In the Fifth Court of Appeals Dallas, Texas

Transcription

1 NO CV In the Fifth Court of Appeals Dallas, Texas KENNETH DON JONES, APPELLANT VS. KELLY BAGGETT, KEVIN JONES AND KENNA GLAZIER, APPELLEES ACCELERATED APPEAL On Appeal from Probate Court No.3 Dallas County, Texas Couse No APPELLEES BRIEF Glenn D. Tucker Texas State Bar No LAW OFFICES OF GLENN D. TUCKER, P.C LBJ Freeway, Ste 330 Dallas, Texas Tel. (214) Fax. (214) ATTORNEY FOR APPELLEES

2 LIST OF PARTIES AND COUNSEL Pursuant to Rule 38.2(a)(1) of the Texas Rules of Appellate Procedure, the following is a list of all parties and their counsel: Appellant: Kenneth Don Jones Represented in the Appellate Gary D. Corley Court and in the Trial Court: Texas Bar Number: GARY D. CORLEY, P.C. 108 North Travis Street Sherman, TX Tel. (903) Fax. (214) Appellees: Kelly Baggett Kevin Jones Kenna Glazier Represented in the Appellate Glenn D. Tucker Court and in the Trial Court: Texas Bar Number LBJ Freeway, Ste 330 Dallas, TX Tel: (214) Fax: (214) i

3 ABBREVIATIONS AND RECORD REFERENCES Abbreviations: 1. Appellant Kenneth Don Jones will be referred to as Appellant or Kenneth Don Jones. 2. Appellee Kelly Baggett be referred to as Appellee or Kelly Baggett. 3. Appellee Kevin Jones be referred to as Appellee or Kevin Jones. 4. Appellee Kenna Glazier be referred to as Appellee or Kenna Glazier. 5. Appellee Kelly Baggett, Appellee Kevin Jones and Appellee Kenna Jones will be referred to jointly as Appellees. 6. The Don and Remonia Jones Family Trust will be referred to as the Trust Record References 1. The Clerk s Record will be referred to as CR:[Volume][Page(s)]. There is a Supplemental Clerk s Record which will be cited as SCR [Volume/Page(s)]. There is also 2 nd. Supplemental Clerk s Record which will be cited as 2SCR [Volume/Page(s)]. There is also 3 rd. Supplemental Clerk s Record which will be cited as 3SCR [Volume/Page(s)]. 2. The Reporter s Record will be referred to as RR1, 2 or 3:[Page][Line]. There is a Supplemental Reporter s Record which will be cited as SRR [Page/Line]. ii

4 Appellate No.: CV Kenneth Don Jones, Appellant vs. Kelly Baggett, Kenna Glazier and Kevin Jones, Appellees, TC #: NO P3 I. IDENTITY OF THE PARTIES AND COUNSEL Appellant is an individual and is represented by Gary D. Corley, Gary D. Corley, P.C., 108 North Travis Street, Sherman, TX 75090, in the Appellate Court and Trial Court. Appellees are individuals and are represented by Glenn D. Tucker, The Law Offices of Glenn D. Tucker, P.C., 4230 LBJ Freeway, Suite 330, Dallas, Texas 75244, in the Appellate Court and Trial Court. No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 1 of 23

5 II. TABLE OF CONTENTS I. Identity of the Parties and Counsel Page No. 1 II. Table of Contents Page No. 2 III. Index of Authorities Page No. 3 IV. Statement of Case Page No. 5 V. Issues Presented Page No. 6 VI. Summary of Facts Page No. 6 VII. Summary of Reply Argument Page No. 11 VIII. Arguments Page No. 12 Appellees Cross and Reply Points Page No. 12 Reply to Appellant s Issues Presented for Review Page No. 14 IX. Prayer Page No. 23 No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 2 of 23

