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ACCEPTED 06-15-00002-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 06-15-00002-CV 1/12/2015 4:29:33 PM DEBBIE AUTREY CLERK No. ___________________ ______________________________________________________________________________ FILED IN IN THE COURT OF APPEALS FOR THE 6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH DISTRICT OF TEXAS 1/12/2015 4:29:33 PM AT TEXARKANA DEBBIE AUTREY _____________________________________________________________________________ Clerk IN RE KENNETH VERN GIBBS, CANDACE GIBBS WALTON Defendants / Relators, Cause no. CV-14-41665 HONORABLE LAURINE J. BLAKE, The 336th Judicial District Court Respondent, and Fannin County, Texas PENTEX FOUNDATION and JOSHUA UNGER, TRUSTEE of GBU FRIENDS AND ASSOCIATES TRUST Plaintiffs and Real Parties in Interest. RELATORS’ PETITION FOR WRIT OF MANDAMUS ROBERT G. HOGUE, P.C. 4514 Cole Avenue, Suite 600 Dallas, Texas 75205-4193 Phone: (214) 559-7107 Fax: (214) 559-7101 Email: robhogue@msn.com LAW OFFICES OF CHRISTY LEE, P.C. 777 Main Street, Suite 600 Fort Worth, Texas 76102 Telephone: (817) 504-6075 Telecopier: (800) 437-7901 Email: clee@christyleelaw.com ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON JANUARY 12, 2015 _____________________________________________________________________________________ IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA _____________________________________________________________________________________ IN RE KENNETH VERN GIBBS, CANDACE GIBBS WALTON Defendants / Relators, Cause no. CV-14-41665 HONORABLE LAURINE J. BLAKE, The 336th Judicial District Court Respondent, and Fannin County, Texas PENTEX FOUNDATION and JOSHUA UNGER, TRUSTEE of GBU FRIENDS AND ASSOCIATES TRUST Plaintiffs and Real Parties in Interest. RELATORS’ PETITION FOR WRIT OF MANDAMUS IDENTITY OF PARTIES AND COUNSEL KENNETH VERN GIBBS AND CANDACE GIBBS WALTON RELATORS / DEFENDANTS ROBERT G. HOGUE, P.C. LAW OFFICES OF CHRISTY LEE, P.C. 4514 Cole Avenue, Suite 600 777 Main Street, Suite 600 Dallas, Texas 75205-4193 Fort Worth, Texas 76102 Phone: (214) 559-7107 Telephone: (817) 504-6075 Fax: (214) 559-7101 Telecopier: (800) 437-7901 Email: robhogue@msn.com Email: clee@christyleelaw.com ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH GIBBS AND CANDACE GIBBS WALTON HONORABLE LAURINE J. BLAKE 336TH JUDICIAL DISTRICT COURT RESPONDENT PENTEX FOUNDATION AND JOSHUA UNGER, TRUSTEE OF GBU FRIENDS AND ASSOCIATES TRUST PLAINTIFFS AND REAL PARTIES IN INTEREST -2- Mr. T. Scott Smith Attorney and Counselor at Law 120 S. Crockett Street Sherman, Texas 75090 ATTORNEY FOR THE PLAINTIFFS / REAL PARTIES IN INTEREST Howard Kirk Gibbs 9929 Crawford Farm Drive Fort Worth, TX 76244 DEFENDANT, PRO SE -3- TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 THE TRIAL COURT WAS WITHOUT JURISDICTION TO SIGN ITS NOVEMBER 21, 2014 “ORDER ON MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,” AND ACCORDINGLY MANDAMUS SHOULD ISSUE. A. The trial court signed an Order transferring venue more than 30 days prior to signing the “Order on Motion to Reconsider Order to Transfer Venue” . . . . . . . . . . . . . . . . . . . . . 8 B. Texas courts consistently hold that a trial court’s plenary power over a venue transfer order expires after 30 days, despite the filing of a motion to reconsider the transfer . . . . . . . 8 C. Nowhere in the trial court’s record did the Relator modify, reconsider, or vacate the transfer Order within thirty days . . . . . 9 D. When an order is void, the relator need not show that it lacks an adequate appellate remedy, and mandamus relief is appropriate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 E. The Court of Appeals should grant temporary and mandamus relief in order to avoid waste of judicial and party resources in a trial court that has lost jurisdiction, issue a writ of mandamus staying all further proceedings and discovery in the Fannin County trial court, and -4- direct the trial court’s clerk to physically transfer the file to the transferee court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION AND PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 VERIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 APPENDIX (Clerk’s Record) Pages 1 to 758 Reporter’s Record (September 30, 2014 hearing on motion to transfer) Reporter’s Record (November 12, 2014 hearing on motion to reconsider) -5- INDEX OF AUTHORITIES Case Authorities HCA Health Servs. of Tex., Inc. v. Salinas,
838 S.W.2d 246(Tex. 1992) (orig. proceeding) (per curiam) . . . . . . . . 10, 11 In re Cerberus Capital Mgmt., L.P.,
164 S.W.3d 379(Tex. 2005) (orig. proceeding) (per curiam) . . . . . . . . . . . . . 9 In re Chester,
309 S.W.3d 713(Tex. App.—Houston [14th Dist.] 2010, original proceeding) . . . . . 9, 10, 12-14, 15 In re Darling Homes, No. 05–05–00497–CV,
2005 WL 1390378(Tex. App.—Dallas June 14, 2005, orig. proceeding) . . . . . . . . . . . . . . . . 11-12, 14 In re Lumbermens Mut. Cas. Co.,
184 S.W.3d 729(Tex. 2006) (orig. proceeding) . . . . . . . . . . . . . . . . . . . 16-17 In re Reed,
901 S.W.2d 604(Tex. App.–San Antonio 1995, orig. proceeding). . . . . . . . . . . . . . . . . . . . . 17 In re Southwestern Bell Tel. Co.,
35 S.W.3d 602(Tex. 2000) (orig. proceeding) (per curiam) . . . . . . . . . . 9, 11 In re Team Rocket, L.P.,
256 S.W.3d 257(Tex. 2008) (orig. proceeding). . . . . . . . . . . . . . . . . . . . 9,
10 Walker v. Packer,
827 S.W.2d 833(Tex. 1992) (orig. proceeding) . . . . . . . . . . . . . . 9 Zimmerman v. Ottis,
941 S.W.2d 259(Tex. App. —Corpus Christi 1996, orig. proceeding) . . . . . . . . . . . . . . . . . . 15 Additional Authorities TEX. CONST. art. 5, §6(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Tex. Gov’t Code §22.221(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 -6- STATEMENT OF THE CASE This is a lawsuit for alleged breach of a realty and mineral rights contract. The Respondent is the Honorable Laurine J. Blake, 336th Judicial District Court, Fannin County Texas (referred to herein as “the Respondent” or “the trial court”). The Respondent signed an Order transferring venue, and then, more than 30 days later, signed an “Order on Motion to Reconsider Order to Transfer Venue” that purported to vacate the prior transfer Order. The Relators seek mandamus relief from the “Order on Motion to Reconsider Order to Transfer Venue” because it is void and the Respondent was without jurisdiction to sign it. STATEMENT OF JURISDICTION The Court has jurisdiction to issue a writ of mandamus. TEX. CONST. art. 5, §6(a); TEX. GOV’T CODE §22.221(b)(1). ISSUE PRESENTED Did the trial court abuse its discretion in signing the “Order on Motion to Reconsider Order to Transfer Venue” more than 30 days after signing the original Order transferring venue? -7- STATEMENT OF FACTS This is a lawsuit for alleged breach of a realty and mineral rights contract. (Appendix pages 7 to 25.) The Relators / Defendants sought transfer of venue by motion, on grounds of proper venue in Tarrant County rather than Fannin County. (Appendix pages 37 to 38.) After a hearing on the Relators’ motion to transfer, the Fannin County trial court, Honorable Laurine J. Blake, Respondent, granted the motion to transfer venue and ordered the case transferred to Tarrant County by Order signed on September 30, 2014. (Appendix page 650.) The trial court then held a hearing on the Plaintiffs / Real Parties in Interest’s motion to reconsider the transfer, and on November 21, 2014 — more than thirty days after signing of the September 30, 2014 transfer Order — signed an “Order on Motion to Reconsider Order to Transfer Venue,” which purported to vacate the transfer Order and retain venue in Fannin County. (Appendix page 751.) ARGUMENT AND AUTHORITIES THE TRIAL COURT WAS WITHOUT JURISDICTION TO SIGN ITS NOVEMBER 21, 2014 “ORDER ON MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,” AND ACCORDINGLY MANDAMUS SHOULD ISSUE. A. The trial court signed an Order transferring venue more than 30 days prior to signing the “Order on Motion to Reconsider Order to Transfer Venue.” B. Texas courts consistently hold that a trial court’s plenary power over a venue transfer order expires after thirty days, despite the filing of a motion to reconsider the transfer. -8- C. Nowhere in the trial court’s record did the Respondent modify, reconsider, or vacate the transfer Order within thirty days. Because the Respondent’s November 21, 2014 “Order on Motion to Reconsider Order to Transfer Venue” was signed after the trial court lost plenary jurisdiction on October 30, 2014 (i.e., thirty days after signing of the original transfer Order), the November 21, 2014 reconsideration Order is void. See In re Chester,
309 S.W.3d 713, 719 (Tex. App.—Houston [14th Dist.] 2010, original proceeding) (“The trial court abused its discretion by vacating its . . . transfer order after its plenary power had expired. The trial court’s [vacating] order is void”). To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and there is no adequate remedy by appeal. In re Team Rocket, L.P.,
256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P.,
164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). When an order is void, the relator need not show that it did not have an adequate appellate remedy, and mandamus relief is appropriate. In re Southwestern Bell Tel. Co.,
35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam). The Respondent’s November 21, 2014 “Order on Motion to Reconsider Order to Transfer Venue” order is void because the trial court had lost plenary jurisdiction -9- to set aside the September 30, 2014 transfer Order thirty days after the transfer Order was signed. The trial court has plenary power to grant a new trial or vacate, modify or reform a judgment within thirty days after the judgment is signed. TEX. R. CIV. P. 329b(d). Although a transfer order such as September 30, 2014 transfer Order in this case does not fall within the purview of a judgment under Rule 329b, the Supreme Court of Texas has applied Rule 329b(d) to such venue transfer orders. See HCA Health Servs. of Tex., Inc. v. Salinas,
838 S.W.2d 246, 248 (Tex. 1992) (orig. proceeding) (per curiam). Under Rule 329b(e), if a motion for new trial is timely filed, the trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform a judgment until thirty days after all such timely-filed motions are overruled, either by written and signed order or by operation of law, whichever occurs first. TEX. R. CIV. P. 329b(e). However, Rule 329b(e) does not apply to motions for reconsideration of venue transfer orders — such as that filed by the Plaintiffs / Real Parties in Interest and considered and granted by the Respondent in the present case — as several Texas cases have expressly recognized. See, e.g., In re
Chester, 309 S.W.3d at 719. Once the trial court has ruled on proper venue, that decision cannot be the subject of an interlocutory appeal. In re Team
Rocket, 256 S.W.3d at 259. Rule 87 provides that “if an action has been transferred to a proper county in response to a motion to transfer, then no further motions to transfer shall be considered.’”
Id. at 260(quoting TEX. R. CIV. P. 87(5)). Although a trial court’s ruling transferring venue is interlocutory for the parties, and not subject to immediate appeal, the transfer - 10 - order is final for the transferring court as long as it is not altered within the court's thirty-day plenary jurisdiction. Id.; see also In re Southwestern
Bell, 35 S.W.3d at 605. A court retains plenary jurisdiction to correct any error for thirty days, but no more than thirty days, after the transfer order is signed. HCA v.
Salinas, 838 S.W.2d at 248. The court of appeals in In re Darling Homes also addressed whether Rule 329b(e) extends the plenary power of the trial court to set aside a transfer order when a motion to reconsider is filed. See No. 05–05–00497–CV,
2005 WL 1390378(Tex. App.—Dallas June 14, 2005, orig. proceeding [mand. denied]) (mem. op.). In Darling Homes, the trial court granted the defendants’ motion to transfer the case to the transferee county on August 3, 2004.
Id. at *1.On September 27, 2004, the trial court granted the plaintiff’s motion to reconsider the transfer, vacating the transfer.
Id. The plaintiffargued, as do the plaintiffs in the present case, that the filing of the motion to reconsider within thirty days of the signing of the transfer order functioned as a motion for new trial, and extended the trial court’s plenary power over the transfer order by 105 days pursuant to Rule 329b(e). See
id. at *2.The court of appeals disagreed, and declined to apply Rule 329b(e) to extend the trial court’s jurisdiction after the signing of an order transferring venue to another county.
Id. The courtof appeals in In re Darling Homes observed that (1) an objection to improper venue is waived if not made by written motion filed before or concurrently with any other plea, pleading, or motion except a special appearance; (2) once a - 11 - motion is filed, it is to be determined “promptly”; (3) except for the inability to obtain a fair trial, only one motion to transfer is allowed in any case; (4) even if a party is added after the first motion is filed, he cannot file a subsequent motion to transfer except on the ground of inability to obtain a fair trial; and (5) interlocutory appeals are prohibited.
Id. (citing TEX.R. CIV. P. 86(1); 87(1), (5), and (6)). The court explained the rationale for not expanding the trial court's jurisdiction beyond thirty days with regard to a venue transfer order as follows: These restrictions reflect the supreme court’s desire for rapid disposition of a motion to transfer. Were we to accept [the plaintiff’s] argument, litigation could be stalled for 105 days while the transferring court decides whether it will rescind its order. During that time, the receiving court is not obligated to take any action. Such delay is not an efficient use of judicial resources. Accordingly, we conclude a trial court's plenary jurisdiction is not extended by a motion to reconsider an order transferring venue.
Id. at *3.The court of appeals in In re Chester found the Darling Homes reasoning to be persuasive, and observed that allowing an extension of the trial court’s plenary jurisdiction over a venue transfer order beyond thirty days would render meaningless Rule 89, which sets forth the procedures for the transferor and transferee courts to follow after the motion to transfer venue has been sustained. See TEX. R. CIV. P. 89. Rule 89, entitled “Transferred if Motion is Sustained,” states, in relevant part: . . . After the cause has been transferred, as above provided for the clerk of the court to which the cause has been transferred shall mail notification to the plaintiff or his attorney that transfer of the cause has been completed, that the - 12 - filing fee in the proper court is due and payable within thirty days from the mailing of such notification, and that the case may be dismissed if the filing fee is not timely paid; and if such filing fee is timely paid, the cause will be subject to trial at the expiration of thirty days after the mailing of notification to the parties or their attorneys by the clerk that the papers have been filed in the court to which the cause has been transferred; and if the filing fee is not timely paid, any court of the transferee county to which the case might have been assigned, upon its own motion or the motion of a party, may dismiss the cause without prejudice to the refiling of same. TEX. R. CIV. P. 89. As the In re Chester court observed, Rule 89 triggers the timeframe in which the transferee court can take action on the transferred case. Under Rule 89, after the case has been transferred, the filing fee is due within thirty days from the mailing of the notification to the parties that the transfer of the case has been completed.
Id. If thefiling fee is not timely paid, the transferee court may dismiss without prejudice to refiling.
Id. If thefiling fee is timely paid, the case will be subject to trial thirty days after the mailing of the notification to the parties.
