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CAUSE NO. 2016-02563
SUSAN ALEXANDER IN THE DISTRICT COURT OF
on behalf of the ESTATE OF
MILTON A. MANDELL
and individually, et al.
Plaintiffs,
HARRIS COUNTY, TEXAS
RAY J. BLACK, JR., AS ADMINISTRATOR
OF THE ESTATE OF
WILLIAM M. MANDELL al.
Defendants. 129THJUDICIAL DISTRICT
PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT RAY J. BLACK, JR.'S
MOTION TO TRANSFER TO PROBATE COURT.
Plaintiffs, Susan Alexander on behalf of the Estate of MiltonA. Mandell and individually,
Karen Jameson, and Lynn Kogen (collectively, “Plaintiffs”) respectfully request that this Court
deny the Motion to Transfer
to Probate Court filed by Defendant
Ray J. Black, Jr., as Administrator
of the Estate of William M. Mandell (“Black”), regarding Cause No. 2016 02563, filed in the
129th District Court of Haris County, Texas (“Alexander Matter’).
SUMMARY OF ARGUMENT.
The Court should deny the Motion because: (1) No known asset of William Mandell’s
Estate is involved in the Alexander
Matter; (2) the primary claim in the Alexander
suit relates to a
acre property in Cypress, Texas which is not part of William Mandell’s Estate; and (3)
because the district court has concurrent jurisdiction.
BACKGROUND
The Alexander Matter chiefly concems an approximately 240 acre property located on
House Hahl Road
in Cypress, Texas (“the 240”). William Mandell (“William”)now deceased.
first acquired a piece of the 240 in 1956On February 16, 1972, William conveyed his interest in
the 240 (a total of 60 acres) to his brother Milton Mandell (“Milton”) and Milton's wife Jeanne.
This 60 acres became Milton and Jeanne’s joint management community property. On June 1,
1973, Milton transferred 60 of the current 240 acres back to William, without the knowledge or
consent
of his wife Jeanne, making
the transfer void. As a result, the transfer
was void, and that
Milton’s Estate therefore retains an interest in the 240. This is the basis for Plaintiffs’ claim to a
percentage
of the 240in the Alexander Matter
Over the years, William bought parts of the current 240 acres. He acquired
100% of the
current 240 acres by December
30, 2004. William subsequently
transferred his entire interest in
the 240 to his wife, Defendant Monique Mandell (“Monique”) via multiple transfers made between
2004 and 2012. William died in January of 2019.
There is an ongoing probate matter pertaining to the estate of William M. Mandell
“Williams Estate”), assigned Cause No. 473747 in Probate Court No. 1 of Haris County, Texas
(“Probate Matter’). In the Probate Matter, William’s Estate, Monique Mandell, and David
Mandellall of whom are Defendants in the Alexander Matter dispute record ownership of the
240. Defendant David Mandell (“David”) alleges that Monique transferred 100% of the 240 back
See Ex. 1, Black’s Mot. for Instruction & Mot. for Security for Costs, at 1 (noting
that William’ s Estate “has
proven
to be little more than a single storage unit containing paintings, rugs, statues, and coins.”).
to William
via unrecorded Special Warranty Deed on October4 and October
9, 2018. Per David's
allegations, William subsequently transferred 50% of the 240 to David on January 19, 2019
again, via unrecorded deed. Monique disputes these allegations. Plaintiffs take no position on the
current owner(s) of the 240, but have filed suit against Monique, David, and William's Estate
(through Black).
Plaintiff leamed recently, through Black’s filings in the Probate Matter, that William’ s
Estate “has proven to be little more than a single storage unit containing paintings, rugs, statues,
and coins.” Ex. 1, Black’s Mot. for Instruction & Mot. for Security for Costs, at 1As a result,
William's Estate does not contain the asset at the heart of the Alexander Matterthe 240. It is
primanily for this reason that the Alexander Matter should not be transferred to probate court, as
explained in further detail below.
ARGUMENT & AUTHORITIES
When the probate court’s jurisdiction is concurrent with that of the district court, a cause
of action “related to the probate proceeding” need not be brought in probate court. Tex. Estates
Code § 32.005(a). “Related to probate proceeding” is defined in relevant part as follows:
(a) For purposes of this code, in a county in which there is no statutory probate
court or county court at law exercising original probate jurisdiction, a matterrelated
to a probate proceeding includes:
(4) an action brought against a personal representative in the
representative's capacity as personal representative;
(5) anactionfor trial oftitle to real property that is estate property, including
the enforcement of a lien against the property; and
(6) anaction for trial of the right of property that is estate property.
(c) For purposes of this code, ina county in which there is a statutory probate court,
a matter related to a probate proceeding includes:
(1) all matters and actions described in Subsections (a) and (b); and
(2) any cause of action in which a personal representative of an estate
pending in the statutory probate court is a party in the representative's capacity as
personal representative.
