Sunday, May 25, 2008

Anne Fernandez Case Survives Anti-Suit Injunction: In conclusion, we reverse the summary judgment and remand the case to the 105th district court

NUMBER 13-06-00170-CV




ANN M. FERNANDEZ, Appellant,




On appeal from the 105th District Court of Nueces County, Texas.


Before Chief Justice Valdez and Justices Yañez and Benavides

Memorandum Opinion by Chief Justice Valdez

By petition for bill of review, Ann Fernandez, appellant, directly attacked an agreed judgment rendered in 1975. The John G. and Marie Stella Kenedy Memorial Foundation (the "Foundation"), appellee, moved for summary judgment and an anti-suit injunction. The district court granted the Foundation's motion for summary judgment and issued an anti-suit injunction. Fernandez, by six issues, complains that the district court (1) lacked jurisdiction to render a summary judgment; (2) erred by granting a permanent anti-suit injunction; (3) erred in not applying the discovery rule; (4) erred in applying the law governing bills of review; (5) misapplied this State's standing and ripeness doctrines; and (6) lacked sufficient evidence to grant summary judgment on adverse possession grounds. We reverse and remand the summary judgment with instructions to abate the case and reverse and render a denial of the anti-suit injunction.

I. Background (1)

The judgment that Fernandez attacks is a settlement agreement entered by the district court in the estate of Sarita Kenedy East. Fernandez contends that she is the sole child of John G. Kenedy Jr., East's brother, and therefore, she is East's niece. In her petition for an equitable bill of review ("petition"), Fernandez asserts that she was a necessary party to the settlement agreement and seeks to overturn the district court judgment that incorporates the settlement agreement (the "Agreed Judgment Case").

Before petitioning the district court for an equitable bill of review, Fernandez filed an heirship application in East's probate court case in Kenedy County. Shortly after filing her petition in district court, Fernandez moved to abate her district court petition on grounds that the probate court held dominant jurisdiction over the probate issues in the case. (2) The Foundation moved for both no-evidence and traditional summary judgments on various grounds, including laches and adverse possession. Fernandez amended her motion to abate and also moved to continue the case. The district court denied Fernandez's abatement and continuance motions and granted the Foundation a summary judgment without providing a rationale. The district court also issued an anti-suit injunction which prohibited Fernandez from proceeding with her probate matters in East's estate. This appeal ensued.

II. Discussion

In her first issue, Fernandez contends that the district court lacked jurisdiction to determine Fernandez's probate issues and should have abated its proceedings until the probate court disposed of Fernandez's heirship application. (3) We review the trial court's action in granting or denying a plea in abatement using an abuse of discretion standard. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Davis v. Guerrero, 64 S.W.3d 685, 691 (Tex. App.-Austin 2002, no pet.)

The record is clear. On May 9, 2002, Fernandez filed an application for heirship and suit for accounting and distribution in the probate court. On May 14, 2003, Fernandez filed the instant petition for an equitable bill of review. Fernandez moved to abate the district court proceeding on August 26, 2003 and amended her abatement motion on March 21, 2006.

To maintain her bill of review proceeding, Fernandez was required to show that she had a then-existing right or interest in the Agreed Judgment Case. See Rodriguez ex rel. Rodriguez v. EMC Mortgage Corp., 94 S.W.3d 795, 798 (Tex. App.-San Antonio 2002, no pet.) (providing that to maintain standing in a bill of review proceeding, the petitioner must have been a party to the underlying judgment or have had a then-existing right or interest in the district court's judgment). Fernandez sought abatement on the grounds that the probate court controlled the issue of whether she was one of East's heirs, which was central to her bill of review petition because an interest in East's estate would allow her to demonstrate standing in the Agreed Judgment Case.

