Motion for Judicial Notice in CONTINENTAL EAST FUND IV, LLC vs DONALD RAY CROCKET A/K/A RAY CROCKETT| Trellis.Law

On July 17, 2012 a SUPPL TO MTN/TAKE JUDICIAL NTC OF CALIFORNIA was filed involving a dispute between and for OTHER CIVIL, FOREIGN JUDGMENT in the District Court of Tarrant County.

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342-260306-12 FILED
TARRANT COUNTY
4/6/2016 9:23:18 AM
THOMAS A. WILDER
DISTRICT CLERK
CAUSE NO. 342-260306-12

CONTINENTAL EAST FUND IV, LLC § IN THE DISTRICT COURT
Judgment Creditor, §
§
v. §
§
DONALD RAY CROCKETT, aka §
RAY CROCKETT § 342"d JUDICIAL DISTRICT
Judgment Debtor, §
§
v. §
§
BANK OF AMERICA, N.A. §
Intervenor. § TARRANT COUNTY, TEXAS

SUPPLEMENT TO MOTION TO TAKE JUDICIAL NOTICE OF CALIFORNIA LAW
PURSUANT TO TEXAS RULE OF EVIDENCE 202 AND TO REMOVE COURT'S
FREEZE ON $882,025.54

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW CONTINENTAL EAST FUND IV, LLC ("CEF IV") and files this

Supplement to Motion to Take Judicial Notice of California Law Pursuant to Texas Rule of

Evidence 202 and to Remove Court's Freeze on $882,025.54, and in support hereof would show

the Court the following:

1. On March 28, 2016, CEF IV filed its Motion to Take Judicial Notice of California Law

Pursuant to Texas Rule of Evidence 202 and to Remove Court's Freeze on $882,025.54. On

April 4, 2015, CROCKETT 39 FAMILY PARTNERSHIP, LTD ("C39") filed its Response.

The Response attempts to shift the burden of proof as to whether the California Superior Court

had jurisdiction over C39 to Plaintiff in contravention of V.L. v E.L. 577 U.S. __ (decided

SUPPLEMENT TO MOHON TO TAKE JUDICIAL NOTICE OF CALIFORNIA LAW PURSUANT TO TEXAS RULE OF
EVIDENCE 202 AND TO REMOVE COURT'S FREEZE OIF $882,025.54- PAGE 1
342-260306-12

March 7, 2016) (attached as Exhibit "A") which places the burden on the party challenging

jurisdiction to overcome the presumption.

2. C39 cites California law for the proposition that a California Court may not enter a

judgment against a party over whom it has no jurisdiction, but this is not the issue here. The

issue being considered is whether, under California law, a California Court may issue a turnover

order of property held by a third party for the use and benefit of a judgment debtor. Both Judges

Kintner and Sykes found that it may. The burden is on C39 to prove that the Superior Court of

California may not exercise that power. A memo dated April 4, 2016 distinguishing personal

jurisdiction and subject matter jurisdiction prepared by Professor Gregory L, Ogden, J.D.,

L.L.M. of Pepperdine University is attached as Exhibit "B" together with his C.V. attached as

Exhibit "C".

3. C39 goes to great lengths to argue Texas law on "alter ego" and "piercing" as it pertains

to the California proceedings.

The U.S. Supreme Court in Thomas v. Washington Gas Light Co. 448 U.S. 261, 270

( 1980) (attached as Exhibit "D") held:

"It has long been the law that "the judgment of a state court should have the same
credit, validity, and effect, in every other court in the United States, which it had
in the state where it was pronounced" ...

"Acts, records and judicial proceedings ... [of any State] shall have the same full
faith and credit in every court within the United States ... asthey have by law or
usage in the courts of [the] State ... from which they are taken. Thus, in effect,
by virtue of the full faith and credit obligations of the several States, a State is
permitted to determine the extraterritorial effect of its judgment; but it may
only do so indirectly by prescribing the effect of its judgments within the State."
(emphasis ours)

Thus, the "extraterritorial effect" of the California Order is not effected by Texas Law.