Id. Therefore, ifa motion for rehearing of an order transferring venue were to extend the transferring court’s plenary power beyond thirty days, the transferring court would have up to 105 days to set aside the venue transfer order, even though the case would be “subject to trial” in the transferee court long before the expiration of the 105 days. It would not be feasible for the transferee court to hold the transferred case in abeyance during the time in which the first court is deciding venue on rehearing. Such a procedure would be contrary to policy that the venue - 13 - determination be made early in the case. See
id. at 718,citing In re Darling Homes,
2005 WL 1390378at *2. Moreover, such a reading is not supported by the plain language of Rule 89. In the present case, the Relator’s clerk apparently did not actually effect transfer of the file materials to the transferee court. However, the clerk’s duty in this regard is merely ministerial, and thus failure to actually transfer the trial court’s physical file from the transferring court to the transferee court cannot have extended the former’s jurisdiction. See TEX. R. CIV. P. 89 (“If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed.”) [emphases supplied]. If the transferring court’s clerk’s failure to physically transfer the file to the transferee court could extend the transferring court’s plenary power, as the Plaintiffs / Real Parties in interest argued here, then in effect the transferring court and clerk could retain a “pocket veto” on the transfer order during whatever time period that the clerk failed to complete the ministerial duty of physically transferring the file. Such a result would be contrary to Rules 87 and 89, as well as the numerous case law decisions on this topic. Cf. In re Chester at 718 (“the [transferring] trial court's lack of jurisdiction is not based on when the [transferee] Court received the case file, but - 14 - on the expiration of [the transferring court’s] plenary power after thirty days”). Nowhere in the trial court’s record did the Respondent modify, reconsider, or vacate the transfer Order within thirty days of signing it on September 30, 2014. See Appendix pages 1 through 758. The filing and consideration of the plaintiffs’ motion for reconsideration of the venue transfer did not extend the transferring court’s plenary power. Therefore, the Respondent was without jurisdiction to set aside the transfer Order by November 21, 2014, and thus the “Order on Motion to Reconsider Order to Transfer Venue” of that date is void. THE TRIAL COURT WAS WITHOUT JURISDICTION TO SIGN ITS NOVEMBER 21, 2014 “ORDER ON MOTION TO RECONSIDER ORDER TO TRANSFER VENUE,” AND ACCORDINGLY MANDAMUS SHOULD ISSUE. * * * D. When an order is void, the relator need not show that it lacks an adequate appellate remedy, and mandamus relief is appropriate. E. The Court of Appeals should grant temporary and mandamus relief in order to avoid waste of judicial and party resources in a trial court that has lost jurisdiction, issue a writ of mandamus staying all further proceedings and discovery in the Fannin County trial court, and direct the trial court’s clerk to physically transfer the file to the transferee court. Because the Respondent’s November 21, 2014 “Order on Motion to Reconsider Order to Transfer Venue” was void, Relators need not show prejudice or negate laches in order to obtain mandamus relief. See In re
Chester, 309 S.W.3d at 718(“laches is not applicable when the order subject to the mandamus proceeding is void”) citing Zimmerman v. Ottis,
941 S.W.2d 259, 262 (Tex. App. —Corpus - 15 - Christi 1996, orig. proceeding) (“Since mandamus relief in the present case is premised on the entry of a void order, it would not serve the interests of justice or those of the parties to invoke laches as an excuse to ignore that order, and thus to allow the parties to expend further time and effort in connection with a lawsuit that must ultimately be dismissed by the [trial] court or reversed on appeal for want of jurisdiction.”). However, even if a prejudice showing were required, the Relators would meet it in that absent emergency and mandamus relief, the Relators (as well as the Plaintiffs / Real Parties in Interest) will have to engage in discovery and prepare for trial in the Respondent’s court, which lacks jurisdiction. See
id. Accordingly, andcontemporaneously with this Petition, the Relators have sought an emergency stay from the Court of Appeals. A court of appeals may grant temporary relief pending its determination of an original proceeding. TEX. R. APP. P. 52.10(b); see also In re Lumbermens Mut. Cas. Co.,
184 S.W.3d 729, 730 (Tex. 2006) (orig. proceeding). In the present case, a stay of all litigation events and discovery relating to the Plaintiffs / Real Parties in Interest’s case is necessary to avoid waste of judicial and party resources, ensure compliance with mandatory elements of the Texas Rules of Civil Procedure,1 and preserve the transferee Court’s jurisdiction 1 See TEX. R. CIV. P. 87 (“The determination of a motion to transfer venue shall be made promptly by the court”) and TEX. R. CIV. P. 89 (“If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff. The clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and send it with the original papers in the cause to the clerk of the court to which the venue has been changed.”) [emphases supplied] - 16 - to consider the merits of the case. See In re
Lumbermens, 184 S.W.3d at 730; see also In re Reed,
901 S.W.2d 604, 609 (Tex. App.–San Antonio 1995, orig. proceeding). CONCLUSION AND PRAYER FOR RELIEF Accordingly, in order to avoid waste of judicial and party resources in a trial court that has lost jurisdiction, the Relators respectfully petition the Court of Appeals for a temporary order staying all proceedings and discovery in the Fannin County trial court pending resolution of this Petition for Writ of Mandamus, and upon consideration of this Petition, for a writ of mandamus staying all further proceedings and discovery in the Fannin County trial court and directing the trial court’s clerk to physically transfer the file to the transferee court. WHEREFORE, PREMISES CONSIDERED, Relators respectfully petition the Court of Appeals for the temporary relief requested in their contemporaneous Motion for Emergency Stay, and for mandamus relief as requested in this Petition. Respectfully submitted, ROBERT G. HOGUE, P.C. By: s/ Robert G. Hogue State Bar No. 09811050 4514 Cole Avenue, Suite 600 Dallas, Texas 75205-4193 Phone: (214) 559-7107 Fax: (214) 559-7101 - 17 - LAW OFFICES OF CHRISTY LEE, P.C. By: s/ Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Suite 600 Fort Worth, Texas 76102 ATTORNEYS FOR RELATORS / DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above Motion has been served on the Respondent, the parties and counsel listed below, on this 12th day of January, 2015, as indicated: Honorable Laurine J. Blake Via USPS next-day mail 336th Judicial District Court 101 E. Sam Rayburn Drive, Suite 200 Bonham, Texas 75418 RESPONDENT Mr. T. Scott Smith Via email per Rule 11 Agreement Attorney and Counselor at Law 120 S. Crockett Street Sherman, Texas 75090 ATTORNEY FOR THE PLAINTIFF / REAL PARTIES IN INTEREST Howard Kirk Gibbs Via email per Rule 11 Agreement 9929 Crawford Farm Drive Fort Worth, TX 76244 DEFENDANT, PRO SE s/ Christy L. Lee Christy L. Lee - 18 - VERlFICATION BcforL' me, tlw undersigned notar~·. on this da~' perso nally appeared Christy L. Lee, the affiant. a person whose identity is known to me . After I adm in istered an oath to affiant, affiant tcstificJ: M:v name is Christy L. Lee. I am over 18 _vcars of age. and am competent to mah· this affidavit. I have personal knowledge of the facts set out in this affidavit, and they arc all trtt\.' and correct. I ;1111 an attorney who is lil"cnsed to practice law in l he Stale of Texas. I am coun sel of record for th e Relators I Defcnuants in th is litigation. Th e facts in this Petition arc within my personal knowledge and arc tru e and correct. /\11 of th e documents attached in the Appendix arc true and correct copies, and the transcripts of the two relevant hearings conduct eJ in the trial court below arc trlll' and accurate transcripts oft hose hearings. Christ v L. Lee STATE OF ALASKA § § THIRD JUDICIAL DISTRICT § BEf-01~[ ME. the undersigned authority. on thi s date persona ll y appeared Christy L. Lee, known to me to he the person whose name is subscribed to t he foregoing in strument, a nd swore anJ m:knowlcuged that he executed the same and that the s tatements contained therei n arc with in he r personal knowledge and arc lruc and correct. TO CERTIFY WHICH WITNESS MY HAND AND SEAL OF OFFICE on this 'Hi_ Ja:· of Januarv. :w I 5. Ha rv Puhlil·, in a11l or the St al l' o f ~\\\\\lllll//1///fllb /\Iaska ~ tJ.. Ho ~ ~~ ~~-···········.G'bl~ --~~,•• ·y;~ My Commiss ion cxpircs: JJ~A.a<-L J?F'JtJ/5 §§· 'V' /cY ••• t.P ~ ;::::: ....} :i' ·. ~ ~ i NOTARY \ ::. % \pUBLIC/*~ ~* ·. ~ ~
wners. trustee(s) or t)eneficiary(•es), b.J Specifically cxempte4 from this agrecnt~nt are ;my p.ropcmes andior other assets whi~h are currently u11der the full control of Gibbs,. or any of the .individuals referred to coll¢ethdy as "Gihbs" m th1s agreemeill~ proovillcd. howe,·er; thai if any legal work IS required to aid in the coll«tion of said assets. or the sale or control of said property, then said propeny or other assets shall be subject ro the lt!rms, conditioos. ~d con~i~erations set forth within lhis agreement as p;u.t pf the property artdior assets li~led above. artd shall have n<> exemption to the tenns and considerations. of this agtecrnet\1. Also exempted from this agreement are any persanal itetns that were passed. to ·Gih:bs from their father, which were not Included lll the divorce dislnbutionbe!Ween their mother and father .. This sale of 30% of.all land, prqperty •lid other asseu deSCf'ibed herein .above shall be g.ovrned by tbe (c:~Uowing lerlft~o, toa.ai~lcna!i.t and ~ons'idnfltions: 1 Gibbs. or any of the individuals re(erred to collectively as ·'Gibbs.'' in this a.$fccment, shall giv~ their/hi~'he:r full c;()Opcration to all efforts by B~c.roft to coH~<:l any of me: funds referred to m th1~ .agreement. Sii.id ~Qoreranon shall.include •. bui not be hnlited. to, providing ne~essary mfonnation .and 4ocumemauon. beil)g available to gwe ttstimony, and glv&n.g full suppQrt t~' the o.vetall c:ffort of .;Qitectin,g fUo(ls and..l1S$r:!ts rrom the sourcts stated herein. 2. An>· pariy hereto shall have.tlle righr ro. order: a complete tnvenrory ohU propeny and oih~r ass~ls described her¢tn at 3fl) tinte, and all panies agree to prov1de full ¢09peration lo such an effort. Any costs sh;sJI be born by the party requesting the mventory. l\•nlr:U:lfQr ::>.trc t)rUnd, Mti1Ci'lll Rtghh. lh•yal11c1 ~lid Ot~r·•A!i!lds and/01'. M~n1r' 19 J. As full considc::ralion; Barcroft agrees to provide, orhas providal, the following: a} Qarcrofi has pard to Gibbs .a total of twenty·onc:. (21) silver dollars minted by the Umled Suues Mint, photocopy :r.l\~>~1> ~ndror "t.DOI.~.s • 22 ACKNOWLEPGEM£~T ST~T£ OF TEXAS Subscrjbed~ Sworn, -.ad Sealed COUNTY OF COLLIN On thss I~ da}' of May •it the ye;u- 2005, Albert Lyaa Barcraf~ known to me, d1d personally appear before me• and. al\er £a~ing the oaitr, (}epo~ anJ says that he 1~.1he milll -...hu executed the for~go1ng ins1rumen1; and. funher st•ucd rhal ht: c:~t:Qu\cd the same: as hrs free and mformcd act and l!eed fqr (he piJrpt)~s sla.l~ therem.. and wilh .a fUll understanding o{th~ scope of the provisions coniatned therCin~ and, lhathc a 0 a ide by alJ said proVISIOllS . .----- ·. , Subscribed and sworn tl\ hefore me 1h1s 1(11hday pfMay in the year 2005. . .. ·e·~ ttJ'-:li~ RUBtR• .-ENEZ .NOTARV.·. ·PU&IC . · • STAT£OF·TE~~S. " · · Mt Comm. '-11· n.OB·Oa .Subscribed. Sworn, litd Sealed COl.JNTY OF COLLIN On th~s 101h uay of May 1n the y~r 2005, ~e,.neth V~ta Gib~ l;nown 1o me, did personally appear ~t()re me; a1id, after taking th.e oalh. depose!> and says thai he is the miln who c:l(e.,:uted the foregoing instrument: .anti, further stated thai he executed the same as his free and mfomJed act and deed for the pu.I"(''Qses stated lht:rem. and with a full unders1anding of the scupe c;f the provisions coniamc:d I herem: and, that be agrees to ahide by all satd provisiOns. £( .JI 7/~· . .hi# ~ K~nneth Ven1 :Gibbs -·--~- .. Subscribed and sworn to bcilorc me thi~ l01h day of May in the year 2005 . S4l¢ Of UtloCkM.rMt~l RtKiii~. {;omr.;.(l f(\1 6 R~y•lllcs ~rod Othor A»<:ili •~! 1\,Ji>nrt; 23 -------------.. ---· STATK OFTE.XAS Substrlbed. Sworo. and Selifed COUNTY Of' COLLI.~ On this I o"' ~~y of May· in the year 2005. C•ad•ce GJbbJ Wattoa~ .~Wt:J to me, did personally appear before· JTJe; and, after takang the oath, deposes and says that she Is tb~ woman wh cit.,F r .. c(~j). ?J· p~ )( tJ?J? 7;e. t~·-~POo?, T:e )\Ct:J . 7So/9c;· c.~ . . D) E; :"', ...~"' ~--.,.,. 27 CITATION- personal service- TRC 99 THE STATE OF TEXAS CAUSE NO. CV-14-41665 PENTEX FOUNDATION VS. § IN THE DISTRICT COURT KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § 336th JUDICIAL DISTRICT HOWARD KIRK GIBBS § FANNIN COUNTY, TEXAS TO: Howard Kirk Gibbs 4360 Western Center BLVD #205 Ft Worth TX 76137, or wherever he/she may be found DEFENDANT- GREETING NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the cl~rk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99 You are hereby commanded to appear by filing a written answer to the Plaintiffs Petition at or before 10:00 o'clock A.M. on the Monday next after the expiration of 20 days after the date of service of this citation, before the Honorable 3361h Judicial District Court of Fannin County, Texas, at the courthouse in said County in the City of Bonham, Fannin County, Texas. Said Plaintiff's Petition was filed in said court on the; 1st day of April, 2014 in the above entitled cause. The nature of Plaintiff's demand is fully shown by a true and correct copy of (OCA) - Original Petition - New Cases Filed accompanying this citation and made a part hereof. Issued and given under my hand and seal of said Court at Bonham, Fannin County, Texas this 3rd day of April, 2014. Attorney for Plaintiff or Plaintiff: Clerk of the Court: John Skotnik, Nancy Young, District Clerk Attorney at Law 101 E. Sam Rayburn Drive, Suite 201 PO Box 727 Bo annin County, Texas 75418 Bonham TX 75418 OFFICER/AUTHORIZED PERSON RETURN Came to hand at _ _ o'clock _.M., on the _ _ day of , 20_. Executed at (address)------:--:---:------::--,--------::------:---::---- --------=-----:---:-::---:------------ m County at o'clock _.M. on the _ _ day of _ __ - - - - - , - - - - - ' 20_, by delivering to defendant, in person, a true copy of this Citation together with the accompanying copies of the (OCA)- Original Petition- New Cases Filed attached thereto and I endorsed on said copy of the Citation the date of delivery. 1 )Notexecu~d.Thediligenceuseinfindingde~ndantbcing _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I ]~furmationreccived~miliewhereaboumofdefundarube~-~----~------------------------- To certify which I affix my hand officially this _ _ day o f - - - - - - ' ' 20_. Fees ......... $ _ _ Fannin County, Texas Service ID N o . - - - - - - - - - - - - b y - - - - - - - - - - - - - - Sheriff/Deputy/Constable/Process Server VERIFICATION On this day personally appeared known to me to be the person whose name is subscribed on the foregoing instrument and who has stated: upon penalty of perjury, I attest that the foregoing instrument has been executed by me in this cause pursuant to the Texas Rules of Civil Procedure. I am over the age of eighteen years and I am not a party to or interested in the outcome of this suit, and have been authorized by the Fannin County Courts to serve process. Subscribed and sworn to before me on this the _ _ _ day of _ _ _ _ _ _ _ _ _, 20_ _ _ _ _ _ _ _ _ _ Notary Public CERTIFICATE OF DELIVERY BY MAIL- TRC 106 I hereby certify that on the day of , 20_, at o'clock _.M., I mailed to Howard Kirk Gibbs 4360 Western Center BLVD #205 Ft Worth TX 76137, Defendant by registered mail or certified mail, with delivery restricted to addressee only, return receipt requested, a true copy o[ Ill~\' , citation with a copy of the (DCA) - Original Petition - New Cases Filed attached thereto. (Certified Mail Receipt and Green Card Attached) /f"<;,/ 0 ., ~}~~,'.', ,Vf!~p , ~\~\ - - - - - - - - - - - - - - - - - Deputy/Pr~ss iC;) " \~,', :_:4:: 28 \~}~ /;;;/ '<~~'1" ~ ,/~~~'; '~(:Y{if'::~ _ 9,·' CITATION- personal service- TRC 99 THE STATE OF TEXAS CAUSE NO. CV-14-41665 PENTEX FOUNDATION VS. § IN THE DISTRICT COURT KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § 336th JUDiCIAL I DIS'fiUCT .. r~-~ ~· HOWARD KIRK GIBBS (,.·-;...... .:.~ § FANNIN' COUNTY, DXAK .. .:::~.--, hN.. .-.. ~ ... ·._, /t.. ... -.. -· . ..... ---- - : . (....;· ··: .---; TO: Howard Kirk Gibbs :; :~ 4360 Western Center BLVD #205 h~ ·. ··-·,-. Ft Worth TX 76137, or wherever he/she may be found DEFENDANT- GREETING .".::.:) :.. ...: _J·:: ~- .. • ::-- NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or yO~r attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99 You are hereby commanded to appear by filing a written answer to the Plaintiff's Petition ~ Monday next after the expiration of 20 days after the date of service of this cita~ioi[ ~ Court of Fannin County, Texas, at the courthouse in said County in the City c 3 ., ~ Petition was filed in said court on the ; lsi day of April, 2014 in the above en ~ : ~ ::=!i~ The nature of Plaintiff's demand is fully shown by a true and correct copy of ,.. 0'i g. accompanying this citation and made a part hereof. 2 CD ---n\51-~,- ~ I Issued and given under my hand and seal of sai;f'Col.!'n-at-B~~Fannin C § Attorney for Plaintiff or Plaintiff: ($~---·.,\ ~\ John Skotnik, 'l>l :-: t ,a;. t I : -1: · -· J Allorney at Law •, ~ '. / : c "~--" ~ f I PO Box 727 \·r \, /Cl:) / Bonham TX 75418 \:o~;--------~1..~/ ~ ...... ___ ... ~~--- ·-,'ff'ITV. ....... ..:~ ~ 3 UTHORIZED PERSON R §' , . ' - - - ' 20_!<.:l_. Executed ~ CJ in _ _ _ __ CJ CJ CJ ew Cases Fi Jed attached there I I _ _,20_. I .. Certified Fee "~6"'1· Return Receipt Fee (Endorsement Required) f-------\---1 Restricted Delivery Fee by (Endorsement Required) 1---__:_::..:..:,_:..:1 VERIFICATION T --,-,----.,-----,--- kn· :going instrument has been c: S terested in the outcome of th~u;l, uhu - - - - - - - - - ' 20_ _ _ _ _ _ _ _ _ _ Notary Public 'E Of' DELIVERY DY M~- TRC 106 _ _ , 20J1_, at f:>J o'c)o~k ~.M .. !mailed to Howard Kirk Gibbs 4360 Western certified mail, with delivery restricted to addressee only, return receipt requested, a true copy of this ched thereto. (Certified ail Rec · and Green Card i\ttachcd) 29 • CITATION- personal service- TRC 99 .. , THE STATE OF TEXAS CAU~ 1\i!t CV:;:l4-416~5 PENTEX FOUNDATION VS. § INTHt~~C~CO~~ i ;:=:j:_,. ~~ :2,--': KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § 336th J:lJDI~N.- Dl~TIU(:f HOWARD KIRK GIBBS i::~ ~",c~ -:::.:: .::: ~ § FANN~ c1j(fN~ TExAS TO: Kenneth Vern Gibbs 4212 Wheeler ST Ft Worth TX 76117, or wherever he/she may be found DEFENDANT- GREETING NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99 You are hereby commanded to appear by filing a written answer to the Plaintiffs Petition at or before I 0:00 o'clock A.M. on the Monday next after the expiration of 20 days after the date of service of this citation, before the Honorable 3361h Judicial District Court of Fannin County, Texas, at the courthouse in said County in the City of Bonham, Fannin County, Texas. Said Plaintiff's Petition was filed in said court on the ; 1st day of April, 2014 in the above entitled cause. The nature of Plaintiff's demand is fully shown by a true and correct copy of (OCA)- Original Petition -New Cases Filed accompanying this citation and made a part hereof~-T-·-· ,·;.~~~!.t: (l(i'•, l"ucd and g;vcn undc, my hand and seal,""~*~' Fann;n County, Texas th;s 3'd day of Apdl, 2014. I ' \ ~ o{ \ \ Attorney for Plaintiff or Plaintitl: J o h n Skotm·k , Attorney at Law { 1• '""• • .on\ \~-. -,"A~' _, ~"V' ,.~~/ •en:• :'ff:f: t_k Clerk of the Court: Nancy Young, District Clerk ~E am Rayburn Drive, Suite 201 PO Box 727 '·.:~;·--------~\. / nCo y, Texas 7541K Bonham TX 75418 __ .... .,. __ . -- ··• ••• .COU"''-_)· _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Deputy U.S. Postal ServiceTM CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) _ _,20_ _ . Fannin County, T,·xas b y - - - - - - - - - - - - - - - Sheriff/Deputy/Constable/Process Server VERIFICATION _ _ _ _ _ _ _ _ _ _ _,20_ _ _ _ _ _ _ _ _ _ _ Notary Public <:OF DELIVERY BY MAIL- 'rRC 106 ---:~L!-Jr=-~:::-::---::---:-:-:--::-' at jzolj_. s·J 0 "clock D.M., I mailed to Kenneth Vern Gibbs 4212 Wheeler ST Ft Worth TX 76117, Defendant by registered mail certified mail, with delivery restricted to addressee only, return rrceipt requested, a true copy of this citation with a C<>pv o( ,,, (OCA) no:l7~~·;J~w?i''(~~ ~';;~T:M~I ·~cip< G'f· ~ """ -"·~~· s''"'' ,10 \ 3 ·z,.t, -3o oo.-'D 4-e>f1.. 16L.J4 30 Track and Confirm Intranet Page 1 of2 Product Tracking System Rat·~~;/ USPS Corpomtn Hom~: Smuch PTS i EDW Corn~n~trnents 1-\cc.ountH Track & Confirm Intranet Tracking Number Result -~-~~l-·-~~-t.?._r__~~~-~~!!_~-!.~~~-~~~-~--~~-~-~~~-~-!~_1_~-~~~-~--~~-~-~-~~-~-~-!~.~~---··--···---····--·---------------------------------·------··--·--·--··--·-··-···-··-·-···· Destination and Origin Destination t;!;;;·c;~;;;;T;::;i·;··---·--------'Js-;~;i:~:-1 I~~~~fii<'Lf~~,== !1-.~~~~~~§.~i~J~~~~~-~-;J~~~~-J r---·:::_-:_-_-_-_-:_-_·::_-_._._-:::::.·::..::::.-.-:::.-:.-:::.-.-:.-:.-::::.-.-.-::::.·.-.-.-.-:.-.-:::::.-.-:::.