We conclude Fernandez established a need to abate the proceeding because (1) her heirship application in the probate court was filed on May 9, 2002, which was nearly a year before she filed the equitable bill of review proceeding in district court; (2) her heirship application is currently pending; (3) the same parties are involved; and (4) the controversies are the same. See S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 468 (Tex. App.-Corpus Christi 2000, no pet.) (op. on reh'g) (detailing the four elements a party must show in requesting an abatement).

The Foundation opposed abatement because in its opinion, the probate court did not have jurisdiction to entertain Fernandez's heirship application. Therefore, it reasoned, the district court exerted dominant jurisdiction over the case. The Foundation, however, did not offer any probate court order that rejects Fernandez's heirship application. Additionally, it did not produce any evidence showing that the probate court had dismissed Fernandez's heirship application for want of jurisdiction. The Foundation also failed to present any evidence establishing one of the exceptions to the abatement rule. See Wyatt, 760 S.W.2d at 248.

In Fernandez v. Frost Nat'l Bank, et al., No. 13-06-149-CV, slip op. at 12, 2008 Tex. App. LEXIS _____, at *___ (Tex. App.-Corpus Christi May __, 2008, no pet. h.), we held that a district court should abate a petition for bill of review brought by an alleged heir until the probate court determines the heirship question at the heart of the petition for bill of review. Id. The same rule applies to this case. We conclude that the district court abused its discretion in denying Fernandez's motion to abate. We sustain Fernandez's first issue. (4)

By her second issue, Fernandez challenges the anti-suit injunction issued by the district court that enjoins her from:

taking any further action in the County Court of Kenedy County, Texas, inconsistent with the judgments of [the district court] which denied all claims and relief sought in Fernandez's "Application for Declaration of Heirship and Suit for Accounting and Distribution" filed in this cause, including, but not limited to, Fernandez's request seeking to reopen East's Estate, to establish an interest in property distributed from East's Estate to the Foundation, without further order from [the district court].

The decision to issue an anti-suit injunction rests within the sound discretion of the trial court. London Mkt. Ins. v. Am. Home Assurance Co., 95 S.W.3d 702, 705 (Tex. App.-Corpus Christi 2003, no pet.).

In reviewing the trial court's decision, we are to draw inferences from the evidence in the manner most favorable to the trial court's ruling. See id. "A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding rules or principles, or misapplies the law to the established facts of the case." Id. (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A trial court is within its power to base a decision on conflicting evidence; however, that evidence must reasonably support the trial court's decision. Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 717 (Tex. App.-Corpus Christi 2001, no pet.).

The Texas Supreme Court has determined that there are four instances in which an anti-suit injunction is appropriate: (1) to address a threat to the court's jurisdiction; (2) to prevent the evasion of important public policy; (3) to prevent a multiplicity of suits; or (4) to protect a party from vexatious or harassing litigation. Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996) (per curiam); London Mkt., 95 S.W.3d at 705-06. There are no precise guidelines to determine the appropriateness of an anti-suit injunction, and the circumstances of each situation must be carefully examined. See Gannon v. Payne, 706 S.W.2d 304, 307 (Tex. 1986); London Mkt., 95 S.W.3d at 709.

Fernandez complains that the district court was could not issue the anti-suit injunction. We agree. We have held that a district court that lacks probate jurisdiction cannot enjoin a party from proceeding in probate court. See Fernandez, No. 13-06-149-CV, slip op. at 14, 2008 Tex. App. LEXIS _____, at *___. Additionally, we do not find any of the instances that would support an anti-suit injunction to be present in this case. See id.; see also Harper, 925 S.W.2d at 651 (Tex. 1996). Fernandez's second issue is sustained.

III. Conclusion

In conclusion, we reverse the summary judgment and remand the case to the district court so that it can abate the underlying petition until the probate court resolves Fernandez's heirship application. Finally, the anti-suit injunction is reversed and a denial of the Foundation's request for injunctive relief is rendered.



Chief Justice

Memorandum Opinion delivered and filed

this the 22nd day of May, 2008.