SUPPLEMENT TO MOTION TO TAKE JUDICIAL NOTICE OF CALIFORNIA LAW PURSUANT TO TEXAS RULE OF
EVIDENCE 202 AND TO REMOVE COURT'S FREEZE OF $882,025.54- PAGE 2
342-260306-12

4. C39 makes the argument in its paragraph 2.03 of its Response that under Section 10 of

the California Constitution, (attached as Exhibit "E") its appearance in California by filing its

application for writ attacking the order entered by the Superior Court of California did not

subject it to the jurisdiction of the Court that issued the order it attacked. In response, see

attached memo from Professor Ogden.

5. C39 also argues Bianka M., a minor, decided on March 2, 2016 by the California Court

of Appeals, Second District, Division Three, (attached as Exhibit F) for the proposition that a

trial court may not issue an order against a necessary party not before the court. C39, as

determined by Judges Kintner and Sykes and upheld by the California Court of Appeals, was not

a necessary party under California law. She had subject matter jurisdiction. C39 held property

for the use and benefit of Crockett which, under California law, was subject to turnover without

taking personal jurisdiction of the holder of the property.

6. The Bianka case had a missing necessary party, a dad. The Mother was trying to get

findings against the dad in order to gain refugee states for her daughter. After the trial court

declined because dad was not before the Court, Bianka applied for a writ to compel the trial court

to make those findings. The Court of Appeals declined but suggested Bianka get the dad served,

his name and whereabouts were known, and then see if he defaults. This is a personal

jurisdiction analysis. It said that, by finding otherwise, "we would erode the substantial

protections afforded to parents involved in international custody disputes under state, federal and

international law."

7. C39 is a subject matter jurisdiction issue and has the opposite situation. In this case, the

California trial court granted the relief requested instead of in Bianka where the court denied it.

SUPPLEMENT TO MOTION TOTAKE JUDICIAL NOTICE OF CALIFORNIA LAW PURSUANT TO TEXAS RULE OF
EVIDENCE 202 AND TO REMOVE COURT'S FREEZE OF $882,025.54- PAGE 3
342-260306-12

C39 attempted to get the Court of Appeals to stay that relief. Both Judges Kintner and Sykes

determined that C39 was not a necessary party, but that they had subject matter jurisdiction over

the accounts held by Merrill Lynch in C39's name. They did not make a "legal title"

determination for the reason that under California law involving a judgment debtor, "legal title"

does not defeat subject matter jurisdiction over the accounts held for Crockett's use and benefit

by Merrill Lynch in C39's name. See final paragraph of Exhibit "B".

8. After Judge Sykes enforced her order, C39 filed itsapplication for writ and entered the

case. When the California Court of Appeals denied the application, C39 did not appeal, instead

returning to Texas to collaterally attack Judge Sykes's order wrongfully assuming that Texas law

would apply.

9. C39 sought relief from the trial court's order and could have appealed. Both Judges

Kintner and Sykes took jurisdiction over the accounts held by C39 and afforded ample

opportunity for it to become involved. C39 was served with all the notices that went to Crocket

concerning the proceedings that led to the turnover order. It had the right and opportunity to

participate, but, other than its application for writ, declined to do so, instead opting to return to

Texas in the hopes that this Court will protect it from the repercussions of"full faith and credit."

PRAYER

Plaintiff prays that the Court take judicial notice of California State laws related to these

proceedings and lift its freeze as to the $882,025.54 not subject to any appeal.

SUPPLEMENT TO MOTION TOTAKE JUDICIAL NOTICE OF CALIFORNIA LAW PURSUANT TO TEXAS RULE OF
EVIDENCE 202 AND TO REMOVE COURT'S FREEZE OF $882,025.54- PAGE 4
342-260306-12

Respectfully submitted,

Is/ William A. Floratos
William A. Floratos
California SB#: 107820
Floratos Loll & Devine, P.C.
26023 Acero, Ste. 100
Mission Veijo, CA 92691
waf/ZM1oratoslo ll.com
(714) 641-1222- Telephone
(714) 641-1333- Facsimile

Is/ Thomas P. Jackson
Thomas P. Jackson
State Bar No. 10496600
Law Office of Thomas P. Jackson
5430 Glen Lakes Drive, Suite 230
Dallas, Texas 75231
tpj(q!dfwlawycr.com
(972) 387-0007- Telephone
(972) 584-6159- Facsimile