6 III. INDEX OF AUTHORITIES Statutes: Texas Penal Code, Section , 19 Tex. R. App. P., Rule 26.1(b).. 11, 12 Tex. R. App. P., Rule Tex. R. App. P., Rule 38.2(b)(2)...13 Tex. R. Civ. P., Rule 10.5(b)...5, 12 Tex. R. Civ. P., Rule Tex. R. Civ. P., Rule , 17 Tex. R. Civ. P., Rule , 18 Tex. R. Civ. P., Rule Cases: Bank of Southwest v. Harlingen National Bank, 662 S.W.2d 113, 116 (Tex.App.--Corpus Christi 1983, no writ)...20 Brazos River Conservation and Reclamation District v. Allen, 141 Tex. 217, 171 S.W.2d 847(1943) Brown v. Scherck, 393 S.W.2d 172, 181 (Tex.App. Corpus Christi 1965, no writ) Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998) No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 3 of 23

7 Dell Development Corp. v. Best Indus. Uniform Supply Co., Inc., 743 S.W.2d 302 (Tex.App. Houston [14 Dist.] 1987, writ denied)...15 Dierschke v. Central Nat l Branch, 876 2d 377 (Tex.App Austin 1994, no writ).18 Gardner v. Goodner Wholesale Grocery Co., 256 S.W. 911, (Tex. 1923)...19 Greater Houston Bank v. Conte, 641 S.W.2d 407, 410 (Tex.App.-Houston [1 st Dist.] 1982, no writ) 19 Keystone Life Ins. Co. v. Marketing Mgt., Inc., 687 S.W.2d 89, 92 (Tex.App.-Dallas, 1985, no writ)...19 Langford v. State, 129 S.W.3d 138, 139 (Tex. App.--Dallas 2003, no pet.)...16, 18 Meyer v. Billings, 481 S.W.2d 958, 959 (Tex. Civ. App. Austin 1972, no writ)...17 Miller Paper Co. v. Roberts Paper Co., 901 S.W. 2d 593, 597 (Tex.App.- Amarillo 1995, no writ) Nicholson v. Fifth Third Bank, 226 S.W.3d 581 (Tex.App. Houston [1st Dist.] 2007, no pet.)..16, 18 Seaborg Jackson Partners v. Beverly Hills Savings, 753 S.W.2d 242, (Tex.App. Dallas 1988, no writ)...19 State v. Gibson s Distrib. Co., 436 S.W.2d 122, 123 ( Tex. 1968)...12 Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986) 15 Williams v. City of Tom Bean, 688 S.W.2d 618, 621 (Tex. App. Dallas 1985, no writ) 17 No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 4 of 23

8 IV. STATEMENT OF CASE This accelerated appeal is brought by Kenneth Don Jones ( Appellant ) from a Temporary Injunction where he was enjoined from further unlawfully taking assets belonging to the Don and Remonia Jones Family Trust. CR 2/134-2/136. There have been two continuances that required the extensions of this injunction since the Temporary Injunction was originally being granted. CR 2/189-2/191, 3SCR 1/7-1/9. There was evidence presented at the original hearing of the Temporary Injunction on April 12, CR 2/134-2/136. There was no record requested by Appellant and no objection to the court report not attending the hearing. There was no objection or motion filed complaining of the manner in which the evidence was received by the trial court. The Temporary Injunction was granted on April 12, CR 2/134-2/136. Appellant filed a Motion to Dissolve the Temporary Injunction on the sole basis that the bond had not been posted by Appellees. CR 2/138-2/144. None of the Issues Presented for Review in this appeal were raised in the Motion to Dissolve the Temporary Injunction. CR 2/138-2/144. This notice of appeal was filed on May 11, There has been no extension motion filed in this court complying with Rule 10.5(b) of the Texas Rules of Civil Procedure. This appeal is untimely, the issues raised in this appeal are not preserved for appellate review, the hearings and the Temporary Injunction issued in this case conforms to the standards set forth in the Texas Rules of Civil Procedure. The Temporary Injunction should be sustained for the reasons stated herein. No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 5 of 23