1. As this is a memorandum opinion and the parties are familiar with the facts and legal issues, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

2. The probate court attempted to transfer Fernandez's district court petition to itself. We, however, held that the probate court did not have statutory authority to transfer Fernandez's petition and directed the probate court to vacate its transfer order. In re Kenedy Mem'l Found., 159 S.W.3d 133, 146 (Tex. App.-Corpus Christi 2004, orig. proceeding).

3. Fernandez's first issue challenges the district court's action on two jurisdictional grounds. Fernandez's first jurisdictional argument is that the bill of review was not properly before the district court. She notes that the probate court did not follow this Court's direction by failing to vacate its order transferring the Agreed Judgment Case from district court to probate court. In re Kenedy Mem'l Found., 159 S.W.3d 133, 146 (Tex. App.-Corpus Christi 2004, orig. proceeding). She argues that because the probate court's transfer order was never vacated, the case had "never been physically transferred back" to the district court and that, therefore, the district court lacked jurisdiction.

Fernandez's "never-transferred-back" argument fails because any order rendered by a trial court lacking in jurisdiction, other than granting a motion to dismiss, is void and should be regarded as if it never existed. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995); Greathouse v. McConnell, 982 S.W.2d 165, 167 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). We previously held that the probate judge "had no authority under section 5B of the probate code to order the transfers and abused his discretion in doing so." In re Kenedy Mem'l Found., 159 S.W.3d at 146. Therefore, the probate court's transfer orders should be regarded as if they never existed. Fernandez's first jurisdictional argument fails.

We construe Fernandez's second jurisdictional argument as a challenge to the district court's denial of her abatement motion. Tex. R. App. P. 38.1(e) ("The statement of an issue or point will be treated as covering every subsidiary question that is fairly included."), 38.9.

4. This relieves us from having to address Fernandez's third, fourth, fifth, and sixth issues, for their resolution would not further affect the outcome of this appeal. Tex. R. App. P. 47.1. Thus, the legal questions surrounding Fernandez's third through sixth issues, including the Foundation's grounds for summary judgment, remain unanalyzed by this Court.

Wednesday, January 16, 2008

Hegemony: Power, Culture & Ideology: Danny Guerra is Congressman Solomon Ortiz's Second Staff Resignation in Two Months. Why Did Danny Resign?.

Hegemony: Power, Culture & Ideology: Danny Guerra is Congressman Solomon Ortiz's Second Staff Resignation in Two Months. Why Did Danny Resign?.

Danny Guerra is Congressman Solomon Ortiz's Second Staff Resignation in Two Months. Why Did Danny Resign?.

Congressman Solomon Ortiz has selected Denise Blanchard as his chief of staff.

Blanchard was formerly deputy chief of staff and district director. She was promoted to replace Fernando Gomez who resigned.

Blanchard, a Brownsville native and Ortiz' long-time Director of District Operations, has worked for Ortiz for more than 16 years. Her experience includes constituent services, district office operations, and a political understanding of South Texas. She began service with Ortiz in 1991, becoming District Director in 1995. Previously, she worked with the Brownsville Chamber of Commerce, the Brownsville Economic Development Council and the Brownsville-South Padre Island International Airport.

This is Ortiz's second staff resignation in two months.

Ortiz’s long-time communications director, Cathy Travis, resigned Dec. 31 to continue her writing career. Ortiz hired Dallas-native Danny Guerra, 25, to replace Travis. Guerra wrote previously for political news magazine Congressional Quarterly. According to The Brownsville Herald, he also worked previously with several Texas legislators.

And Let us Not Forget

Representative Ortiz to replace his long-time chief of staff, 'Lencho' Rendon with 'Nando' Gomez.
Ortiz, D-Corpus Christi, also announced the promotion of Denise Blanchard, director of district operations to deputy chief of staff, the post Gomez held.

Ortiz said that Gomez, “is very level-headed. He is not the type that gets angry. He always looks at the issue before he makes a decision and he always counsels with the staff.”

