our 12 motion for any reason. I simply respectfully am not in a 13 position to discuss the transaction from five years ago because 14 there was no clue that that would be brought up. It is my 15 understanding that similar questions were raised by counsel in 16 the wrongful death charge and an explanation was provided 17 through direct communications that we authorized with Charles 18 Storer. 19 MR. BLUMROSEN: May I respond? 20 THE COURT: Yes. 21 MR. BLUMROSEN: Your Honor, at the hearing on 22 the garnishment, and I did object to their motion and their 23 Order based on the language of it, I would agree with counsel 24 that it has been the decided that that account is not subject 25 to garnishment. That much I agree with. But I think they are 10 1 wanting you to take the Order a little bit further and say not 2 only is it not entitled to garnishment but the Estate has no 3 claims to it. I don't represent the Estate. Ms. Duff does. 4 Ms. Duff has -- we have e-mailed each other several times over 5 the last week that she has been asking counsel for information 6 about these deposits and that's the whole reason that she is 7 inquiring about that on behalf of the Estate. So again, I get 8 back to, this case has been going on for five years, the 9 garnishment is not in dispute about the two GMS accounts. The 10 only thing that's in dispute is the amount that Ms. Duff is 11 indicating to the Court she has questions about which have not 12 been provided to anybody about where that money came from. 13 MS. DUFF: I have asked about the deposits into 14 the account for backup on them and I received the printout of 15 the account. The account still doesn't have the backup on 16 those two dollar figures. Ms. Anderson may have thought that 17 this would have answered my questions but we have been calling 18 for this week also to just try to get an answer as to what 19 those two deposits are. Once we are clarified as to those two 20 deposits, we understand that the TRO will be released as to the 21 Wood Forest Bank. 22 MR. TEIR: In the alternative, if this Court is 23 inclined to allow this Cinderella hour opposition to our 24 motion, which again, I'm not prepared because, although our 25 motion was filed a week ago, this is the first I'm hearing it. 11 1 But if there is a problem with twenty-five thousand, then we 2 submit the Injunction should still be released to the balance 3 of the account and any Temporary Injunction that we don't think 4 should carry over at all, but if it does, it should be limited 5 to the amount of that deposit. 6 THE COURT: Thirty-five thousand, I believe. 7 MS. DUFF: Thirty-five thousand, Your Honor. 8 MR. TEIR: I stand corrected. I didn't mean to 9 misrepresent. Close enough. Public school, Your Honor. 10 THE COURT: Math. That would be my problem. So 11 really, is there any desire for you all to communicate for the 12 next week to try to clarify that $35,000 or there is no desire 13 to do that right now? 14 MR. TEIR: We would be happy to discuss it and 15 provide any information that we know but we don't know very 16 much, Your Honor. The transaction was five years ago. Mr. 17 Store had nothing to do with it and therefore we don't have 18 anything but what Ms. Duff has, the bank records. As far as 19 the source of that -- those funds, we believe that those funds 20 are gone. They were subsequently withdrawn closer to the time 21 of the deposit, and the only thing in the account, as we 22 showed, to get our -- the writ quashed was Social Security 23 deposits. Today every dime in that account is directly 24 attributable to a direct deposit from the United States Social 25 Security Administration. That money was gone long ago. 12 1 MS. DUFF: There were withdrawals out of the 2 account, Your Honor. I do concur with that. But was it that 3 money that was taken out or prior money. Is it first in first 4 out on money? That's where our concern is coming from. 5 THE COURT: Lifo fifo. 6 MR. TEIR: The Courts have dealt with that and 7 there is no appellate decision, and this is nationwide, because 8 we are dealing with a federal statute, that has allowed access 9 to funds and ruled them to be subject to garnishment or any 10 other collateral attack because of commingling from a deposit 11 over three years back, at least I couldn't find any, and I 12 believe I read them all. 13 MS. DUFF: Well, Your Honor, this was 14 immediately prior to her death and the funds were taken out 15 immediately after her death, which was that's where we are 16 saying, is it a community property interest because the funds 17 went in prior and came out almost immediately after. We don't 18 know what the exact funds are that came out. 19 MR. TEIR: What may help is, regardless of which 20 accounting methodology is applied, lifo or fifo, after the 21 withdrawals are made, there is a series of deposits made from 22 only one source, the Social Security Administration. The funds 23 that are on account now wouldn't be there but for the Social 24 Security Administration direct deposits. Not a dollar. So 25 regardless of accounting methodology, whether it's lifo or 13 1 fifo, the deposits from five years are gone. It's almost as if 2 Mr. McAfee opened a new account at that point, because zero 3 went out from after the withdrawals and the only money that 4 came in was from the Social Security Administration. That's 5 why we believe the Injunction should be lifted as to the 6 account as a whole. 7 MR. BLUMROSEN: Your Honor, most Defendants who 8 are post-judgment debtors have to respond to post judgment 9 discovery and provide documentation as to where all their 10 assets are which would include what happened to this money. In 11 this matter, that hasn't happened because he is in jail and 12 really doesn't have any care in the world about what the Court 13 could do to him. He has a ninety-nine year sentence. The 14 Court could hold him in contempt but it's really of no effect 15 to Mr. McAfee. 16 So what they have done is they represent Mr. 17 Store, the Power of Attorney, who they have said clearly, we 18 don't represent Mr. McAfee and we will see what we can do about 19 getting you stuff to help you, which they did finally answer 20 the post-judgment discovery, but there is just no documents. 21 They don't have any filing a Motion to Compel which we have 22 already done and have ordered is of no effect to Mr. McAfee. 