Preview
FILED
DALLAS COUNTY
10/8/2018 9:29 AM
FELICIA PITRE
DISTRICT CLERK
CAROLYN SELLERS
CAUSE NO. DC-18-13114
MOLLY OSTRANDER § IN THE DISTRICT COURT
§
Plaintiff §
§
v. §
§
KEVIN SPENCER a/k/a §
R. KEVIN SPENCER, a/k/a §
RICHARD KEVIN SPENCER §
and SPENCER LAW, P.C. §
§
Defendants and § J-191st JUDICIAL DISTRICT
Third-Party Plaintiffs §
§
v. §
§
PRICE L. JOHNSON and §
THE JOHNSON FIRM §
§
Third-Party Defendants §
§ DALLAS COUNTY, TEXAS
PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE
R. Kevin Spencer and Spencer Law, P.C. (collectively, “Spencer Parties” or “Defendants”)
file this Plea to the Jurisdiction and Motion to Transfer Venue and respectfully show the Court as
follows:
BACKGROUND
FEE AGREEMENT AND PROBATE PROCEEDING
1. On November 3, 2016, Molly Ostrander (“Molly’) entered into and signed a
Contingency Fee Agreement (the “Fee Agreement”) – a contingency attorney fee contract – hiring
both The Johnson Firm and Spencer Law, P.C. and agreeing to pay them a percentage of all
Recovery, as defined in the Fee Agreement, as their fee in relation to representing Molly to secure
her inheritance interest in her mother, Paula Adams’ Estate (the “Estate”). The language of the Fee
PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 1 of 6
CAUSE NO. DC-18-13114
Agreement confirming same is as follows:
By this letter, the attorneys are giving you notice that you are hiring
The Johnson Firm and Spencer Law, P.C. as co-counsel. The
Johnson Firm and Spencer Law, P.C. will be jointly responsible for
Client’s representations. You are hiring both firms to represent
you. This letter also serves as notice to you that the contingent fee
percentage you agree to will be split as follows: The Johnson
Firm shall receive fifty percent (50%) of the fee percentage
actually paid and Spencer Law, P.C. shall receive fifty percent
(50%) of the fee percentage actually paid.
The contention that the Fee Agreement was designed to hire The Johnson Firm and then allow The
Johnson Firm to associate Spencer Law, P.C. is contrary to the specific terms of the Fee
Agreement. The plain language of the Fee Agreement confirms that Molly hired both firms jointly
a co-counsel and that each were the attorneys for Molly.
2. On April 13, 2017, as a result of the attorneys’ efforts and representation, primarily
as a result of the efforts and representation of Spencer Law, P.C., a settlement agreement was
reached between Molly, Individually and as Independent Administrator of the Estate of Paula
Adams, Deceased (“Administrator”), and her aunt, Carol Adams (“Carol”), regarding division of
the Estate’s assets, which was memorialized in writing and signed by the Parties and their Counsel
(the “Settlement Agreement”) in Cause No. PB1-1706-2016, in the Collin County Statutory Probate
Court (the “Probate Proceeding”). The Settlement Agreement requires that Molly shall receive
substantial and valuable assets and benefits that she would not have otherwise been entitled to, but
for the representation of her by all the attorneys, including Spencer Law, P.C. (the “Settlement
Recovery”).
3. On the evening of April 13, 2017, this Court heard the details of the settlement,
received the Settlement Agreement into the record, and approved itin the Probate Proceeding.
Molly has continued to serve as the Administrator and has actually received benefits based upon
PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 2 of 6
CAUSE NO. DC-18-13114
the Settlement Agreement. At all times prior to and through the approval of the Settlement
Agreement Molly was represented by Spencer Law, P.C., as co-counsel with The Johnson Firm.
Following the Settlement Agreement, Spencer Law, P.C. continued to represent Molly by
preparing a more formal, detailed settlement agreement, as contemplated by the Parties and their
Counsel. On January 9, 2018, Molly terminated, without cause, the services of Spencer Law, P.C.,
informing Spencer Law, P.C. that she no longer needed its services and would move forward with
just The Johnson Firm as her attorneys.
4. On Monday, May 21, 2018, Spencer Law, P.C. received a letter from an attorney
informing it that he represents both Molly and The Johnson Firm and that the Johnson Firm was
terminating its “fee splitting arrangement” with Spencer Law, P.C. The letter also indicated that
Molly was taking the position that Spencer Law, P.C. is not entitled to its contingency fee in
relation to its representation of her in the Estate.
