No. 04- 16
- 00 550- CV IN THE FOURTH COURT OF APPEALS at SAN ANTONIO, TEXAS

______________________ IN RE: TODD A. PRINS

______________________ Original Proceeding from the Probate Court No. 1, Bexar County,

Texas, the Honorable Kelly M. Cross Presiding
Cause No. 2015- PC -2377; Estate of Jose Oleszcovski Wasserteil, Deceased. REAL PARTY IN INTEREST, THE ESTATE OF JOSE OLESZCOVSKI WASSERTEIL, DECEASED RESPONSE TO DEFENDANT TODD A. PRINS’ PETITION FOR WRIT OF MANDAMUS ORAL ARGUMENT REQUESTED

Submitted by: FLUME LAW FIRM, LLP 1020 N.E. Loop 410, Suite 200 San Antonio, Texas 78209 (210) 828 -5641 (210) 821 -6069 Facsimile
MICHAEL FLUME State Bar No. 07188480 mflume@flumelaw.net GUILLERMO S. DEKAT State Bar No. 240 69599 gdekat@flumelaw.net
ATTORNEYS FOR REAL PARTY IN INTEREST, THE ESTATE OF JOSE OLESZCOVSKI WASSERTEIL, DECEASED ACCEPTED 04-16-00550-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/31/2016 10:28:19 AM KEITH HOTTLE CLERKi TABLE OF CONTENTS
TABLE OF CONTENTS

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INDEX OF AUTHORITIES

................................ ................................ ............... ... ii
STATEMENT OF THE CASE

................................ ................................ ........... ... 1
ISSUES PRESENTED

................................ ................................ ........................ ... 3
1. Did t he Trial Court abuse its discretion in issuing an O rder Granting Motion to Place Funds Into the Registry of the Court ?
2. Is an Emergency Stay necessary to maintain the status quo of the parties?
STATEMENT OF FACTS

.......................................... ..................... 3
ARGUMENT

.............................................................................. 6
1. The Trial Court did not abuse its discretion issuing an Order Granting Motion to Place Funds I nto the Registry of the Court because evidence was presented that the funds were in danger of being lost or depleted

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 6
2 . Prins’ Motion For Emergency Stay is not necessary to maintain the status quo pending th e outcome of litigation...............

... ... 7
CONCLUSION

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PRAYER

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CERTIFICATE OF SERVICE

................................ ................................ ......... 1 2ii INDEX OF AUTHORITIES

CASES Liang Zhao v. XO Energy, LLC, NO. 01

- 15

- 00937

- CV 2016, Tex. A pp. LEXIS 4757 at *25 (Tex. App.

— Houston [1st Dist.] May 5, 2016, pet. dism’d)

.. 6
In re Reed , 901 S.W.2d 604, 6 09 (Tex. App.

— San Antonio 1995, orig. proceeding)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 7
STATUTES
T EX . C IV . P RAC . & R EM . C ODE A NN

. Section 61.0016........................

... 61 INTRODUCTION For clarity, R elator is referred to as Prins and includes Prins Law Firm,
which is a n ass umed name / DBA of Todd A. Prins ; R espondent, the Honorable Kelly M. Cross is sometimes referred to as the Trial Court or Ju dge Cross ; and th e
R eal P arty in I nterest is referred to as the Estate.

STATEMENT OF THE CASE Nature of the case

. The Estate sued Prins on May 25, 2016 in the 288 th District
Court of B exar County in Cause N o. 2016

- CI

- 08932 , claiming breach of contract,
breach of fiduciary duty, conversion, punitive damages and at torney’s fees arising
out of a Release of Escrow Funds A greement that Prins entered into with the Estate
and a $360,902.26 check issued to the Estate by Prins which was subsequently
returned NSF ( Non sufficient Funds ) (the “Lawsuit”) ( APP 3)

. Prins filed a n Original A nswer ( APP 7 ). Course of proceedings

. The L awsuit was transferred and consolidated into
Cause No. 2015

- PC

- 2377 in Probate Court No. 1 , B exar C ounty , T exas by an order signed on July 1, 2016 by Judge Cross. The Estate filed a Motion to Place Funds
Into the Registry of the Court on July 18, 2016 ( the “Estate’s Motion”) ( APP 4 ). A hearing was scheduled on t he Estate’s Motion for August 17, 2016