23 So I do think when the Court is looking at its discretion in 24 how to handle this matter, we would appreciate airing on the 25 side of the victims of his brutal murder instead of saying, 14 1 well, we don't have any documents and we can't find out where 2 this money came from so let's let Mr. McAfee have it. And what 3 we would ask that if they refuse to and will not provide any 4 benefit or any document supporting these transfers, that the 5 Court use its power when the Estate comes in and says we 6 believe this is community property, we believe the Court would 7 have the inherent authority to look at it and decide that based 8 on the fact of their refusal to produce any documents. 9 MR. TEIR: That argument was considered and 10 completely rejected because it simply has no basis in the 11 unanimous consensus of federal and state courts that admit that 12 even for a defendant who is -- could be described as evil, the 13 Social Security Administration Act from the Roosevelt 14 administration in 1933 has no exceptions. The writ has been 15 quashed. They have to let it go. I understand the resistance 16 but their remedy is to seek a repeal of the Social Security 17 Act. They should go to their congressman. It says you can't 18 get at it for any reason. There have been fraudsters, there 19 have been murderers, there have been kidnappers, and people 20 have litigated the claim that they are a bad person. The 21 purpose of the Social Security Act is to protect widows and 22 children and retirees. This person is in jail. Doesn't need 23 Social Security. The Courts have unanimously without one 24 exception said that doesn't matter, Congress gave us an 25 absolute language. It's protected. End of story. I can't 15 1 defend what Mr. McAfee did to his late wife, of course, but he 2 has equal rights under the law and the Social Security Act has 3 no exceptions, including for their clients. 4 MS. DUFF: Your Honor, I'm not contesting that 5 this money may not be subject to the garnishment, my question 6 is, $35,000 that was in there on her date of death, which we 7 contend to have been community property at that point in time, 8 at least 50 percent. Unless they prove that it was not 9 community property, at least 50 percent of that $35,000, 10 $17,000, I believe, if my math is correct, would have been her 11 community property. That's what we are contesting at this 12 point, not that she is entitled to any of the Social Security 13 benefits but the community property interest in that money. 14 THE COURT: So as to his position that all of 15 the money that's currently in the account is directly 16 attributable to Social Security? 17 MS. DUFF: I don't see that, Your Honor, because 18 there have been withdrawals, deposits, withdrawals, well, just 19 those two deposits, I will give them that, but there are 20 numerous other withdrawals after the date of death, so I don't 21 know if he is taking out Social Security money, taking out 22 what money was taken out? My argument is at that snapshot in 23 time on May 10th of 2010, that $35,000 was still sitting in the 24 bank account and that was community property. 25 THE COURT: Which gives you a claim against that 16 1 community property. 2 MS. DUFF: Yes, Your Honor. 3 THE COURT: But if all the money that's 4 currently in the account is directly attributable to Social 5 Security, money that he might have previously taken wrongfully 6 that was community property, is that -- I guess your position 7 would be that because that money was removed before and there 8 is a claim that -- 9 MS. DUFF: That at least fifty percent -- at 10 least her community property interest should have been 11 considered to remain in the bank account. 12 THE COURT: Even though the money that's 13 currently there is -- unless you use a 14 MS. DUFF: Some portion of it is. 15 THE COURT: Okay. 16 MR. TEIR: In summary, Your Honor, I think it's 17 been well hashed by learned counsel and myself, after the 18 withdrawals again, it doesn't -- no one has to take my word 19 for it, they can just add up the deposits, they will see that 20 that's the money that's in there and no one is questioning 21 where one penny, one dime of that money has come from. But if 22 the Court rejects our claim, that the Injunction should be 23 released, there is no reason to deny Mr. McAfee access to most 24 of it because, by counsel's own admission, at most, the 25 community property claim is equal to one-half the approximately 17 1 thirty-five thousand, and the rest, I don't hear anyone saying 2 rests with any other soul on this planet but Charles McAfee, 3 and he should have access to it for the very limited purposes 4 that he is permitted under Texas law to use it such as a 5 commissary account. 6 MS. DUFF: Your Honor, I wish I could argue 7 against him on that but I do agree that anything in there that 8 is SSI is his, I'm arguing about that portion that I consider 9 to be. I wish I could argue different but, unfortunately, 10 federal law decided that murderers have access to their money. 11 THE COURT: Okay, I'm going to look at this and 12 discuss it with Judge Wright. 13 MR. BLUMROSEN: Judge, the only thing I wanted 14 to add, I know I made the point, but if you decide to go with 15 their Order, the one that they proposed 16 THE COURT: I have to use your language or else 17 the money won't come out. 18 MR. BLUMROSEN: Yes, ma'am. 19 MS. DUFF: Yes, we need the money to come out of 20 those two accounts. 21 THE COURT: Got it. 22 MR. TEIR: We are certainly amenable to that, 23 Your Honor. 24 THE COURT: Okay. 25 MR. TEIR: May we be excused, Your Honor? 18 1 THE COURT: You may. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 1 C E RT I F I CAT E 2 COUNTY OF HARRIS * STATE OF TEXAS * 3 I, Donald G. Pylant, Official Court Reporter in and for 4 Probate Court No. 1 of Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and 5 correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to 6 be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open 7 court or in chambers and were reported by me. I further certify that this Reporter's Record 8 truly and correctly reflects the exhibits, if any, admitted, tendered in an offer of proof or offered into evidence by the 9 respective parties. I further certify that the total cost for the 10 preparation of this Reporter's Record is $133.00 and will be paid by Esther Anderson 11 Given under my hand and seal of office this the 5th day 12 of August , 2015. 