5. At the moment of approval of the Settlement Agreement on April 13, 2017, Spencer
Law, P.C.’s right to its contingency fee percentage vested in all Recovery, which means Spencer
Law, P.C.’s interest in all Recovery obtained by Molly in the Estate vested and was owned by
Spencer Law, P.C. outright and free of any claim whatsoever. Spencer Law, P.C. owns a fully
vested and secured property in the Settlement Recovery.
MOLLY’S ORIGINAL PETITION
6. Molly recent filed the Plaintiff’s Original Petition in this case requesting that the
Court enter a declaratory judgment related to the rights, status and legal relations between Molly
and Spencer Parties regarding the Fee Agreement and right to recovery. However, this Court lacks
jurisdiction and venue is not proper because the declaratory judgment sought is an action related
to the Probate Proceeding.
PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 3 of 6
CAUSE NO. DC-18-13114
PLEA TO THE JURISDICTION
7. The Collin County Statutory Probate Court has exclusive, continuing jurisdiction over
this matter and, thus, this Court is without jurisdiction. In fact, the Collin County Statutory Probate
Court has already specifically found that it has jurisdiction and has assumed jurisdiction over this
matter.
8. Texas Estates Code §32.005 defines statutory probate courts’ exclusive
jurisdiction:
“In a county in which there is a statutory probate court, the statutory
probate court has exclusive jurisdiction of all probate proceedings,
regardless of whether contested or uncontested. A cause of action
related to the probate proceeding must be brought in a statutory
probate court unless the jurisdiction of the statutory probate court is
concurrent with the jurisdiction of a district court as provided by
Section 32.007 or with the jurisdiction of any other court.”
TEX. EST. CODE § 32.005(a).
9. Texas Estates Code § 31.002 defines the scope of actions “related to the probate
proceeding.” That section includes in relevant part:
(1) an action against a personal representative or former personal
representative arising out of the representative's performance of the
duties of a personal representative;
(4) an action brought against a personal representative in the
representative's capacity as personal representative;
(6) an action for trial of the right of property that is estate
property.
TEX. EST. CODE § 31.002(a)(1), (a)(4), and (a)(6) (emphasis added); see also Id. at § 31.002(c).
10. The Collin County Statutory Probate Court has exclusive jurisdiction over this and all
matters related to this fee dispute because it involves the trial to right to property in an Estate since
the fee that will be paid to the Spencer Parties will come from assets in the Estate. Because the Collin
Count Statutory Probate Court has exclusive jurisdiction over this matter, this Court is without
PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 4 of 6
CAUSE NO. DC-18-13114
jurisdiction and this case must be dismissed.
11. Plaintiff asserts and attempts to rely on what Plaintiff contends is a mandatory venue
provision within the Fee Agreement. However, when a lawsuit involves venue issues between
counties within the State of Texas (intrastate), as opposed to conflicts between states (interstate),
venue provisions are not mandatory or binding. Tex. Civ. P. & Rem. Code §15.020(e).
MOTION TO TRANSFER
12. As previously described, the claims at issue in this matter are subject to the statutory
probate court’s exclusive jurisdiction and this case should be dismissed. Out of an overabundance
of caution, and without waiving any other argument, should the Court find that it has jurisdiction
over any portion of this case, the Defendants request that the Court transfer any claims presented
in this case to the Collin County Statutory Probate Court, so that the matter may be consolidated
with the Probate Proceeding. Such transfer would be for the convenience of the parties and
witnesses and in the interests of justice. Proceeding in this case on some subset of the claims
presented would be unnecessarily duplicative of the probate proceedings, would raise the
possibility of inconsistent rulings with the probate court, and could unnecessarily delay closure of
the probate estate.
WHEREFORE, Defendants request that the Court dismiss this matter for jurisdiction, or,
alternatively, transfer this matter to the Collin County Statutory Probate Court; and grant general
relief.
PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 5 of 6
CAUSE NO. DC-18-13114
Respectfully submitted,
SULLIVAN & COOK, LLC
/s/ Jeffrey Cook
Jeffrey Cook
State Bar No. 04734495
jcook@sullivancook.com
600 E. Las Colinas Blvd., Suite 1300
Irving, Texas 75039
Telephone: (214) 520-7494
Facsimile: (214) 528-6925
and
LAW OFFICE OF BRAD JACKSON
/s/ Brad Jackson
Brad Jackson
State Bar No. 10496460
brad@bradjackson.com
The Law Offices of Brad Jackson
3701 Turtle Creek Boulevard, Suite 12G
Dallas, Texas 75219
Telephone: (214) 526-7800
Facsimile: (214) 526-1955
ATTORNEYS FOR SPENCER PARTIES
CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of October, 2018, a copy of the foregoing has been
delivered to all attorneys of record in accordance with the Texas Rules of Civil Procedure.