-.-_-_._._._-_-_._._._-_-:_-_-_-_-::_-_-_-_-_-:_-_._-_-_._-_-_:·:.-.-.-.:·.-_-_-_-_-_..._._. _..._._._._. _._-_-_.._._._-_-_.._......_._-_-_._._-_-_-.._-_-_-_._._._..._._-_..-.-:.-.-.-.-:_-:.-.-...-.-_-_-_-.-_-_._-:_-;_.._._._-:·_-_-_-_-_._-_._-_-_-_-_-_-_-_.______-:_·_-_._.::..._-....:_..-.._-_-_--::_-_.._-_._-_._..._._-_: 1 Tracking Number Classification ~-----------------------------------------------·--- - ---- ------ ------------------------------------------------------------------------·-- ---- Class/Service I Class/Service: Class of Mail Code/Description: First·Cias.s Cet1ified Mail FC! First Class I Service Performance Date: Service Delivery Information Scheduied Delivery Date: Saturday, 04/05/2014 II Delivery Option Indicator: 1 • Normal Delivery Zone: 01 Ii PO Box: Other Information N i Payment Type: Payment Other Postage Payment Account Number: 000000000000 I Postage: $2.03 [_ _· ---··---------- _ - - - - - - - - - - - - - - - - - _______ ---------------~~-~~-!~-~;.~~;;.;_ _ _ _ _ ~f.~~tt~!~~-~-:_ ~!o~L- -------------------- ---------------------- ---------------------- ,-------·----------·---------------------------------------------------------------------------------··--·-----------·--···-------------------··-·- ·--·-······-·····----------------···----·-------------------------------------, l Extra Services 1§~~~::~:~:;:~~:~~~~~~!~~::::::::::::::::::::::::::::::::::::::::::-:::-:::~--------------------------- ·-------------------------------------------·-----------------···-·----·--------------------·---·--< jj Dflscription j ,;~nlt"HHrt. \~c.~~i!~~-~--~!~i~-:--~~---=--- . . ___ --r$3;3.;_~~-~-- : Return Receipt . $2.70 1:-.:-.-:.·."";:".":.·.·.::.·.·-·---·-----"-":.'-"·"·"-·-·-·..::.·:.-...........-.·-·.:-.•..-.":.·.·-·.-:.·.·.::.·.:-·---·-·.:.·.·.--·~----·-..-·. ·-"":...·.-------.·-·------.:...·.·..-.:.~--~..:.--.-:.::...·..·.·----·. -------------------------------·-------------------------····-----------------------------------------------------·-·---------------· f -----------------------·------------------------------------------------------ ---------------------·- ----------------- -----------------------------·--------------------------------------- --- --- ------------------, \Events ! r.===,=r.:=r:=::r~;~r.=~]=:~,c;-:=~~~~~~~,,==1 I ' \ / :! Request Delivery Record ( i • HAL TOM ~ I 1,'. OUT FOR DELIVERY CITY TX 7611 7· ~ System j Generated I ·- S~~TI~GI~~OCE~~IN~- ; COMPLETE ; -- ·--- ~~N~~ I~ys!em I Generated i. - jI : Dislribution Complete LabeiiD: Q.C..lli~l.~ 76117 ' ~GOO 14Q4__Q_40? 552ft 1 : A~:;VAL ~~ ~~;~;- ..... i ~~~~~ iSca~ned : 030SHK5295-~ ~~~ned by j --· __ ____ ... . -------- -i . 76117 1- _ _ -16117P599 1 I' r DISPATCHED TO SORT FACILITY · 0410312014 t 16 58 l ' i ' BONHAM, : TX 75418 ' System I. Generated I I • I Page 1 of I ........ •¥• ...... ·-.- · - ·-- .................... , ........... - . . . . .. . ~· I tttps://pts-2.usps.gov/pts2-web/resources/images/DRRI_BY_ZIP _RESOURCES/686652076-139662485 ... 32 I·- CITATION -personal service-TRC 99 V'~ THE STATE OF TEXAS CAUSE NO. CV-14-41665 PENTEX FOUNDATION VS. § IN THE DISTRICT COURT KENNETH VERN GIBBS AND CANDACE GIBBS WALTON AND § HOWARD KIRK GIBBS § TO: Candace Gibbs Walton ,....... ..~,-. I -·~ ;..:._ 500 Logan DR n--:2-· . <; . . . . -~~- Azle TX 76020, or wherever he/she may be found DEFENDANT - GREETING .. •, NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. Ifyou oryou·r attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you." TRCP. 99 You are hereby commanded to appear by filing a written answer to the Plaintiff's Petition at or before 10:00 o'clock A.M. on the Monday next after the expiration of 20 days after the date of service of this citation, before the Honorable 3361h Judicial District Court of Fannin County, Texas, at the courthouse in said County in the City of Bonham, Fannin County, Texas. Said Plaintiff's Petition was filed in said court on the ; 1st day of April, 2014 in the above entitled cause. The nature of Plaintiff's demand is fully shown by a true and correct copy of (OCA)- Original Petition -New Cases Filed accompanying this citation and made a part hereof. /~~g;~--- ::,::::::o:i:~~:,::e:,:,.~:::,and 'cal of 'aid (;,~.~~ rrh~~~ Coanty, Tcxosc:::: :;l,::YC:::P'il, 21!14 I """ John Skotnik, :-·, t,...- II I t :I Nancy Young, District Clerk Attorney at Law •, ~\ /c, / 101 E. Sam Rayburn Drive, Suite 201 PO Box 727 \,?j,··... __.-~/ Bon annin County, Texas 75418 Bonham TX 75418 ',, ~o··------ '\~/ ···- UNT~ ,___ • ---------- Deputy 1. Article Addressed to: D. Is delivery address different from Item 1? ~C\.V\do.ee e\,bbS W\tDV\ If YES, enter delivery address below: Certified Fee D Cl Return Receipt Fee c::J (Endorsement Required) 'SoD ~y) Dr·,ve 0 Restricted Delivery Fee f---:.=...:..:._:_-'{ (Endorsement Required) 1-----'...:...:..C:..:._--j Azk. T)( 1uozo c~,., 0 Return Receipt for MecQiel~ CIC.O.D. 2. Article Number (ftansfer from service label) 7013 2630 DODD 4812 7617 PS Fonn 3811, February 2004 Domestic Retum Receipt 102595-0Z·M·f540 I Dtf,·ve.~-e-J by Ceffl rht~-J t911 ~ ---'T-t-=-""=-==,-~,.,~---------~/Process Server ~/,/r¥ G_ /:S3!A.-5 '10 I~ 2b.3D Duo<.) 4-BI-2 (u 11 33 LA\\' OFFiCESiW 225 K Fn~t:W!•:ED LA:\1•:.STJ·:. 200 i\1\CHO!V\(;[i, AlASKA 99503 \I All\: 007 .a:m.HH:3 I 1<'~\: H00.4:H. 7901 777 MAif\ ST., Su:. 600 fOI743 S.W.2d 243 , 253 & n. 6 (Tex. App. -Amarillo, 1987, no writ). A trial in Fannin County will deprive Ken and Candy of their due process rights to a fair trial under both United States Constitution Amendment 14 and Texas Constitution Article 1, Section 19. 15. Furthermore, Pentex's arguments reference only the distributions of Estate assets as addressed in the Family Settlement Agreement ("the FSA"), dated October 5, 2008, and executed in Tarrant County, Texas. The Estate is currently administered in Tarrant County, Texas. Therefore, on April 18, 2014, Ken and Candy filed Motion to Transfer this Cause of Action to Statutory Probate Court Pursuant to Section 34.001 of the Texas Estate Code, in Cause No. 2005-0000126-2, in Tarrant County, Texas. See Exhibit A. IV. DEFENDANTS' ORIGINAL ANSWER A. General Denial 16. Ken and Candy deny each and every allegation of wrongdoing of Pentex's Original Petition, and demand strict proof of each allegation, as required by the Texas Rules of Civil Procedure. MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFHRMATTVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE No. CV-14-41665 38 B. Affirmative Defenses 17. Pentex based its complaint against Ken and Candy on the CSL, to which Pentex is not a party. Pentex therefore has no standing with regard to the CSL. 18. The matter of the contested distributions formed the basis for the FSA, to which Pentex was not a party, and therefore Pentex has no standing with regard to the FSA. 19. When Pentex transferred all its reported interest in GWB Friends and Family Trust ( 11 GWB Trust''), it transferred it to OBU Friends and Associates Trust (11 GBU Trust"), and no longer has any interest in the alleged Estate assets, and therefore Pentex has no standing to seek relief against Ken and Candy. 20. Despite the reliance on the CSL and FSA in the Original Petition, Pentex's arguments of wrongdoing by Defendants specifically concerned distributions of Estate assets, which only the Estate had authority to distribute. Therefore, the Estate, not Ken and Candy, would be appropriately named Defendant in the Cause. See Original Petition, page 5, No. 27. The case should have been file against the Estate in Tarrant County, Texas. V. DEFENDANTS' COUNTERCLAIM 21. Based upon the facts, a case and controversy exists that warrants declaratory relief for Ken and Candy. Ken and Candy raise the following issues and facts as a counterclaim against Pentex. See Plaintiffs Original Petition to Remove Trustee, Appoint Successor Trustee, Compel Trust Accounting, Preserve Assets, Compel Conversion of Assets, and Terminate Trust, attached as Exhibit B. Exhibit B should be incorporated in its entirety. 22. Fraud. Pentex's wrongful taking of assets in GWB Trust, of which Ken and Candy hold a combined interest of more than 50%, constituted fraud, as that term is legally MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, 0RIUINAL ANSWER, AFFIRMA'ITVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV-14-41665 39 defmed, leading to conspiracy with Howard Kirk Gibbs and to the substantial loss of GWB Trust assets. By practicing law without a license, Albert Barcroft, a.k.a. Pentex, exerted undue influence over the Trusteeship of GWB Trust, to the extent that assets were illegally transferred, posing financial harm to Ken and Candy. Also, on August 20, 2013, the Internal Revenue Service filed a federal tax lien for $26,664.23 against Pentex. In order to avoid paying federal taxes, Pentex created a new trust, GBU Trust, and transferred all the ill-gotten GWB Trust oil and gas mineral rights into GBU Trust. 23. Theft and Unjust Enrichment. Pentex's actions resulted in the loss of significant GWB Trust assets and constituted a violation of the Theft Liability Act, in violation of Texas Penal Code Chapter 31.03, including theft by deception, deprivation, and appropriation. 24. Embezzlement. Albert Barcroft, a.k.a. Pentex, ao; Advisor to the GWB Trust Trustee, committed acts, legally defined as embezzlement, in violation of Texas Penal Code 31.03. The act of embezzlement deprived GWB Trust of its lawfully owned assets. VI. MoTION FOR SANCTIONS The Original Petition seeking relief was signed in violation of Rule 13, as a reasonable inquiry by John Skotnik and his client would have shown that the allegations are false, frivolous, and meant solely for the purpose of harassment. Even a cursory review of the CSL, FSA, and recent ill-gotten transfers of GWB Trust assets would have revealed that the allegations are without any factual basis. Therefore, the court should award Sanctions available under Rule 215-2(b). MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBDS AND CANDACE GIBBS WALTON CAUSE NO. CV -14-41665 40 VII. PRAYER FOR RELIEF Based on the foregoing, Ken and Candy pray that this Court: (1) Transfer the case to the appropriate court, Statutory Probate Court No. 2, in Tarrant County; (2) Dismiss Pentex's complaint in its entirety with prejudice, as Skotnik has no authority to act, and Pentex lacks standing with regards to CSL and FSA; or, in the alterative, find Pentex committed fraud, theft and unjust enrichment, and embezzlement; (3) A ward Ken and Candy costs and attorney fees; (4) Require Pentex and/or Albert Barcroft to account for, and to return, all proceeds received from GWB Trust or GBU Trust since November 28, 2013, in order to facilitate equitable distribution of income and expense from GWB Trust; (5) Enter all other Orders and further relief, legal and equitable, that the Court deems appropriate in this matter, including appropriate sanctions for the violation of Rule 13; and (6) For such further and additional relief as justice may require. Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C. Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Ste. 600 Fort Worth, Texas 76102 (817) 504-6075 (800) 437-7901- Fax clee@.christyleelaw.com ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEI'ENSES, ORIGINAL COUNTERCLAIM, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GlBBS WALTON CAUSE NO. CV-14-41665 41 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was delivered, 1 pursuant to Texas Rules of Civil Procedure, to the following parties on this 24 h day of April, 2014: Pentex Foundation Via mail and email c/o John Skotnik, Attorney ofRecord P.O. Box 727 Bonham, TX 75418 Howard Kirk Gibbs Via mail and email 9929 Crawford Farm Drive Fort Worth, TX 76244 /l / (I/:'~ Christy L. Lee MOTION TO SHOW AUTHORITY, MOTION FOR CHANGE OF VENUE, ORIGINAL ANSWER, AFFIRMATIVE DEFENSES, ORIGINAL COUNTERCLAIM, Ai'lD RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GII3BS AND CANDACE GIBBS WALTON CAUSE NO. CV -14-41665 42 CANDACE WALTON, AND ) IN THE PROBATE COURT KENNETH GIBBS, ) ) PLAINTIFFS, ) ) vs. ) ) BEVERLY MILLER, INDIVIDUALLY AND AS ) No.2 TRUSTEE OF GWB fA MIL YAND FRIENDS TRUST;) ALBERT BARCROFT, INDIVlDLIALLY AND AS ) LEOAL REPRBSENTATIVE OF PENTEX ROYALTY ) TRUST AND PENTEX fOUNDATION; ) DANNY UNGER, AS TRUSTEE OF ) GBU FRIENDS AND ASSOCIATES TRUST; AND ) HOWARD KIRK GIBBS, ) ) DEFENDANTS. ) TARRANTCOUNTY, TEXAS MOTION TO TRANSFER CAUSE OF ACTION TO STATVTORY PROBATE COURT .PU.RSUANT TO SECTION 34.001 OF THE TEXAS ESTATE CODE TO THE HONORABLE JUDGE OF THE COURT: NOW COME, CANDACE WALTON AND KENNETH GIBBS, MOVANTS. and file this Motion to Transfer Cause of Action to Statutory Probate Court~ pursuant to Section 34,001 of the Texas Estate Code, and would respe.ctfuUy show the Court~ as follows: I. Movants are Plaintiff.'i in tbis proceeding, and are the Heirs to the Estate of Bert Hughes O.ibbs ("the Estate," Cause No. 2005~0000126~2, in this Probate Court). Movant Kenneth Gibbs is the lndependent Executor of the Estate. Thus, Movants are persons interested to this Cause and the Estate within the meaning of Sections 22.018.1 and 34.001 of the Texas Estate Code. 2. This ancillary Cause involves strongly contested assets original to the Estate (''the Estate Assets"). MOTION TO TRANSPER CAUSE OP ACTION TO STATUTORY PROMTE COURT PURSUANT tO SECTION.34,00 l OF THE TflMS EsTATHCOUE CAUSE No. 2005-0000 126-2-P -1- 43 Exhibit A, Page 1 of 4 J. On April 1, 2014, Pcntex Foundation filed suit against Movants and Howard Kirk Gibbs, in the 336lh Judicia] District Court of Fannin County, Texas. Cause No. CV~14-1665. Pentex Foundation v.t /(etmeth Vern Gibbs and Candace Gibbs Walton and Ho·ward Kirk Gibbs (''Pentex vs. Gibbs"). According to Pentex, Defendants were unjustly depriving Pentex of its rightful riches, aU of which were described as having poured directly from the <:ushy coffers of the Estate. 4. The attorney of. record for Pentex is John Skotnik. 5. The following week, on April 10, 2014, that same John Skotnik filed in this Probate Court ''Movant's Reply to Executor's Pleading Entitled 'Independent Execmor~s Response to Objections to Section 149A Accounting' & Application to Remove Executor" ("the Reply"). Mr. Skotnik filed the Reply as Movant/Applicant, pro se. Mr. Skotnik's Reply strenut)Usly objected to the Estate's Accounting and strenuously petitioned the Cowt to remove the Independent Executor, all while simultaneously "'applauding'; Howard Kirk Gibbs for Howard Kirk Gibbs' similarly worded pr,o se filing in the Estate matter. 1 The reason? In the end, it nll came down to Estate Assets - what they were. where they were, who should have them, and why they had not already been sold in order to provide the Estate cash flow. 6. In the Reply~ Mr. Skotnik questioned Movants' respective percentages of Estate interest in relationship to demands made of the Estate by Pentex. 2 The Reply's referer1ce to the Estate Assets clarified that. at the time he filed Pentex's Original Petition in Fannin County District Comt, Mr. Skotnik was fully aware that Pentex vs. Gibbs should have rightfully been 1 As counsel of record, Mr. Skotnik named Howar-d Kirk Gibbs as Dutendant in the Pentex suit file Sl!Crt(lN 34.00 I tW Tf:Xf\S EST ATE CODE CAlfSENO. 2005..0000!26~2-D -2- 44 Exhibit A, Page 2 of 4 filed as an ancillary proceeding to the Estate in this Court, as the Cause was directly related to Estate Assets. Pentex's tiling in Fannin County District Court points to a distinct disregard for efficiency and economy concerning related matters before this Court. 7. Pursuant to Section 34.00 I of the Texas Estate Code, Movnnts request that this Court transfer to itself Cause No. CV-14-41665, pending in the 336th Judicial District Court of Fannin County, Texas. 8. Once the case has been transferred to this Court, Movants request that it be docketed as an adversary proceeding as part of the ancillary Probate action now pending. WHEREFORE. PREMISES CONSfDERED, Movants pray that this Court grant this Motion and for such other and fltrther relief to which Movanrs may be entitled. Respectfully submitted, LAW OFFlCES OF CHRISTY LEE. P.C. Christy L. Lee Texas State Bar No. 24052302 711 Main Street, Ste. 600 Fort Worth, Texas 76102 (817) 504~6075 (800) 437-7901 -Fax clee(t-~chdsLyleelaw.com ATTORNEY FOR MOV ANTS MOTION TO TRANSFER CAUSE OF ACTION 1'0 STATUTORY PROBATE COURT Pl.JRSOAN'rl'O SECfiON 34.001 Of< TilE TEX1\S ESTi\TF CODE CAUSE No. 2Q05-0000 126~2-D -3- 45 Exhibit A, Page 3 of CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 18111 day of April, 2014: Pentex Foundation Via facsimile and email c/o John Skotnik, Attorney of Record P.O. Box 727 Bonham, TX 75418 Howard Kirk Gibbs Via mail and cmai1 9929 Crawford Fann Drive Fort Worth, TX 76244 Christy: L. Lee MOTION TO TRANSFER CAUSE OF ACTION TO STA'IlftOR\' PROBATE COURT PURSUANT 1'0 SECTION 34,001 OJ' THE: TEX/\S ESTATE CODE CAUSE No. 2005~0000 l26-2·D -4~ 46 Exhibit A, Page 4 of 4 CAUSE No. 2005-0000126-2-D CANDACE WALTON, AND ) IN THE PROBATE COURT KENNETH GIBBS, ) ) PLAINTIFFS, ) ) vs. ) ) BEVERLY MILLER, INDIVIDUALLY AND AS ) TRUSTEE OF GWB FAMILY AND FRIENDS TRUST;) ALBERT BARCROFT, INDIVIDUALLY AND AS ) No.2 LEGAL REPRESENTATIVE OF PENTEX ROYALTY ) TRUST AND PENTEX FOUNDATION; ) DANNY UNGER, AS TRUSTEE OF ) GBU FRIENDS AND ASSOCIATES TRUST; AND ) HOWARD KIRK GIBBS, ) ) DEFENDANTS. ) TARRANT COUNTY, TEXAS PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, ANDTERNUNATETRUST TO THE HONORABLE JUDGE OF THE COURT: COME NOW, CANDACE WALTON and KENNETH GIBBS, Plaintiffs in the above- styled and numbered cause, complaining of Defendants BEVERLY MILLER, individually, and as Trustee of GWB FAMILY AND FRIENDS TRUST ("GWB Trust"); ALBERT BARCROFT, Legal Representative of Pentex Royalty Trust and Pentex Foundation (collectively, "Pentex"); DANNY UNGER, as Trustee and Beneficiary of GBU Friends and Associates Trust ("GBU Trust"); and HOWARD KIRK GIBBS, Beneficiary of GWB Trust and GBU Trust; and petition the Court to remove Beverly Miller as Trustee ofGWB Trust, and to appoint a successor trustee; to compel a trust accounting of both GWB Trust and GBU Trust; to preserve trust assets and to PLA!NTfFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -1- 47 Exhibit B, Page 1 of 33 order conversion of trust assets; and to terminate the GWB Trust and distribute assets per each Beneficiary's interest. Plaintiffs would show the Court the following: I. LEVEL OF DISCOVERY 1. Discovery in this case is intended to be conducted under Level 2 of Rule 190 of the Texas Rules of Civil Procedure. II. PARTIES 2. CANDACE WALTON is a Beneficiary of the GWB Trust and is a resident of Tarrant County, Texas. 3. KENNETH GIBBS is a Beneficiary of the GWB Trust and is a resident of Tarrant County, Texas. 4. BEVERLY MILLER is Trustee of the GWB FAMILY AND FRIENDS TRUST and is a resident of Fannin County, Texas. Beverly Miller may be served with process at: 6483 West Highway 56 Savoy, Texas 75479 5. DANNY UNGER is Trustee and Beneficiary of the GBU TRUST FRIENDS AND ASSOCIATES TRUST, which is a trust sited in Anderson County, Texas, and may be served with process at: 410 Anderson County Road 154 Palestine, Texas 75801 PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -2- 48 Exhibit B, Page 2 of 33 6. ALBERT BARCROFT is the Legal Representative of Pentex Royalty Trust and Pentex FowlCiation, and a Beneficiary of GBU Trust. Albert Barcroft may be served with process at: 410 Anderson County Road 154 Palestine, Texas 75801 7. HOWARD KIRK GIBBS is a Beneficiary of GWB Trust and GBU Trust. Howard Kirk Gibbs may be served with process at: 9929 Crawford Fann Drive Fort Worth, Texas 76244 III. JURISDICTION AND VENUE 8. This Court has jurisdiction under Texas Estate Code § 32.007, as statutory probate court has concurrent jurisdiction with the district court in an action against a trustee, and this matter involves proceeds from the Estate of Bert Hughes Gibbs, Deceased, over which this court presides. Pursuant to Texas Civil Practice & Remedies Code 15.002 (a)(2), venue in Tarrant County, Texas, is appropriate, as Defendant Howard Kirk Gibbs resides in Tarrant County. IV. FACTS 9. The Plaintiffs and Howard Kirk Gibbs are the natural children of Bert Hughes Gibbs. 1 1 Kip Gibbs is also a natural child of Bert Hughes Gibbs, but he is not party to this lawsuit. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTBE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -3- 49 Exhibit B, Page 3 of 33 10. Bert Hughes Gibbs passed away, and Letters Testamentary were issued by Probate Court No.2 in Tarrant County, Case No. 2005-0000126-2, on or about September 26, 2005. 11. After years of litigation~ a Family Settlement Agreement ("FSA") was signed on September 5, 2008, by all parties, including Plaintiffs, and Defendants Howard Kirk Gibbs~ and Albert Barcroft.2 On May 10, 2005, in a Contract for Sale of Land (''the CSL"),3 these same parties had agreed to create an entity to hold the Plaintiffs' and Howard Kirk Gibbs's interest in the Estate. 12. On November 8, 2008, GWB Trust document was drafted by Albert Barcroft, who would prove to be a major player in the blood sport into which GWB Trust devolved. See Exhibit A. Albert Barcroft informed Plaintiffs that he was legally able to draft trust documents, as he had graduated from law school. Possessing no formal training in the law, and facing complicated Estate settlement issues, Plaintiffs trusted Albert Barcroft and believed him to be knowledgeable and legally empowered to draft legal documents. Albert Barcroft confided in Plaintiffs that he elected not to become a full-fledged attorney on principle: he felt that signing the attorney's oath for qualification would be immoral, as it went against his code of ethics. To date, there is no proof that Albert Barcroft actually attended or graduated from any law school. 