9 V. ISSUES PRESENTED 1. Failure to Timely File Notice of Appeal 2. Appellant has Failed to Preserve his Issues for Appellate Review 3. Appellant s references to his Pleadings Do Not Constitute Evidence 4. Request for Hearing to Receive Evidence VI. STATEMENT OF FACTS At the time of Remonia Jones death, she had a fixed place of residence, with her husband Kenneth Don Jones, located at 4609 South Creek Rd in Moore, Oklahoma. Approximately, three days prior to her untimely passing, Remonia Jones travelled to Dallas, Texas from Moore, Oklahoma to visit her son (Kevin Jones) and Daughter (Kelly Baggett). Contrary to the sworn allegations of Appellant. CR 1/23-1/26. Prior to Remonia Jones death she and Kenneth Don Jones created a revocable trust, the Don and Remonia Jones Family Trust. Remonia Jones and Don Jones had a house which was owned by the Don and Remonia Jones Family Trust. Additionally, Remonia Jones received a settlement from a lawsuit, which was invested in an annuity with the Jefferson-Pilot Life Insurance Company (which was later acquired by the Lincoln National Life Insurance). Based on the documentation provided, Kenneth Don Jones has attempted to, and may have, transferred this money to the Allianz Life Insurance Company of North America ( Allianz ). This annuity was also owned by the No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 6 of 23

10 Don and Remonia Jones Family Trust (hereinafter referred to as the Annuity ). Please see SRR 21/4 22/17, Glazier Exhibits 3 and 4. The Don and Remonia Jones Family Trust was revocable until the first of Don or Remonia Jones past away. At the time of passing, the trust was to be split as provided by Section 6 of the Don and Remonia Jones Family Trust into the Surviving Spouse s Revocable Share Trust (herein Don Jones Trust ) and the Deceased Spouse s By-Pass Trust and the Deceased Spouse s Generation Skipping Trust (herein Remonia Jones Trust ). The surviving spouse s trust would remain revocable, while the deceased spouse s trust would be irrevocable. CR 1/29-1/77. Kenneth Don Jones, while named as trustee of the Don and Remonia Jones Trust, has failed to abide by the terms of the trust and has sold the house held in the name of the Don and Remonia Jones Trust and has absconded with the entire proceeds of the sale. This failure to divide the proceeds and place one-half of the sale proceeds into the Remonia Jones Trust amounts to theft. This act by Kenneth Don Jones in attempting to steal from, defraud or harm the Remonia Jones Trust of real property or the proceeds of the sale are in violation of of the Texas Penal Code. SRR 16/18-17/23, Glazier Exhibits 1 and 2; and SRR 21/4 22/17, Glazier Exhibits 3 and 4. Additionally, on May 25, 2005 (approximately six weeks prior to Remonia Jones death), Appellant, Kenneth Don Jones, attempted to cash the Annuity and transfer all the money into his own name. This was done without the knowledge and without the No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 7 of 23

11 consent of Decedent. However, due to the terms of the Annuity, Appellant was only able to alter the payment terms of the Annuity and was forced to accept payments over seven years and at a transaction cost of approximately Fifty-Three Thousand Dollars ($53,000.00) to the Trust. At the present time, he has failed to divide the proceeds of the Annuity received thus far and has similarly absconded with the entire proceeds of the payments received to date, it is believed these payments amount to approximately Six Hundred Eleven Thousand Dollars ($611,000.00). It is believed that Kenneth Don Jones has utilized another annuity with Allianz and bank accounts at Bank of America, Bank of Texas, Sterling Bank and Arvest Bank with accounts in the name of the Don and Remonia Jones Family Trust, Don Jones, Kenneth Don Jones, Tammy Heck, Tammy Jones and Remonia Jones Trust to evade detection and to perpetrate this theft and fraud. Please see SRR 21/4 22/17. Presently, there is approximately Two Hundred Thousand Dollars ($200,000.00) dollars that Kenneth Don Jones is attempting to transfer out of the annuity of the Don and Remonia Jones Family Trust and into his name. Kenneth Don Jones is attempting to steal from, defraud or harm the Remonia Jones Trust and keep the entirety of the money from the sale of the real property and the Annuity belonging to the Don and Remonia Jones Family Trust (money from the settlement of a personal injury received by Remonia Jones, a personal injury that ultimately contributed to the death of Remonia Jones), half No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 8 of 23