Tex. Estates Code§ 31.002.
A probate court has concurrent jurisdiction with the district court in (among other situations
not relevant to this case) “an action involving a personal representative of an estate in which each
other party aligned
with the personal representative is not an interested person in that estate.” Tex.
Estates Code § 32.007(4).
Black contends that the probate court has exclusive jurisdiction over the Alexander matter
because: (1) Plaintiffs’ claims allegedly overlap with and are related to the Probate Matter; (2) the
Alexander matter allegedly involves property of William’ s Estate; and (3) the Alexander Matter is
brought against Black in his capacity as personal representative of William's Estate (relying on
Texas Estates Code § 31.002). However, none of the allegations or laws cited by Black support
mandatory transfer, as explained further below.
he District Court has concurrent jurisdiction because Monique, David, and Black
are not “aligned.”
First, this case need not be transferred
because the District Court has concurrent jurisdiction.
with the probate court. See Tex. Estates Code §§ 32.005(a), 32.007(4). This is so because the
Alexander Matter “involves a personal representative of an estate” (Black), and because “each
other party aligned with [Black] is not an interested person in that estatef.]” Tex. Estates Code§
32.007(4) (emphasis added).
Black/William’s Estate, Monique, and David have taken opposi_ positions _ several
disputes in the Probate Matter, including disputes over a residence on Paisley Lane, William's
will, and the 240. David has even filed suit against Monique in a matter ancillary to the Probate
Matter. Black, Monique, and David are not “aligned” simply by being defendants in the Alexander
Matter. Their interests are nowhere near aligned, as evidenced by their disputes in the Probate
Matter. Additionally, some causes of action in the Alexander Matter concem just Black, and not
Monique or David. Others concem just Black and Monique, but not David. Appropriately, Black,
Monique, and David all have retained their own attomeys and filed separate answers to Plaintiffs’
live pleading in the Alexander Matter.
Thus, even if the Alexander
Matter is “related to the probate proceeding”, as Black alleges
the district court has concurrent jurisdiction, based on the fact that Black, Monique, and David are
not “aligned See Tex. Estates Code§ 32.007(4).
The Alexander Matter does not involveproperty of William’s Estate
Additionally, the Alexander Matter is not as related to the Probate Matter as Black
contends. The Alexander Matter is an action brought against a personal representative in his
capacity as such (Black, in his capacity as administrator of William's Estate). However, it does
not concem “real property that is estate property.” Tex. Estates Code § 31.002(a)(5). As Black
noted in his March 4, 2020 motion for instruction and security for costs filed in the Probate Matter,
William's Estate “has proven to be little more than a single storage unit containing paintings,
Tugs, statues, and coins.” Ex. 1, at 12. In other words, the 240the crux of the Alexander
Matteris not part of William’s Estate. Furthermore, e ven if the Alexander
Matter is “related
to
the probate proceeding”, as Black alleges, it need not be transferred because the district court has
concurrent jurisdiction, as noted previously.
The parties to the Alexander Matter do dispute ownership of some coins, but Plaintiffs do not and cannot know
whether the coins referenced in Black’s Motion for Instruction and Security for Costs are those at issue in the
Alexander Matter Plaintiffs are not claiming or disclaiming any interest in the coins Black found in the storage unit
at this time. Asa result, the Alexander Matter does not concem any known asset of William’ s Estate.
Iv. CONCLUSION
For the reasons explained above the Court should deny Defendant Black’s motion to
transfer
to probate court.
Dated: March 6, 2020
Respectfully ubmitted,
BERG & ANDROPHY
By:/s/ David H. Berg
David H. Bag
Texas Bar No. 02187000
Rebecca L. Gibson
Texas Bar No. 24092418
Caroline Gorman
Texas Bar No.
3704 Travis Street
Houston, TX 77002
5622 (office)
3785 (fax)
dberg@bafirm.com.
ryibson@bafimn.com
cgorman@bafinm.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I certify that on March 6, 2020, I served a copy of the foregoing on Defendants through
their attomeys of record by electronic service:
Alfred M. Benoit
3033 Chimney Rock Road, Suite 610
Houston, Texas 77056
Al.benoit@thebenoitlawfirm.com
Attorney for Defendant Monique Mandell
Alan N. Magenheim
AGENHEIM EHNDER
3701 Kirby Drive, Suite 913
Houston, Texas 77098
alan@magenheimlaw.com
Attorney for Defendant Ray J. Black, Jr., as administrator of the Estate of William M.
Mandell
Frederick W. Addison III
R Keith Monis III
Susan Sample
Casey Minnes Carter
UNSCH ARDT OPF ARR P.C.