13. Albert Barcroft himself drafted the original GWB Trust agreement without legal assistance. After the agreement was signed by the Settlors,4 on multiple occasions Albert 2 Albert Barcroft was enlisted to assist Plaintiffs and Howard Kirk Gibbs in exchange for a percentage of their interest of the inheritance. 3 The full title of the Contract was as follows: Contract for Sale of Land, Mineral Rights and Royalties, and all other Assets or Monies Received.from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or "The Kathryn Houseworth Gibbs Irrevocable Trust." 4 Plaintiffs and Howard Kirk Gibbs signed as Settlors. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST 50 Exhibit B, Page 4 of 33 Barcroft requested that the Settlors add or remove certain provisions, although the edits he suggested were not presented as amendments, per se. On at least two (2} separate occasions, Albert Barcroft also produced and asked Beneficiaries of GWB Trust to sign entirely new documents for the already-existing trust; the Beneficiaries of GWB Trust did not do so. Despite openly continuing to engage in such legal practice, and despite openly claiming himself to be a "legal representative," Albert Barcroft is not licensed to practice law. 14. Immediately upon drafting the GWB Trust, Albert Barcroft created Pentex Foundation and Peutex Royalty Trust. s Albert Barcroft self-identifies as the Legal Representative of Pentex.6 Even though requested, Albert Barcroft refuses to show any proof that these entities actually exist. Beverly Miller has no copies of documentation attesting to the existence of either one. Albert Barcroft managed Pentex in and from Panama because he feared the Internal Revenue Service ("I.R.S.j would seize assets as a result of successful litigation against him years ago. This instinct for self-preservation is not unknown to Albert Barcroft, who, in order to avoid further adverse and punitive action by the I.R.S., also transferred real property in Texas to Renhaw, Inc. ("Renhaw"), an entity owned by a close friend. (The strategy ultimately proved fruitless, as the courts deemed the transfer to be fraudulent and therefore allowed the I.R.S. to seize the property.) 15. Over the years, Albert Barcroft developed quite the appetite for transfers of the unsavory sort. Although he seemed blissfully unaware of it at the time, sating that appetite was a risky practice. Way back on June 5, 2008, months before the creation of GWB Trust, and even 5 Albert Barcroft intended for Pentex Royalty Trust, rather than Pentex Foundation, to be Beneficiary of GWB Trust. a fact he demonstrated in February 2011 via a request to BenefiCiaries to exchange an entire page of the trust agreement for another page which reflected a change to Pentex Royalty Trust as Beneficiary. 6 In 2011, Pentex Foundation reportedly assigned its interest in GWB Tnist to Pentex Royalty Trust, of which Albert Barcroft is the sole Beneficiary. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE. APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASsETS, COMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST 51 Exhibit B, Page 5 of 33 before the signing of the FSA, Albert Barcroft had transferred all his interest in the Estate to Renhaw. The Transfer was recorded the following day in Denton County, Texas. So on November 8, 2008, when Albert Barcroft established GWB Trust to receive Estate distributions, Albert Barcroft actually held no interest whatsoever to assign to GWB Trust via Pentex. 7 16. The purpose of GWB Trust was to receive Plaintiffs' and Howard Kirk Gibb's inheritance, including royalties from assigned mineral and oil rights, from the Estate. The Beneficiaries of GWB Trust were named as follows: Howard Kirk Gibbs 25.011613% interest Candace Walton 25.011613% interest Kenneth Walton 25.011613% interest Pentex Foundation 24.96516% interest Waymond Walton, husband of Plaintiff Candace Walton. was named Independent Trustee. Due to personal reasons, Waymond Walton resigned his appointment and was succeeded by Beverly Miller as Trustee on March 7, 2011. 17. In light of Albert Barcroft's assignment of interest in the Estate to Renhaw, the inclusion of Pentex as a Beneficiary was a devious move, especially since Albert Barcroft failed to disclose to Plaintiffs the transfer. Beverly Miller's succession as Trustee occurred within mere weeks of stil1 another curious transaction: a Release of Rights under Contract, in which Renhaw transferred its interest in the Estate directly to GWB Trust. The Release was recorded February 18, 2011. 18. Whether Albert Barcroft realized it at the time or not, the Release effectively removed him from the picture as Beneficiary, both individually and in the much vaunted position 7 It would be reasonable to surmise that Renhaw could have held the interest. But Renhaw was not mentioned in GWB Trust agreement, not as a Settlor, not as a Beneficiary. PLAINTiFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR 'PtUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSIITS, COMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST 52 Exhibit B, Page 6 of 33 of "Legal Representative" for Pentex, and rendered him a nonentity with regard to GWB Trust. At the time GWB Trust was created, Albert Barcroft was not legally entitled to funds from the Estate and therefore should never have named Pentex as Beneficiary to receive funds on his behalf. Renhaw's Release meant that the flow of ownership of interest in the Estate rightfully went as follows: Albert Barcroft> Renhaw > OWB Trust Since GWB Trust never assigned back to Albert Barcroft or to Pentex any interest from the Estate, Albert Barcroft currently holds no legal interest in GWB Trust. 19. The Release meant that the three (3) remaining Beneficiaries each held one-third (1/3) interest in GWB Trust. Sadly, since Albert Barcroft failed to inform Plaintiffs of his transfers, Plaintiffs had no way of detennining the complete absence of interest he held in GWB Trust. Thus, from its inception, GWB Trust operated as if Pentex were a legitimate Beneficiary, with Pentex receiving regular distributions from the oil and gas royalties. 20. On or about the same day Renhaw recorded the Release, and very close to the date that Beverly Miller assumed Trusteeship, Albert Barcroft approached interested parties with the request that an entire page of the original OWB Trust agreement be swapped out with a page containing revisions that Albert Barcroft himself made. The revision in question? A change of Beneficiary from Pentex Foundation to Pentex Royalty Trust. Without concerning herself with the provisions that she would later claim prevented her from producing certain records, and without consulting the Beneficiaries of GWB Trust, Beverly Miller switched the pages, and in the process violated the intent of OWB Trust as well as her ethical duty as Trustee. PLAINTIFFS' ORIGINAL PETITION TO REMoVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE. COMPEL TRUST ACCOUNTING, PRESERVE AssETS, COMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST -7- 53 Exhibit B, Page 7 of 33 21. Beverly Miller was initially lauded as a possible replacement for Waymond Walton by Albert Barcroft. Albert Barcroft's close relationship with Beverly Miller spans more than three (3) decades. By her own admission, from the inception of her administration to the present, Beverly Miller has relied solely on the advice offered to her by Albert Barcroft, even though she has been repeatedly told by Plaintiffs to seek legal advice. In Beverly Miller's defense for listening to a person practicing law without a license, Beverly Miller claims that she is unlearned in financial law.8 In turn, Albert Barcroft steadfastly continues to defend Beverly Miller's administration of GWB Trust as being conducted with the utmost diligence and with the very best of intent. 22. Albert Barcroft also is close to Danny Unger, who assisted Beverly Miller with GWB Trust accounting tasks, and with Howard Kirk Gibbs, who at one time was linked to shrinking the Estate of Bert Hughes Gibbs by almost $1 million, with no explanation as to where the funds went off to reside.9 23. In early 2013, upon Plaintiffs' realization that the GWB Trust agreement contained provisions not conducive to its original intent - provisions that in fact could undennine the entire entity - relationships among the interested parties in GWB Trust began to deteriorate rapidly. After consulting with a true attorney, one actually licensed to practice law, Plaintiffs repeatedly advised Beverly Miller that GWB Trust was at risk and that steps should be taken to ensure its longevity. Plaintiffs also made it plain to Beverly Miller that Plaintiffs wanted GWB Trust terminated, with the assets split pro rata. By way of reply, Beverly Miller quoted Albert 8 Beverly Miller's attempts at downplaying her business and legal acumen are self-serving. Beverly Miller's employment histmy includes the title of "Executive Administrative Assistant to Chairman of the Board and President at Dai-Tile Corporation." 9 Howard Kirk Gibbs is also unable to act as Executor of the Estate of Bert Hughes Gibbs, as Howard Kirk Gibbs refused to provide his social security number. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE AsSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST ·8- 54 Exhibit B, Page 8 of 33 Barcroft: GWB T:ust provisions prohibited tennination of GWB Trust. Beverly Miller stated that all GWB Trust actions - everything, in fact, related to GWB Trust - had to be agreed to by all parties. And Beverly Miller referred all Plaintiffs' other questions concerning GWB Trust to Albert Barcroft and Danny Unger. 24. Plaintiffs therefore questioned Albert Barcroft about the conflicting trust provisions and offered to obtain legal counsel to amend or to restate the agreement as necessary. Albert Barcroft replied in writing that GWB Trust could not be broken. And unfortunately, Albert Barcroft quickly grew openly resentful and hostile to Plaintiffs' inquiries and ultimately refused valuable communications to enable speedy resolution of the issues at hand. In effect, Albert Barcroft's take on the entire situation was that there was a grasping, greedy attorney (among other more choice, but less appropriate tenninology) on the stage playing Puppet Master to the Plaintiffs' Pinocchio. 25. Likewise, Danny Unger's involvement with GWB Trust eventually proved highly suspicious to Plaintiffs. Danny Unger had assisted Albert Barcroft with settlement of some of the issues involved in the Estate, and to Plaintiffs. Albert Barcroft trumpeted Danny Unger as a responsible, trustworthy recordkeeper- this, in spite of the fact that, although Danny Unger once held the title of Certified Public Accountant, in order to avoid providing his social security number, Danny Unger allowed his credentials to lapse. Among other tasks, Danny Unger was charged with the responsibility for preparing IRS Form 1041 for GWB Trust. And while GWB Trust paid fees for Danny Unger's services, Albert Barcroft also personally paid Danny Unger for conducting research and general accounting issues concerning GWB Trust. Pl.AJNTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PREsERVE ASSETS, COMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST -9- 55 Exhibit B, Page 9 of 33 26. Unfortunately for Plaintiffs, Danny Unger tended to follow Albert Barcroft's lead. When it carne time to make available GWB Trust accounting records to aU Beneficiaries, Danny Unger was not so helpful. Like Albert Barcroft, Danny Unger failed to see the need for full fmancial disclosure and refused to cooperate with Plaintiffs by producing OWB Trust account infonnation. Instead, he eventually simply refused to communicate with Plaintiffs, except through their counsel. 27. Bev~rly Miller conspired with Howard Kirk Gibbs, Albert Barcroft, and Danny Unger in order to obtain assets unlawfully from GWB Trust. In order to execute illegal transfers from GWB Trust, Howard Kirk Gibbs, Albert l!arcroft, and Danny fl.nger turned to !i!lJl. Trust, of which they are beneficiaries. In concerted efforts with Beverly Miller, the three {3) gentlemen effected transfers of mineml rights from GWB Trust to GBU Trust, thereby gaining access to significant assets to which they were not entitled. 28. On November 26, 2013, Beverly Miller noticed Plaintiffs that Albert Barcroft demanded a split of OWB Trust assets. Erroneously citing the CSL, Albert Barcroft convinced Beverly Miller that she must effect the split he demanded and that she would be personally held liable for any losses in the event of an inaccurate split - all these demands, from a man who willingly transferred away his interest as far back as 2008 and never regained that interest. 29. Albert Barcroft's demand was both peculiar and in violation not only of GWB Trust Provision 7.2, but also of Provision 3.3, which required: Percentages of beneficial interest, or tbe method in which distribution are fsic.J are made, in the trust or its proceeds shall require a unanimous vote with all parties voting (30 votes). PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUlmNO, PREsERVE AsSETS, CoMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -10- 56 Exhibit B, Page 10 of 33 Having drafted GWB Trust, Albert Barcroft would have been fully aware that he was demanding an action which could be legally executed only under an appropriate notice and unanimous vote by all Beneficiarie&. Neither was ever conducted. 30. Upon receipt of Beverly Miller's notice, Plaintiffs promptly, within mere hours, emailed Beverly Miller with the advice that Albert Barcroft was not the only member of GWB Trust and that, as Trustee, Beverly Miller would be accountable to aU Beneficiaries. Plaintiffs further advised Beverly Miller not to disburse the assets and to seek legal counsel. Beverly Miller chose to ignore Plaintiffs' email, despite having full access to the GWB Trust agreement prohibiting transfers of the principal without unanimous authorization from all Beneficiaries. Beverly Miller never confinned to Plaintiffs she ever transferred the assets. 31. GWB Trust Provision 7.2 stated: No part of the principal may be disposed of during the life of the trust unless first commanded by a written order in which benejlcilzrles with 30 votes (unanimous) concur and sign ordering such sale and dispoaaL 32. In violation of GWB Trust Provision 7.2, and against Plaintiffs' advice, on November 27, 2013, Beverly Miller signed and had notarized two (2) Mineral Deeds ("the Deeds"), which conveyed 57.19% of the mineral interests held by GWB Trust to GBU Trust. It remains unclear how Beverly Miller arrived at her calculations. 10 Plaintiffs had no opportunity to 10 Plaintiffs do not deny that on the surface the involved calculations might be complicated enough to frustrate someone without basic computing skills. However, Plaintiffs nevertheless confess to being absolutely astounded at how Beverly MiUer arrived at her 57. I 9010 figure for the assignment of interest as reflected in the Deeds. Under the maker of the Deed's deft word-smithing and number-crunching abilities, Pentex's stated interest of less than 25% in GWB Trust suddenly and miraculously ballooned, like a trim lady in her sixth or seventh month of pregnancy, to more than twice the original size. Even if Howard Kirk Gibbs' interest had been added to Pentex's interest, the total would not reach 57.19%. Plaintiffs are left to assume that the supreme touch of Albert Barcroft's legal and math wizardry somehow managed to inseminate GWB Trust figures. The result was a thing very carefully and thoroughly nourished in the gestation period during Albert Barcroft's tutelage of Beverly Miller's Trusteeship. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PREsERVE AsSETS, CoMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST 57 protest the transaction or to can for a vote by the Beneficiaries of GWB Trust, as Plaintiffs were not infonned of Beverly Miller's actions at the time. Plaintiffs obtained copies ofthe Deeds only much later and only under their own agency. 33. On or about December 2, 2013, certainly several days after the date the Deeds were notarized, Plaintiff Candace Walton received a letter from Albert Barcroft, which he also addressed to Plaintiff Kenneth Gibbs and Defendant Howard Kirk Gibbs. Albert Barcroft stated that, as Agent for Pentex and Renhaw, he was invoking his right to demand a split of the assets because Pentex wished to withdraw from OWB Trust. 34. On December 12, 2013, again without the knowledge of Plaintiffs and without any acknowledgement of the transfer of Renhaw's interest in the Estate to GWB Trust, the two (2) Deeds were recorded in Denton and Wise Counties. Again, Plaintiffs had no opportunity to protest the transaction, or to call for a vote by the Beneficiaries of GWB Trust. Plaintiffs do not know the total amounts of oil and gas royalties forwarded directly to GBU Trust from December 15, 2013, to March 15, 2014 from four (4) companies (collectively, "the oil companies")- Trio Consulting and Management, LLC ("Trio"); Devon Energy Company ("Devon"); JW Operating Company ("JW''); and Conoco Phillips, Inc. ("Conoco"). 35. Meanwhile, with the Plaintiffs remaining ignorant of the transfers, relationships among the Beneficiaries of OWB Trust continued to be heavily strained, as Beverly Miller and Albert Barcroft were strongly resistant to hearing out the Plaintiffs' concerns regarding GWB Trust in general. Albert Barcroft denied that a Trustee was legally bound to produce accoWltings. Albert Barcroft also balked at Plaintiffs' request for verification that GWB Trust was tax- compliant. His responses to Plaintiffs' requests grew so acrimonious that Plaintiffs' suspicions of PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -12- 58 Exhibit B, Page 12 of 33 foul play greatly magnified. Beverly Miller continued to prove her loyalty to Albert Barcroft by deferring to his view that no production of records was required. Whenever challenged about her willingness to cede to Albert Barcroft's orders, Beverly Miller would pass herself off as an elderly, infirmed person, who was acting as Trustee for GWB Trust out of courtesy, with kindness and frienjship, but without much compensation and without much knowledge of the obligations involved in the position. 36. Similarly, despite having been entrusted to prepare OWB Trust's tax returns, Danny Unger ignored Plaintiffs' repeated requests for production of records concerning income and expenses. Danny Unger also showed no initiative in taking a firm stand against Albert Barcroft's instructions to Beverly Miller to withhold financial disclosures about GWB Trust. As a former Certified Public Accountant, Danny Unger might not have been privy to the laws, but he defmiteJy should have been privy to basic accountiitg principles, including accurate and honest records of an entity's financial status, open to parties legally entitled to review them. 37. Facing what Beverly Miller admitted was administration under Albert Barcroft's influence and guidance, on December 13, 2014, and still unaware of Beverly Miller's transfer of GWB Trust assets to OBU Trust, Plaintiffs formally requested copies of IRS Form 1041 for the years 2011 - 2012 and accounting of GWB Trust, to be produced only by a disinterested third party, such an accounting firm or a Certified Public Accountant, and according to standard accounting practices. 38. Plaintiffs specifically requested that the accounting not be completed by either Albert Barcroft or his associate, Danny Unger. However, Albert Barcroft and Howard Kirk Gibbs were equally adamant in their demands that only Danny Unger produce this accounting. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE AssETS, CoMPEL CONVERSION OF AsSETS, AND TERMINATE TRUST -13- 59 Exhibit B, Page 13 of 33 For her own part, Reverly Miller again quoted Albert Barcroft in that all GWB Trust provisions invoked had to be voted on by all parties. Ultimately, however, Beverly Miller asked Danny Unger to assist her with the task, as Danny Unger had previous knowledge of GWB Trust financials. 39. On December 18, 2013, Albert Barcroft, signing in the capacity of Legal Representative of Pentex, but not of Renhaw, noticed the Estate, including Executor Kenneth Gibbs and the Estate's three (3) attorneys, tl1at a substantial portion of all future distributions from the Estate intended for GWB Trust must be distributed and made payable to GBU Trust. All relevant parties determined that they would not react to Albert Barcroft's demands, as his Notice to the Estate had no legal authority. 40. Plaintiffs continued the campaign to secure information about GWB Trust's financial standing, including its income and expenses. Finally, months after first being approached for an accounting, on February 3, 2014, Beverly Miller forwarded to the Plaintiffs a rudimentary accounting for 2011 - 2013, which consisted of only net income and distributions to the Beneficiaries of OWB Trust, but which included no other expenses, including administrative costs. 41. In a very small sentence at the end of a long tirade of explanations, the accounting reflected that 20.04% ofGWB Trust's 35.04% interest in the Estate had been transferred to GBU Trust. 