Is/ David E. Keltner
David E. Keltner
State Bar No. 11249500
Kelly Hart & Hallman LLP
201 Main Street, Ste 2500
Fort Worth, Texas 76102
david.keltJ1Cr@kcllyhati.com
(817) 332-2500- Telephone
(817) 878-9280 -Facsimile

ATTORNEYS FOR JUDGMENT CREDITOR

SUPPLEMENT TO MOTION TO TAKE JUDICIAL NOTICE OF CALIFORNIA LAW PURSUANT TO TEXAS RULE OF
EVIDENCE 202 AND TO REMOVE COURT'S FREEZE OF $882,025.54- PAGE 5
342-260306-12

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on April6, 2016.

/s/ Thomas P. Jackson
Thomas P. Jackson
Attorney for Judgment Creditor

SUPPLEMENT TO MOTION TOT AKE JUDICIAL NOTICE OF CALIFORNIA LAW PURSUANT TO TEXAS RULE OF
EVIDENCE 202 AND TO REMOVE COURT'S FREEZE OF $882,025.54- PAGE 6
342-260306-12

EXHIBIT ''A''
342-260306-12
342-260306-12

Cite as:1577 U. S. _ (2016)

Per Curiam

SUPREME COURT OF THE UNITED STATES
V. L. u. E. 1., ET AL.
ON PETITION FOR \VRIT OF CERTIORl-\RI TO THE
SUPREiviE COURT OF ALABAMA
No. 15-648 Decided March 7, 201G

PER CURIMI.
A Georgia court entered a final judgment of adoption
making petitioner V. L. a legal parent of the children that
she and respondent E. L. had raised together from birth.
V. L. and E. L. later separated while living in Alabama.
V. L. asked the Alabama courts to enforce the Georgia
judgment and grant her custody or visitation rights. The
Alabama Supreme Court ruled against her, holding that
the Full Faith and Credit Clause of the United States
Constitution does not require the Alabama courts to re·
spect the Georgia judgment. That judgment of the Ala-
bama Supreme Court is now reversed by this summary
disposition.
I
V. L. and E. L. are two women who were in a relation·
ship from approximately 1995 until 2011. Through as·
sisted reproductive technology, E. L. gave birth to a child
named S. L. in 2002 and to twins named N. L. and H. L. in
2004. After the children were born, V. L. and E. L. raised
them together as joint parents.
V. L. and E. L. eventually decided to give legal status to
the relationship between V. L. and the children by having
V. L. formally adopt them. To facilitate the adoption, the
couple rented a house in Alpharetta, Georgia. V. L. then
filed an adoption petition in the Superior Court of Fulton
County, Georgia. E. L. also appeared in that proceeding.
While not relinquishing her own parental rights, she gave
her express consent to V. L.'s adoption of the children as a
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2 V. L. u. E. L.

Per Curiam

second parent. The Georgia court determined that V. L.
had complied with the applicable requirements of Georgia
law, and entered a final decree of adoption allowing V. L.
to adopt the children and recognizing both V. L. and E. L.
as their legal parents.
V. L. and E. L. ended their relationship in 2011, while
living in Alabama, and V. L. moved out of the house that
the couple had shared. V. L. later filed a petition in the
Circuit Court of Jefferson County, Alabama, alleging that
E. L. had denied her access to the children and interfered
with her ability to exercise her parental rights. She asked
the Alabama court to register the Georgia adoption judg-
ment and award her some measure of custody or visitation
rights. The matter was transferred to the Family Court of
Jefferson County. That court entered an order awarding
V. L. scheduled visitation with the children.
E. L. appealed the visitation order to the Alabama Court
of Civil Appeals. She argued, among other points, that the
Alabama courts should not recognize the Georgia judg-
ment because the Georgia court lacked subject-matter
jurisdiction to enter it. The Court of Civil Appeals rejected
that argument. It held, however, that the Alabama family
court had erred by failing to conduct an evidentiary hear-
ing before awarding V. L. visitation rights, and so it re-
manded for the family court to conduct that hearing.
The Alabama Supreme Court reversed. It held that the
Georgia court had no subject-matter jurisdiction under
Georgia law to enter a judgment allowing V. L. to adopt
the children while still recognizing E. L.'s parental rights.
As a consequence, the Alabama Supreme Court held Ala-
bama courts were not required to accord full faith and
credit to the Georgia judgment.
II
The Constitution provides that "Full Faith and Credit
shall be given in each State to the public Acts, Records,
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Cite as:577 U.S._ (201G) 3