Ortiz said Gomez of Gregory worked in Washington, D.C., for eight years as legislative director for former U.S. Rep. Martin Frost, as Ortiz’s legislative director in 2005, followed by promotion to deputy chief of staff. Ortiz said Gomez handles military matters. Gomez also worked in Austin for the state Legislature.
and more
"These guys will be the bridge between legislation on Capitol Hill and my constituents in South Texas," Ortiz said. "They work well together and are universally respected on Capitol Hill and in South Texas. Both deeply understand and are committed to the needs of people in my congressional district."Did somebody say bridge?

Ortiz said both Gomez and Blanchard are also likely to follow in Rendon's footsteps, playing an active role in local politics.

Sunday, January 13, 2008

Nueces Democrats: "These are not Democrat issues. These are not Republican issues." These are Nueces County issues" Somebody's Knockin on the Door."

Nueces Democrats: "These are not Democrat issues. These are not Republican issues." These are Nueces County issues" Somebody's Knockin on the Door."

The only way we will be a factor is by interacting & through Natural Discussion.

Everybody welcome, the more the merrier. themericanprince, onamission, Homero, Nuts101, Mr Mikal Watts, Mr Filemon Vela, TJ Henry, Mr Attorney General come on guys why dont we air this thing out like Brett Favre? Just another walk in the park.

It's Too Late To Apologize. Unlike yous guys, We Dont Work for the President

Dear Lencho and the rest of the Political Crooks and Government Vendors / Contractors, Thank Dora for this COLD BLAST from the past.Somebody better start standing up and helping out. Heaven forbid should we start saying your names and your secrets. I am frickin pissed off at all of you. The day of reckoning or shall we say "wreckoning" is at hand. Speak up or get chewed up and spit out.

The best way to kick this party off is with some hard hitting; hard hitting on the one's who are not used to getting hit.

Lencho Rendon is the whipping boy he is the first one who gets hit.

If Great State of Texas can prosecute a little person for $45 then surely it should look into the allegations with the bridge to nowhere and the brown bag, back porch window treatments not to forget all that double standard malarchy.

Asian Human Trafficking or an Asian Employment Service? It all depends on who it is, how much lettuce they have, and who they got dirt on.

Why do we hand Lencho Rendon San Patricio Shores along our port

Why does the Brownsville Navigation District do the same?

And Solomon Grande, why do we keep on pulling the lever?

And Solly Junior why should we give him another chance? (He dont keep his promises).

The Nueces County Jail / Federal Prisoner Removal was a Political Smear and a total Sham directed at Larry Olivarez and Mikal Watts at the expense of Nueces County Taxpayers.

Here are a couple of brain teasers for those of you remain standing in that river (D Nile).

Is Randolph Delay a Republican or a Democrat?

Why did Kenneth and Ping Lee Cohen go to prison?


"I remember Lencho telling me that his ideal dream team (to help BND) would be (lobbyist) Randy DeLay, (Monterrey consult-ant) Esther Rodriguez and 'Madam Ping,'" Lasseigne said.

A Dream Team of Randy Delay Lobbying in Washington, Solomon Sr. nicely positioned on the House Arms Services Committee and his influential "friends" such as Congressman Ike Skelton, the distract and the DELAY side JOB Lobby at the Federal Bureau of Prisons / CCA / Private Prison Profiteering CON. The Daytime JOB is the Defense Contractor Ocean Shipholdings.

Wednesday, January 09, 2008

Crooked politics, cattle rustlers, land fraud, warfare, and enough illicit sex to populate South Texas courtrooms for generations

Kent Biffle: Rancher Kenedy's known as more than just a pretty face

09:24 AM CST on Sunday, January 6, 2008

As historic figures go, Petra's must have been terrific. Her looks stunned frontiersmen.

And after researching her for years, biographers Jane Clements Monday and Frances Brannen Vick concluded that Petra (1825-1885) was beautiful not merely physically, but spiritually as well. Forever helping friends, kin and her Catholic church, she gave away a wagonload of money to charities way before such acts earned tax credits.