. On August 16, 2016, Prins communicated through his attorney to the Estate that he would agree to place funds into the Court ’s registry, subject to certain “ tax language ” in the2

Agreed Order that was to be presented to the Court in connection with the Estate ’ s
M otion . A hearing to enter the Agreed Order was subsequently scheduled on August 25, 2016. On August 25, 2016, Prins , through his attorney , sent the Estate his reply to the Est ate’s Motion, and his supplemental response was subsequently filed a few hours before the hearing to enter a supposed Agreed Order. Trial court disposition

. Instead of a hearing to enter an Agreed O rder on August 25, 2 0 1 6 , a hearing regarding the Estate’s Motion was held before Judge
Cross. Judge C ross granted the Estate ’ s M otion ( APP 1 ). This case has not been to
trial and is before this Court as an original proceeding under Texas Government Code §22.221(b).3 ISSUES PRESENTED FOR REVIEW Issue 1: Did the Trial Court abuse its discretion in issuing an Order Granting Motion to Place Funds Into the Registry of the Court? Issue 2: Is an Emergency Stay necessary to maintain the status quo of the parties? STATEMENT OF FACTS Jose Oleszcovski Wasserteil (the “Decedent”) died on June 7, 2013 in San Luis Potosi, Mexico. The Decedent was a Mexican citizen at the time of his death.
Prior to his death, Prins was the attorney for Decedent and represented him personally for approximately ten (10) ye ars . Prins also represented numerous
entities in which both Prins and the Decedent were business partners in located in
the United States.
Decedent’s Will was admitted to probate and otherwise established Decedent's domiciliary on October 24, 2013 in the Country of Mexico. An application for Ancillary Letters of Testamentary was subsequently filed in the
Probate Case (the "Ancillary Probate"), and Ancillary Letters of Testamentary were issued in an Order dated July 25, 2015 which appointed Mar co Antonio Reyner Portes Gil ("Reyner") as Ind ependent Executor of t he Estate (APP 3 , APP
4 )

. At the time of his death, Decedent owned a limited partnership interest in Sun Belt Investment Partners, I, LP ("Sun Belt"). Subsequent to the death of4

Decede nt, Sun Belt made a distribution to its limited partners. The amount distributed by Sunbelt attributable to Decedent's interest was $ 366,244.26 (the "Distribution") (APP 3 , APP 4 )

.
Since the Ancillary Probate had not been established at the time of the Distribution, the amount to be paid to Decedent was deposited in to a Cadence Bank account held by a company that Decedent owned a membership interest in called Stone Oak Park Delaware, LLC ("Stone Oak"). From Stone Oak, a majority of the money from the Di stri bution was wired into the Prins Law Firm IOLTA Trust Account ("Prins Law Firm Trust Account")

. During this time it was not
made known that Prins claim ed an int e rest in the money. The amount transferred into the Prins Law Firm Trust Account was $360,902.26 (the "E scrow Amount") (APP 3, APP 4)

. On February 23, 2016, Counsel for the Estate, Michael Flume ( “ Flume ” ) , on behalf of the Estate , demanded the Escrow Amount from Prins. On the very same day, Prins thanked Flume for reaching out and offered to put together a
rel ease of escrow agent agreement (APP 3, APP 4).