12 of which rightfully should have been placed into the Remonia Jones Trust. CR1/92-2/106 and CR 2/134 2/136. These aforementioned actions of Kenneth Don Jones were done with the intent to deprive the Remonia Jones Trust and the beneficiaries of the Remonia Jones Trust of one half the Don and Remonia Jones Family Trust. Further, if Kenneth Don Jones, Tammy Jones, Allianz, Arvest Bank, Bank of America, Bank of Texas, Sterling Bank and Lincoln are not restrained, the Remonia Jones Trust will suffer irreparable harm and the beneficiaries of the Remonia Jones Trust will be irreparably harmed by the theft and deception of Kenneth Don Jones. CR 2/134-2/136. As a direct and proximate result of this improper conduct of Kenneth Don Jones as described above, the Remonia Jones Trust and the beneficiaries of that trust will lose the entire corpus of the trust and will accordingly suffer immediate and irreparable injury for which the Remonia Jones Trust and the beneficiaries of that trust have no adequate remedy at law. The entire loss to the Remonia Jones Trust and the beneficiaries of that trust cannot be compensated because Appellant, Kenneth Don Jones, does not have sufficient assets with which to provide complete relief and, therefore, damages do not provide an adequate or complete remedy. CR 2/134-2/136. Appellees requested the court to immediately enjoin Kenneth Don Jones, Tammy Jones (f/k/a Tammy Heck), Allianz, Arvest Bank, Bank of America, Bank of Texas, Sterling Bank and Lincoln from any further action against the personal and real property No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 9 of 23

13 of Don and Remonia Jones Family Trust, Don Jones, Kenneth Don Jones, Tammy Heck, Tammy Jones and Remonia Jones Trust. Further, The Appellees requested that they jointly be named as Trustee of the Don and Remonia Jones Family Trust and the Remonia Jones Trust. Further, that they as Joint Trustees be placed in charge of the personal property and real property of the Don and Remonia Jones Family Trust, Don Jones, Kenneth Don Jones, Tammy Heck, Tammy Jones and Remonia Jones Trust, for the purpose of protecting the status quo. CR 1/92-2/103 and 2/134-2/136. Consequently, to preserve the status quo to prevent irreparable injury to the Remonia Jones Trust for which it has no adequate legal remedy, and for which the beneficiaries of the Remonia Jones Trust cannot be adequately compensated in damages, Appellees sought and, after hearing, obtained the issuance of injunctive relief hereinafter requested on the above evidence. CR 2/134-2/136. Appellant attempts to make some headway by arguing that a summary judgment was granted declaring him to be the trustee. However, he fails to mention that he gave no notice of the hearing place to Appellees. As is mentioned in the Brief of Appellant, there was a flood of the Dallas County Records Building and the hearing location was changed. Although the court requested Appellant to notify Appellees of the change in the hearing location, no such notice was given. No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 10 of 23

14 VII. SUMMARY OF REPLY ARGUMENT Appellant has failed to timely bring this accelerated appeal timely pursuant to Rule 26.1(b) of the Texas Rules of Appellate Procedure. These deadlines are mandatory and jurisdictional. Therefore, this court should dismiss this appeal for want of jurisdiction. If this Honorable Court goes beyond the jurisdictional question, Appellant has failed to bring before this court any record that would justify dissolving the temporary injunction. Appellant has failed to preserve his points of error for appellate review. Appellant has failed to request a record or object to the court reporter failing to appear and transcribe the evidence. Indeed, the only evidence before this court shows conclusively that Appellant has converted trust assets to his own use, has defrauded the irrevocable trust of Remonia Faye Jones and has failed to even adhere to the terms of the Don and Remonia Jones Family Trust. The acts of malfeasance and the failure to adhere to the terms of the trust justify the injunctive order entered by the court. The evidence relating to the temporary injunction was heard and decided by the trial Judge in a fair and impartial manner on April 12, Further, Appellant does not show any abuse of discretion or misapplication of the law by the trial Judge. The injunction hearing was conducted in accordance with the Texas Rules of Civil Procedure. At no point has Appellant shown any competent evidence of bias, prejudice or abuse of discretion on the trial Judge s part. No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 11 of 23