11 Because the accounting did not provide necessary details, the Plaintiffs again contacted 11 Arriving at the correct percentages of interest of Beneficiaries in GWB Trust is a convoluted process. The origins of the numbers t:race back to the FSA, which in tum contained figures based on the natural heirs' inheritances from the Estate of Bert Gibbs. GWB Trust received only approximately 35% of the Estate's assets, of which Albert Barcroft was to receive approximately 30%. In tum. of the roughly 30% of 35% of the Estate's assets, Albert Barcroft gave 5% to his attorney, John Skotnik, leaving Albert Barcroft with considerably Jess interest than what Beverly Miller ultimately assigned Pentex ftom GWB Trust Beverly Miller failed to consider the substantial PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTER, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PREsERVE ASsETs, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST ·14- 60 Exhibit B, Page 14 of 33 ~ ~--··---~-~ ~~~~~~~~~-----------------------~ Beverly Miller for specifics. On February 14,2014, Beverly Miller provided bank statements and monthly expense spreadsheets for 2012 and 2013. Included among the financial documentation was infonnation related to administrative expense. 42. Due to Albert Barcroft's interference and insistence that providing financial records was not legally required of the Trustee, Beverly Miller failed to make available for review the two (2) tax returns in question. To date, Beverly Miller has offered no evidence that GWB Trust tax returns were ever filed, nor that Pentex, a foreign entity, paid all required U.S. Federal taxes, pursuant to Internal Revenue Code. 43. During a review of the rudimentary accountings, Plaintiffs discovered the transfer of assets from GWB Trust to GBU Trust. Plaintiffs immediately contacted Beverly Miller concerning the illegal assignment. Beverly Miller stated that she was told by "an attorney" that she must transfer these assets. To date, Beverly Miller refuses to provide Plaintiffs with the name of this phantom attorney. Beverly Miller also stated that she did not know the name of the party who gave her the Deeds to sign or who recorded the Deeds. According to Beverly Miller, such a flurry of emails was exchanged among various parties that it is simply impossible to recall who directed what. 44. Plaintiffs conducted an on-line search and located the two (2) very lengthy Mineral Deeds. Beverly Miller or Albert Barcroft may well have recorded other deeds of which difference between a percentage of Estate assets and a percentage of GWB Trust assets. Beverly Miller's reliance on numbers in existence previous to the creation of GWB Trust is curious. Those numbers should not impact the Beneficiaries• percentages of interest as set forth in GWB Trust. Signed and agreed to years after the FSA was executed, GWB Trust's agreement took into account the various factors Which initially ·affected the heirs' percentages of interest in the Estate, including assignments of Interest from Albert Barcroft to John Skotnik. Any distribution or assignment from GWB Trost therefore must adhere to the percentages as established by GWB Trust, which takes precedent over previously signed agreements. Of course, in reality, none of the interest in GWB Trust should be owned by Albert Barcroft, as Renllaw transferred its interest in the Estate back to GWB Trust, not to Albert Barcroft, nor to Pentex. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE. APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -IS- 61 Exhibit B, Page 15 of 33 the Plaintiffs are unaware. As the accountings did not include an inventory, it is not possible to detennine the exact assets owned by GWB Trust. 45. On March 7, 2014, Howard Kirk Gibbs filed an Application to Remove the Executor in the Estate matter (''the Application''). 12 Plaintiff Kenneth Gibbs is Executor of the Estate. A large portion of the filing was devoted to the presumption that Albert Barcroft was not represented adequately in original Estate settlement activities. The settlement activities under discussion were those related to the principal assets funding GWB Trust. Howard Kirk Gibbs' Application also addressed the sale of multiple Estates' properties, transactions which Albert Barcroft himself argued for, as those sales stand to produce ready cash income for the Estate. Despite having transferred to Renhaw all his interest in the Estate, Albert Barcroft continued to argue that he was entitled to a percentage of Estate income. 46. On March 12, 2014, Plaintiffs demanded that Beverly Miller (l) recall the GWB Trust assets assigned to GBU Trust, (2) produce account records, and (3) initiate the necessary procedures to terminate the GWB Trust and distribute the assets fairly, equitably, and legally. Plaintiffs provided a deadline of March 21, 2014, to comply with the demands. Plaintiffs' correspondence to Beverly Miller spelled out in detail Plaintiffs' reasoning for the demands, including evidence that the assignment from GWB Trust to GBU Trust was shockingly out of proportion to the amount of interest which Pentex allegedly holds in GWB Trust. 47. Plaintiffs' demand to Beverly Miller also pointed out the damaging fact that direct payment of royalties to GBU Trust from the oil companies meant that royalties were not, and 12 lt is wtclear if Howard Kirk Gibbs will continue to receive any portion from the Estate of Bert Hughes Gibbs. as Howard Kirk Gibb's Application violates a provision in the FSA. If the provisions in the FSA are upheld. Howard Kirk Gibbs will be disinherited. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUS1EE, COMPEL TRUST ACCOUNTING, PRESERVE AsSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -16- 62 Exhibit B, Page 16 of33 cannot bet appropriately submitted to GWB Trust. Thus, administrative costs, including property taxes, cannot be covered by all Beneficiaries of GWB Trust pro rata. Also, Beverly Miller was · advised that her actions violated Plaintiffs' rights. 48. On March 14, 2014, via email and certified mail, Plaintiffs also noticed Albert Barcroft of the illegal transfers and of the March 12,2014, demands made to Beverly Miller, and Plaintiffs addressed demands that would also be made of Albert Barcroft. Pentex, and GBU Trust, should Plaintiffs• concerns be ignored. 49. Beverly Miller did not respond to Plaintiffs' demands and to date continues to profess her innoceuce. 50. Thus, to preserve GWB Trust assets, on March 13, 2014, Plaintiffs requested that four (4) oil companies suspend all royalty payments to the GWB Trust and to GBU Trust, until the issue of the illegal transfer was resolved. All four (4) companies responded that royalties would be suspended pending further notice. 51. On March 22t 2014, Plaintiffs emailed Beverly Miller a courtesy reminder of the deadline for complying with Plaintiff's demands and notified her of the responses from the oil companies. Beverly Miller did not acknowledge the courtesy reminder. 52. On March 27, 2014, Plaintiffs were informed that Danny Unger represented himself as Trustee for GBU Trust before the oil companies and directed that royalties to GBU Trust must not be cruspended until forced by the Court to do otherwise. Despite Danny Unger's order, however, the oil companies continued to honor their guarantee of suspension, meaning that neither GWB Trust nor GBU Trust will receive royalties until satisfactory resolution of the matter. PLAINTIFFS' ORIGINAL PETmON TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASsETS. AND TERMINATE TRUST -17- 63 Exhibit B, Page 17 of 33 53. On March 28, 2014, Beverly Miller acknowledged that legal counsel advised her of the inappropriate transfer of GWB Trust's assets. Beverly Miller admitted that she had spoken with all interested parties, who agreed to return the assets to the GWB Trust. Beverly Miller further affirmed that she would reassign the assets to GWB Trust. She continued refusing to admit knowledge of who drafted and recorded the Deeds, which she signed and had notarized. She maintained her innocence in regard to the transfer, and continued insisting that she was simply a kind, comteous person doing a good deed. 54. Faced with certain legal action, on March 29, 2014, Albert Barcroft pledged that, provided no further adverse action would be taken against Defendants, he would "do what it takes to get the minerals returned as rapidly as possible." Albert Barcroft maintained that: (1) "the way she saw it," Beverly Miller acted in good faith regarding GWB Trust and the transfers; (2) Albert Barcroft's only duty was to return to GWB Trust the assignment of minerals rights to GBU Trust, as well as the royalties received by GBU Trust from the date of the assignment to the present; and (3) by his doing so, Plaintiffs would be ''made whole." A1bert Barcroft further promised that Beverly Miller "will not be easily influenced in the future" and emphasized that he could "see where [he, Albert Barcroft] might also become paranoid if [he were] on the other side." The pledge failed to address any possible redress for Plaintiffs beyond the return of the mineral rights to GWB Trust. It did not mention the importance of "making good" issues such as property taxes and the assignment of interest more than double the amount ofPentex's presumed interest. 55. Within twenty-four (24) hours, on March 30, 2014, Albert Barcroft rescinded the conciliatory gesture to return the "minerals as soon as possible." He cited unnamed persons' PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPoiNT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOlJIIITING. PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -18- 64 Exhibit B, Page 18 of 33 advice that he did not represent either of the Trusts or Beverly Miller. Furthennore, Albert Barcroft maintained that he had ;•no authority to make any deal on the ongoing matter." He assured Plaintiffs that he would cooperate with Beverly Miller in ensuring that the wrong done to Plaintiffs would be righted. 56. To date, no action has been taken by any of the Defendants to fulfill the promise of"making Plaintiffs whole." v. CAUSES OF ACTION 57. Due to the duplicitous and underhanded manner by which GBU Trust seized ownership of GWB Trust assets. communications and relationships among the interested parties in GW.B Trust have irrevocably broken down. Patterns of Defendants' conduct, including their communications, indicate that: (1) GBU Trustee is Danny Unger; (2) GBU Beneficiaries are Howard Kirk Gibbs, Albert l!arcroft, and Danny Unger, and {3) a there is a conspiracy among Beverly Miller, Howard Kirk Gibbs, Albert Barcroft, and Danny Unger - a conspiracy designed specifically to gain GWB Trust assets unlawfully. Defendants clearly have no intention of honoring their pledges to restore stolen assets to OWB Trust unless there is court intervention. 58. Fraud. Defendants' actions constituted fraud, as that term is legally defined, in that Albert Barcroft represented himself to Plaintiffs as empowered to offer legal services, leading to conspiracy with Beverly Miller, floward Kirk Gibbs, and Dmmy Unger. and to the substantial loss of GWB Trust assets. 13 By practicing law without a license, Albert Barcroft Altho~gh not licensed to practice law, Alben Barcroft, self-described "Legal Representative" of both Pentex and 13 GBU Trust, practiced law by drafting the GWB Trust document, thereby creating the potential for both unjust enrichment and undue influence on acting Trustees. lie continues to practice law now, If Albert Barcroft truly ever matriculated at law school, as a presumably intelligent creature, he should be thoroughly ashamed for deluding PLAINTWFS' ORIGINAL PJiTITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TIWSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVHRSION OF AsSETS, AND TERMINATE TRUST -19- 65 Exhibit B, Page 19 of 33 exerted undue influence over the Trusteeship of GWB Trust, to the extent that assets were illegally transferred, posing financial hann to Plaintiffs. 59. Conspiracy. Beverly Miller, Howard Kirk Gibbs, Albert Barcro~ and Danny Unger committed acts that constituted a civil conspiracy, as those tenns are legally defined, with the specific intent to deprive GWB Trust of its assets. 14 60. Theft and Unjust Enrichment. Defendants' actions resulted in the loss of significant GWB Trust assets and constituted a violation of the Theft Liability Act in violation of Texas Penal Code Chapter 31.03, including theft by deception, deprivation, and appropriation. 15 himself that he could get away for long with participating in such an obviously illegal act, one that he seemed very proud of, one that he no doubt masterminded and instigated, one that he made absolutely no attempt to cover up beyond fending off Plaintiffs' repeated requests for full disclosure and deliberately withholding the accounting of GWB Trust. As crimes go, Albert Barcroft and Beverly Miller's was one no more and no less than inexplicably arrogant: it was the case of the Trustee and the Beneficiary, who aJiowed their (mis)Deeds to be recorded literally and publically for all to see. 14 Plaintiffs' consistent requests for full disclosure, complete accountings, and assurance of tax compliance were an met, without exception, by Defendants' standard reply that no such production to Beneficiaries was necessary or required. Beverly Miller, Albert Barcroft, and Danny Unger were united in their opposition to submission of critical trust records to Beneficiaries. Beverly Miller conspired with Albert Barcroft and Danny Unger to dispose of GWB Trust assets in a manner favorable to Albert Barcroft. Both Albert Barcroft and Danny Unger benefited substantially from the unlawful acquisition of those assets. Upon Albert Barcroft's instruction and direction, Beverly Miller signed before a public notary two (2) lengthy Mineral Deeds assigning a majority portion of the interest in the GWB Trust to GBU Trust. The Deeds were filed for record on December 12, 2013. Beverly Miller's wining and deliberate cooperation with Albert Barcroft to obtain GWB Trust assets unethically and illegally is evidenced by the fact that Beverly Miller signed the Deeds prior to Plaintiffs' receipt of the Notice demanding the split of GWB Trust assets, leaving Plaintiffs with no ability to hold a vote, per GWB Trust agreement, or to seek oourt guidance. Beverly Miller's comments that she ••always followed Al's advice" similarly reflect a shared intent to defraud GWB Trust. Howard Kirk Gibbs was also complicit in the conspiracy to obtain funds illegally from GWB Trust. His Application to Remove the Executor of the Estate was filed at a critical juncture during the Plaintiffs' inquiry into the financial status of GWB Trust - partly, no doubt, because Howard Kirk Gibbs sought to deflect attention away from the administration ofGWB Trust. The argument promoted in the Application tied him to Albert Barcroft, who illegally benefited from the assignment ofGWB Trust assets to GBU Trust. Additionally, Albert Barcroft's March 29, 2014, correspondence specifically stated that Plaintiffs would be "made whole" by the return of assets to GWB Trust. Albert Barcroft did not denote that, as a Beneficiary ofOWB Trust, Howard Kirk Gibbs should also be made whole. It is reasonable to believe, therefore, that Howard Kirk Gibbs already profited from the transfer of GWB Trust assets to GBU Trust and that it is not necessary to "make him whole." " GBU Trust, and its Beneficiaries- Howard Kirk Gibbs, Albert Barcroft, and Danny Unger- harmed Plaintiffs by knowingly and unlawfully gaining substantial assets which rightfully belong to GWB Trust. As Beneficiaries of GBU Trust, the three (3) gentlemen received an as-yet undetermined sum of royalties from the oil companies from December 15, 2013, through March 15, 2014, due to the illegal and unauthorized transfer of mineral rights. The extent of the theft is unknown at this time. Other GWB Trust assets unknown to Plaintiffs could now also be PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE. COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -20- 66 . Exhibit B, Page 20 of 33 61. Embea:dement. Beverly Miller, as Trustee to GWB Trust, and Albert Barcroft, as Advisor to Trustee, committed acts, legally defined as embezzlement, in violation of Texas Penal Code 31.03. 16 The act of embezzlement deprived GWB Trust of its lawfully owned assets. 62. Breach of Fiduciary Duty. By her acts of heeding advice of a non-attorney and failing to product accountings as requested by Plaintiffs, and through the unauthorized disposition of GWB Trust assets, Beverly Miller breached fiduciary duty to the Beneficiaries of the GWB Trust, as the tenn is legally defined. 17 recorded in GBU Trust's name. Due to Beverly Miller's, Albert Barcroft's, and Danny Unger's reluctance to provide accountings and inventory to Beneficiaries, Plaintiffs have no way of ascertaining which assets were originally held by GWB Trust. What is certain is that Plaintiffs will continue to be harmed by loss of assets in the future, unless the Court forces the return of the assets deeded to GBU Trust to GWB Trust Howard Kirk Gibbs is fully aware of the unlawful enrichment to GBU Trust. In an email to Plaintiffs, Howard Kirk Gibbs gloated about the transfer and derided what be assumed was Plaintiffs' inability to take action against GBU Trust for the fraudulent transfer of assets. 16 Beverly Miller and Albert Barcroft plotted, and succeeded, in embezzling substantial assets from GWB Trust As a self-avowed "Legal Representative" (one apparently replete with education, but, sadly, not much else, no license to practice, for instance, and no principles which would allow him to sit for the Bar exam), Albert Barcroft, in a highly ironic state considering the trust issues at band. managed to estabUsh himself as an authority of all things trust-related. According to Beverly Miller herself, Albert Barcroft has long functioned as the brain behind GWB Trust's administration. As Devotee of Albert Barcroft, and simultaneous Trustee to OWB Trust, Beverly Miller bad relatively unlimited access to preswnably invaluable and much appreciated guidance from a Beneficiary with a penchant for self-interest, plus she enjoyed the ability to represent GWB Trust with the stroke of a pen before a notary public. The moment Beverly Miller signed the Deeds giving away 57.19% interest to a single Beneficiary, one whose advice she took above all others, all the elements of embezzlement - position, authority, motive, opportunity, access to assets, all of which Beverly Miller tlf\ioyed, and all of which she was more than happy to share with good friend and Beneficiary Albert Barcroft - converged in an illegal act that should have been shockingly, embarrassingly, and painfully apparent, even to a self-avowed average and uneducated Trustee such as Beverly Miller herself. Even a high school student graduating from one of today's institutions of questionable quality would understand that Beverly Miller and Albert Barcroft, working together and without consent of the owners, stole something that did not belong to themselves. 11 Beverly Miller relied on advice of a non-attorney, even while ignoring Plaintiffs' recommendation that she seek bona fide legal counsel. The choice to turn to a close personal friend, one who was vested in her administrative choices, created the classic conflict of interest, which ultimately imperiled GWB Trust Beverly Miller also relied on the advice of Danny Unger, whose encouragement she followed not to produce accountings to Beneficiaries. In the past, Beverly Miller's Trusteeship of GWB Trust has not benefited GWB Trust or Plaintiffs, who together hold more than SO% interest, nor will it benefit OWB Trust in the future. Beverly Miller's fiduciary duty bas now been misdirected toward GBU Trust, although she allegedly holds no interest and no authority with GBU Trust. Her trusteeship of OWB Trust continues to reflect and to be influenced by her close relationship with Albert Barcroft, a Beneficiary of GBU Trust, to which she assigned GWB Trust assets. Her friendship with Albert Barcroft stands hand in hand with her duty to Plaintiffs as Beneficiaries ofOWB Trust, all together in a very murky, muddy conflict of interest. At Albert Barcroft's behest, Beverly Miller disposed of substantial GWB Trust assets without authorization, contrary to Provision 7.2 of the GWB Trust agreement Beneficiaries of GBU Trust were unjustly PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, CoMPEL TRUST ACCOUNTING, PREsERVE AsSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -21- 67 Exhibit B, Page 21 of 33 VI. PRAYER FOR RELIEF 63. Pursuant to Texas Property Code Section 13.082.1, the Court is authorized to remove a trustee for breach of fiduciary duty. Plaintiffs pray to this Court to remove Beverly Miller as Trustee of GWB Trust. Waymond Walton, who originally acted as Trustee for GWB Trust, agrees to be appointed and will act under the Court's guidance if appointed. Or, in the alternative, Plaintiffs request that the Court appoint a non-interested third party as Successor Trustee 64. Plaintiffs pray to this Court to freeze all assets of GWB Trust and GBU Trust, so that assets are not intentionally dissipated and can be recovered and rightfully restored to GWB Trust. 