/s/ Jeffrey Cook
One of Counsel
PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 6 of 6
Preview
FILED DALLAS COUNTY 10/8/2018 9:29 AM FELICIA PITRE DISTRICT CLERK CAROLYN SELLERS CAUSE NO. DC-18-13114 MOLLY OSTRANDER § IN THE DISTRICT COURT § Plaintiff § § v. § § KEVIN SPENCER a/k/a § R. KEVIN SPENCER, a/k/a § RICHARD KEVIN SPENCER § and SPENCER LAW, P.C. § § Defendants and § J-191st JUDICIAL DISTRICT Third-Party Plaintiffs § § v. § § PRICE L. JOHNSON and § THE JOHNSON FIRM § § Third-Party Defendants § § DALLAS COUNTY, TEXAS PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE R. Kevin Spencer and Spencer Law, P.C. (collectively, “Spencer Parties” or “Defendants”) file this Plea to the Jurisdiction and Motion to Transfer Venue and respectfully show the Court as follows: BACKGROUND FEE AGREEMENT AND PROBATE PROCEEDING 1. On November 3, 2016, Molly Ostrander (“Molly’) entered into and signed a Contingency Fee Agreement (the “Fee Agreement”) – a contingency attorney fee contract – hiring both The Johnson Firm and Spencer Law, P.C. and agreeing to pay them a percentage of all Recovery, as defined in the Fee Agreement, as their fee in relation to representing Molly to secure her inheritance interest in her mother, Paula Adams’ Estate (the “Estate”). The language of the Fee PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 1 of 6 CAUSE NO. DC-18-13114 Agreement confirming same is as follows: By this letter, the attorneys are giving you notice that you are hiring The Johnson Firm and Spencer Law, P.C. as co-counsel. The Johnson Firm and Spencer Law, P.C. will be jointly responsible for Client’s representations. You are hiring both firms to represent you. This letter also serves as notice to you that the contingent fee percentage you agree to will be split as follows: The Johnson Firm shall receive fifty percent (50%) of the fee percentage actually paid and Spencer Law, P.C. shall receive fifty percent (50%) of the fee percentage actually paid. The contention that the Fee Agreement was designed to hire The Johnson Firm and then allow The Johnson Firm to associate Spencer Law, P.C. is contrary to the specific terms of the Fee Agreement. The plain language of the Fee Agreement confirms that Molly hired both firms jointly a co-counsel and that each were the attorneys for Molly. 2. On April 13, 2017, as a result of the attorneys’ efforts and representation, primarily as a result of the efforts and representation of Spencer Law, P.C., a settlement agreement was reached between Molly, Individually and as Independent Administrator of the Estate of Paula Adams, Deceased (“Administrator”), and her aunt, Carol Adams (“Carol”), regarding division of the Estate’s assets, which was memorialized in writing and signed by the Parties and their Counsel (the “Settlement Agreement”) in Cause No. PB1-1706-2016, in the Collin County Statutory Probate Court (the “Probate Proceeding”). The Settlement Agreement requires that Molly shall receive substantial and valuable assets and benefits that she would not have otherwise been entitled to, but for the representation of her by all the attorneys, including Spencer Law, P.C. (the “Settlement Recovery”). 3. On the evening of April 13, 2017, this Court heard the details of the settlement, received the Settlement Agreement into the record, and approved itin the Probate Proceeding. Molly has continued to serve as the Administrator and has actually received benefits based upon PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 2 of 6 CAUSE NO. DC-18-13114 the Settlement Agreement. At all times prior to and through the approval of the Settlement Agreement Molly was represented by Spencer Law, P.C., as co-counsel with The Johnson Firm. Following the Settlement Agreement, Spencer Law, P.C. continued to represent Molly by preparing a more formal, detailed settlement agreement, as contemplated by the Parties and their Counsel. On January 9, 2018, Molly terminated, without cause, the services of Spencer Law, P.C., informing Spencer Law, P.C. that she no longer needed its services and would move forward with just The Johnson Firm as her attorneys. 4. On Monday, May 21, 2018, Spencer Law, P.C. received a letter from an attorney informing it that he represents both Molly and The Johnson Firm and that the Johnson Firm was terminating its “fee splitting arrangement” with Spencer Law, P.C. The letter also indicated that Molly was taking the position that Spencer Law, P.C. is not entitled to its contingency fee in relation to its representation of her in the Estate. 