Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Boyaki

Court of Appeals of Texas, Eighth District, El Paso

August 28, 2019

IN RE: WALTER L. BOYAKI, INDIVIDUALLY AND AS REPRESENTATIVE OF BOYAKI FAMILY TRUST, RELATORS.

          AN ORIGINAL PROCEEDING IN MANDMAUS

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         Relators, Walter L. Boyaki, Individually and as Representative of Boyaki Family Trust, filed a mandamus petition against the Honorable Alyssa G. Perez, Judge of the 210th District Court of El Paso County, Texas, asking that the Court order Respondent to vacate her order requiring Relators to file an amended petition joining Brother Edwin Gallagher and Brother Richard Fish as defendants. We conditionally grant mandamus relief.

         FACTUAL SUMMARY

         Walter L. Boyaki and the Boyaki Family Trust sued the real parties in interest to recover a donation made to the St. Joseph School on or about February 2, 2015 in the amount of $6, 250 which Relators intended to fund scholarships at the school. The petition alleges that on January 20, 2016, Defendants acknowledged receipt of $6, 000 and thanked Relators for donating to the Defendant Foundation. On February 10, 2016, Walter L. Boyaki sent a letter to the Defendant Foundation complaining that the donated funds had been misapplied. The petition alleges that Defendants Carpenter and Seitz diverted the donation to the Foundation for the Diocese of El Paso without Boyaki's permission. Boyaki requested that the funds be transferred back to St. Joseph School, but Defendants failed to do so. Relators' petition includes claims for breach of contract, DTPA violations, and fraud.

         Defendants filed a motion to abate requesting that the trial court order Relators to join Brother Edwin Gallagher and Brother Richard Fish (collectively referred to as "the Brothers") as "indispensable" parties. In order to evaluate the arguments presented in the mandamus petition and response, it is necessary to have an understanding of the Brothers' relationship to St. Joseph School amid allegations that the Brothers misappropriated large sums of money belonging to the school. Included in the mandamus record is an Indebtedness Agreement executed by the Diocese of El Paso on behalf of St. Joseph Parish and the Brothers of the Poor of St. Francis, Inc. (the Corporation) on June 1, 2016. The Indebtedness Agreement includes the following recitals:

Brother Edwin Gallagher, CFP, and Brother Richard Fish, CFP, (the 'Brothers'), who are members of the Order, [1] began teaching and providing administrative services to [St. Joseph School] in 1989 and retired in 2015.
During their tenure, Brother Edwin and Brother Richard misappropriated at least $800, 264 of funds owned by [St. Joseph School].
In order to induce St. Joseph not to take legal action against the Corporation, the Order, and the Brothers, the Corporation and the Order have agreed to reimburse St. Joseph the sum of $800, 264 as provided [in the Indebtedness Agreement].

         The Corporation agreed to make four installment payments to St. Joseph School in 2016 and 2017. Upon payment of the $800, 246, St. Joseph School agreed to provide the Corporation, the Order, and the Brothers with a complete release of all claims and causes of action. The final installment payment was made in April 2017. Walter L. Boyaki and the Boyaki Family Trust also released the Brothers from "any and all liability either or both may have, if any, concerning the transfer of certain scholarship monies provided to St. Joseph School in 2015 by Releasors from St. Joseph School to either the Foundation for the Diocese of El Paso, the Catholic Legacy Fund, or any other entity controlled by the Foundation for the Diocese of El Paso."

         On April 9, 2019, the trial court entered an amended order granting Defendants' motion to abate and ordering Relators to file an amended petition joining Brother Edwin Gallagher and Brother Richard Fish as defendants. The order provided that if Relators failed to file the amended petition by April 24, 2019, the case would be set for dismissal. Relators filed a mandamus petition challenging the ruling, and the Court granted a motion to stay the April 9, 2019 order.

         DEFENDANTS' MOTION TO DISMISS

         Defendants filed a motion to dismiss the mandamus petition because Relators did not include in the mandamus record a transcription of the hearings held on March 27, 2019 and April 3, 2019 or all of the exhibits admitted into evidence at those hearings. After filing the motion to dismiss, Defendants provided the transcriptions and exhibits with their response to the mandamus petition. Rule 52.7(a)(2) requires that the relator file with the petition a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.