65. Plaintiffs pray to this Court to compel an accounting, to be conducted according to standard accounting practices by a non-affiliated Certified Public Accountant or accounting firm, and to be submitted to all Beneficiaries for review. Plaintiffs further pray to this Court to order an inventory of all assets held by GWB Trust during the Trusteeship of Beverly Miller. In order to determine whether Beverly Miller transferred other assets unknown to Plaintiffs from GWB Trust, Plaintiffs request that Beverly Miller be compelled to disclose all transfers of assets to and from GWB Trust during her Trusteeship. Plaintiffs also request that Beverly Miller be compelled to disclose any remuneration received from GWB Trust or any other interested party for services involving the inappropriate transfer of assets from GWB Trust. enriched through Beverly Miller's actions. Beneficiaries of GBU Trust are Howard Kirk Gibbs, Albert Barcroft, and Danny Unger, the same persons with whom she conspired. PLAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE. COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST 68 Exhibit B, Page 22 of 33 66. Plaintiffs pray to this Court to compel the conversion of the assets, including cash and mineral interests which GBU Trust received from GWB Trust, such that GWB Trust rightfully regains possession of the assets. Plaintiffs also request the Court to compel turnover to GWB Trust all royalty interest and monies received by GBU Trust, as well as all other assets which GBU Trust has received as a result of the transfers of assets. 67. Plaintiffs pray to this Court to compel Albert Barcroft, individually and as Legal Representative; Pentex Foundation; and Pentex Royalty Trust to return to GWB Trust all assets received from GWB Trust and GBU Trust from the date of GWB Trust's inception to today, as Albert Barcroft never held interest in GWB Trust, having assigned his interest away to Renhaw, who in turn assigned interest to GWB Trust. 68. Plaintiffs pray to this Court to compel Howard Kirk Gibbs to return to GWB Trust all assets received from GBU Trust, as GBU Trust's assets were illegally obtained. 69. Plaintiffs pray to this Court to compel Danny Unger to return to GWB Trust all assets received from OBU Trust, as GBU Trust's assets were illegally obtained. 70. Plaintiffs pray to this Court to tenninate the GWB Trust, including supervising the equitable division of the assets to Beneficiaries, pro rata, such that Plaintiffs and Howard Kirk Gibbs each receive one-third (1/3) of the assets. 71. Plaintiffs pray to this Court to enjoin Beverly Miller, individually, to be personally responsible for attorney fees resulting from these proceedings, and to return to GWB Trust all remuneration for services rendered to GWB Trust from March 8; 2011, to the present. Further, Plaintiffs request that all Defendants be strictly prohibited from employing funds from either GWB Trust or GBU Trust for related legal costs. PLAINTtFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE AssETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST -23- 69 Exhibit B, Page 23 of 33 72. Plaintiffs pray to this Court for Plaintiffs' attorney's fees, to be obtained from Defendants personaJly and individually, not from assets in any way belonging to GWB Trust, including the assets transferred from GWB Trust to GBU Trust. VII. DAMAGES 73. As a result of Beverly Miller's breach of fiduciary duty to Beneficiaries, and as a result of the fraud, conspiracy, and theft of GWB Trust assets committed by all Defendants, Plaintiffs have incurred the following element of damage, both in the past and future, and both general and special: the loss of at least $250,000. VIII. EXE~LARYDAMAGES 74. Plaintiffs would show that the harm sustained by Defendants' intentional bad conduct, including criminal acts of fraud, embezzlement, theft, and breach of fiduciary duty, Defendants should be penalized with exemplary damages for which Plaintiffs seek recovery. IX. REQUESTS FOR DISCLOSURE 75. Pursuant to Rule 194, each Defendant is requested to disclose within 50 (fifty) days of service of this Request the information or material described in Rule 194.2 (a) - (1). WHEREFORE, PREMISES CONSIDERED, Plaintiffs pmy that the Defendants be cited to appear herein and that upon final hearing hereof, they have and recover the full extent of Plaintiffs' damages as pled and pmys for reasonable and necessary attorney fees, and such other PlAINTIFFS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE AsSETS, COMPEL CONVERSION OF ASSETS, AND TERMINATE TRUST 70 Exhibit B, Page 24 of 33 and further relief, both at law and in equity, to which they may be justly entitled and will ever pray. Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C. -~~~~~--~------------- Christ L. Lee Texas State Bar No. 24052302 777 Main Street~ Ste. 600 Fort Worth. Texas 76102 (817) 504-6075 (800) 437-7901- Fax clee(il),christvleelaw.com ATTORNEY FOR PLAINTIFF PLAIN1.1f'FS' ORIGINAL PETITION TO REMOVE TRUSTEE, APPOINT SUCCESSOR TRUSTEE, COMPEL TRUST ACCOUNTING, PRESERVE ASSETS, COMPEL CONV£RSION Of ASSETS, AND TERMINATli TRUST 71 Apr011412:15a p.1 GWB Family and :Friends Trust ,;·--.···- ... ·. . . Wi'>'v;")o; ..;;~:- · .. ·~:~~~-~-:x:-·,~;-~;~:: . :;:: :... ·.~. _.. ''' ,: ... .~- . ,_;_;: ....:: E.x.bJhit,B, ·Page-26 ofJ~ Apr011412:15a p.2 THE STATE OF TEXAS § § GWB Family and Friends Trust COUNTY OF TARRANT § TRUST 'DECLARATION This declaration of tru.•,;t is made this 7~ay of November, 2008, between Kenneth Vern Gibbs, a resident of Tarrant County, Texas; Candace Gibbs WaltoD, a resident of Parker County, Texas; and Howard Kirk Gibbs, a resident of Denton County, Texas, collectively the "Settlor" of this trust agreement, regarding. and intended to distribute, the division o: the gross net proceeds due these parties from the Estate of Bert Hughes Gibbs. ARTICLE I- THE TRUST PURPOSE 1.1 Propertv in Trust: The beneficiaries of this trust are beneficial owners of real property, including, but not limited tQ, land, oil and gas royalties, and working interest in oil and gas wells that was passed to them from the Estate of Bert Hughes Gibbs, who is now deceased, under the terms and conditions of his La.<~t Will and Testament. 1.2 Purpose of Trust: The overriding purpose of this trust is to collect and hold all property left to, or accumulated by, the beneficiaries, or any individual beneficiar~r, hereto~ to accoWit for and pay all liabilities pertaining to such property. inc.ludin~ but not limited to income taxes, property taxes, and any other governmental taxes or fees; and then distribute the remaining proceeds to the beneficiaries hereto in a marmer conunensurete with their beneficial interests, as shown herein. 1.3 Under the Laws of the State of Texgs: 1t is the Settlor's intention that this trust be in full compliance, and organized under, the Texas Trust Code. Any provision found by a court of competent jurisdiction to be in vio[ation of any section of the Texas Property Code, or any law of the State of Texas, shall either be automatically amended to comply with such code or law in such a manner as to keep its original meaning or putpose as closely as possible; or, if no such amendment is possible, that particular provision shaH be stricken from the trust agreement. In either case. it shall be deemed to have no effect on the 1rust agreement in general. or upon any particular provision within the trust agreement. ARTICLE II- NAME OF TRUST The trust shall be know as the GWB Family and Friends Trust. GWB Family and Friends Trust Page 1 of6 73 Exhibit B, Page 27 of33 Apr,011412:15a ' p.3 ARTICLE III- BENEFICIARIES 3.1 Beneficiaries: The beneficiaries, and percentage of beneficial interests, are as foHows; Kenneth Vern Gibbs: 25.011614 % of the trust; Candace Gibbs Walton: 25.011613% ofthe trust; Howard Kirk Gibbs: 25.011613 %of the trust; Pentex Foundation: 24.96516% ofthe trust. 3.2 Vgting Shares: Actions and decisions concerning the trust shall be governed by vote of the beneficiaries hereto. Sixteen (16) votes will represent a majority of the votes on any issue unless specifically set herein at a different vote requirement. Each beneficiary shan have following votes in any matter of the trust for which a vote is called: Kenneth Vem Gibbs: 5 votes; Candace Gibbs Walton: 5 votes; Hm\Tllid Kirk Gibbs: 5 votes; Pcntex Folllldation: 15 votes. 3.3 Voting Pro~dm·.s:!: Votes may be cast at any time and any place agreed upon by at least two (2) of the beneficiaries, and 16 votes will carry any issue. Any beneficiary hereto shall be allowed to call for a vote on any issue. Percentages of beneficial interest, or the method in which distribution are made, in the trust or its proceeds shall require a unanimous vote with all parties voting (30 votes). ARTICLE IV- REVOCABLE This trust shall be revocable. ARTICLE V- APPOINTMENT OF TRUSTEE Settlor hereby appoints Waymond Jmnes Walton as the Independent Trustee of this trust. Trustee shall serve without bond or supervision of any court while in conformity with the tenns laid out in this trust and its minutes. ARTICLE VI- TRUST ESTATE The Trust Estate shall be comprised of property transferred to the trust in the fonn of Deeds of Trust assigned to this trUst, and filed in the county records of Denton and Wise Counties, the State of Texas~ and, royalties due Settlor from the Estate of Bert Hughes Gibbs as per Bert Hughes Gibbs Last Wi11 and Testament. Other property may be brought into the trust~ and become Trust Property, through agreement in the manner prescribed herein of 16 votes of the voting shares of this trust Property may be bough~;~ sold, exchanged, or transferred upon the approval of the beneficiaries by at least 16 votes cast in the manner prescribed herein. GWB Family and Friends Trust Page2 of6 74 Ar;r011412:15a p.4 •• I ARTICLE VII~ DISPOSITION OF INCOME AND PRINCJPAL I 7.1 Duti&s of Trustee: The Trustee is hereby commanded to do the following; 1. Pay all bills and liabilities of the trust unless specifically ordered by a 16 vote I majority to do otherwise in a specific case; 2. Figure, or have professionally figured if approved by a 16 vote majority~ income taxes due on the income of the trust; I 3. Pay all income taxes due on any income of the trust; 4. Pay all property tax due (and not paid by other entities) on any properly in the trust estate; I 5. Pay any other debts of the trust which are brought to his attention (the foregoing is conditioned on sufficient funds being available in the trust account); I 6. Keep a sufficient amount of cash (to be decided by a 16 vote majority) in the main trust account for operating expenses and any kno\\n liabilities upcoming in the immediate future; and, I 7. Divide any overages into proportions equaling the beneficial interests of each party, and deposit the appropriate amount for each specific beneficiary into a an account designated by that beneficiary for private use of that pru.1y. I 7.2 Disgosition of Prinsaipa1 Dur.i.ng Life of Trust: No part of the principal may be disposed of during the life of the trust unless first commanded by a written order in which I beneficiaries with 30 votes (unanimous) concur and sign ordering such sale oc disposal. ARTICLE VID- TERIVTINATION I 8.1 Termination of Trust: The trust will terminate twenty (20) years after the first death of any of the beneficiaries hereto. I 8.2 Distribution upon termination: Distribution upon tennination shall be made in accordance and in direct proportion with the beneficial ownership interest show herein. I In the case of those beneficial owners who are already deceased> distribution of their portion shall be made 10 their estate, or according to the terms of their "'111. I ARTICLE IX- TRUST ADMINISTRATIVE AND PROTECTIVE PROVISIONS The trust shall be administered el',:pecliti626 S.W.2d 4981et• this trust to the best of his ability within the I powers prescribed to him. ARTICLE XII- TRUSTEE SUCCESSION I 12.1 Resignation or death of trustee: The trustee may resign by giving 30 days Written notice ofhis intention to do so. In the event of resignation or death ofthe trustee, a new I tmstce may be appointed by a vote ofthe beneficiaries in which 16 votes are cast in favor • of the new trustee. 12.2 Right of Be.nefic;:iaries to chapge trustee: The beneficiaries may, at any time, elec.t to change trustees by a vote in which at least 16 of the beneficiary votes are cast for such change. The vote must include the person who shall be named as the new trustrre. A 30 II day notice, or payment of 30 days salary or fee, to the trustee being removed must be • given. GWB Family and Friends Trust • 76 Page 4of6 Exhibit B, Page 30 of 33 -··-----------~-- Apr.o11412:16a p,6 I 12.3 No bogd: No trustee, or any successor) shall be required to give any bond in any jurisdiction; and U: notwithstandinB this direction) any bond is required by any law, I statute or rule of court, no sureties shall be required. I ARTICLE Xlll- TAX NUMBER The •;tax identification number" assigned by the Internal Revenue Service to this trus1 is I 26--6630588. ARTICLE XIV~ DEFINITIONS I "Beneficiary" means a person for whose benefit property is held in trust, regardless of the nature of the interest. I "Court" means a court of appropriate jurisdiction. I "Income'' shall be as defined in Section 116.002 of 1he Texas Trust Code. 'lnterested Party(ies)" means a trustee, beneficiary, or any other person having an 1 I intere!:.1 in or a claim against the trust or any person who is affected by the administration of the trust I "Principal" shall be as defmed in Section 116.002 of the Texas Trust Code. "Property" means any type of property, whether real, tangible or intangible. Jegal, or I equitable. "Settlor" means a person [or persons] who creates a trust or contributes property to a I trustee of a trust. If more than one person contributes pro:perty to a trustee of a trust, each person is a settlor of the portion of the property in the t:rust attributable to that person's contribution to the trust. I "Trust property" means property placed in trust by· one of the methods specified in Section 112.001 of the Texas Trust Code or property otherwise transferred to or acquired I or retained by the trustee for the trust. "Trustee" means the person holding the property in trust. I - Except as othervvise provided herein. definitions of words and terms in this trust sball be in accordance with the Texas Trust Code, as amended. ARTICLE XV- CONSTRUCTION I 13.1 ConformitY with Statutes: In case of ambiguity or conflict, this trust should be construed in such a manner and shall be deemed to comply with the provisions of fue Texas Property Code, Title 9, Trusts, as amended. I G\\'B Family and Friends Trust Page 5 of6 I 77 Exhibit B, Page 31 of 33 --------··-----~-~------------ --------------------------- Apr-0, 1412:16a p.7 ( ' 13.2 Applicable Law: The validity of this trust shall be determined by reference t<1 the laws of TeKas. Questions of construction and administration of this trust shall be determined by reference to the laws of Texas. 13.3 HeadingS of Articles and Sections: The headings of articles and sections are included solely for convenience of reference, and shall have no significance in the interpretation ofthis instrument. Signed by Kenneth Vern Gibbs (Settlor), Candace Gibbs Walton (Settlor), and Howard Kirk Gibbs (Settlor) who, by their signatures, below indicate their agreement and intent form the above referenced trust and abide by its terms; and Waymond James Walton (frustee), who, by his signature below accepts the office of Trustee on the date indicated on page 1 of this Trust Agreement. I I I GWB Family and Friends Trust Page 6 of6 I 78 April11412:16a t • p.8 .. AFFIDAVIT THE STATE OF TEXAS § § COUNTY OF TARRANT § BEFORE ME, the undersigned authority on this day personally appeared Kenneth Vern Gibbs. Candace Gibbs Walton, Howard Kirk Gibbs, Waymond James Walton, known to me to be the person whose name is subscribed to the foregoing instrument. and acknowledged to me that he execu1ed the foregoing instrument for the purposes and consideration therein expressed. Kenneth Vem Gibbs tCa,i llM,dJJ(L J1 , 499 (Tex. 1982). A party may intervene if the party could have brought the same action, or any part of the action, under the party's own MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV -14-41665 Pentex Foundation vs. Kenneth Gibbs, et al. -1- 104 name. Guaranty Federal Savings Bank. v. Horseshoe Operating Company,
793 S.W.2d 652, 657 (Tex. 1990). It is not an abuse of discretion to strike invention when ( 1) the intervenor fails to meet the burden of justiciable interest; (2) the intervention complicates the case by an excessive multiplication of the issues; and (3) the intervention is not essential to protect the intervenor's interest. !d. 2. Ken and Candy contend that sufficient cause exists in this Matter such that the Original Petition in Intervention should be stricken. 3. On June 17, 2014, Joshua Unger ("Unger"), Trustee of the GBU Friends and Associates Trust ("GBU Trust"), filed the Original Petition in Intervention as "the real party in interest in this suit." Unger's Petition continues the pattern of frivolous pleadings before the Court as established by PlaintiffPentex Foundation ("Pentex"). 4. Ken and Candy maintain that Unger's intervention in this Matter germinated initially in reaction to Ken and Candy's challenge concerning the authority of Attorney John Skotnik and Pentex to initiate proceedings against Defendants concerning long-contested assets original to the Estate of Bert Hughes Gibbs ("the Estate"). 1 The intervention sprouted to fruition at the moment Ken and Candy followed Pentex's lead in requesting discovery. 5. Prior to the proceedings in this Matter, Ken and Candy repeatedly requested that Albert Barcroft, of Pentex, provide evidence of its existence as a legal entity and that it possessed the right to engage in legal transactions within the United States. Albert Barcroft refused to turn over proof. Albert Barcroft is not only the self-proclaimed "Legal 1 See Motion to Show Authority, Motion for Change of Venue, Original Answer, Affirmative Defenses, Original Counterclaim, and Rule I 3 Motion for Sanctions of Kenneth Vern Gibbs and Candace Gibbs Walton, filed with this Court on April24, 20I4. MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE I 3 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE No. CV-14-41665 , Pentex Foundation vs. Kenneth Gibbs, et al. -2- 105 Representative" of Pentex; Albert Barcroft is also the alleged Beneficiary of Pentex Royalty Trust, affiliate ofPentex Foundation. 6. Once Pentex launched this suit against Defendants, Ken and Candy again repeatedly requested evidence that Pentex enjoyed the right to proceedings in a court of law in the United States. On June 13, 2014, Scott Smith ("Smith"), succeeding Counsel for Pentex, produced a lone document, drafted in Spanish. No English translation - certified or otherwise - was made available to Ken and Candy. 7. Meanwhile, Pentex demanded discovery from Ken and Candy. When Ken and Candy asked to delay discovery until the Motion to Show Authority could be ruled upon, as would be protocol, Pentex insisted that discovery be produced on schedule and in full. Therefore, Ken and Candy began the arduous - and expensive - process of drafting and compiling discovery documents. 8. Since Pentex was adamant that the discovery process could not be temporarily suspended, Ken and Candy asked to schedule depositions for Albert Barcroft and the remainder of the representatives of Pentex, residents of Guatemala and Panama, respectively. Not surprisingly, Pentex did not respond. 9. However, on June 17, 2014, almost immediately following the request for depositions, Smith, this time acting as Counsel for GBU Trust, filed the Original Petition in Intervention, arguing that GBU Trust is in fact the "real party in interest in this suit." Just as he is with Pentex, Albert Barcroft is a Beneficiary of GBU Trust. 10. The substance of GBU Trust's Petition was that it was GBU Trust, not Pentex, entitled to substantial proceeds arising from various documents supposedly assigning Albert MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV- 14-41665 Pentex Foundation vs. Kenneth Gibbs, et al. -3- 106 Barcroft's interest in the Estate's to other parties. A similar claim formed the crux of Pentex's original complaint, which argued that Pentex should receive Albert Barcroft's portion of the Estate. 11. The common denominator in both arguments? Albert Barcroft, the Creator and Beneficiary of both Pentex and GBU Trust, and the assigner of interest of the assets in dispute. In other words, Albert Barcroft is both Pentex and GBU Trust. Should he not know the identity of the true party to the litigation? 12. GBU Trust's Petition was filed as a diversionary tactic. It contained no supporting evidence of the legitimacy of GBU Trust, or of its claim that Albert Barcroft assigned to GBU Trust, rather than to Pentex, his interest in the Estate. 13. GBU Trust's Petition failed to prove GBU Trust's interest in the suit, nor did it show evidence of how both Pentex and GBU Trust could concurrently demand and reasonably be entitled to the exact same proceeds. However, the fact that Smith knowingly and deliberately executed GBU Trust's filing while continuing to represent Pentex points to collusion between the parties, suggesting that if one party succeeds in procuring the contested assets, the other will enjoy the reward as well. In other words, as Beneficiary to both Pentex and GBU Trust, Albert Barcroft could potentially enjoy double wins. 14. Alternatively, as both Plaintiff and Intervenor, if Albert Barcroft did not succeed as Pentex against Ken and Candy, Albert Barcroft might have another shot at success as GBU Trust. 15. Smith's simultaneous representation of two parties making the same claim to the same assets gratuitously and overly complicates the proceedings through a multiplication of MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON Pentex Foundation vs. Kenneth Gibbs, et al. 107 issues which would otherwise not be necessary to address. Not only must Pentex establish its authority regarding proceedings in the Matter, but GBU Trust must also clarify its position relative to its claims. Since, as Beneficiary of both Pentex and GBU Trust, Albert Barcroft is the common denominator, and since the claims are the same, the intervention is unwarranted, cumbersome, and unreasonable. 