13 14 Is/Donald G. Pylant 15 Donald G. Pylant, C.S.R. Official Court Reporter 16 in and for the County of Harris and the State of 17 T E X A S. 18 Certification No. 668 Exp. Date: 12-31-2016 Probate Court No. One 201 Caroline Street, 6th fl. 19 Houston, Texas 77002 (713} 368-6692 20 21 22 23 24 25 Tab 13 Order Partially Releasing Temporary Injunction DATA EN'I'RY ------ PROBATE COURT 1 PICK UP TIIIS DATB No. 396,935 IN"THE ESTATE OF § IN THE PROBATE COURT § JANET FOLTYN MCAFEE, § N0.1 0 § ~ DECEASED § HARRIS COUNTY, TEXAS 0 ... ill ORDER PARTIALLY RELEASING TEMPORARY INJUNCfiON ... fV\.o;.,c.h. I~~?Court considered the Motion for Partial Release of the 0 (',! On co r Temporary Injunction filed by Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn (") 0 McAfee and the arguments of counsel. After due consideration of the Motion, the Response thereto, and the arguments of counsel, the Court finds the motion is GRANTED and orders the PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumros~n as the attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee as to the accounts referenced below ONLY: I. Account number 55H056008 holding approximately $6,694.39, or all funds remaining in the account after liquidation and account service fees, at OMS Group, LLC; and 2. Account number 55H004628 holding approximately $1,661.15, or all funds remaining in the account after liquidation and account service fees, at OMS Group, LLC. IT IS FURTHER ORDERED that the other accounts and assets described in the June 8, 2011 Agreed Order for Temporary Injunction should remain subject to the Temporary Confidential information may have b een redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ---=- ~ ----=-='--I,C--1- ·l~-=---\ti(- ~--=----·Deputy Summer Lea Willette I Approved as to Form Only By: ,.. {) (l. MITCHELL & DUFF, LLC li-Jll/- Attorney for Rosemary Foltyn, Administratrix 210 Main Street Richmond, Texas 77469 Tel: (281) 341-1718 Fax: (281) 239-7928 Email: eduff@mitchellandduff.com Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas --~-H--f'tiM~ltF.:!CZ;r-fhi~'Hii8a,H-l'\({Att-l:£!5ff'- - -Deputy Summer Lea Willette Tab 14 First Amended Motion for Reconsideration of March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction And Motion for Sanctions - . - ·- - - · - - - - ---- -·-··---· ··· ·· FILED ANM PROBATE COURT 1 4/30/2015 1:55:07 PM DATA-ENTRY Sian Slanart PICK UP THIS DATE County Cieri t.i. I. THE FUNDS IN THE WOODFOREST ACCOUNT ARE MCAFEE'S AND ARE BEYOND THE JURISDICTION OF THIS COURT u.''I ('~ 8. Storer requests the Court reconsider its decision, if a deliberate decision was til ~· made, to not enter the order he submitted freeing both the GMS accounts subject ii1 to garnishment for the Estate/Plaintiffs and the Woodforest social security (.> account of McAfee, not subject to garnishment, because the nature and the C•J ownership of the funds on deposit in the Woodforest social security account were I"' ·' If! determined with finality via the Court's January 27, 2015 Order Partially Granting 0 Motion to Quash Writs of Garnishment, (Exhibit "3") and as such, the subject of such Order is now res judicata and the law of the case. Specifically, this Court lacks subject matter jurisdiction over the Woodforest social security account. Therefore, the Court must release its "injunction" pertaining to such account. 10. Because the nature and source of the funds on account in the Woodforest social security account is the law of this case, and because the Estate does not and cannot have any claim in or against any of such social security proceeds, there Is no legal basis to continue the "injunction· as same pertains to the Woodforest social security account. 11. Additionally, because the Woodforest social security account is not an asset of the Decedent's Estate, the Court does not have jurisdiction over such account. See Smith v. Lanier, 998 S.W.2d 324, 335 (Tex. App.-Austin 1999, pet. denied) (because assets "arguably were" husband's separate property, Probate Court administering late wife's estate "did not have subject-matter jurisdiction over the disputed property"); see also State v. Traylor, 374 S.W.2d 203, 207 (Tex.1963) (Smith, J., concurring) (Probate Court lacks jurisdiction over separate property of widow or widower). FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 1e, 2015, ORDER PARTIALLY RELEASIND TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Pogo 5 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A44_ Sterling G Siriidlallll Q Deputy II. IT IS RES JUDICATA TO NOW ARUGUE THAT THE FUNDS IN WOODFOREST ARE ANYTHING BUT SOCIAL SECURITY PROCEEDS 12. The Court entered an Order Partially Granting [St«;>rer's) Motion to Quash Writs on January 27, 2015, as to the Woodforest social security account. See Exhibit .• , "3." Storer's Motion to Quash Writs was based on one argument and one proposition of law-that the funds in the Woodforest account are federal social security benefits. See Exhibit "4," 'fl's 8-21. C: lfl 13. While an opposition to the Motion to Quash Writs was filed, Plaintiffs' and the 0 Estate's counsel did not, and could not, question, refute, or distinguish the unanimous and clear precedent that social security proceeds are beyond the reach of creditors. Therefore, the writ of garnishment with regard to the Woodforest social security account was quashed in its entirety. See Exhibit "3." Because only one argument was made for quashing such writ, and because the Court quashed such writ, it is res judicata to now argue anything but that the funds in the Woodforest account are exempt because they are protected from creditors under the Social Security Act, which protection attaches to the account because the funds in it are only social security proceeds. 14. Res judicata prevents anyone from acting or asserting a position contrary to the holding and implicit finding of this Court in the January 27, 2015 on the Order Partially Granting Motion to Quash Writs. See Caprock /nv. Corp. v. Montgomery, 321 S.W.3d 91, 101 (Tex. App.- Eastland 2010) (stating that once a ruling is made, It Is final, and contrary arguments are prohibited). FIRST fo.loiENDEO loiOTION FOR RECONSIDEAATION OF MARCH 18, 2015, ORDER PARTI.IollY RELEASING TEMPOAARY INJUNCTION, FIRST MIENDED loiOTION FOR ENTRY OF ORDER RELEfo.SING SDCI.Iol SECURITY PROCEEDS FROM INJUNCTION . AND MOTION FOR SANCTIONS Poge8 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy rJ N 15. Res judicata also bars retrial of claims that have been actually litigated and finally 0 c:J a. adjudicated in the original suit. See Coalition of Cities for Affordable Uti/. Rates v. U'l Public Uti/. Comm'n, 798 S.W.2d 560, 562-63 (Tex. 1990), cert. den. sub N ~~ nom., Gulf States Utits. Co. v. Coalition of Cities for Affordable Uti(. Rates, 499 ~· Iii U.S. 983, (1991 ). Specifically, the nature of each and every dollar in the ~· () Woodforest social security account was both, "actually litigated" and "finally l'J r••• C> adjudicated" via this Court's disposition of Storer's Motion to Quash Writs based ~: ~) on the Court's finding that such funds are social security proceeds belonging solely to McAfee that are absolutely exempt from garnishment. See Exhibit "3," ~5 . 