Historian John Henry Brown called her "a woman of superior accomplishments and great natural intelligence." He noted, "She was considered one of the handsomest women of her day."

Indian warriors killed her father, ex-governor of Spanish Texas, and carried off three of her sisters, one of whom was never rescued. After marrying a Mexican army colonel, Petra Vela de Vidal had six children. Widowed, she then married steamboat tycoon Mifflin Kenedy and had six more children. She helped the captain build a ranching empire whose tall bunchgrasses and mesquites adorned oil deposits unknown to them that today are worth untold millions.

A Pennsylvania Quaker who, as a boy, shipped before the mast, Captain Kenedy and another Yankee steamboat captain, Richard King, partnered as tight as bark on a Gulf Coast scrub oak. And, after profitably plying the Rio Grande with their fleet of steamboats, they amicably divvied up the proceeds in 1868.

Mifflin Kenedy had 400,000 acres (in present Kenedy County), next to the 900,000-acre King Ranch. Both captains were business majors of the buccaneer school. Unapologetic wartime profiteers, they got rich moving troops and munitions during the U.S. war with Mexico and running Confederate cotton during the Civil War.

If it weren't footnoted, Petra's Legacy: The South Texas Ranching Empire of Petra Vela and Mifflin Kenedy (Texas A&M Press) might be mistaken for soaring fiction. It is chockablock with crooked politics, cattle rustlers, land fraud, warfare, and enough illicit sex to populate South Texas courtrooms for generations. There were once about 300 claimants to the Kenedy estate.

Mifflin and Petra's aggressive son, James "Spike" Kenedy, drove herds to railheads in Kansas, where he proved a poor loser at the gambling tables.

On July 20, 1872, in Ellsworth, Kan., a gambling dispute erupted into a gunfight between Spike and Print Olive, a Texas rancher and gunman. Both shot-up combatants recovered.

In August 1878, the quarrelsome cards set Spike at odds with Mayor Jim Kelley of Dodge City, Kan. Spike tried to murder him, shooting into his house. His Honor was out, but his sleeping roommate, Dora Hand, a popular singer at the Lady Gay Theater, caught a fatal slug. Maybe being the son of the second-richest cowman in Texas had something to do with Spike's beating the rap.

In April 1884, Spike shot to death a disagreeable, vagrant vaquero at the La Parra Ranch. It was ruled accidental.

Much earlier, Petra's son (Spike's half-brother), Adrian Vidal, who had deserted both the U.S. and Confederate armies, was executed by Imperialists in Mexico, where he had been captured while fighting Emperor Maximilian's troops. The Kenedys' firstborn son, Tom, 35, was killed from ambush in 1888 while campaigning for sheriff in Cameron County.

When the Texas State Historical Association gathers March 5 in Corpus Christi, Petra's biographers will talk about her and the problems facing researchers of women in her time and place. Fran Vick is the association's new president, and former Huntsville Mayor Jane Monday is on the executive board. Historians will find the Kenedys' old La Parra Ranch a short drive down U.S. 77 from Corpus Christi.

Monday, December 31, 2007

Nueces Democrats: Robert Zamora:A Man of Strength & Stability ; Winning Back The Nueces County Democratic Party For All South Texas Democrats

Nueces Democrats: Robert Zamora:A Man of Strength & Stability ; Winning Back The Nueces County Democratic Party For All South Texas Democrats

Zamora Announces for Party Chair

Updated: Jan 1, 2008 12:31 AM

A local attorney has announced he is running for chairman of the Nueces County Democratic Party.

There has been talk that several people might run. On Monday, attorney Robert Zamora officially announced that he has filed for the position, which is now held by Alex Garcia Jr.

"I have not only experience as a lawyer operating my own business for close to 30 years," Zamora said. "What I would like to do is lend the energy and the experience that I have to the operation of the Democratic Party here in Nueces County.