On March 3 , 2016, Prins sent a proposed Release, Indemnity and
S ettlement Agre e ment to Flume and subsequent revisions and changes were exchanged between th e parties through May 13, 2016. At no time was there5

language in any of the draft escrow release agreements that the Escrow Amount could potentially be due and owing to Prins , nor did Prins ever allege during this
time that he was entitled to any of the Escrow Amo u nt

. A Release of Escrow
Funds Agreement , drafted by Prins, was subsequently executed between the Estate
and Prins

. On Sunday, May 15, 2016, after numerous attempts were made to obtain
the Escrow a m ount from Prins, Prins met with Flume and delivered a check made payable to the Flume Law Firm , LLP Trust Account drawn on a Prins Law Firm Compass Bank checking account in the amount of $ 360,902.26 (the "Prins Check") (APP 3, APP 4). On Monday, May 16, 2016, the Prins Check was deposited in the
Flume Law Firm , LLP Trust Account (APP 3, APP 4). The Prins check was returned NSF on May 18, 2016 (the “NSF Check”) (A PP 3, A PP 4). Flume was notif ied by Chase bank on May 19, 2016 of the NSF C heck ( APP 3 )

. On May 19, 2016, Prins was contacted about the NSF Check and Prins claimed that an error occurred and he would wire the money to the Fl ume Law Firm, LLP Trust Account (APP 3, APP 4). Although wire instruction s were sent to
Prins , the Escrow Amount h as not been recei ved by Reyner, the Estate or the
Flume Law Firm

. No rescission of the Release of Escrow Funds Agreement was6

received by the Estate , and the first time the Estate was made aware of P rins’ desire to keep the money for himself was in his Original Answer.
Argument & Authorities Issue 1: The Trial Court did not abuse its discretion in issuing an Order Granting Motion to Place Funds Into the Registry of the Court because evidence was presented that the funds were in danger of being lost or depleted .

The Trial Court’s Order is not a Writ of A ttachment in accordance with Tex.
Civ. Prac. Rem. Code Section 61.001 . A Trial C ourt may , in exercise of its inherent authority ‘order a party to pay disputed funds into the court's registry if
there is evidence the funds are in danger of being ‘lost or depleted. ’ Liang Zhao v. XO Energy, LLC , Tex. App. LEXIS 4757 at *25 ( citing In re: Reveille Resources (Texas), Inc., 347 S.W.3d 301, 304 (Tex. App.

— San Antonio 2011, orig. proceeding) (citing Castilleja v. Camero , 414 S.W.2d 431, 433 (Tex. 1967)). There was sufficient evidence presented at the hearing for the Trial Court to grant the Esta t e’s Motion. The Estate’s Motion contained a copy of th e Release of Escrow Funds Agreement, which was also, independently , placed into evidence at the hearing. (APP 2, page 11). The Estate’s Motion also contained a redacted copy of the NSF Check that was drafted by Prins and delivered to Flume . An un

redacted copy of the NSF Check was plac ed into evidence at the hearing (APP 2, page 11)

. Additionally, E

- mail communications, between Prins and Flume , that7

occurred after the receipt of NSF Check by the Estate’s Attorney in which Prins
stated he would wire the m oney was also placed into evidence at the hearing (APP 2, page 11)

. Flume , as a witness and an officer of the court also testified to the Court regarding his dealings with Prins . (A PP 2, pages 3

- 6). The Trial Court also
examined Prins under oath

. Prins asserts that the Estate’s Motion contained no evidence, and no evidence was presented at the hearing of the Estate’s Motion that the funds were in danger of being lost or depleted. The Estate disagrees

. A c heck repre s enting escrowed funds, being held by Prins, a licensed attorney, which was returned for

non sufficient funds , e
- mails evidencing an unexecuted wire transfer from Prins
after Pri ns had agreed to disperse the funds is sufficient evidence that the funds in question are in da nger of being lost or depleted or perhaps have already been lost or depleted . Furthermore, given the serious nature of this matter involving an officer of the court , a polite comment by the Trial Court at the end of a hearing
does not make the evidence it considered disappear.
Issue 2: A n Emergency Stay is not necessary to maintain the status quo of the parties?
Prins believes that emergency stay is necessary to maintain the status quo of the parties and to preserve the Court’s jurisdiction to consider the merits of the original proceeding. In re Reed , 901 S.W.2d 604, 6 09 (Tex. App.