16. The doctrine of res judicata also bars litigation of all issues connected with a cause of action or defense that, with the use of diligence, might have been litigated in the prior dispute. See Gracia v. RC Cola - 7-up Bottling Co., 667 S.W.2d 517, 519 (fex. 1964). If any party had the slightest differing view of the Woodforest social security account than Storer, they had ample opportunity to make that argument, and, with diligence, would have done so when the Motion to Quash Writs was pending In November 2014, December 2014, and January 2015. No party did. The Estate did file an opposition to the Motion to Quash Writs, but did not question the factual or legal conclusions about the Woodforest account containing social security proceeds. The period when the Motion to Quash Writs was pending would have been the timely, relevant, and appropriate time to question any of the legal or factual assertions made in Storer's Motion to Quash Writs, and would have been the correct time to bring to the Court's FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH le, 2015, ORDER PARTIALLY RELEI\SINCl TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER REI.EI.SINClSOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Pogo 7 Confidential information may have been redacted from the document in compliance with the Public Infor mation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ft,A./_ o - -ES\Itfe'lfirlftfln\f:lgr-EQ:r--ESeW,ntiieetBI'h*l&ll-1WIIII --- - - -- ·D eputy Ui N 0 attention for consideration, any evidence that the Woodforest account held 0 Ct. anything other than social security proceeds. No party did; and it is too late to U'i make any such argument now. 3 r"J U'1 If'"' 18. The bottom line is that the March 12, 2015 hearing on Storer's February 10, 2015 .. Ui (') Motion to Parliafly Release Temporary Injunction as to the Woodforest account .. (\) Cj was not the time nor the place for an "Impermissible collateral attack" on the prior January 27, 2015 judgment of the Court. Browning v. Prostok, 165 S.W.3d 336, v·1 (J 346 (Tex. 2005) (stating that It is impermissible to "attempt to avoid the binding force of a judgment in a proceeding not Instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against.") U.S. Bank, N.A. v. Kobemick, 402 S.W.3d 746, 754 (Tex. App.-Houston [1st) 2012); in re Commitment of Briggs, 350 S.W.3d 362, 366 (Tex. App.-Beaumont 201 1); Dallas County Tax Collector v. Andolina, 303 S.W.3d 926, 930 (Tex. App.- 201 0); Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.- Austin 2006); see also id. ("Only a void judgment may be collaterally attacked"). 3 No evidence was offered during the adjudication of Storer's Mallon ro Quash Writs of Garnishment that the funds on deposit at Woodforest are anything but what Charles Storer has maintained they are, and what the Court has found they are - social security proceeds. The sole questioning of the nature of these funds was In the latest late arguments of Plalntiffs'/Estate's counsel on March 12, 2015, and even then, there was no assertion that the funds are anything but social security proceeds. Rather, Plaintiffs'/Estate's counsel stated only that she 'questions' some of the deposits in the account. Questioning Is good, but offers this Court no reason to deny Storer's Motion. Additionally, questioning Is also not testimony and Is not evidence. See Lee v. Stale, 442 S.W.3d 569, 579 (Tex. App.-San Antonio 2014) (stating that arguments of counsel are not evidence, even when counsel Is the honorable AHomey General); Levy v. Cash, LLC, 2013 WL 6237273, at •1 (Tex. App.-Houston [14th] 2013) ("challenged statements of .... Counsel were arguments of counsel, not testimony'). FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, OROER PARTV.LlY RELEASING TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAl SECURrry PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Pago8 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4dSt•'!rllng G. Senechal et m Deputy iii. SOCIAL SECURITY PROCEEDS ARE PERSONAL PROPERTY 19. In Richard v. Richard, a Court of Appeals held: "Social Security benefits are not community property, and a state court's attempted disposition would conflict with federal law, ~:"'"' disrupting a 'uniform federal scheme of benefits' by producing results which would vary 'depending upon the community property law of various states'". C 20. /d., 659 S.W.2d 746, 747 (Tex. App.-Tyler 1983). The personal property nature (\J ,... of social security benefits is well-settled under Texas law. See id.; see also In re Marriage of Ford, 435 S.W.3d 347, 350, n.2 (Tex. App.-Texari C\, 22. There have already been multiple hearings to address issues relating to the i!'l Woodforest social security accounts and the assets therein. The Court has r,) lli already determined to be wholly exempt from creditors under long standing "" .. ~-i federal Jaw. Nonetheless, Rosemary and Jake Foltyn and Rosemary Foltyn, as CJ Independent Executor of the Estate of Janet F. McAfee, while doing nothing to N ..~ ... t". accept assets from Storer on behalf of McAfee, to satisfy the judgment recovered -- ii'i 0 against McAfee, engage in an endless obstacle course aimed at denying Storer access to what everyone agrees is McAfee's exempt, separate property. The Foltyns have turned this tiny bit of remaining litigation into a game of smite, where, if they cannot get to the account because of federal law, they will do whatever they can so that no one else gets to it either, including its lawful owner. 23. This spiteful harassment now takes the form of accusations that are never put on paper (as legal assertions would require references to actual facts and legal authority). And as the prior hearing showed, the sole, tardy reason offered to oppose the lifting of the 'injunction' freezing the Woodforest social security account was that counsel supposes that, maybe, somehow, some unknown small portion of such account is community property, without giving this Court or Storer so much as a clue as to how this may be the case. 25. This Court's, Order Partially Granting Motion to Quash Writs held that the Woodforest account contains exempt social security assets belonging to McAfee. Counsel's most recent pretended suspicions do not overcome what i.s res judicata In this case, and offer no reason to put Storer through hearing after FIRST AMENDED MOTION FOR RECONSIDeRATION OF MARCH 16, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUHCTIOH, FIRST AMENDED MOT10N FOR ENTRY OF ORDER RELEASING 50Ci.'