700 Milam Street, Suite 2700
Houston, Texas 77002
raddison@munsch.com
kmoris@munsch.com
ssample@munsch.com
ccarter@munsch.com
Attorney for Defendant David Mandell
/s/ Rebecca L. Gibson
By: RebeccaL. Gibson
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CAUSE NO. 2016-02563 SUSAN ALEXANDER IN THE DISTRICT COURT OF on behalf of the ESTATE OF MILTON A. MANDELL and individually, et al. Plaintiffs, HARRIS COUNTY, TEXAS RAY J. BLACK, JR., AS ADMINISTRATOR OF THE ESTATE OF WILLIAM M. MANDELL al. Defendants. 129THJUDICIAL DISTRICT PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT RAY J. BLACK, JR.'S MOTION TO TRANSFER TO PROBATE COURT. Plaintiffs, Susan Alexander on behalf of the Estate of MiltonA. Mandell and individually, Karen Jameson, and Lynn Kogen (collectively, “Plaintiffs”) respectfully request that this Court deny the Motion to Transfer to Probate Court filed by Defendant Ray J. Black, Jr., as Administrator of the Estate of William M. Mandell (“Black”), regarding Cause No. 2016 02563, filed in the 129th District Court of Haris County, Texas (“Alexander Matter’). SUMMARY OF ARGUMENT. The Court should deny the Motion because: (1) No known asset of William Mandell’s Estate is involved in the Alexander Matter; (2) the primary claim in the Alexander suit relates to a acre property in Cypress, Texas which is not part of William Mandell’s Estate; and (3) because the district court has concurrent jurisdiction. BACKGROUND The Alexander Matter chiefly concems an approximately 240 acre property located on House Hahl Road in Cypress, Texas (“the 240”). William Mandell (“William”)now deceased. first acquired a piece of the 240 in 1956On February 16, 1972, William conveyed his interest in the 240 (a total of 60 acres) to his brother Milton Mandell (“Milton”) and Milton's wife Jeanne. This 60 acres became Milton and Jeanne’s joint management community property. On June 1, 1973, Milton transferred 60 of the current 240 acres back to William, without the knowledge or consent of his wife Jeanne, making the transfer void. As a result, the transfer was void, and that Milton’s Estate therefore retains an interest in the 240. This is the basis for Plaintiffs’ claim to a percentage of the 240in the Alexander Matter Over the years, William bought parts of the current 240 acres. He acquired 100% of the current 240 acres by December 30, 2004. William subsequently transferred his entire interest in the 240 to his wife, Defendant Monique Mandell (“Monique”) via multiple transfers made between 2004 and 2012. William died in January of 2019. There is an ongoing probate matter pertaining to the estate of William M. Mandell “Williams Estate”), assigned Cause No. 473747 in Probate Court No. 1 of Haris County, Texas (“Probate Matter’). In the Probate Matter, William’s Estate, Monique Mandell, and David Mandellall of whom are Defendants in the Alexander Matter dispute record ownership of the 240. Defendant David Mandell (“David”) alleges that Monique transferred 100% of the 240 back See Ex. 1, Black’s Mot. for Instruction & Mot. for Security for Costs, at 1 (noting that William’ s Estate “has proven to be little more than a single storage unit containing paintings, rugs, statues, and coins.”). to William via unrecorded Special Warranty Deed on October4 and October 9, 2018. Per David's allegations, William subsequently transferred 50% of the 240 to David on January 19, 2019 again, via unrecorded deed. Monique disputes these allegations. Plaintiffs take no position on the current owner(s) of the 240, but have filed suit against Monique, David, and William's Estate (through Black). Plaintiff leamed recently, through Black’s filings in the Probate Matter, that William’ s Estate “has proven to be little more than a single storage unit containing paintings, rugs, statues, and coins.” Ex. 1, Black’s Mot. for Instruction & Mot. for Security for Costs, at 1As a result, William's Estate does not contain the asset at the heart of the Alexander Matterthe 240. It is primanily for this reason that the Alexander Matter should not be transferred to probate court, as explained in further detail below. ARGUMENT & AUTHORITIES When the probate court’s jurisdiction is concurrent with that of the district court, a cause of action “related to the probate proceeding” need not be brought in probate court. Tex. Estates Code § 32.005(a). “Related to probate proceeding” is defined in relevant part as follows: (a) For purposes of this code, in a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, a matterrelated to a probate proceeding includes: (4) an action brought against a personal representative in the representative's capacity as personal representative; (5) anactionfor trial oftitle to real property that is estate property, including the enforcement of a lien against the property; and (6) anaction for trial of the right of property that is estate property. (c) For purposes of this code, ina county in which there is a statutory probate court, a matter related to a probate proceeding includes: (1) all matters and actions described in Subsections (a) and (b); and (2) any cause of action in which a personal representative of an estate pending in