15 VIII. ARGUMENTS APPELLEE S CROSS AND REPLY POINTS 1. Failure to Timely File Notice of Appeal Appellees would show this Honorable Court that Appellant has failed to bring his appeal within the deadlines provided by Rule 26.1(b) of the Texas Rules of Appellate Procedure. These deadlines are mandatory and jurisdictional. State v. Gibson s Distrib. Co., 436 S.W.2d 122, 123 ( Tex. 1968) (discussing the predecessor to Rule 26.1(b) of the Texas Rules of Appellate Procedure, Rule 385 of the Texas Rules of Civil Procedure). The Order which is the subject of the appeal was entered on April 12, 2010 and the Notice of Appeal was filed on May 11, 2010, in excess of the 20 day timeframe. All subsequent orders complained of were mere extensions of the trial date in the original Temporary Injunction due to procedural/discovery issues, many created by Appellant. The deadline for perfecting the appeal is 20 days. There has been no extension motion filed in this court complying with Rule 10.5(b) of the Texas Rules of Civil Procedure. 2. Appellant has Failed to Preserve his Issues for Appellate Review Appellees would show this Honorable Court that Appellant has failed to preserve any of the alleged errors he claims in his appeal. To preserve a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 12 of 23

16 court aware of the complaint (B) complied with the requirements of the Texas Rules of Civil Evidence or the Texas Rules of Civil or Appellate Procedure; and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Please see, Rule 33.1 of the Texas Rules of Appellate Procedure. None of the issues raised in this appeal by Appellant were ever raised by objection filed with the court or made on the record. Further, Appellant did not request the court reporter attend the hearing or object to the manner in which the evidence was presented. Therefore, Appellant s issues are not preserved for appellate review. 3. Appellant s references to his Pleadings Do Not Constitute Evidence Appellees also object to the repeated references to the pleadings of Appellant contained within the court record. These statements are obviously made by a person with a bias and prejudice and are not a basis for dismissing the Temporary Injunction issued by the trial court. Further, as repeatedly pointed out by Appellant, pleadings do not constitute evidence, unless offered and no objection is raised. 4. Request for Hearing to Receive Evidence In the event this Honorable Court sustains one of the Appellant s points. The Appellees request that this cause be remanded to the trial court to take evidence. Texas Rules of Appellate Procedure 38.2(b)(2). No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 13 of 23

17 REPLY TO APPELLANT S ISSUES PRESENTED FOR REVIEW The issues raised on appeal by the Appellant will be addressed by the name and in the order raised by the Appellant. 1. Does it offend the principles of Due Process for a trial court to grant a temporary injunction without notice to the opposing party and an opportunity to be heard? While it is not clear from the Brief of Appellant whether the Appellant is complaining about the granting of the temporary injunction or the extension of the temporary injunction, it appears that Appellant is complaining about the extension of original injunction. If Appellant is complaining about the granting of the Motion to Extend the Temporary Injunction, please see the opening paragraph of the order granting the same, which states in relevant part came onto be heard the Motion to Extend the Temporary Injunction. This was not a new injunction, but was a mere continuance of the trial setting of the Temporary Injunction previously issued since the case was not ready for trial at the May 15, 2010 date set in the original order. CR 2/187-2/191, Motion to Extend Temporary Injunction. Appellant s attorney even stipulates that It s quite a different thing to come into court when you ve been noticed that opposing counsel wants to extend something. Because when you seek to extend an order, there s no requirement or necessity for any evidence; it s either the court will extend it or not extend it See SRR 8/20-8/25. The No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 14 of 23

