Preview
1/31/2020 4:59 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 40477688
By: Joshua Bovell
Filed: 1/31/2020 4:59 PM
CAUSE NO. 2019-79627
BB RESIDENTIAL GROUP, INC. § IN THE DISTRICT COURT
AND BANCORPSOUTH BANK, §
Plaintiffs, §
v. § 215th JUDICIAL DISTRICT
§
JUDGMENTS 2 CA$H, LLC, §
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WOODROW MILLER, §
INDIVIDUALLY AND D/B/A §
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JUDGMENTS 2 CA$H, AND TERRY §
LEE JONES §
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Defendants. § HARRIS COUNTY, TEXAS
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PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO DEFENDANT’S
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AMENDED MOTION TO TRANSFER TO PROBATE COURT
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TO THE HONORABLE COURT: Bu
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NOW COMES Plaintiff BB Residential Group, Inc., the owner of the real property made the
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subject of this suit, and BancorpSouth Bank, the mortgage lender to BB Residential Group, Inc.
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(collectively “Plaintiffs”) and files this Supplemental Response to the Amended Motion to Transfer
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to Probate Court (the “Amended Motion”) of Defendant Woodrow Miller individually (“Miller”).
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Plaintiffs request the Court DENY the Amended Motion and would respectfully show the Court as
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follows:
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I. INCORPORATION OF EXHIBITS
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1. Plaintiffs incorporate by reference herein in their entirety the exhibits attached to their Original
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Petition and First Supplemental Original Petition and refer to each exhibit by its corresponding letter
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designation (e.g. Exhibit A, B, etc.). For the sake of brevity, any reference to any Exhibit shall refer to
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those attached to the referenced pleadings.
2. Plaintiffs incorporate by reference herein in their entirety of their Response filed on January
30, 2020 to the Motion to Transfer.
Plaintiffs’ Supplemental Response in Opposition to Miller’s Motion to Transfer to Probate Court Page 1
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II. SUMMARY OF THE CASE AND RESPONSE
3. Plaintiffs incorporate Section II. “Summary of the Case and Response” from the Response to
the Motion filed on January 30, 2020.
III. FACTS
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4. Plaintiffs incorporate Section III. “Facts” from the Response to the Motion filed on January
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30, 2020.
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IV. LEGAL ARGUMENTS AND AUTHORTY
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5. Defendant Miller filed an Amended Motion to Transfer to Probate Court on January 30, 2020
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at 3:30 pm. Since Miller filed an “Amended Motion,” all allegations in the original Motion to Transfer
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are superseded and “shall no longer be regarded as a part of the pleading in the record of the cause. .
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.” TEX. R. CIV. P. 65. As such, Plaintiffs’ Supplemental Response addresses the issues raised in Miller’s
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Amended Motion.
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6. “No Probate Proceeding.” Miller does not make any arguments in his Amended Motion.
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The Amended Motion simply cites a series of statutes and cases. For example, Miller cites Texas
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Estates Code, § 32.005(a), which states that a cause of action “related to a probate proceeding must
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be brought in a statutory probate court.” Miller makes no attempt to argue or show any evidence that
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there ever was any “probate proceeding” related to Charles Verner Davis, Sr. (“Charles Sr.”) He
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cannot, because there was not.
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7. Texas Estates Code Section 34.001(a) governs the transfer of matters to statutory probate
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court. It states in full:
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A judge of a statutory probate court, on the motion of a party to the action
or on the motion of a person interested in an estate, may transfer to the judge’s
court from a district, county, or statutory court a cause of action related to a
probate proceeding pending in the statutory probate court or a cause of
action in which a personal representative of an estate pending in the
statutory probate court is a party and may consolidate the transferred cause
of action with the other proceedings in the statutory probate court relating
to that estate.
Plaintiffs’ Supplemental Response in Opposition to Miller’s Motion to Transfer to Probate Court Page 2
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TEX. ESTATES CODE § 34.001(a) (emphasis added)
8. Miller’s Motion fails on several of the requirements contained in 34.001(a):
a) First, there is no “probate proceeding pending” in any statutory probate court of Harris
County, nor any other county;
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b) Second, as a result, it follows that no “judge of [any] statutory probate court” has jurisdiction
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over any matter related to an estate of Charles Sr., nor over the Property; therefore, such judge
has nowhere to transfer (or bring in) this extraneous cause of action; and
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c) Third, there has been no appointment of a “personal representative” of an “estate pending.”
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No personal representative “is a party” to a “transferred cause of action” and there are zero
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“other proceedings” in probate court related to any estate of Charles Sr.
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9. “No Personal Representative.” Miller further cites Texas Estates Code 31.002(a)(4), (5)
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regarding “an action brought against a personal representative in the representative’s capacity as a
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personal representative” and “an action [to] enforce a lien against [estate property].” Again, Miller
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makes no attempt to argue or show any evidence that there ever was an “action brought against a
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personal representative” related to Charles Sr., nor that any lien he claims is related to estate property.