.l. SECURtlY PROCEEDS FROM IHJUNCTION AND MOTION FOR SANCTIONS Page 10 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4,J ~Ste~rtili;ln~g~G~s~en~ec~h~al~,;;:r~~~----neputy ro r'.! hearing based on . unwritten, unspecified, and most certainly unproven C) c."' \,./ suspicion(s). ~'i 26. Plaintiffs have not offered one bit of evidence that questions the source and ~~ ~·I ... nature of the funds on deposit at Woodforest, which subject is now moot. Their l!l efforts to forever punish McAfee is perhaps understandable, but the use of the ~· () civil courts to further punish McAfee is ultra vires, a violation of the double (\J ... () jeopardy clause of the United States and Texas Constitution, and totally ignores \1'1 (.) the very real fact that McAfee has already been judged and is being punished for his crime every day he remains in the state's maximum security prison. See U.S. Canst., Amd. V; Texas Canst., Art. I, §14. The Foltyns' secondary punishment, no matter how gratifying for those for whom no punishment is sufficient, must stop now, especially in light of the fact that they are relying upon enforcement of a "temporary Injunction," which everyone knows Is not enforceable, but is, Instead, being honored by Storer out of respect to the Court. 30. In addition to the endless moving of the goalpost, the Foltyns knowingly filed improper writs of garnishment and attempted to collect assets they knew to be exempt under law. Even after the Court heard and adjudicated the issue of exempt assets, which determination they did not (and could not seriously) appeal, and even after this issue had been resolved and was res judicata, they now insist on an oral hearing on Storer's Motion for Reconsideration, without anything in writing, so they can again hide from Storer what basis they seek he be denied the relief he requests (see Pearson v. Wichita Falls Boys Club Alumni Assoc., 633 S.W.2d 684, 686 (Tex. App.- Fort Worth 1982) (Texas litigation is FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 10, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMEN DEC MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Pogo11 Confidential information m ay have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas J/;4d Ster11ng G. Senechal Ill Q Deputy not "a game of chance and surprise, or 'Blind Man's Bluff"), and to increase attorney fees. 31. Plaintiffs' attempts to use the processes of this Court to continue their harassment in the face of the Court's plain and unambiguous final Order should U1 no longer be tolerated. See, e.g., Bennett v. Reynolds, 2014 WL 4179452, at n. 49 (Tex. App.-Austin 2014) (courts declining to "beat a dead horse"). 32. The bottom line is that the issue Is settled and moot, and any further complaints regarding same are barred by res judicata. Plaintiffs simply have no right to the social security proceeds; they know this and have admitted this fact on the record through their counsel. 33. Therefore, for the above stated reasons, the Court should impose appropriate. and just sanctions against Rosemary and Jake Foltyn, and Rosemary Foltyn, as Independent Executor of the Estate of Janet F. McAfee, for their groundless and frivolous pleadings, settings, and acts in violation Texas Civil Practice & Remedies Code §10.001, 9.012 and Texas Rule of Civil Procedure 13. See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96 (Tex. 2009) (sanctions permissible for seeking to collect from debtor discharged In bankruptcy); Low v. Henry, 221 S.W.3d 609, 616 (Tex. 2007) (sanctions appropriate for Improper pleadings filed with the trial court); Gomer v. Davis, 419 S.W.3d 470, 478 (Tex. App.-Houston [1st] 2013) (sanctions permissible for submission of pleadings groundless in law and fact). FIRST AMENDED MOTION FOR RECONSIDEAATION OF JMRCH 16,2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Page 12 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Jf;A_J ..o. Stirling G S ~meChal Ill Deputy PRAYER 0 Q. WHEREFORE, Charles Storer, Agent under a Power of Attorney from Kenneth McAfee, prays the Court: a. reconsiders its Order Partially Releasing Temporary Injunction dated iii March 16, 2015, releasing from any injunction only the non-exempt GMS accounts, and not releasing from any injunction Kenneth McAfee's social security proceeds account at Woodforest National Bank; Ci lr'; C) b. enters Charles Starers' proposed Order, attached hereto as Exhibit "6," which releases the exempt social security account at Woodforest National Bank; c. grants appropriate and just sanctions against Rosemal)' and Jake Foltyn and Rosemal)' Foltyn, as Independent Executor of the Estate of Janet F. McAfee, for groundless and egregious efforts to keep Storer from assets that rightfully belong, under settled law, to Kenneth McAfee; and d. for such other and further relief at law or In equity to which Storer may be justly en@ed. FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH IS, :1015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMENDED MOnON FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AHD MOnoN FOR SANCnoNS P-13 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4dSter1ing G Senechal 111 Q Deputy Respectfully submitted, ANDERSON PFEIFFER, PC ~~ By: Esther Anderson SBN: 00792332 By: Robert Telr, of Counsel U'J SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539-2903 Office: 281.488.6535 Facsimile: 281.614.5205 Email: esther@probateguardianshlp.com rob@probateguardianship.com CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the following has been forwarded to all parties and/or counsel of record through our electronic service provider and/or facsimile and/or certified mall, return receipt requested on this 30th day of April, 2015. Esther Anderson cc: Matthew E. Lipman Faust Oppenheim LLP 488 Madison Avenue VIa Electronic Service Provider & NewYork, New York 10022 Facsimile 212-371-8410 Dean M. Blumrosen, Esq. 4615 Southwest Freeway, Suite 850 VIa Electronic Service Provider & Houston Texas 77027 Facsimile 713-524-6570 Mary Elizabeth Duff 210 Main Street VIa Electronic Service Provider & Richmond, Texas 77469 Facsimile 281-341-6617 Woodforest National Bank, through their registered agent James D. Dreibelbis 25231 Grogan's Mill Road, Suite 100 The Woodlands, Texas 77380 VIA CMRRR ~fell'£7102. (J1Jf2 16ft tal ~ S" N:IS1orar, Charles\Pioadlngs, Motions, AppYcatlonal1s1 amended motion to racanolder & mollan lor sanc:llons.dacx FIRST AMENDED MOTION FOR RECONSID£RAT10N OF MARCH 15,2015, ORDER PARTIALLY RELEASINQ TEMPORARY INJUNCTION, FIRST AAIENDED MOTlON FOR EKTRY OF ORDER RELEASINil SOCIAL SECURITY PROCEEDS FROM INJUNC110N AND M0110N FOR SAHCTlONS Page 14 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ft,4-1{ Q ~~~enffiin~g~a~s~e~n~a~oo~a~I#IJI~----------Depucy C\l 20150010298 1 01/0B/2015 RP2 ~28.00 C'"J () ~· ••' DURABLEPOWEROFATTORNEYFOR a. lf'i Pa KENNETH COOPER MCAFEE N il"l f"l> p I KENNETH COOPER MCAFEE revoke all previous powers of attorney given by me. This is a durable power of attorney given for the management, protection, and conservation of my property, especially in the event I am unable for any reason to manage, protect, and cons~rve it! my own property, and to avoid a guardianship as to the management, protectipp; and "" () conservation of my property. It is my purpose to delegate certain other authority. cifa personal N nature, such as the authority to make health care decisions in the event I cannot do sp for myself. C) The authority vested in a Personal Representative under this durable pq~er of attorney is U"i unlimited in nature, and is based in complete trust. A Personal Representative's authority nnd C) .., ~-. legal capacity will be that of an agent and trustee . \... APPOINTMENT OF THE PERSONAL REPRESENTATIVE I appoint my CHARLES RUSSELL ST I -16 -~I i. () S-\ · touad to 1> :z: ""a: g::.e l 'I oe ~~~~ - Of counsel on the Pleading: c·) /s/1{.ooert 'feir RobertTeir Robert Teir, PLLC 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.1191 Facsimile: 832.550.2700 Email: rob@probateguardianship.com Attorneys for Mr. Charles Storer, Power of Attorney for Kenneth McAfee ' ) l ... · MOTION TO PARTIALLY RELEASE INJUNCTION Page 3 of4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy ~· (0 CERTIFICATE OF SERVICE ~J () L\. I hereby certify that a true and correct copy of the foregoing has been forwarded to all parties and/or counsel of record through our electronic seryjce provider, certified Ui ~,J mail, return receipt requested and/or facsimile on this flv day of February,ID VI "" 2015. ~ Ond~.;..,____ U'l Esther Anderson "' (~ cc: Mary Elizabeth Duff ('-.J 210 Main Street VIA ELECTRONIC SERVICE PROVIDER & Richmond, Texas 77469 FACSIMILE 281-341-5517 0 Vi Ci Matthew E. Lipman Faust Oppenheim LLP () 488 Madison Avenue New York, New York 10022 VIA ELECTRONIC SERVICE PROVIDER & FACSIMILE 212-371-8410 Dean M. Blumrosen, Esq. 4615 Southwest Freeway Suite 850 VIA ELECTRONIC SERVICE PROVIDER & Houston Texas 77027 FACSIMILE 713-524-5570 Woodforest National Bank, through their registered agent James D. Dreibelbis 25231 Grogan's Mill Road Suite 100 The Woodlands, Texas 77380 VIA CMRRR 'f '/I~ '1\ 00. o:>8& 15Dt( ~IPL/S SI () Charles Storer N:\Storer, Char1es\Pieadfngs, Motlona, ApplfcaUons\Mot to Raleau lnjunc:tlon.docx MOllON TO PARTlAlLY RELEASE INJUNCTION Pago4cf4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_..J.J_ _Q -~St'*"anrrttt.ln.....grlG;o::t--iS~e....n=ect....m\att-1*IUI--- - - - -0 eputy CAUSE NO. 396,935 IN THE ESTATE OF § IN THE PROBATE COURT § JANET F. McAFEE, § NUMBER 1 OF § DECEASED § HARRIS COUNlY, TEXAS Ui ·•···················•··•··•·••···••··•··•··········•·························• .... CAUSE NO. 396935-401 0 N 0 IN RE § IN THE PROBATE COURT U'i JANET F. McAFEE, § 0 Deceased § NUMBER ONE § c. ROSEMARY FOL YN and JAKEFOLYN § § § ~ § OF § THE GMS GROUP, LLC and § WOODFOREST NATIONAL BANK, § HARRIS COUNlY, TEXAS Defendants ORDER GRANTING STORER'S MOTION TO RECONSIDER MARCH 16, 2015 ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION AND RELEASING SOCIAL SECURilY PROCEEDS On this day came to be considered the Motion for Reconsideration C?f March 16, ··-· 2015 Order Partfa//y Releasing Temporary fn}unc:tfon and Motion for Entry of Order Releasing Social Security Proceeds from Injunction, filed by Charles Storer, Power of Attorney for Kenneth McAfee, and after review and consideration of said Motion, the evidence, the responses filed, and the arguments of counsel, the Court finds the following: 1. On June 8, 2011, all parties to the above stated cause entered an Agreed Order for Temporary Injunction. ORCER PAGE 1 I11 EXHIBIT I Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~ ~=-.:. 4 .c-~ ''d~-~ _Q_Deputy ~lng 0. Scmechallll (") w 0 2. On January 27, 2015, the Court entered an Order Partially Granting Motion to 0 C\. Quash Writs of Garnishment as to two accounts: U'i ~.j a. Woodforest account ending In 404, in the name of Kenneth Cooper u"l e• McAfee holding social security proceeds of Kenneth Cooper Mc:Afee; and ul e• b. GMS account ending In 606, an Individual retirement account of Kenneth ,. ,~ N McAfee. ~·· 0 u~ The Court also ordered that all other accounts at GMS Group, LLC, holding 0 assets of Kenneth McAfee or for the benefit of Kenneth C. McAfee be subJect to I \ the writs such that Rosemary and Jake Foltyn recover $6,694.39 in account number 55H056008 and $1,661.15 in account number 55H004628 for a total of $8,355.54 from GMS Group, L.l.C., upon receipt of an order releasing the Agreed Order for Temporary Injunction. 3. On March 16, 2015, the Court entered an Order Partially Releasing Temporary Injunction releasing both the non-exempt accounts Plaintiffs and/or the Estate wanted. 4. On Apri115, 2015, Charles Storer filed a Motion for Reconsideration of March 16, 2015 Order Partially Releasing Temporary Injunction and Motion for Entry of Order Releasing Social Security Proceeds from Injunction. It is therefore, ORDERED, ADJUDGED AND DECREED that this Order shall be and is a partial release of the June 8, 2011 temporary injunction as to the Woodforest account number XXXXXX3404, In the name of Kenneth Cooper Mc:Afee holding social security benefits of Kenneth Cooper McAfee. ORDER PAGE2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~ r.O ('; () All other accounts and assets described in the June 8, 2011 Agreed Order for a. Temporary Injunction remain subject to the Agreed Temporary Injunction. ~~ N ...U'l SIGNED this _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _, 2015 . U"l $0.00 Co-owners: None Decedent's intere.st: 50% *Note that (1) on April 23, 2010 Kenneth McAfee made a $1,700.00 distribution to an unknown account; and(2) on May 4, 2010, Kenneth McAfee transferred $9,760.92, entire remaining balance, to the Woodforest National Bank Account listed below. Account #2 Institution: The OMS Group, LLC Account type: Brokerage Account Account/CD No: xxx- xxx628 Total value of asset: $53,749.42 * Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy .. Less surviving spouse share: $ $26,874.71 Co-owners: None Decedent's interest: 50% *Note, on (1) May 13, 2010, Kenneth McAfee sent an authorization to GMS to transfer balances of his accounts into Gerald Fry's JOLTA' at Bank of America, Account number 002663331329; and (2) on May 20, 2010 Kenneth McAfee wired the remaining balance, $51 ,462.06, into Gerald Fry's IOLT A at Bank of America BOA acct no. 002663331329; wire no. 026009593 Account #3 Institution: The GMS Group, LLC Account type: Salary Savings Plan 401K Account/CD No: xxx - xxx606 Total value of asset: $425,034.70 * Less surviving spouse share: $ $212,517.35 Co-owners: None Decedent's interest: 50% · * Note on May 25, 2010, Kenneth McAfee withdrew $200,000 and was sent to an unknown location. GMS withheld $40,000.00 for taxes. Account #4 Institution: The GMS Group, LLC Account type: Brokerage Account Account/CD No: xxx- xxx914 Total value of asset: $0 * Less surviving spouse share: $ $0.00 Co-owners: None Decedent's interest: 50% *Note on April23, 2010, Kenneth McAfee wire transferred balance, $25,187.66, to account at WoodForest National Bank, described below Account #5 Institution: The GMS Group, LLC Account type: Brokerage Account Account/CO No: xxx - xxx008 Total value of asset: $6,772.52 Less surviving spouse share: $ $3,386.26 Co-owners: None Decedent's interest: 50% Confide ntial information may have been redacted from the document in compliance with the Public I nformation Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, T exas AA~ --oSt~Ar~il:AAGQ-{:G.~Se~fi:Aeetelhf'\ia'\l-l-1111h- i _ _ _ __ Deputy Account #6 Institution: Woodforest National Bank Account type: Multiparty checking with Right of Survivorship (Kenneth McAfee and Brenda McAfee, Kenneth's first wife) Account/CO No: xxxxxxx404 Total value of asset: $3 8,256.91 * Less surviving spouse share:· $ $22,651.20. Co-owners: Brenda McAfee and Kenneth McAfee Decedent's interest: 25% of balance, plus 50% interest in the amounts that were transferred from the OMS accounts shortly before Janet Foltyn McAfee's death, as set forth below in points (1) and (2). *Note, (1) on April 23, 2010, Kenneth McAfee transfers $25,162.66 (from OMS xxx- xxx914) into this account; (2) on May 4, 2010, Kenneth McAfee transfers $9,735.92 (from . GMS xxx-xxx612) into this account; (3) on July 1, 2010 Kenneth McAfee issues $10,000.00 check from this account to Michael McAfee; (4) on July 2, 2010, Kenneth McAfee issues $15,000.00 check from this account to Brenda McAfee; (5) n July 2, 2010, Kenneth McAfee issues $6,000.00 check from this account to IRS for 2008 taxes; (6) on November 29,2010, / Brenda McAfee issues $19,024.63 c}leck to McDavid Honda. · Decedent's share of Account #6 above is calculated as follows: Funds transferred from OMS that Decedent claims a 50% interest in: $17, 449.29 $25,162.66/2 = $12,581.33 $9,735.92/2 = $4,867.96 $9,735.92 + $4,867.96 = $17, 449.29 Remaining funds in Woodforest that Decedent claims sa 25% interest in: $5,201.91 $38,256.91 (-) $17, 449.29 = $20,807.62 $20,807.62/4 = $5,201.91 Total interest Decedent claims: $22,651.20 $17, 449.29 + $5,201.91:;; $22,651.20 Account #7 Institution: Wells Fargo National Bank Account type: Checking Account/CI) No: xxxxxx 184 Total value of asset: $589.76 Less surviving spouse share:· $ $294.88 Co-owners: Kenneth McAfee Decedent's interest: 50% Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_A4___a $1enmg Go Senechal II! Deputy 2. MOTOR VEHICLES: Vehicle #1 Description: 2006 Mazda Miata (MX-5) YIN #: xxxxxxxxxxxxxx539 Total Value: $12,830.00 Less surviving spouse share: $ $6,415.00 Co-owners: None Decedent's interest: 50% Vehicle #2 Description: 1959 Mercedes Model 190, 4 door YIN #: xxxxxxx51 0 Total Value: $5,050.00 $2,525.00 Co-owners: None Decedent's interest: 50% Vehicle #3 Description: 2007 or 2008 Suzuki Motorcycle YIN#: xxxxxxxxxxxxxx547 Total Value: $4,490.00 Less surviving spouse share: $ $2,245.00 Co-owners: None Decedent's interest: 50% 3. INSURANCE: Policy #1 Insurer: unknown at this time Policy No.: unknown Total Value: $unknown $0 Co-owners: None Decedent's interest: 50% ofpremium payments 4. HOUSEHOLD FURNISHINGS: Household furniture and furnishings $14,000.00 Total Value: $14,000 . Less surviving spouse share: $ $7,000 Co-owners: . Kenneth McAfee Decedent's interest: 50% Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas AAd.~ Sterling G Senechal Ill Deputy TOTAL COMMUNlTY PROPERTY SEPARATE PROPERTY VALUE 1. REAL PROPERTY: Parcel #1 LEGAL DESCRlPTION: Lot 12 Block 16 of South Hampton Place, a subdivision in Harris County, Texas according to the map or plat thereof, recorded in Vol. 6, Page 52 of the Map Records of Harris County, Texas, commonly known as 2119 Tangley Street, Houston, Texas Harris County Total Value: $537,701.00 • $423,454.10 Less remaining Chase Bank mortgage balance: ($114,246.90) Co-owners: None Decedent's interest: 100% *Note that Kenneth McAfee gifted his interest in the property to Janet Foltyn McAfee via gift deed on July 11, 2008, making it her separate property. Parcel #2 LEGAL DESCRIPTION: Ten (1 0) acre tract of! and situated in Matagorda County, Texas in the G .J Williams League, Abstract No. 103, being a portion of Lot No. 55 of the Elmaton Fanns Subdivision, and being out of the Southwest comer thereof, the map of said subdivision being recorded in the County Clerk's Office in Matagorda County, Texas, and said Lot. No. 55 being conveyed by B.W. Trul et ux to E.E. Adamcik by deed dated February 9, 1932, recorded in Vol. 94, Page 211 of the Matagorda County Deed Records Total Value: $13,750.00 $13,750.00 Co-owners: None Decedent's interest: 100% Parcel #3 LEGAL DESCRIPTION: Mineral Interest under the 10 acres in Matagorda county listed above in the Saba-Peterson GUW3. Total Value: $5,784.28 $5,784.28 Co-owners: None Decedent's interest: 100% 2. HOUSEHOLD FURNISHINGS: Artwork $17,900.00 Electronics $1,850.00 Jewelry $5,000.00 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A;_ AL-a Sterling G S8ri8Challlt Deputy Firearms - .25 cal pistol $300.00 Mise items $3,500.00 Total Value: $28,550.00 $28,550.00 Co-owners: None Decedent's interest: 100% 3. MOTOR VEHICLES: Vehicle #1 Description: 2006 Hummer H3 (4x4) YIN #: xxxxxxxxxxxxxx 109 Total.Yalue: $18,100.00 $18,100.00 Co-owners: None Decedent's interest: 100% Vehicle #2 Description: 2007 Honda Shadow Motorcycle YIN #: xxxxxxxxxxxxxx977 ~' Total Value: $3,495.00 $3,495.00 ~:~ Co-owners: None ~~ Decedent's interest: 100% ·~ .