18 decision of whether to grant a motion for continuance, or to continue a case sua sponte, rests within the discretion of the trial court. The action of the trial court will not be disturbed unless the record discloses a clear abuse of discretion. Dell Development Corp. v. Best Indus. Uniform Supply Co., Inc., 743 S.W.2d 302 (Tex.App. Houston [14 Dist.] 1987, writ denied), citing Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). In this instance, the Appellees had been working to obtain the necessary documents for the trial of the case, however it was not possible for the arbitration to take place in the time allotted. Therefore, it was necessary to delay the trial date and extend the injunction. CR 2/187-2/191. Further, delays have caused the Temporary Injunction to be extended due to this appeal at the request of Appellant, contrary to the Texas Rules of Civil Procedure, Rule 683. SRR 4/2-6/5. Even if this appeal had not been made by Appellant, it is likely that the trial date set in the Temporary Injunction would have had to be further delayed due to the dilatory practices of Appellant. To date, Appellant has failed and refused to respond to the discovery request. CR 2/145-2/180, RR1 3/3-3/9 and SRR 23/8 24/ Can a trial court grant a temporary injunction when no evidence is presented to support such temporary injunctive relief? Again, the attorney for Appellant attended the hearing and heard the evidence that was presented and knows that sufficient evidence was presented to support the court s order. Further, the fact that Appellant failed to obtain a record does not support his No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 15 of 23

19 argument that no evidence was presented to the trial court. Indeed, this failure of Appellant to obtain and protect his record supplies the very record he complains of not having. The presumption of validity is applied on appeal in inverse relation to the amount of knowledge available to the appellate court. Where the record is ambiguous or silent, the presumption of validity will supply by implication every proof, element, factual finding, or proper application of the law needed to support the judgment. Thus, where there is neither a reporter's record nor findings of fact, the appellate court will assume the trial court heard sufficient evidence to make all the necessary findings needed to support its judgment. Nicholson v. Fifth Third Bank, 226 S.W.3d 581 (Tex.App. Houston [1st Dist.] 2007, no pet.). It was Appellant s obligation to request the court reporter to transcribe the proceedings, or present objection for her failure to do so, there being no request and no objection, Appellant has failed to preserve this issue for appellate review. Langford v. State, 129 S.W.3d 138, 139 (Tex. App.--Dallas 2003, no pet.). Where a reporter s record is not requested, we indulge every presumption in favor of the trial court s findings. See Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998). Likewise, in an analogous situation involving an injunction, although Texas Rule of Civil Procedure 682 requires that [n]o writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit and containing a plain and intelligible statement of the grounds for such relief, when a No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 16 of 23

20 party s petition for temporary injunction was not verified by affidavit and the opposing party did not challenge the sufficiency of the petition by special exception or other pleading and a hearing was held on the petition after notice, it was held that the trial court did not err by granting a temporary injunction despite the fact that the petition for injunction was not verified. See Tex.R.Civ.P. 682; Williams v. City of Tom Bean, 688 S.W.2d 618, 621 (Tex. App. Dallas 1985, no writ); see also Meyer v. Billings, 481 S.W.2d 958, 959 (Tex. Civ. App. Austin 1972, no writ) (holding that when a party did not except at a time when the omission of the clause could be supplied by amendment and did not complain prior to rendition of judgment, party s complaint that verification of injunction was defective which came after a full hearing with no objection was waived). 3. Can a trial court grant injunctive relief based solely on the orations of counsel and pleadings filed by the party seeking injunctive relief? There is no evidence that the injunctive relief was based solely on the orations of counsel and the pleadings filed by the party seeking injunctive relief. To the contrary, the evidence presented at the hearing was clear, concise and positive that Appellant has breached the terms of the trust. Indeed, the evidence adduced to date has proved that Appellant has defrauded the trust and the beneficiaries of the trust. Due to the conduct of Appellant, the trial court has entered an injunction while the arbitration is pending to establish the depth and breadth of the violations of the trust. No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 17 of 23