— San Antonio 1995, orig. proceeding). Nothing could be further from the truth or reality. Prins8

accepted the money in trust for the Estate (APP 2, page 8). Prins executed a
Release of Escro w Funds Agreement to the Estate (A PP 2, page 11). Prins has not
honored the Release of Escrow Funds Agreement with the Estate . The Estate, upon learning of Prins’ issues, throu gh his Original Answer , desired that the Escrow Amount be placed in the Court’s Registry while Prins’ issues were investigated. Prins’ issues with the Estate are still unclear . W hat is clear is that
Prins has issues with the companies that he represented and that he and the
Decedent we re partners in. The issues Prins is bringing forth are with the companies and not with the Estate.
Prins claims in his Motion for Emergency Relief that the Estate owes a
substantial amount of taxes to the United States Governm ent. It is unknown how
Prins knows this , as the Estate , itself, does not know what taxes are owed at this
time. Darin Di gby ’s opinion in the affidavit attached to Prins’ Motion for Emergency Relief appears to rely on the existence of a current IRS tax lie n on the
Estate

. Mr. Digby based his affidavit on his understanding of the facts, which are
in error. There is no current IRS tax lien on the assets of the Estate, nor has there
ever been an IRS tax lien on the assets of the Estate. Prins’ unsupported

s peculation into the tax situation of an Estate that he does not legally represent should not be taken seriously. The Court’s Registry is the ultimate safe place for the funds in order to maintain the status quo of the parties.9 CONCLUSION Based on the forgoing, the re was sufficient evidence before the Trial Court
that the funds in question are in danger of being lost or depleted . Furthermore, an Emergency Stay is clearly not necessary to maintain the status quo of the parties as the Court’s Registry would suffi ciently protect the funds

. Based on the foregoing,
the Trial Court did not abuse its discretion by granting the Es tate’s Motion to Place
Funds In to The Registry of the Court and the Emergency Stay is not necessary to maintain the status quo of the parties

. PRAYER For the reasons stated above, Real Party in Interest , the Estate of J ose Oleszcovski Wasserteil, Deceased respectfully prays that this Court DENY the Relator’s Petition for Writ of Mandamus, DENY Relator’s Motion For Emergen cy Relief, and grant any such other relief, general or special, legal or equitable, to
which Real Party in Interest, the Estate of Jose Oleszcovski Wasserteil, Deceased may be justly entitled

.10 Respectfully submitted, FLUME LAW FIRM, LLP 1020 N. E. Loop 410, S uite 200 San Antonio, Texas 78209 (210) 828

- 5641 (210) 821

- 6069 Facsimile

/S/ Michael Flume

____________________________ MICHAEL FLUME State Bar No. 07188480 mflume@flumelaw.net GUILLERMO S. DEKAT State Bar No. 240 69599 gdekat@flumelaw.net
A TTORNEYS FOR REAL PARTY IN INTEREST, THE ESTATE OF JOSE OLESZCOVSKI WASSERTEIL, DECEASED11 CERTI FICATION I, M i c hael Flume , have reviewed th is Reply and hereby certify that every factual statement in th is Reply is supported by competent evidence included in the appendix or record.
/S/ Michael Flume

__________________________________ MICHAEL FLUME

CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Microsoft Word and contains 1,621 words, as determined by th e computer software's word count func tion, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).

/S/ Michael Flume

__________________________________ MICHAEL FLUME12 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the fore going document has been sent to the following on this 31 st day of August , 201 6 in accordance with the Texas Rules of Appellate Procedure :
E
- Service Travis M. Parks PRINS LAW FIRM 4940 Broadway, Suite 108 San Antonio, TX 78209 Telephone: (210) 820

- 0833 Facsimile: (210) 820

- 0929 tmparks@prinslaw.com Counsel for Relator
F ax : ( 210) 335
- 3998 The Honorable Kelly M . Cross Probate Court #1 100 Dolorosa, 1 st Floor, Room 123 San Antonio, Texas 78205 (210)335

- 3998 fax Respondent/Trial Court Judge
E
- Service Glenn J. Deadman GLENN J. DEADMAN, P.C 509 South Main Avenue San Antonio, TX 78204 (210) 472

- 3900 (210) 472

- 3901 Facsimile gjdeadman@aol.com Trial Counsel for Relator
/S/ Michael Flume

__________________________________ MICHAEL FLUME