·I 4.. CASH IN BANKS: 0 ~ Account #1 l Institution: The GMS Group, LLC N Account type: Brokerage Account ~ Account/CD No: xxx- xxx479 Q\ Total Value: $ 3,440.02 $3,440.02 Co-owners: None Decedent's interest: 100% Account #2 Instit~tion:The OMS Group, LLC Account type: Brokerage Account Account/CO No: xxx - xxxO 12 Total Value: $36,420.66 $36,420.66 Co-owners: None Decedent's interest: I 00% Account #3 Institution: The OMS Group, LLC Account type: Brokerage Account Account/CD No: xxx - xxxx28 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, T exas AA4____.o Sterling GO Senedlallll Deputy Total Value: $0 $0 Co-owners: None Decedent's interest: 100% 5. SECURITIES: . Security #1 Description: Devon Energy Corp., ENV # xxxxx Ill, 1984.75 shares Total Value: On May 8, 2010 valued at $64.58/share $128,175. 16 Co-owners: None Decedent's interest: 100% TOTAL SEPARATE PROPERTY $661,169.22 LIST OF CLAIMS OWED TO ESTATE No claims are due and owing to the Estate of Janet Foltyn McAfee, Deceased. TOTAL VALUE OF ESTATE The total value of the Estate of Janet Foltyn McAfee, Deceased is $945,078.62. The Independent Administratrix asks the Court that foregoing Inventory, Appraisement and List of Claims be approved and entered of record. 'S': !!• ~l '•r ' • i' . " -,..,., 1'.'1 (/) '· .~~~ ~.. -u .~ I ('"·....."'·, N ..,::_: ~.... .-- r.~· ·: ~:· I :::: ~.: '• £'11 ·.•: ~~·· ' . :x:>o 0 ~· ::£: ,, -· 1·~ ~·:~: ~\ .. -:-:' 31; , 'i.:...I .- (\J 0 0.. .- 0 to L!l ... 0 (\4 (.") (\) ~i 0 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ------;~ ~~~+""' ~· ~ -~ c::;J ~ U:\C/ients\FOLTYN, ROSEMARY\Appllcationfor Temporary Res/raining Order.rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ----.-.-: ~ ~-~--==-'VT'iM r.'T =--_Deputy Summer Lea Willette VERIFICATION STATE OF TEXAS § § COUNTY OF FORT BEND § BEFORE ME, the undersigned authority, personally appeared Rosemary Foltyn, as Applican For Independent Administr~trix of the Estate of Janet Foltyn McAfee who, on oath, stated that the statements m~de in the foregoing Application for Temporary Restraining Order and Temporary Injunction are true and correct. ~ · ~ R~~ Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee SUBSCRIBED AND SWORN TO BEFORE ME on this the~ day of J v (\..t.. 2010, to certJfy which witness my hand and seal of office. .:.) , by J?a~IFPN:f~. . . Af~ q.J:W2 e MARY EUZABEni DUFF DROZD Notary Public, Stat& ofT8X811 Commission Explree 03-13-2013 Notary:t2:state of Texas U:\Ciients\FOLITN, ROSEMARY\Applicationfor Temporary Restraining Order.rlf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas S·Jmmer Lea Willette . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- -·--·-·- - ·---... . No.396935 IN THE ESTATE OF § IN THE PROBATE COURT § JANET FOLTYN MCAFEE, § N0.1 § DECEASED § HARRIS COUNTY, TEXAS TEMPORARY RESTRAINING ORDER O n - - - - - - - - - - ' 20 I 0, the Application for a Temporary Restraining Order of Rosemary Foltyn, ~s Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee was heard before this court. Based upon the pleadings, records, documents filed by counsel, and the arguments ofcounsel at the hearing, IT CLEARLY APPEARS: A. That unless Kenneth McAfee is immediately restrained from the use ofthe following accounts and property: a. Any accounts through GMS Group which are not the separate property of Kenneth McAfee; b. Any Compass Bank Accounts; c. Any Laredo Accounts; d. Any Wells Fargo Accounts; e. Any Citizens' Barik Accounts; and f. Pershing c/o Harland Ics Account; and g. Any community property or separate property of Janet Foltyn McAfee. that Kenneth McAfee will commit the foregoing before notice and a hearing on Rosemary Foltyn's Application for Temporary Injunction. B. Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of U:\Ciients\FOLTYN, ROSEMARY\Applir:ationjor Temporary Restraining Order. rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~~ftl'iillllll ------~s~um;~TI.,~r,ft e~. r Le~a~vvvimll~en~e ~___Deputy . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -·- -- t • 1 l Janet Foltyn McAfee and the other heirs of the Estate of Janet Folt)rn McAfee will suffer irreparable hann if Kenneth McAfee is not restrained f:Tom the use of the foregoing property . imm~diately because he will deplete the assets of the Estate of Janet Foltyn McAfee and there is no adequate remedy at law to grant Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee and the other heirs of the Estate ofJanet ~altyn McAfee complete, final and equal relief. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Kenneth McAfee and all of his officers, agents, servants, employees, agents, servants, successors and assigns, and attorneys are ORDERED to immediately cease and desist from the use of the following accounts and property: a. Any accounts through GMS Group which are not the separate property of Kenneth McAfee; b. Any Compass Bank Accounts; c. Any Laredo Accounts; d. Any Wells Fargo Accounts; e. Any Citizens' Bank Accounts; and f. Any community property or separate property of Janet Foltyn McAfee, from the date of entry of this order until twenty (20) days thereafter, or until further order of this Court. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that a Constructive Trust is issued over the aforementioned assets. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Rosemary Foltyn's, as .Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee Application for Temporary Injunction be heard on _ _ __ _ _ at :00 _M in the courtroom of Probate U:\CIIents\FOLTYN, ROSEMARY\Applicalionfor Temporary Restraining Order.rif Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas _ ____,_~ ~~~-t"-'¥ ru-'iiJldu -"-"-"'~_D. eputy ~>umm er Lea Willette .' Court# I of Harris County, Texas. Kenneth McAfee is commanded. to appear at that time and show cause, if any exist, why a temporary injunction should not be issued against him. The clerk ofthe.above-entitled court shall issue a temporary restraining order in confonnity with the law and the terms of this order upon the filing by Rosemary Foltyn of the bond hereinafter set. This order shall not be effective until Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee deposits with the Clerk, a bond in the amount o~ $_ _ _ _ _ _ in conformity with the law. SIGNED and ENTERED on at _ _ _.M. PRESIDING JUDGE THIS 1NSTfHJMENT R~TUR~~~~ UNSlGNf.O UV .JUDGES OF ... ·' --· ~ ·"· · U:\CIIems\FOLTYN, ROSEMARY\Applical/onjor Temporary Restraining Order. rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas -----=-~ ------=-=-.i·,?t. .le-.; !.--=--V{(__ _ _D.eputy Summer Lea Willette