21 Appellant has not brought before this court a transcript of the hearing on April 12, 2010 (or any other hearing) to allow this court to determine if the evidence presented by Appellees at the hearing on the Temporary Injunction was sufficient or insufficient. Nicholson v. Fifth Third Bank, 226 S.W.3d 581 (Tex.App. Houston [1st Dist.] 2007, no pet.). It was Appellant s obligation to request the court report to transcribe the proceedings, or present objection for his failure to do so, there being no request and no objection, Appellant has failed to preserve this issue for appellate review. Langford v. State, 129 S.W.3d 138, 139 (Tex. App.--Dallas 2003, no pet.). 4. Are the provisions of Tex. R. Civ. P. 683 and 684 mandatory and, if so, isn t the proper remedy to dissolve the injunctive decree which does not comply with the provisions of these rules? The Temporary Injunction issued by the trial court in this case complied with Tex. R. Civ. P. 683 and 684. Again, it is difficult to understand which hearing Appellant is complaining about, however it is obvious that evidence presented by Appellees was sufficient to the trial court at the time of the hearing. Indeed, the trial judge heard evidence presented by Appellees and Appellant, further the trial judge directly questioned Appellant and Appellees in open court. Appellees would show this Honorable Court that breaching the terms of a trust is violation of substantive law. Brown v. Scherck, 393 S.W.2d 172, 181 (Tex.App. Corpus Christi 1965, no writ); Dierschke v. Central Nat l Branch, 876 2d 377 No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 18 of 23

22 (Tex.App Austin 1994, no writ). When a trustee converts trust property he is personally liable to the beneficiaries of the trust. Gardner v. Goodner Wholesale Grocery Co., 256 S.W. 911, (Tex. 1923). This amounts to theft which is a violation of of the Texas Penal Code. The Appellees were merely required to prove that they have a probable right to the relief sought upon final hearing. Keystone Life Ins. Co. v. Marketing Mgt., Inc., 687 S.W.2d 89, 92 (Tex.App.-Dallas, 1985, no writ). A probable right of recovery is shown by alleging a cause of action and presenting evidence tending to sustain it. Miller Paper Co. v. Roberts Paper Co., 901 S.W. 2d 593, 597 (Tex.App.- Amarillo 1995, no writ). In this case, it is clear that the deed to the real property was sold in violation of of the Texas Penal Code when the funds were not transferred to the Don and Remonia Jones Family Trust and the Remonia Jones Trust. The actions of Appellant are in clear violation of the Don and Remonia Jones Family Trust and the Remonia Jones Trust s right to the property. The evidence presented at the hearing showed this violation of the trust by Appellant. Imminent and irreparable harm was shown in that every piece of real estate is unique and the loss of the real estate results in irreparable harm. Greater Houston Bank v. Conte, 641 S.W.2d 407, 410 (Tex.App.-Houston [1 st Dist.] 1982, no writ); see Seaborg Jackson Partners v. Beverly Hills Savings, 753 S.W.2d 242, (Tex.App. Dallas 1988, no writ). Further, evidence was adduced that the entire corpus of the trust is being No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 19 of 23

23 removed without compensation to the Don and Remonia Jones Family Trust and the Remonia Jones Trust. Appellees have no adequate remedy at law. The test for determining whether an existing remedy is adequate is whether such remedy is as complete and as practical and efficient to the ends of justice and its prompt administration as is equitable relief. Brazos River Conservation and Reclamation District v. Allen, 141 Tex. 217, 171 S.W.2d 847 (1943). It was shown that Kenneth Don Jones was not capable of responding in damages and the damages are incapable of calculation, which amounts to no adequate remedy at law. Bank of Southwest v. Harlingen National Bank, 662 S.W.2d 113, 116 (Tex.App.-- Corpus Christi 1983, no writ). It is even admitted in Appellant s brief that he is penniless absent further invading of the trust assets. Brief of Appellant, page 3. It was shown that Appellant has taken bank deposits which were trust assets (in addition to the real estate discussed above) and converted them to his own personal use comingling them with his personal assets. Balancing the equities favors a Temporary Injunction, as this merely preserves the assets of the trust for the outcome of the arbitration. The beneficiaries of the Don and Remonia Jones Family Trust and the Remonia Jones Trust, and the Beneficiaries of the trust, will be irreparably harmed if Appellant and the financial institutions are not restrained. No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 20 of 23