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He cannot, because there was never any personal representative appointed nor any property in an
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estate of Charles Sr. to which a lien against Charles Jr. could attach.
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10. “No Probate Jurisdiction.” Miller cites several cases without explanation or argument
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related to subject matter jurisdiction that this Court, in this case, does not have such jurisdiction. It is
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clear in Texas that District Court has jurisdiction over suits related to the titleof real property:
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“District courts generally have exclusive jurisdiction to determine title to real property.” Merit Mgmt.
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Partners I, L.P. v. Noelke, 266 S.W.3d 637, 643, (Tex. App.—Austin 2008, no pet.); citing Chambers v.
Pruitt, 241 S.W.3d 679, 684 (Tex. App.--Dallas 2007, no pet.). Miller makes no argument nor provides
any evidence of there being a necessity for administration of the estate as discussed in the Response
to the Motion. Section 306.002 of the Texas Estates Code provides that a as follows:
Plaintiffs’ Supplemental Response in Opposition to Miller’s Motion to Transfer to Probate Court Page 3
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(b) The court may not grant any administration of an estate unless a necessity for the
administration exists, as determined by the court.
(c) The court may find other instances of necessity for an administration based on
proof before the court, but a necessity is considered to exist if:
(1) there are two or more debts against the estate;
(2) there is a desire for the county court to partition the estate among the
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distributees;
(3) the administration is necessary to receive or recover funds or other property
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due the estate; or
(4) the administration is necessary to prevent real property in a decedent’s
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estate from becoming a danger to the health, safety, or welfare of the general
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public.
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Tex. Estates Code § 306.002
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No such showing has been made.
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“No Judicial Admission.” Miller goes on to argue that somehow Plaintiffs make a “judicial
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admission” regarding the existence of an estate and/or a probate proceeding because the Deed of
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Trust given by Plaintiff, BB Residential Group, Inc. (“BBRG”), to its lender makes an equivocal reference
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to an “Estate of Charles Davis a/k/a Charles V. Davis [Sr.]” in a reference to a reservation of a
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vendors lien in the General Warranty Deed from Ruby Mae Davis (“Ruby”) to BBRG. The reference
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to Exhibit F contains the following language:
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12. In fact, the vendors lien reserved in the Deed to BBRG (Exhibit E) makes no such reference
to an Estate. It is clear that the Grantor of the deed is Ruby Mae Davis:
Plaintiffs’ Supplemental Response in Opposition to Miller’s Motion to Transfer to Probate Court Page 4
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No reference or conveyance from “The Estate” occurred, because no such estate existed. Why?
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Charles Sr. died intestate and the community property homestead passed solely to Ruby.
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13. Further, this reference in Exhibit F is neither material nor a judicial admission made in the
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course of litigation, but in a prior document made before this suit was filed. Judicial admissions are
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assertions of fact, not pled in the alternative, in the live pleadings of a party. Nguyen v. Davis, 1998 Tex.
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App. LEXIS 6913, *5, 1998 WL 767697 (Tex.App.—Houston [14th Dist.] 1998); citing Houston First
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Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983).
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14. As discussed above, it iscrucial to note that Bu
Miller urges his Motion in the wrong court.
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Whether an administration is necessary isa question for the probate court, which itdetermines
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based on proof. Gonzalez v. Martinez, 2017 Tex. App. LEXIS 4655, *11-12, 2017 WL 2255649; citing
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Tex. Est. Code § 306.002(c); see King v. Estate of Balshaw, No. 01-89-00370-CV, 1990 Tex. App. LEXIS
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338, 1990 WL 11977, at *3 (Tex. App.—Houston [1st Dist.] Feb. 15, 1990, no writ) (mem. op., not
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designated for publication)(emphasis added).
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15. Declaratory Judgment Action or Probate Administration: First, the Court must face the
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clear distinction between the causes of action pending before it and what Miller seeks to create with
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his Motion. Plaintiffs filed a suit to quiet titleand for declaratory judgment related to alleged
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attachment of a judgment to real property and its effect on title to that real property. See Plaintiffs’
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Original and Supplemental Original Petitions. District courts have exclusive jurisdiction to determine
title to real property. Aspenwood Apt. Corp. v. Coinmach, Inc., 349 S.W.3d 621, 635 (Tex.App.—Houston
[1st dist.], 2011), citing Doggett v. Nitschke, 498 S.W.2d 339, 339 (Tex. 1973). Plaintiffs’ claims clearly
fall within in the jurisdiction of this honorable District Court.
Plaintiffs’ Supplemental Response in Opposition to Miller’s Motion to Transfer to Probate Court Page 5
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16. However, what Miller seeks to create via his misplaced Motion is an administration of estate
for which there is no necessity. Neither Miller nor any other defendant, nor the family of Charles Sr.
has commenced a probate proceeding to manage this estate. None was necessary. There were no debts
and the main asset, the community real property, passed to Ruby, the wife of Charles Sr. and mother
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of Charles Jr.