The race will be decided in the state presidential primary in March.

Thursday, December 27, 2007

Nueces Democrats: We dont know that Joe Benavides will make a better Commissioner than the incumbent

Nueces Democrats: We dont know that Joe Benavides will make a better Commissioner than the incumbent

With this precinct I have not a vote however, the County Commissioners are engaged towards progress for our community as a whole.

"Our Large Family attended the "Annual Feast of Sharing" event held at the Bayfront Plaza.

Joe Benavides was one of our servers (i believe he was a soft drink server), and Mrs.Banales also was there with her husband.

I will not talk about the burnt tamale(only I got) but lets just say the mashed potatoes were the best my man says the rolls were the best.

Considering it is election time, I am surprised most politicians were absent. But with the way they rushed you out after you ate, You certainly did not have any time to "network".

The candidates that did attend, I apologize for not mentioning you as I was there only a small window of time..."

It was so different from the last time I went, which with regret, was not last year.

I must say the food was better at the events that cost money."


We dont know that Joe Benavides will make a better Commissioner than the incumbent but I do know Joe was working and he volunteered out of his commitment to the community. Joe has over the years volunteered and donated his services diligently. One might argue he is only volunteering his time and services because he wants to "get elected".

I dont believe this is the case. I have known Joe for a little over two years and I know his father. In the past, Joe Benavides has run a couple of times for office but, he volunteers regardless of whether he is running or not.

Will Joe Benavides continue to volunteer if he wins?

We can only know after we vote for him.

We do know his incumbent opponent was not volunteering at the Feast of Sharing.

We do know Joe Benavides' incumbent opponent was parading around with her hubby in tow. Was she making a statement? The message IMO was she is not worried about her challenger, she does not take him serious and she is not going to change her routine ways for her constituents. We do not know how she represents her constituency but we do know she is not going to change it.

All we can do is allow Joe Benavides to tell us how is going to represent his constituents.

We can ask him questions and hear his answers.

With Joe Benavides' incumbent opponent we dont have to ask her anything because we have her record to refer to.

The only thing I remember is that, "She could work harder" if she gave herself a pay raise.

I also know she was walking around when she should have been working.

As far as the Family name and integrity, we might should ask the ME about the trangressions.

Ask her about the real reason she decided to run.

Parkdale Bank: Ray Mc Murrey Is From Here, He Still Believes Like It Says In The Intro, "I'll be a straight-shooter & a square-dealer "& He Does "Reme

Parkdale Bank: Ray Mc Murrey Is From Here, He Still Believes Like It Says In The Intro, "I'll be a straight-shooter & a square-dealer "& He Does "Remember The Alamo"

"I'll be as hardy of mind as I am of body. I'll be a straight-shooter and a square-dealer. My family name will be sacred My word will be as good as any contract. I'll remember the Alamo. I'll stick by my friends. And I'll eat more chicken-fried steak."

"We do not win by replacing a corporate Republican with a corporate Democrat," said Mr. McMurrey, speaking to about a dozen supporters at an East Austin residence.

Ray told me this before he spoke at his Official Announcement to run against the Corporate Democratic Military Industrial Complex Candidate for Texas US Senator.

A very passionate candidate who is anything other than a fake or what some like to call a politician.

Ray is not a Politician and this is a very very positive attribute.

Dont get me wrong he is very well suited for the Senate and the diplomacy is there but there is a sternness that demands his respect kind of like the respect and command he possesses in the classroom. I think we can all agree, if he can handle our youth in the classroom he will do well for us in Washington.

Two more things

Remember the Alamo


Stay tuned for Jan 2 next year.

"We do not win by replacing a corporate Republican with a corporate Democrat," said Mr. McMurrey, speaking to about a dozen supporters at an East Austin residence.

Ray Mc Murrey is from Corpus Christi.

He tells us upfront of his progressive leanings and his disappointment in both of the Hegemonic Parties.

Hegemony,.... Watch the Movie "Hot Fuzz".