the statutory probate court is a party in the representative's capacity as personal representative. Tex. Estates Code§ 31.002. A probate court has concurrent jurisdiction with the district court in (among other situations not relevant to this case) “an action involving a personal representative of an estate in which each other party aligned with the personal representative is not an interested person in that estate.” Tex. Estates Code § 32.007(4). Black contends that the probate court has exclusive jurisdiction over the Alexander matter because: (1) Plaintiffs’ claims allegedly overlap with and are related to the Probate Matter; (2) the Alexander matter allegedly involves property of William’ s Estate; and (3) the Alexander Matter is brought against Black in his capacity as personal representative of William's Estate (relying on Texas Estates Code § 31.002). However, none of the allegations or laws cited by Black support mandatory transfer, as explained further below. he District Court has concurrent jurisdiction because Monique, David, and Black are not “aligned.” First, this case need not be transferred because the District Court has concurrent jurisdiction. with the probate court. See Tex. Estates Code §§ 32.005(a), 32.007(4). This is so because the Alexander Matter “involves a personal representative of an estate” (Black), and because “each other party aligned with [Black] is not an interested person in that estatef.]” Tex. Estates Code§ 32.007(4) (emphasis added). Black/William’s Estate, Monique, and David have taken opposi_ positions _ several disputes in the Probate Matter, including disputes over a residence on Paisley Lane, William's will, and the 240. David has even filed suit against Monique in a matter ancillary to the Probate Matter. Black, Monique, and David are not “aligned” simply by being defendants in the Alexander Matter. Their interests are nowhere near aligned, as evidenced by their disputes in the Probate Matter. Additionally, some causes of action in the Alexander Matter concem just Black, and not Monique or David. Others concem just Black and Monique, but not David. Appropriately, Black, Monique, and David all have retained their own attomeys and filed separate answers to Plaintiffs’ live pleading in the Alexander Matter. Thus, even if the Alexander Matter is “related to the probate proceeding”, as Black alleges the district court has concurrent jurisdiction, based on the fact that Black, Monique, and David are not “aligned See Tex. Estates Code§ 32.007(4). The Alexander Matter does not involveproperty of William’s Estate Additionally, the Alexander Matter is not as related to the Probate Matter as Black contends. The Alexander Matter is an action brought against a personal representative in his capacity as such (Black, in his capacity as administrator of William's Estate). However, it does not concem “real property that is estate property.” Tex. Estates Code § 31.002(a)(5). As Black noted in his March 4, 2020 motion for instruction and security for costs filed in the Probate Matter, William's Estate “has proven to be little more than a single storage unit containing paintings, Tugs, statues, and coins.” Ex. 1, at 12. In other words, the 240the crux of the Alexander Matteris not part of William’s Estate. Furthermore, e ven if the Alexander Matter is “related to the probate proceeding”, as Black alleges, it need not be transferred because the district court has concurrent jurisdiction, as noted previously. The parties to the Alexander Matter do dispute ownership of some coins, but Plaintiffs do not and cannot know whether the coins referenced in Black’s Motion for Instruction and Security for Costs are those at issue in the Alexander Matter Plaintiffs are not claiming or disclaiming any interest in the coins Black found in the storage unit at this time. Asa result, the Alexander Matter does not concem any known asset of William’ s Estate. Iv. CONCLUSION For the reasons explained above the Court should deny Defendant Black’s motion to transfer to probate court. Dated: March 6, 2020 Respectfully ubmitted, BERG & ANDROPHY By:/s/ David H. Berg David H. Bag Texas Bar No. 02187000 Rebecca L. Gibson Texas Bar No. 24092418 Caroline Gorman Texas Bar No. 3704 Travis Street Houston, TX 77002 5622 (office) 3785 (fax) dberg@bafirm.com. ryibson@bafimn.com cgorman@bafinm.com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I certify that on March 6, 2020, I served a copy of the foregoing on Defendants through their attomeys of record by electronic service: Alfred M. Benoit 3033 Chimney Rock Road, Suite 610 Houston, Texas 77056 Al.benoit@thebenoitlawfirm.com Attorney for Defendant Monique Mandell Alan N. Magenheim AGENHEIM EHNDER 3701 Kirby Drive, Suite 913 Houston, Texas 77098 alan@magenheimlaw.com Attorney for Defendant Ray J. Black, Jr., as administrator of the Estate of William M. Mandell Frederick W. Addison III R Keith Monis III Susan Sample Casey Minnes Carter UNSCH ARDT OPF ARR P.C. 700 Milam Street, Suite 2700 Houston, Texas 77002 raddison@munsch.com kmoris@munsch.com ssample@munsch.com ccarter@munsch.com Attorney for Defendant David Mandell /s/ Rebecca L. Gibson By: RebeccaL. Gibson