Per Curiam

and judicial Proceedings of every other State." U. S.
Const., Art. IV, §1. That Clause requires each State to
recognize and give effect to valid judgments rendered by
the courts of its sister States. It serves "to alter the status
of the several states as independent foreign sovereignties,
each free to ignore obligations created under the laws or
by the judicial proceedings of the others, and to make
them integral parts of a single nation." Milwaukee County
v. M. E. Whit.e Co., 296 U.S. 268, 277 (1935).
With respect to judgments, "the full faith and credit
obligation is exacting." Baher v. General Motors Corp.,
522 U. S. 222, 233 (1998). "A final judgment in one State,
if rendered by a court with adjudicatory authority over the
subject matter and persons governed by the judgment,
qualifles for recognition throughout the land." Ibid. A
State may not disregard the judgment of a sister State
because it disagrees with the reasoning underlying the
judgment or deems it to be wrong on the merits. On the
contrary, "the full faith and credit clause of the Constitu·
tion precludes any inquiry into the merits of the cause of
action, the logic or consistency of the decision, or the valid·
ity of the legal principles on which the judgment is based."
MUlihen v. Meyer, 311 U.S. 457, 462 (1940).
A State is not required, however, to afford full faith and
credit to a judgment rendered by a court that "did not
have jurisdiction over the subject matter or the relevant
parties." Underwriters Nat. Assumnce Co. v. North Ca.ro·
lina Life & Accident & Health Ins. Guaranty Assn., 455
U.S. 691, 705 (1982). "Consequently, before a court is
bound by [a] judgment rendered in another State, itmay
inquire into the jurisdictional basis of the foreign court's
decree." Ibid. That jurisdictional inquiry, however, is a
limited one. "[I]f the judgment on its face appears to be a
'record of a court of general jurisdiction, such jurisdiction
over the cause and the parties is to be presumed unless
disproved by extrinsic evidence, or by the record itself."'
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4 V. L. v. E. L.

Per Curiam

Millihen, su.pra, at 462 (quoting Adam. v. Saenge1·, 303
U.S. 59, 62 (1938)).
Those principles resolve this case. Under Georgia law,
as relevant here, "[t]he superior courts of the several
counties shall have exclusive jurisdiction in all matters of
adoption." Ga. Code Ann. §19-8-2(a) (20 15). That provi-
sion on its face gave the Georgia Superior Court subject-
matter jurisdiction to hear and decide the adoption peti-
tion at issue here. The Superior Court resolved that
matter by entering a final judgment that made V. L. the
legal adoptive parent of the children. Whatever the merits of
that judgment, it was within the statutory grant of juris-
diction over "all matters of adoption." Ibid. The Georgia
court thus had the "adjudicatory authority over the subject
matter" required to entitle itsjudgment to full faith and
credit. Baher, su.pra, at 233.
The Alabama Supreme Court reached a different result
by relying on Ga. Code Ann. §19-8-S(a). That statute
states (as relevant here) that "a child who has any living
parent or guardian may be adopted by a third party ...
only if each such living parent and each such guardian has
voluntarily and in writing surrendered all of his or her
rights to such child." The Alabama Supreme Court con-
cluded that this provision prohibited the Georgia Superior
Court from allowing V. L. to adopt the children while also
allowing E. L. to keep her existing parental rights. It
further concluded that this provision went not to the
merits but to the Georgia court's subject-matter jurisdic-
tion. In reaching that crucial second conclusion, the Ala-
bama Supreme Court seems to have relied solely on the
fact that the right to adoption under Georgia law is purely
statutory, and '"[t]he requirements of Georgia's adoptions
statutes are mandatory and must be strictly construed in
favor of the natural parents."' App. to Pet. for Cert. 23a-
24a (quoting In re Ma.rhs, 300 Ga. App. 239, 243, 684 S. E.
2d 364, 367 (2009)).
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Cite as:577 U.S._ (201G) 5