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17. “Children ‘Out of Wedlock’ is not the standard for intestacy. Descendancy governs.”
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Miller alleges he holds 50% of a judgment debt against Charles Jr. He alleges that Charles Sr. and Ruby
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did not own the Property as community property but as separate property. He provides no proof of
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this to counter the evidence Plaintiff provides that 1) Charles Sr. and Ruby began a common-law
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marriage in or around 1970; 2) That they took title to the Property as community property; and 3) that
Charles Jr. was the descendant of both Charles Sr. and Ruby.
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18. Miller attempts to argue that Texas Estates Code Section 201.002 governs the intestate
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property of Charles Sr. and that the Property was the separate property of Charles Sr. The entire basis
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for Miller’s argument rests on his insistence that that Charles Jr. was born “out of the wedlock” of
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Charles Sr. and Ruby. This is simply inaccurate. Miller bases this argument on a drafting error in the
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Affidavit of Heirship Ruby Miller filed before she sold the Property to Plaintiff.
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19. Miller alleges that this single statement created a separate property interest in Charles Sr., as
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opposed to the community property homestead clearly created by the vesting deed. See Exhibit B -
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Vesting Deed:
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Exhibit B to Original Petition.
Plaintiffs’ Supplemental Response in Opposition to Miller’s Motion to Transfer to Probate Court Page 6
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20. Texas Estates Code Section 201.003 governs the passing of the community estate of a person
who dies intestate. Subsection (b)(2) states as follows:
(b) The community estate of the deceased spouse passes to the surviving spouse if:
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(2) all of the surviving children and descendants of the deceased spouse are
also children or descendants of the surviving spouse.
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TEX. ESTATES CODE, § 201.003 (emphasis added)
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There is no reference in the code to the “wedlock” status of the parents of the descendants of the
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surviving spouse. Ruby and her sister, Bobby Cummings also provided affidavits that Charles Jr. is the
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only surviving child (“descendant”) of Charles Sr. and Ruby. See Exhibit K and Exhibit N. As such,
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the Property, which was taken as community property in the 1982 Deed (Exhibit B), passed entirely
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to Ruby upon Charles Sr.’s death. Charles Jr. has Bu
no right, title or interest therein. Defendants’
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Judgment against Charles Jr. therefore never attached to the Property.
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21. It is unclear from Miller’s Motion why the existing claims cannot be heard in this Court, nor
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why there is any necessity for an administration of the estate of Charles Sr. This District Court is
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supremely capable of rendering such a judgment without the commencement of an administration in
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probate court.
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22. The purpose of a declaratory action is to establish existing rights, status, or other legal
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relationships. Republic Ins. v. Davis, 856 S.W.2d 158, 164 (Tex.1993); see TEX. CIV. PRAC. & REM. CODE
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§37.004(a); Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995).
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23. Upon trialon the merits, Plaintiffs will show that BBRG’s chain of titlefrom the Davises
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originates from the 1982 deed to Charles Sr. and Ruby as “husband and wife,” that Charles Jr. was the
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child of both Charles Sr. and Ruby, and that when Charles Sr. passed, his interest in the community
property passed to Ruby under Tex. Estates Code § 201.003. There is no need for an administration
of an estate to issue such a judgment.
V. PRAYER
Plaintiffs’ Supplemental Response in Opposition to Miller’s Motion to Transfer to Probate Court Page 7
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WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that this Honorable
Court:
(1) DENY Defendant Miller’s Amended Motion to Transfer to Probate Court; and
(2) Grant all such other relief available to Plaintiffs whether in equity or at law, whether general
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or specific, whether pled or unpled.
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Respectfully submitted,
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PHIL MEYER, PLLC
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By: _____________________________
Philip A. “Phil” Meyer
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Texas Bar No. 00784597
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service@philmeyerlaw.com
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17806 IH 10 West, Suite 300
San Antonio, Texas 78257
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Tel. (210) 229-8000
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ATTORNEY FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
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I HEREBY CERTIFY THAT a true and correct copy of the foregoing document was served
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on all parties and/or their counsel pursuant to Tex.R.Civ.Proc. 21 and 21a on the 31stday of January,
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2020 efile.txcourts.gov efile system and via email as follows:
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Woodrow Miller, Individually Terry Lee Jones
Via email: wwmiller2012@gmail.com Via email: leecora55@yahoo.com
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Defendant and counter-Plaintiff Defendant
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Judgments 2 Ca$h, LLC via its registered agent for
service of process, Woodrow Miller
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Via email: wwmiller2012@gmail.com
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PHIL MEYER, PLLC
By: _____________________________
Philip A. “Phil” Meyer
Plaintiffs’ Supplemental Response in Opposition to Miller’s Motion to Transfer to Probate Court Page 8
20170804.20190720/3455115.1