24 5. Is a temporary injunction which fails to specify its reason for issuance void? The Temporary Injunction clearly and concisely states the reason for its issuance on the face of the order. While it appears that Appellant is merely trying to throw as much mud as possible hoping that something may stick, without any concern as to the validity of his arguments, Appellees will respond by referencing the document itself. The temporary Injunction, and its extensions, provide as follows: 1. that Trustee will probably prevail on the trial of this cause; 2. that Kenneth Don Jones has attempted to unlawfully take assets belonging to the Don and Remonia Jones Family Trust and the Remonia Jones Trust for his own personal use; and 3. that but for the intervention of this Court, the Don and Remonia Jones Family Trust and the Remonia Jones Trust has no adequate remedy at law. The entire loss to the Don and Remonia Jones Family Trust and the Remonia Jones Trust cannot be calculated or accurately measured and that Kenneth Don Jones is unable to respond in monetary damages and, therefore, damage thereto would irreparably harm the Don and Remonia Jones Family Trust and the Remonia Jones Trust; 4. that unless Kenneth Don Jones is deterred from carrying out these actions, the Don and Remonia Jones Family Trust and the Remonia Jones Trust will be without an adequate remedy at law and will be irreparably harmed, for which No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 21 of 23

25 Kenneth Don Jones will be unable to compensate the Don and Remonia Jones Family Trust and the Remonia Jones Trust at law; 5. that the status quo is best served by the granting of the Temporary Injunction; and 6. the Court further finds that to preserve the status quo, Trustee s Application for a Temporary Injunction should be, and is hereby, GRANTED. Please see Temporary Injunction issued on the 12 th day of April, 2010 and the extensions thereof. CR 2/134-2/136; CR 2/189-2/191; and 3SCR 1/7-1/9. It is difficult to imagine what exactly Appellant would have the order say that could be more specific. 6. Should a temporary injunction be granted when the party requesting such relief does so on the basis of an alleged capacity which is subsequently declared the party does not possess? The temporary restraining order that was granted was not granted on the basis of Appellee Kelly Baggett s status of trustee, rather the temporary restraining order was granted on the basis of the breaches of the trust, commingling of trust assets with Appellant s property, Appellant s conversion of trust assets and other malfeasance on behalf of Appellant. Indeed, Appellees have standing as beneficiaries of the trusts to bring the action for arbitration, accounting and the breaches of the trusts. Whether Ms. Baggett, Mr. Kenneth Don Jones, Mr. Kevin Jones or Ms. Kenna Glazer is a trustee or a No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 22 of 23

26 beneficiary is not relevant to the granting of the injunction. Therefore, this alleged issue is irrelevant to the granting or sustaining of the temporary injunction. IX. PRAYER Wherefore, Premises considered Appellees pray that Appellant s Appeal be dismissed. The Temporary Injunction of the trial court be in all things be affirmed and for such other and further relief to which Appellees show themselves justly entitled both at law and in equity, both general and specific for which they will ever pray. Respectfully submitted, Law Offices of Glenn D. Tucker, P.C. By: Glenn D. Tucker State Bar No LBJ Freeway, Suite 330 Dallas, Texas Telephone (214) Telecopier (214) Attorney for Appellees CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing instrument has been mailed, telecopied or hand delivered to all counsel of record on this the 12 th day of August, By: GLENN D. TUCKER No CV * Trial Ct. #: PR * File #: * Appellees Brief Jones vs. Baggett, Glazier, Jones PAGE 23 of 23