Per Curiam

That analysis is not consistent with this Court's control-
ling precedent. Where a judgment indicates on its face
that it was rendered by a court of competent jurisdiction,
such jurisdiction '"is to be presumed unless disproved."'
Millihen, supra, at 462 (quoting Adam, supra, at 62).
There is nothing here to rebut that presumption. The
Georgia statute on which the Alabama Supreme Court
relied, Ga. Code Ann. §19-8-5(a), does not speak in juris-
dictional terms; for instance, it does not say that a Georgia
court "shall have jurisdiction to enter an adoption decree"
only if each existing parent or guardian has surrendered
his or her parental rights. Neither the Georgia Supreme
Court nor any Georgia appellate court, moreover, has
construed §19-8-5(a) as jurisdictional. That construction
would also be difficult to reconcile with Georgia law.
Georgia recognizes that in general, subject-matter juris-
diction addresses "whether a court has jurisdiction to
decide a particular class of cases," Goodrum v. Goodrum,
283 Ga. 163, 657 S. E. 2d 192 (2008), not whether a court
should grant relief in any given case. Unlike §19-8-2(a),
which expressly gives Georgia superior courts "exclusive
jurisdiction in all matters of adoption," §19-8-5(a) does
not speak to whether a court has the power to decide a
general class of cases. It only provides a rule of decision to
apply in determining if a particular adoption should be
allowed.
Section 19-8-5(a) does not become jurisdictional just
because it is '"mandatory"' and '"must be strictly con-
strued."' App. to Pet. for Cert. 23a-24a (quoting Marh.s,
supra, at 243, 684 S. E. 2d, at 367). This Court "has long
rejected the notion that all mandatory prescriptions,
however emphatic, are properly typed jurisdictional."
Gonzalez v. Thaler, 565 U.S. 134, _ (2012) (slip op., at
10-11) (internal quotation marks and ellipsis omitted).
Indeed, the Alabama Supreme Court's reasoning would
give jurisdictional status to euery requirement of the Geor-
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6 V. L. u. E. L.

Per Curiam

gia adoption statutes, since Georgia law indicates those
requirements are all mandatory and must be strictly
construed. Marhs, supm, at 243, 684 S. E. 2d, at 367.
That result would comport neither with Georgia law nor
with common sense.
As Justice Holmes observed more than a century ago, "it
sometimes may be difficult to decide whether certain
words in a statute are directed to jurisdiction or to merits."
Fau.ntleroy v. Lwn, 210 U.S. 230, 234-235 (1908). In such
cases, especially where the Full Faith and Credit Clause is
concerned, a court must be "slow to read ambiguous
words, as meaning to leave the judgment open to dispute,
or as intended to do more than f1x the rule by which the
court should decide." Id.,at 235. That time-honored rule
controls here. The Georgia judgment appears on its face
to have been issued by a court with jurisdiction, and there
is no established Georgia law to the contrary. It follows
that the Alabama Supreme Court erred in refusing to
grant that judgment full faith and credit.
The petition for writ of certiorari is granted. The judg-
ment of the Alabama Supreme Court isreversed, and the
case isremanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
342-260306-12

EXHIBIT ''B''
342-260306-12

Memo To: Bill Flotatos:
From: Prof Greg Ogden
Re: Cal. Const., mi. VI, Section 10 and paragraph in opposing parties response to
motion for judicial notice.
Date: April 4, 2016

Issue: original jurisdiction versus appellate jurisdiction
Three major points in critique of the opposing parties' argument below:
1) When the California Supreme Court or the District Court of Appeal exercises
original jurisdiction in mandamus, the court decides a case originally without prior
proceedings in the superior court or the district court of appeal.
2) The filing of a writ of mandate in the California District Court of Appeal
following the denial of a petition in the superior court is an exercise of appellate
jurisdiction by the district court of appeal because the relief sought in that writ 1s
to reverse the denial of the petition in the superior court.
3) The parties appearance in filing a petition for a writ of mandate is a general
appearance which satisfies the court's personal jurisdiction. This is irrelevant for
subject matter jurisdiction. Subject matter jurisdiction is satisfied by the court's
authority to hear and decide a claim. Personal jurisdiction is satisfied when the
court has authority over a particular defendant. The two concepts are distinct and
the opposing parties argument below obfuscate the difference between the two
types of jurisdiction