16. Additionally, GBU Trust's Petition focuses almost solely on assets at the control of the Estate. As GBU Trust is fully aware, the disputed assets are currently being addressed in Tarrant County Probate Court No. 2. Cause No. 2005-0000126-2-D. Intervention in the suit before this Court is a frivolous attempt to avoid transfer of the Cause, as Ken and Candy requested of the Court. 17. GBU Trust's Petition fails the three-prong test for justifiable intervention in this Matter. GBU Trust's intervention would do nothing more than afford Albert Barcroft the opportunity to effectively pursue Ken and Candy twice for the same assets, once through Pentex and once through GBU Trust. Since Pentex's suit already offers protection of Albert Barcroft's interest in the suit, GBU Trust's entry into the Matter is superfluous and is not necessary to protect Albert Barcroft's interest. 18. Subject to the Motion to Strike, and without waiving any other defenses Ken and Candy might later present, Ken and Candy assert a general denial to GBU Trust's allegations, as authorized by Rule 92 of the Texas Rules of Civil Procedure. GBU Trust's Petition in Intervention should be stricken. II. DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE 19. Ken and Candy move this Court to dismiss this Matter with prejudice. As Ken MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON Pentex Foundation vs. Kenneth Gibbs, et al. 108 and Candy argued in their Answer to the suit, Pentex filed the case frivolously, solely for the purposes of harassment. 20. Pentex's suit was filed without authority; Pentex acknowledged that it has no standing regarding the Matter. The same Counsel representing Pentex filed GBU Trust's Petition with this Court, and therefore, Pentex was fully cognizant of GBU Trust's Petition. In the Petition, GBU Trust stated that it is the "real party in interest in this suit." As was established in the Motion to Strike Invention, Albert Barcroft is both Pentex and GBU Trust. 21. Despite its certain awareness of GBU Trust status as "the real party in interest" in the Matter, even upon request, Pentex declined to ask the Court to remove Pentex from this lawsuit, to dismiss the case against Ken and Candy, or to agree to streamline the case by transferring it to another court. Pentex's failure to withdraw its complaint, coupled with Pentex' s refusal to request the Court to dismiss or to address the action in a more economic manner, substantiates Ken and Candy's interpretation of the motive for the suit. 22. In light of its knowledge of the "real party in interest" in this case, Pentex's adverse actions continue to constitute a serious disregard for the Court's time and have resulted in growing legal costs for Ken and Candy unnecessarily and exponentially. The case against Ken and Candy should be dismissed with prejudice, as it is likely to achieve little more than increasing Ken and Candy's legal fees while heavily absorbing the Court's resources. If GBU Trust wishes to pursue the matter, it should file its own case through the appropriate court, as it is the "real party" in the lawsuit. III. RULE 13 MOTION FOR SANCTIONS 23. Pursuant to Rule 13 ofthe Texas Rules of Civil Procedure, Ken and Candy move MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON Pentex Foundation vs. Kenneth Gibbs, et al. 109 this Court for Sanctions against Attorney John Skotnik, Attorney Scott Smith, Plaintiff Pentex Foundation, and Intervenor GBU Friends and Associates Trust, for filing and perpetuating a frivolous suit designed solely to badger Ken and Candy. 24. The Original Petition seeking relief was signed in violation of Rule 13, as a reasonable inquiry by John Skotnik and his client would have shown that the allegations are false, trivial, and meant solely for the purpose of harassment. Even a cursory review of the facts, including the ill-gotten transfers of assets from GWB Family and Friends Trust, would have revealed that Pentex has no standing to sue Ken and Candy, as Pentex had no ownership of the alleged assets. 25. Following Skotnik's withdrawal as Counsel to Pentex due to a conflict of interest, Scott Smith assumed the role. Even had Smith initially suffered no qualms about representing a client whose standing was in doubt, Smith should have experienced at least a few pangs of conscience connected to his signing on as Counsel for GBU Trust. Conflict of interest aside, the moment he conjured up the title of the "real party of interest" for GBU Trust, Smith should reasonably have moved to extricate Pentex from the convoluted matter. 26. As of June 18, 2014, Smith was still resolute that both Pentex and GBU Trust will remain in the suit. 27. Despite its certain awareness that GBU Trust has unilaterally declared itself the "party of interest," Pentex has made no effort to request the Court dismiss the suit. Currently, neither Pentex nor GBU Trust has proven its ground for attempting redress for any bad acts supposedly committed by either Ken or Candy. MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON Pentex Foundation vs. Kenneth Gibbs, et al. 110 28. Therefore, pursuant to Rule 215-2(b) of the Texas Rules of Civil Procedure, Ken and Candy request that all Sanctions available, including attorney fees, should be imposed on John Skotnik, Scott Smith, Pentex, and GBU Trust. VII. PRAYER FOR RELIEF Based on the foregoing, Ken and Candy pray that this Court: ( 1) Dismiss this suit in its entirety with prejudice; (2) Award Ken and Candy costs and attorney fees; (3) Enter all other Orders and further relief, legal and equitable, that the Court deems appropriate in this matter, including appropriate sanctions for the violation of Rule 13; and (4) For such further and additional relief as justice may require. Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C. / .I \.:;~~/ ./, C./-~- Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Ste. 600 Fort Worth, Texas 76102 (817) 504-6075 (800) 437-7901 -Fax clee@christyleelaw .com ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE No. CV -14-41 Pentex Foundation vs. Kenneth Gibbs, et al. Ill CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 18th day of June, 2014: Pentex Foundation and Via mail and email GBU Family and Friends Trust c/o Scott Smith P.O. Box 354 Sherman, TX 75091-0354 Howard Kirk Gibbs Via mail and email 9929 Crawford Farm Drive Fort Worth, TX 76244 _,I . !..,. .· \.~ Christy L. Lee MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE, AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV-14-4 Pentex Foundation vs. Kenneth Gibbs, et al. 112 CAUSE NO. CV-14-41665 PENTEX FOUNDATION ) ) PLAINTIFF, ) ) vs. ) ) KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK GIBBS, ) ) DEFENDANTS. ) FANNIN COUNTY, TEXAS NOTICE OF HEARING COME NOW, Candace Walton and Kenneth Gibbs, Defendants, by and through their counsel of record, Law Offices of Christy Lee, P.C., and notice you of a hearing scheduled concerning Motion to Show Authority, Motion for Change of Venue, Motion to Strike Intervention, Motion to Dismiss with Prejudice, and Rule 13 Motion for Sanctions of Kenneth Vern Gibbs and Candace Gibbs Walton. The hearing has been set for September 30,2014, from 8:30AM to 12 PM, in 336th Judicial District Court of Fannin County, Texas. Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C. /• ,/ ,.-" 1 . ,. . .......··"" L .~ -----t--=-- Christy L Lee Texas State Bar No. 24052302 777 Main Street, Ste. 600 Fort Worth, Texas 76 I 02 (817) 504-6075 (800) 437-7901 -Fax clee@christyleelaw.com NOTICE OF HEARING -I- 113 CERTIFICATE OF SERVICE I certify that a true and correct copy of the above Notice of Hearing was delivered, pursuant to Texas Rules ofCivil Procedure, to the following parties on this 19th date of June, 2014: Via: Howard Kirk Gibbs Mail 4360 Western Center Blvd., No. 205 Email: hkgibbs@gmail.com Fort Worth, TX 76157 Pentex Foundation and Mail GBU Family and Friends Trust Email: smithlaw@aim1ail.net c/o Scott Smith, Attorney 120 South Crockett Street Sherman, TX 75091-0354 ,, I IJ ./ //t. . ·, \. . /\.--{...<.__ Christy L. Lee NOTICE OF HEARING 114 L-\11 OrVJCESOF Cll~JS'J'Y L. L~;~: Attorney 225 E. Fl~EWEED LA'\~;. STJ<:. 200 ,\i\CIIO~M>E. AIASI\A 9950:l 1\-L\11\: 907.3:39.9931 F'~\: 800.437.7901 777 M~ll\ S'J:. STK 600 Foli'r\VoJnll. TJ<:X~S 76102 PliO'\~;;817.504.6075 FAX.: 800.437.7901 clee@christ.yleelaw.com June 19,2014 www.(·hrist.yl(~ela \\'.C'Oill Clerk of the Court 101 E Sam Rayburn Drive, Suite 200 Bonham, TX 75418 Re: Cause No. CV-14-41665 Pentex Foundation vs. Kenneth Vern Gibbs, et al. To Whom It May Concern: Enclosed is a Notice ofHearing, concerning Cause No. CV-14-41665. Please file the original document with the Court, and return the file-marked copy to the firm in the enclosed self-addressed, stamped mailer. If you have any questions, please contact our office. Thank you for your assistance with this matter. Very truly yours, LAW OFFICES OF CHRISTY LEE, P.C. c7!cJ--1&/~ Laura Hogins, Paralegal Enclosures CAUSE No. CV -14-41665 PENTEX FOUNDATION, ) PLAINTIFF, ) ) vs. ) ) KENNETH VERN GIBBS; AND ) CANDACE Gll313.S WALTON; AND ) TiOWARD KIRK GIBBS, ) DEFENDANTS. ) FANNIN COUNTY, TEXAS HULE U AGREEMENT FOR METHOD OF SERVICE TO THE HONORABLE JUDGE OF COURT: On June 20, 2014, this Agreement was entered into by Kenneth Vern Gibbs and Candace Walton, Defendants; Howard Kirk Gibbs, Defendant, pro se; and Pentex Foundation, Plaintiff; and GBU Friends and Associates Tntst, 1ntervenor; by and through their respective attorneys and Howard Kirk Gibbs; and the Par! ies together hereby submit the following Rule II Agreemenllo the Court regarding the referenced case. In the effort to conserve resources, the Parties agree to emailed service of all documents pertaining to the Matter and to acknowledge receipt of the service within one (1) business day by email or facsimile. If no acknowledgement of the service is forthcoming from the receiving Party within one (1) business day, service shall be effected in an alternative manner, pursuant to R.ule 2! of the Texas Rules of Civil Procedure. However, service shall be deemed completed tit the time the email is sent, except on holidays or weekends, at which time service shall be deemed completed on ihe next business day. RULE I I AGREEMENT FOR METHOD OF SERVlCE CAUSE NO. C\1714,4 I 665 Peule.r Foundation vs. Gibbs et af. .' - 1- 116 Respectfully submitted, LAW OFFICES OF CHRISTY LEE, PC. /) / / .· \{.~ .... By: L-.. ~, --------------- Date . T --~----------·· Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Ste. 600 Fort Worth, Texas 761 02 (R 17) 504-6075 Office UWO) 437-7901 Fax clee@Jchristyiccla w .com A'ITORJ'\IEY FOR KENNETH GIBBS AND CANDACE 'N ALTON __sCOTT SMI:D~- · ---- ~"-~ ;-----_::-;S':--:r----~ 8)-;.{ccc.f---· -- J. . Sco· -imth...:::;;,...-- Texas State Bar No. 18688900 120 South Crockett Street P.O. Box 354 Sherman, Texas 75418 (903) 868~8686 Office (903) 870-1446 Fax smi!hlaw@airmail.net ATfORNE'J' FOf~ PLAINTif-F AND INTERVENOR ./ .../' /' / __ f/f~'!._:..:'<'L:M;'/ /~¥,.,/·{.-" :<._ Date Howard Kirk Gibbs, Pro St: 4360 Western Center Boulevard, Suile 205 Fmi Worth, Texas 76 I 37 (817) 233-4423 hkgibbs@gmai J.com RULE 11 AGREEi\lENT FOR 1\·JETHOD Of SERVICE CAUSE NO. C:V-l754 S.W.2d 153To: "Christy Lee" '2014. '1 JUDGE PRESIDING CERTIFICATE OF SERVICE I do hereby certifY that a true and correct copy of the above and foregoing document was served, by email pursuant to agreement compliant with TEX. R.Clv. P. 11, upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Wo Te 76102, and to Howard Kirk Gibbs, Pro Se, at 4360 Western Center Blvd., Suite 205, Ft. 76137, on this August 11,2014. ' MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE 8 161 : ' PENTEX FOUNDATION, Plaintiff v. KENNETH VERN GIBBS, CANDACE GIBBS WALTON and HOWARD KIRK GIBBS, Defendants 336'h JUDICIAL DISTRICT BINDER OF EXHIDITS IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of the GBU Friends and Associates Trust, Intervenor, submit this Binder of Exhibits in Support of their Motion for Partial Summary Judgment, and submit the following exhibits: 1. Contract. 2. Family Settlement Agreement. 3. Kenneth and Candace's Admissions. 4. Howard Gibbs Admissions 5. Unsworn Declaration of Danny Unger BINDER OF EXHIBITS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT .... PAGE I 162 State Bar Number 18688900 120 South Crockett Street P.O. Box354 Sherman, Texas 75091-0354 e-mail smithlaw@airmail.net Facsimile (903) 870-1446 Telephone (903) 868-8686 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing document was served, by email pursuant to agreement compliant with TEX. R.CIV. P. 11, upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth as 76102, and to Howard Kirk Gibbs, Pro Se, at 4360 Western Center Blvd., Suite 205, Ft."" h exas 7 , on this August 11,2014. ---- -- BINDER OF EXHIBITS IN SUPPORT OF MOTION FOR PARTW, SUMMARY JUDGMENT .... PAGE 2 163 ... Patty Kreider From: Scott Smith Yes, Scott. I still have the hearing set with yours and their matters. I was really trying to bring the defendant's notice of medical leave to your attention by copying you. There has been no request on their part for a continuance of their motions. I was trying to get a response as to their intentions, while keeping you in the loop. Patty Kreider ·Court Coordinator 336th Judicial District Court 101 E. Sam Rayburn Dr., Ste. 200 Bonham, Texas 75418 (903) 583-2863 Wisdom is the quaUty that keeps you from getting into situations where you need it. 2 166 From: Scott Smith [mailto:smithlaw@airmaiL~J;] Sent: Tuesday, September 02, 2014 1:02PM To: Patty Kreider Subject: Re: Atty Lee's medical Leave Patty, Please remember that the Plaintiff and Intervenor also have matters set at that time. Regards, Scott ----- Original Message ----- From: Patty Kreider To: clee@christyleelaw.com Cc: smithlaw@airmail.net Sent: Tuesday, September 02, 2014 10:38 AM Subject: Atty Lee's medical Leave Re: Attorney for the Defendant Christ Lee's notice of medical leave of absence Good morning, Ms. Lee. I am in receipt of your Notice of Leave indicating a 3 month Family Medical leave from August 25,2014 through November 25,2014. A 1/2 day hearing was set (on June 19, 2014) for September 30,2014,8:30 a.m., on Defendant's motions to show authority, to change venue, rule 13, for sanctions, to strike intervention and to dismiss. Is it now to be understood defendant no longer desires a hearing on these motions? Patty Kreider Court Coordinator 336th Judicial District Court 101 E. Sam Rayburn Dr., Ste. 200 Bonham, Texas 75418 (903) 583-2863 Wisdom is the quality that keeps you from getting into situations where you need it. 167 3 PENTEX FOUNDATION, § Plaintiff § § v. § § KENNETH VERN GIBBS, CANDACE § GIBBS WALTON and HOWARD § KIRK GIBBS, Defendants § 336 1b JUDICIAL DISTRICT MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of the GBU Friends and Associates Trust, Intervenor, in the above entitled and numbered cause, file this Motion to Quash or for a Protective Order Relating to Subpoenas sent by counsel for Defendants to the undersigned on August 28, 2014, and in support of the order shows: SUBPOENAS THE SUBJECT OF THIS MOTION 1. On August 28, 2014, Defendants sent by facsimile four putative subpoenas. A copy of the subpoenas is attached hereto as Plaintiffs Exhibit "A". Each document purports to have witnesses appear and testify concerning the Defendant's Motion to Show Authority on September 30, 2014. 1 Filed around April 24, 2014, as part of the Defendant's Original Appearances. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELAT!NG TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 1 168 2. Thereafter on September 2, 2014, Defendants issued four separate Subpoena Duces Tecum for Oral Depositions. A copy of the deposition subpoenas is attached hereto as Plaintiffs Exhibit "E". THE UNDERLYING MOTION TO SHOW AUTHORITY IS SPECIOUS 3. The motion to show authority is specious and another in a long line of actions on the part of Defendants to cause their adversaries to spend money on attorney's fees. A similar motion was brought and considered in a Tarrant County Probate Court on July 31, 2014. At that hearing, Defendants called the undersigned to testify, and therein the undersigned produced a copy of his fee agreement with the Plaintiff. A copy of that fee agreement is attached hereto as Plaintiffs Exhibit "B". The undersigned testified as well that the designated representative for Plaintiff for purposes of litigation was Mr. Danny Unger. Finally, after the hearing the undersigned submitted a resolution from Plaintiff wherein his engagement was authorized. A copy of the letter to the Tarrant County Probate Court, with the resolution attached is attached hereto as Plaintiff's Exhibit "C". 4. Most importantly, in the Tarrant County hearing, counsel for the MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 2 169 Defendants acknowledged that Pentex Foundation was valid. 2 Therefore, the only question has been whether counsel has been validly retained - not whether Pentex Foundation is a valid entity. 5. As the Court might imagine, there are not many cases with respect to motions to show authority. This is because it is a procedure rarely used. One such case describes the appropriate response to such a motion: Typically, in response to a Rule 12 motion, an attorney satisfies his or her burden to establish their authority to prosecute or defend a suit through an affidavit from the client indicating the attorney was retained to provide representation in the case, and/or through testimony of the attorney. Patton Children's Trust v. Elmer, 2008 Tex. App. LEXIS 6396 (Tex. App. - El Paso 2008). Here, by virtue of the Tarrant County proceedings, and in particular the resolution from Plaintiff specifically authorizing the engagement of the undersigned, counsel for Defendants has been aware that the undersigned has met his burden. Why then the subpoenas? It is simple harassment. THE SUBPOENAS FOR INDIVIDUALS IN GUATAMALA AND PANAMA ARE INVALID 6. The subpoenas have each been sent to the undersigned, presumably as service upon the witnesses. One such witness is Albert Barcroft, who resides in 2 Rather than rely upon the vagaries of memory, a transcript ofthe testimony of the undersigned has been requested and will be made available at the hearing on this motion. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 3 170 Guatamala and who is medically unable to travel. 3 Another is for Angelli Carrasco, a resident of Panama, who does not have a passport for international travel. The undersigned has repeatedly advised counsel for Defendants that he does not represent either of these individuals. 7. As shown by Plaintiffs Exhibit "E", Pentex Foundation does not control either Mr. Barcroft. Pentex Foundation does not control Ms. Carrasco. 4 They are not employees ofPentex Foundation, and Pentex Foundation does not, and cannot control their activities, time or movement. Pentex Foundation cannot compel either to attend to legal matters in the United States. 8. TEX. R. CIV. P. 176.5(a) permits service of a subpoena to an attorney for on "a party [who] is represented by an attorney." However, neither Mr. Barcroft, nor Ms. Carrasco are parties. Likewise, as Defendants have been repeatedly advised, they are not represented by the undersigned in this action. As such, sending subpoenas through the undersigned is not permitted under Texas law, and not effective service. Wal-Mart Stores v. Rand, (Tex. 3 See, the unsworn declaration by Albert Lynn Barcroft submitted herewith as Plaintiffs Exhibit "F", which is submitted pursuant to TEX. Civ. PRAC. & REM. CODE§ 132.001, and correspondence from the physician for Mr. Barcroft attached hereto as Plaintiff's Exhibit ''D". 4 An unsworn declaration from Ms. Carrasco was not available at the time of filing this motion because of the logistics in obtaining it from Panama. It is anticipated that it will be submitted prior to hearing on this motion. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 4 171 1988); In Re Reaud,
286 S.W.3d 574(Tex. App.- Beaumont 2009); In Re: Grass,
153 S.W.3d 659(Tex. App.- Tyler 2004). 9. With respect to the deposition notices, a notice for an oral deposition must state a reasonable time and place for the deposition. Tex. App. Civ. P. 199.2(b)(2). The place may be in (1) the county of the witness's residence; (2) the county where the witness is employed or regularly transacts business in person; (3) the county of suit if the witness is a party or designated as a party representative under Rule 199.2(b)(l); (4) the county where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a Texas resident or is a transient person; or (5) subject to the foregoing, at any other convenient place directed by the court in which the cause is pending. !d. "Convenience" is determined from the perspective of the witness. In re Western Star Trucks US, Inc.,
112 S.W.3d 756, 765 (Tex. App.- Eastland 2003). Here it is patently obvious that none of the categories apply to Mr. Barcroft or Ms. Carrasco, and equally obvious that international travel is not convenient to either Mr. Barcroft or Ms. Carrasco. The court may make any order in the interest of justice, including an order that the discovery not be undertaken at the time or place specified. TEX. R. CIV. P. 192.6(b)(3). However, the court's order may not contravene Rule 192.2.