5. At the moment of approval of the Settlement Agreement on April 13, 2017, Spencer Law, P.C.’s right to its contingency fee percentage vested in all Recovery, which means Spencer Law, P.C.’s interest in all Recovery obtained by Molly in the Estate vested and was owned by Spencer Law, P.C. outright and free of any claim whatsoever. Spencer Law, P.C. owns a fully vested and secured property in the Settlement Recovery. MOLLY’S ORIGINAL PETITION 6. Molly recent filed the Plaintiff’s Original Petition in this case requesting that the Court enter a declaratory judgment related to the rights, status and legal relations between Molly and Spencer Parties regarding the Fee Agreement and right to recovery. However, this Court lacks jurisdiction and venue is not proper because the declaratory judgment sought is an action related to the Probate Proceeding. PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 3 of 6 CAUSE NO. DC-18-13114 PLEA TO THE JURISDICTION 7. The Collin County Statutory Probate Court has exclusive, continuing jurisdiction over this matter and, thus, this Court is without jurisdiction. In fact, the Collin County Statutory Probate Court has already specifically found that it has jurisdiction and has assumed jurisdiction over this matter. 8. Texas Estates Code §32.005 defines statutory probate courts’ exclusive jurisdiction: “In a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested. A cause of action related to the probate proceeding must be brought in a statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 32.007 or with the jurisdiction of any other court.” TEX. EST. CODE § 32.005(a). 9. Texas Estates Code § 31.002 defines the scope of actions “related to the probate proceeding.” That section includes in relevant part: (1) an action against a personal representative or former personal representative arising out of the representative's performance of the duties of a personal representative; (4) an action brought against a personal representative in the representative's capacity as personal representative; (6) an action for trial of the right of property that is estate property. TEX. EST. CODE § 31.002(a)(1), (a)(4), and (a)(6) (emphasis added); see also Id. at § 31.002(c). 10. The Collin County Statutory Probate Court has exclusive jurisdiction over this and all matters related to this fee dispute because it involves the trial to right to property in an Estate since the fee that will be paid to the Spencer Parties will come from assets in the Estate. Because the Collin Count Statutory Probate Court has exclusive jurisdiction over this matter, this Court is without PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 4 of 6 CAUSE NO. DC-18-13114 jurisdiction and this case must be dismissed. 11. Plaintiff asserts and attempts to rely on what Plaintiff contends is a mandatory venue provision within the Fee Agreement. However, when a lawsuit involves venue issues between counties within the State of Texas (intrastate), as opposed to conflicts between states (interstate), venue provisions are not mandatory or binding. Tex. Civ. P. & Rem. Code §15.020(e). MOTION TO TRANSFER 12. As previously described, the claims at issue in this matter are subject to the statutory probate court’s exclusive jurisdiction and this case should be dismissed. Out of an overabundance of caution, and without waiving any other argument, should the Court find that it has jurisdiction over any portion of this case, the Defendants request that the Court transfer any claims presented in this case to the Collin County Statutory Probate Court, so that the matter may be consolidated with the Probate Proceeding. Such transfer would be for the convenience of the parties and witnesses and in the interests of justice. Proceeding in this case on some subset of the claims presented would be unnecessarily duplicative of the probate proceedings, would raise the possibility of inconsistent rulings with the probate court, and could unnecessarily delay closure of the probate estate. WHEREFORE, Defendants request that the Court dismiss this matter for jurisdiction, or, alternatively, transfer this matter to the Collin County Statutory Probate Court; and grant general relief. PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 5 of 6 CAUSE NO. DC-18-13114 Respectfully submitted, SULLIVAN & COOK, LLC /s/ Jeffrey Cook Jeffrey Cook State Bar No. 04734495 jcook@sullivancook.com 600 E. Las Colinas Blvd., Suite 1300 Irving, Texas 75039 Telephone: (214) 520-7494 Facsimile: (214) 528-6925 and LAW OFFICE OF BRAD JACKSON /s/ Brad Jackson Brad Jackson State Bar No. 10496460 brad@bradjackson.com The Law Offices of Brad Jackson 3701 Turtle Creek Boulevard, Suite 12G Dallas, Texas 75219 Telephone: (214) 526-7800 Facsimile: (214) 526-1955 ATTORNEYS FOR SPENCER PARTIES CERTIFICATE OF SERVICE I hereby certify that on the 8th day of October, 2018, a copy of the foregoing has been delivered to all attorneys of record in accordance with the Texas Rules of Civil Procedure. /s/ Jeffrey Cook One of Counsel PLEA TO THE JURISDICTION AND MOTION TO TRANSFER VENUE - Page 6 of 6