Opposing parties make the following argument:
Contrary to Continental's assertions, the filing of a writ of mandate in a California
appellate court, even though it follows denial of the petition in the superior court,
is an original proceeding, not an appeal.12 C39 's filing of a writ of mandate does
not constitute an appearance for the purposes of establishing jurisdiction for two
reasons: 1) a nonparty cannot contest the court's subject matter jurisdiction; 13
and 2) the improper and violative turnover order was not taken before the Court of
Appeals in the writ of mandate proceeding-it was taken before the trial judge
where Continental admits that C39 was not a party.
342-260306-12

12 See Cal. Const., art. VI, § 10.
13 Bianka M Superior Court, (20 16) 245 Cal. App.4th 406, 431.

A. Original proceedings in appellate courts are cases in which the appellate court
exercises original jurisdiction. The authority of the appellate courts to exercise
original jurisdiction is provided in Cal. Const., Art. VI, Section 10 which provides
that:
"The Supreme Court, courts of appeal, superior courts, and their judges have
original jurisdiction in habeas corpus proceedings. Those courts also have original
jurisdiction in proceedings for extraordinary relief in the nature of mandamus,
certiorari, and prohibition. The appellate division of the superior court has original
jurisdiction in proceedings for extraordinary relief in the nature of mandamus,
certiorari, and prohibition directed to the superior court in causes subject to its
appellate jurisdiction.
Superior courts have original jurisdiction in all other causes.
The court may make '1!lY comment on the evidence and the testimony and
credibility of any witness as in its opinion is necessary for the proper determination
of the cause."

B. When the California Supreme Court exercises original jurisdiction, it decides a
case without prior proceedings in the superior court or the district court of appeal.
Original jurisdiction in mandamus is an exercise of the Supreme Court's subject
matter jurisdiction. Clean Air Constituency v. California State Air Resources
Board (1974) 11 Cal. 3d 801, 805-806, 523 P. 2d 616, 114 Cal. Rptr. 577. The
court held that
"This is a proceeding for an original writ of mandate brought against the California State Air
Resources Board (hereinafter ARB) by an association of individuals and groups concerned with
implementing clean air legislation, together with two manufacturers of pollution control devices
and a private citizen residing in Los Angeles County .
. . . . . .For the reasons discussed infra we hold that this court is entitled to exercise original
jurisdiction in mandamus under article VI, section 10, of the California Constitution; that the
ARB has limited discretionary authority to delay the NOx program; but that it has no authority to
delay this program for reasons related to the energy crisis. Accordingly, petitioners are entitled to
a peremptory writ vacating the ARB's action to delay the installation programs and ordering the
ARB to implement and enforce the NOx installation program in the manner directed by statute. "

The California Supreme Court has the responsibility to decide whether it has
subject matter jurisdiction over a case. The California Supreme Court will exercise
342-260306-12

its original jurisdiction in matters of great public importance that require
immediate resolution. California Redevelopment Assn. v. Matosantos (20 11) 53
Cal. 4th 231, 252-253, 267 P. 3d 580, 135 Cal. Rptr. 3d 683.
"We will invoke our original jurisdiction where the matters to be decided are of
sufficiently great importance and require immediate resolution. (E.g., Strauss v.
Horton (2009) 46 Cal.4th 364, 398-399, 93 Cal.Rptr.3d 591, 207 P.3d 48; Raven v.
Deukmejian (1990) 52 Cal.3d 336, 340, 276 Cal.Rptr. 326, 801 P.2d 1077; Amador
Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at
p. 219, 149 Cal.Rptr. 239, 583 P.2d 1281.) Those circumstances are present here:
Assembly Bills 1X 26 and 1X 27 place the state's nearly 400 redevelopment ***702
agencies under threat of imminent dissolution, while the Association's petition calls
into question the proper allocation of billions of dollars in property tax revenue."

C. The decision in Bianka M v. Superior Court (2016) 245 Cal.App.4th 406, 431,
was an exercise of appellate mandamus jurisdiction (like this case) in which the
petitioner sought unsuccessfully (like this case) to overturn the order of the
Superior court. The appellate court in Bianka held th

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