Street, 754 S.W.2d at 155. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 5 172 10. Further with respect to the deposition subpoenas, even if Defendant could depose Mr. Barcroft or Ms. Carrasco, the place of the depositions is neither reasonable, nor agreeable. The undersigned has advised counsel for Defendants, repeatedly, that he does not represent Mr. Barcroft or Ms. Carrasco. 5 The undersigned did not agree to produce Mr. Barcroft or Ms. Carrasco. Rule 199.4 of the Texas Rules of Civil Procedure states that a party may object to the time and place designated for a deposition by motion for protective order or by motion to quash the notice of deposition if filed by the third business day after service of the notice. This motion is timely made, and Rule 199.4 stays the oral deposition until this motion can be heard. THE DUCES TECUM ARE OBJECTIONABLE 11. Although service upon Joshau Unger as trustee, and Danny Unger as the designated representative of Plaintiff is valid, the duces tecum attached contains many objectionable requests. A. Subpoena for Appearance in Court on September 30,2014 for Danny Unger on behalf of Pentex Foundation and Joshua Unger, Trustee. With respect to requests lB and 1C, they are overly broad, essentially 5 The undersigned did confirm that he was available on October 13-15th, as were Mr. Joshua Unger, Trustee and Danny Unger, the designated representative for Plaintiff. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 6 173 asking him to bring all documents associated with the Plaintiff and Intervenor. This fails to direct him to any particular class or type of documents. With respect to Requests D and E, they relate to privileged communications. B. Subpoena for Appearance at Deposition for Danny Unger on behalf of Pentex. Categories 2 and 3 are overly broad. This fails to direct him to any particular class or type of documents. With respect to Requests D and E, they are privileged communications. Categories 4 and 5 relate to privileged communications. Categories 6, 7, 8 are invasive of privacy, and tax returns are generally not discoverable, see Hall v. Lawlis,
907 S.W.2d 493(Tex. 1995); Chamberlain v. Cherry,
818 S.W.2d 201(Tex. App. -Amarillo 1991 ). Categories 12, 13, 14 and 15 are protected to the extend that they post-date anticipation of litigation and/or are protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Category 14 is further protected by the attoney/client privilege and work product exemption from discovery. Category 17 is outside the scope of discovery. Category 20 is vague. C. Subpoena for Appearance at Deposition for Joshua Unger, Trustee. Category 4, 5, 6, 7, 8, 9, 10 and 11 are outside the scope of discovery. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITJON NOTICES ... PAGE 7 174 Categories 6 and 18 is relates to privileged communications, including attorney client communications and matters which are exempt from discovery under the work product doctrine. Categories 11 and 12 are invasive of privacy, and tax returns are generally not discoverable, see Hall v. Lawlis,
907 S.W.2d 493(Tex. 1995); Chamberlain v. Cherry,
818 S.W.2d 201(Tex. App. -Amarillo 1991). Categories 16, 17, 18 and 19 are protected to the extend that they post-date anticipation of litigation and/or are protected pursuant to the "joint defense doctrine" recognized in TEX. R. Evm. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). D. Subpoena for Appearance at Deposition for Albert Barcroft. Assuming that this subpoena is not quashed in its entirety, the following requests are objectionable. Categories 5, 6 and 19 invade the Plaintiffs attorney/client communication privilege. Categories 9 are overly broad, invasive of privacy, and tax returns are generally not discoverable, see Hall v. Lawlis,
907 S.W.2d 493(Tex. 1995); Chamberlain v. Cherry,
818 S.W.2d 201(Tex. App.- Amarillo 1991). Categories 16, 17, 18, 19, 20, 21 are protected to the extend that they post-date anticipation of litigation and/or are protected pursuant to the "joint defense doctrine" recognized in TEX. R. Evm. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 8 175 -------------------~-----. Category 24 is outside the scope of discovery. Category 26 is ambiguous and vague. REQUEST FOR SANCTIONS 12. As a result of the filing of the subpoenas in support of Defendants' specious and frivolous motion to show authority and for witnesses that cannot be produced, the movants have been required to engage counsel to prepare and present this motion. Movants request that the Court grant they a recovery of their reasonable and necessary attorneys' fees as a sanction. WHEREFORE, movants request that the Court quash the subpoeans for Mr. Barcroft and Mr. Carrasco in their entirety, and grant protection against the objectionable duces tecum with respect to Joshua Unger, Trustee and Danny Unger, and issue sanctions as may be appropriate, and other and further relief to which movants may be entitled. mitted, State Bar Number 18688900 120 South Crockett Street P.O. Box 354 Sherman, Texas 75091-0354 e-mail smithlaw@airmail.net Facsimile (903) 870-1446 Telephone (903) 868-8686 MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 9 176 CERTIFICATE OF CONFERENCE Prior to issuance of the subpoenas the undersigned communicated with counsel for Plaintiff regarding this matter, advising that he did not represent Mr. Barcroft or Ms. Carrasco, and would not be able to produce them. The subpoenas followed anyway. Because of the three day rule proscribed by Rule 199.4, this m · fi ented to the Court for resolution. FIAT The above and foregoing motion shall be heard by the Court on the _ _ day of , 2014, at o'clock, .m. JUDGE OR CLERK OF THE COURT CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing document was served, by email pursuant to agreement compliant with TEX. R.Crv. P. 11, upon Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, Pro Se, at 4360 Western Center Blvd., Suite 205, Ft. 13 7, on this September 3, 2014. MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSITION NOTICES ... PAGE 10 177 08/28/2014 18:10 8073388880 LAW OFFICES OF CHRISTY LEE #0241 P.010/012 PLAINTIFFS EXHIBIT A CAUSE No. CV-14-41665 PENTE.x FOUNDATION ) IN TFffi DISTRICT COURT PLAINTIFF, ) ) vs. ) 336m JUDICIAL DISTRICT ) KENNETH VERN G!BBS; AND ) CANDACE GTBSS WALTON; AND ") HOWARD KIRK GIBBS, ) DEFENDANTS. ) FANNIN CoUNTY, TEXAS THE STATE OF TEXAS Stml:»OENA TO: Danny Unger, Legal Representative of Pentex Foundation, c/o Scott Smith, 120 South Crockett Street, Sherman, Texas 75091-0354. YOU ARE COMMANDED by the State of Texas to appear before the 336m Judicial District Court, Fannin County. at 101 E. Sam Rayburn Drive, Suite 200, Bonham Texa~ 75418, on the 30th day of September, 2014, at 8:30 o'clock a.m., to attend and give testimony on Defendant's Motion to Show Authority. ENFORCEMENT OF SUBPOENA Pursuant to Texas Ru1es of Civil Procedure No. 176.8, failure by any person without adequate excuse to obey a subpoena upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the cotmty in which the subpoena is served, and may be punished by fine or confinement, or both. lNSTRUCTIONS A. If you object or otherwise decline to respond to any portion of a request, provide all documents for that portion of the request to which you do not object or decline to respond. B. If you object to a request on the grounds that it is too broad (i.e., that it 1'HE STATE OPTnXAS SUBPOENA CAUSE No. CV-14-41665 PENTEXFOUNDATTON ~:GIBBS, ~/J'AL. ·1- 178 08/28/2014 19:10 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.011/012 calls for both relevant and irrelevant 1nfonnation), provide such documents which are concededly relevant. C. If you object to a request on. the grounds that it would constitute an undue burden, provide such requested documents as can be supplied without undertaking an undue burden. D. If you object to any portion of a request because of a claim of privilege, identify all persons to whom such documents were disclosed, the general nature of such documents, the nature of the privilege asserted, and the dates of any communications or documents from which such privilege is asserted. You are further directed to redact and disclose any portion of such document that is concededly not privileged. DUCES TECUM 1. You are hereby requested to make available the documents listed below at the above- mentioned time and place. A. A true and correct copy of all documents showing that you are the legal representative ofPentex Foundation. B. A true and correct copy of all documents that you have which are associated with GBU Friends and Associates Tru....t_ C. A true and correct copy of all documents associated with your tenure as Trustee of GBU Friends and Associates Trust. D. A true and correct copy of cancelled checks you or Pentex Foundation paid to Scott Smith. E. A true and correct copy of cancelled checks you or Pentex. Foundation paid to John Skotnik. THE STATE OF TEXAS Sl.JB.POENA CAUSE No_ CV-14-41665 PENTEXFOUND.t1TION SIS.. GIBBS, .l!:r AI~ -2- 179 08/28/2014 19:11 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.012/012 2. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace Walton, by Counsel, in accordance with Rule 176 of the Texas Rules ofCivU ProcedlU'e. Issued on August 28,2014. LAW OFFICES OF CHRISTY LEE, P.C. ATTORNEY FOR DEFENDANTS 'I'J..JE STATB OF TExAS SUBPOENA CAUSE 'NO. CY-14-41665 PENTEX FOUNDA110N VS. GiBBS, ET AL -3- 180 LAW OFFICES OF CHRISTY LEE #0241 P.001/012 l!lf/28/2~14 19:08 9073399980 CAUSE NO. CV-1441665 PENTEXFOUNDATION ) IN Tiffi DISTRICt' COURT PLAINTIFF, ) ) vs. ) 336w JUDICIAL DISTRICT ) KENNETH VERN GIBBS; AND ) CA NDACF. GIBBS WALTON; AND ) HowARDKlRK.Gmss, ) DEFENDANTS. ) FANNIN COUNTY. TEXAS THE STATE OF TEXAS SUBPOENA TO: Angelli Martha Polanco Carrasco, President, Chairman, and Director of Pentex .Foundation. c/o Scott Smith. 120 South Crockett Street, Shennan, Texas 75091-0354. YOU ARE CO:M1v.f.ANDED by the State of Texas to appear before the 336th Judicial District Court, Fannin County, at 101 E. Sam Rayburn Drive, Suite 200, Bonham Texas 75418, on the 30th day of September, 2014, at 8:30 o'clock a.m., to attend and give testimony on Defendant's Motion to Show Authority. ENFORCEMENT OF SUBPOENA Pursuant to Texas Rules of Civil Procedure No. 176.8, failure by any person without . adequate excuse to obey 1:1. subpoena upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement. or both. INSTRUCTIONS A. If you object or otherwise decline to respond to any portion of a request. provide all documents for that portion of the request to which you do not object or decline to respond. THE STATF. OF TEXAS SUBPOENA CAUSE NO. CV-14-41665 PENrEX FOllNOATION liS. GIBB.<;, f..I' 11.L. -1- 181 08/28/2014 19:08 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.002/012 ._.. B. If you object to a request on the grounds that if is too broad (L~:, that i~ calls for both relevant and irrelevant information), provide such documents which are concededly relevant. C. If you object to a request on the grounds that it would constitute an undue burden. provide such requested documents as can be supplied without undertaking an undue burden. D. If you object to any portion of a request because of a claim of privilege, identify all persons to whom such documents were disclosed, the general nature of such documents, the nature of the privilege asserted, B.nd the dates of any communications or documents from which such privilege is asserted. You are further directed to redact and disclose any portion of such document that is concededly not privileged. DUCES .TECUM I. .You are hereby. requested to make available the documents listed below at the above- mentioned time and place. A A true and Correct copy of all P~tex 'F~iuldation incorporation docuinen~·: .. B. All board meeting minutes associated with hiring John Skotnik. . C. All board meeting minutes associated with hiring Scott Smith. . . · 2. The subpoena is . prepared and issued for Defendants Kenneth Gibbs and .· Cand.ace .. . . ·,. Walton, by Counsel, in accordance·with Rule 176 of the Texas Rules of Civil Procedure... THE STATE OF TEXAS SUBPOENA CAUSE No. CV-14-41665 . PF.Nr£X FOUNDATION V.S. GiBBS, ET AL. -2- 182 08/28/2014 18:08 8073388880 LAW OFFICES OF CHRISTY LEE #0241 P.003/012 Issued on August 28, 2014. LAW OFFICES OF CHRISTY LEE, P.C. Christy L. Lee Texas State Bar No. 24052302 777 Main Street. Suite 600 FortWorth, TX 76102 Office: (817) 504-6075 Fax: (800) 437-7901 clee@.christyleelaw .com ATIORNEY FOR DEFENDANTS THE STATE OF 1'ExAs Sllli.POENA CAUSH No. CV-14-41665 PENrM FOUNDATION VS. GIBBS, .b"l"AL. -3- 183 08/28/2014 18:08 8073388880 LAW OFFICES OF CHRISTY LEE #0241 P.004/012 ·..._,; CAUSE NO. CV-14-41665 PENTEx FOUNDATION ) IN THE DISTRI.CT COT.JRT PLAINTIFF, ) ) vs. ) 336m JU'DlCIAL DISTRICT ) KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HowARD KIRK Gmas, ) DEPENDANTS. ) F ANNlN CouNTY, TEXAS THE STATE OF TEXAS SUBPOENA TO: Joshua Unger, Trustee of GBU Friends and Associates Trust, c/o Scott Smith~ 120 South Crockett Street, Shennan, Texas 75091-0354. YOU ARE COMMANDED by the State of Texas to appear before the 336th Judicial District Court, Fannin County~ at 101 E. Sam Rayburn Drive, Suite 200, Bon.bam, Texas75418, on the 301h day of September, 2014, at 8:30 o'clock a.m., to attend and give tel>iim.ony on Defendant's Motion to Show Authority. ENFORCEMENT OF SUBPOENA Pursuant to Texas Rules of Civil Procedure No. 176.8, failure by any person without adequate excuse to obey a subpoena upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served. and may be punished by fine or confinement, or both. INSTRUCTIONS A. If you object or otheiWise decline to respond to any portion of a request, pfovidc all documents fbr that portion of the request to which you do not object or dedine to respond. B. If you object to a request on the grounds that it is too broad (i.e., that it THE STATE OP TEXAs SUBPOENA CAUSE No. CV-14-41665 PllNTF.XFOUNDAT70NVS. G'liJBS, ET AL, -1- 184 08/28/2014 19:09 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.005/012 calls for both relevant and irrelevant information), provide such documents which are concededly relevant. C. If you object to a request on the grounds that it would constitute an undue burden, provide such requested documents as can be supplied without undertaking an undue burden. D. If you object to any portion of a request because of a claim of privilege, identify all persons to whom such documents were disclosed. the general nature of such docrunents, the nature of the privilege asserted. and the dates of any communications or documents from which such privilege is asserted. You are further directed to redact and disclose any portion of such document that is concededly not privileged. DUCES TECUM 1. You are hereby requested to make available the documents listed below at the above- mentioned time and place. A. A true and correct copy of all documents showing that you are the Trustee of GBU Friends and Associates Trust. B. A true and correct copy of all documents associated with your tenure as Trustee of GBU Friends and Associates Trust. C. A true and correct copy of cancelled checks you or GBU Friends and Associates Trust paid to Scott Smith. D. A true and correct copy of the engagement letter GBU Friends and Associates Tru.t,1 signed with Scott Smith. 2. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace Walton, by Counsel, in accordance with Rule 176 of the Texas Rules of Civil Procedure. TilE STATE OF ThXAS SUBPOENA CAUSE No. CV-14-41665 PENTEX FOUNDA170N VS. GIBBS, ET A.L. -2- 185 08/28/2014 19:09 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.008/012 Issued on August 28, 2014. LAW OFFICES OF CHRISTY LEE, P.C. ~--~ Christy L. Lee Texas State BarNo. 24052302 777 Main Street, Suite 600 Fort Worth, TX 76102 Office: (817) 504-6075 Fax: (800) 437-7901 clee@cbristvleclaw.corn ATTORNEY FOR DEI•'ENDANTS THE STATI: OF TEXAS SUBPOENA CAUSB No. CV -14-41665 PENTEXFOUNDA110N ~S. GIBBS,. ET AI- -3- 186 ------------------------------- #0241 P.007/012 08/28/2014 19:09 9073399980 LAW OFFICES OF CHRISTY LEE CAUSE NO. CV-14-41665 PENTEX FoUNDATION ) IN THE DISTRICT COURT PLAINTIFF, ) ) vs. ) 336m. JUDiClAL DISTRICT ) KENNETH VERN GlBBS; AND ) CANDACE GIBBS wALTON; AND ) HOWARD KlRK GIBBS, ) DEFENDANTS. ) FANNIN COUNTY, TEXAS THE STATE OF TEXAS SUBPOENA TO: Albert Barcroft, c/o Scott Smith, 120 South Crockett Street, Shennan, Texas 75091-0354. YOU ARE COMMANDED by the State of Texas to appear before the 336th Judicial Ifu1rict Court, Fannin County, at 101 E. Sam Rayburn Drive, Suite 200, Bonham Texas75418, on the 30th day of September, 2014, at 8:30 o'clock am .• to attend and give testimony on Defendant's Motion to Show Authority. ENFORCEMENT OF SUBPOENA Pursuant to Texas Rules of Civil Procedure No. 176.8, failure by any person without adequate excuse to obey a subpoena upon that person may be deemed in contempt of the court from which the subpoena is issued or a district court in the cOtmty in which the subpoena is served, and may be punished by fine or confinement, or both. INSTRUCTIONS A. If you object or otherwise decline to respond to any portion of a request, provide all documents for that portion of the request to which you do not object or decline to respond. B. If you object lo a request on the grounds that it is too broad (i.e., that it calls for both relevant and irrelevant information), provide such documents which are THE STATE OF TExAs S!ffiPOENA CAUSE No. CV-14-41665 PF.Nr£X FOUNDATION V.S. GiBBS, ETA r~ -1- 187 08/28/2014 19:10 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.008/012 concededly relevant. C. lfyou object to a request on the grounds that it would constitute an undue burde~ provide such requested documents as can be supplied without undertaking an undue burden. D. If you object to any portion of a request because of a claim of privilege, identify all persons to whom such documents were disclosed, the general nature of such documents, the nature of the privilege asserted, and the dates of any communications or documents from which such privilege is asserted. You are further directed to redact and disclose any portion of such docwnent that is concededly not privileged. DUCES TEClJM 1. You are hereby requested to make available the documents listed below at the above- mentioned time and place. A. A true and correct copy of all Pentex Foundation documents showing your authority to act as its legal representative. B. A true and correct copy of all Pentex Royalty Trust documents showing your authority to act as its legal representative. C. A true and correct copy of all Renshaw, Inc., documents showing your authority to act as its legal representative. D. A true and correct copy of cancelled checks you, Pentex Foundation, Pentex Royalty Trust, and Renshaw, Inc., paid to John Skotnik. E. A true and correct copy of cancelled checks you, Pentex Foundation, Pentex Royalty Trust, and Renshaw, Inc., paid to Scott Smith. 2. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace TIIE STATE OF 'TEXAS SUR POENA CAUSE No. CV·14-41665 PENTEX FOUND.dnON VS. GiBBS.. ETA,. -2- 188 08/28/2014 19:10 9073399980 LAW OFFICES OF CHRISTY LEE #0241 P.009/012 Walton, by Counsel, in accordance with Ru1e 176 of the Texas Rules of CiviJ Procedure. Issued on August 28, 2014. LAW OFFICES OF CHRISTY LEE, P.C. Christy L. Lee Texas State Bar No. 24052302 777 Main Stree~ Suite 600 Fort Worth, TX 76102 Office: (817) 504-6075 Fax: (800) 437-7901 clee@christvleclaw.com ATTORNEY FOR DEFENDANTS THfi STATE OF TExAS SUBPOENA CAUSE No. CV -14-41665 PEN1U FOUNDATION VS. (;18RS, ET AL. ~3- 189 EXHIBIT B AGREEMENT FOR LEGAL SERVICES Scott Smilh, Attorney At Law, agree to provide legal services to Pcntex Foundution c/o Mario Guilermo Hurtarte AJTivillaga, Managing Director, Legal Affairs in connection with a lawsuit under cause number CV -14-41665 in the 336"' Judicial District Court of Fannin County, Texas. Scott Smith has the right to cease legal work and keep all funds received for legal services and expenses if Client docs not make payments as requested by Scott Smith, attorney. This agreement docs not necessarily include legal services on appeal. In the event of an appeal is determined to be necessary after trial, n new agreement will be negotiated. Any sums collected from client's opposing party will be credited against Client's obligation, but only when actually received by Scott Smith, attorney. Client fmthcr agrees to pay all sums when invoiced, and that all sums are due ond payable within ten days of invoice; and Client to pay interest on all past due stuns at the rate of 1.5% pet· month; but in no event to exceed the maximum allowable interest allowed by law. Client agrees to pay Attorney the usual hourly rate then in effect, which at the present time is $250 per hour and $45.00 per hour for support stan: plus payment of all expenses, as follows: Client agrees to pay nil of the out-of- pocket expenses incurred in the representation, which expenses include any filing or service fees, court costs, subpoena costs, costs of photos, costs of court reporters, costs of reports, costs ofwitnesses, long distance phone charges, travel at the rate of 58.5 cents per mile, deposition transcription charges, postage and photocopy fees, and all other out-of- pocket expenses direc!ly incurred in investigating or litigating this claim. The Client shall keep the Attorney advised of the Client's whereabouts at all times, shall appear on reasonable notice at any and all depositions and cotui appearances, and shall comply with all reasonable requests of the Attomcys in connection with the preparation of presentations of the claim. In case any one or more of the provisions contained in this agreement shall be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, orunenforcibility shall not afiCct any other provision, and this agreement shall be cons!med as if such invalid, illegal, or unenforceable provision did not exist. This agreement constitutes the only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the sub.icct matter. As a client, you are entitled to make reasonable requests for infonnation from the attorney's office concerning the status of your case. The attorney will make every effort to make sure these reasonable requests are responded to. The client must also realize, however, that time spent on the telephone wilh clients takes away from the time the lawyer and staffhave nvailable to perform legal services for all their clients. In order to balance your need for information with our need for time to work on your case, we have instituted the following phone call policy. Phone calls will be taken during normal business hours of8:30 a.m. to 5:00p.m. with a one hour break for lunch. If the client leaves a message on a weekend or holiday, be aware that the call may not be returned until the next business day. Fmthermore, in order to protect the personal time oft he attomeys and their families as well as ensure their privacy, this office will not give ont the unlisted home telephone numbers of the attorney's nor will they received any calls at home. If the client needs to speak with an attorney directly, he will take the call if he is in the office and not with a client or preparing for court. If the attorney is not available, it is important for the client to len\'e ll phone number where he or she can be reached as well as a time the client will be available·· and an alternate time ifthe ottorney cannot reach the client at that time. If the attorney is out of the office for extended periods, he will cnll in pcriodicolly to check for messages arid either call the client back directly or relay a message through the oflice staff. If the client consults with the attorney on the telephone, the client will be billed for the time spent discussing the case in the same way thai a client would be billed if present in the office. Client furthcnmderstands and agrees not to ask the office staff for legal advise, as they are not attorneys licensed to pmctice law in Texas and cannot give legal advice. Attached hereto is a copy of the Texas Lawyer's Creed. It is understood by the Client and by T. Scott Smith, P.C., that the Texas Lawyer's Creed will be followed during all representation undet·this contract. NO WARRANTIES OR REPRESENTATIONS AS TO THE OUTCOME OF ANY LITIGATION ORAS TO THE PERFORMANCE OF LEGAL SERVICES BY ATTORNEY HAVE BEEN MADE TO CLIENT, AND CLIENT AGREES AND UNDERSTANDS THAT NO PROMISES OR GUARANTEES CAN BE MADE AS TO THE OUTCOME OF THE REPRESENTATiON OF CLIENT BY ATI'ORNEY. At the conclusion of Client's litigation onepresentalion, Client is entitled to the contents ofCiient's file except for Attomey's personal notes. If Client chooses to leave all or pari of the file in Attorney's possession, Attorney has the AGREEMENT FOR LEGAL SERVICE& ... PAGEl 190 authority to destroy Client's file after two years after the Judgment is signed orrepresentatlon is concluded. By signing thi~ ·agreement, Client agrees with this file retention policy. If for any reason client deposits money in the A«omey's trust account, it is agreed by Client that the interest eamed in the lawyer's tmstac~ount may be tendered to the Texas Equal Access to Justice Foundation, pursuant to the Interest on Lawyer's Trust Account (JOL TA) Program created by the Supreme Court ofTexos. Representation shall not commence until such time as a retainer of SI 0,000.00 is deposited with the Attomey. Client acknowledges that failure to pay sl1all constitute cause for withdrawal of attorney ft·om client's case. NOTICE TO CLIENTS The State Bar ofTexas investigates anifprosecutes proftssional misconduct committed by Texas at/orneys. Although not eve1y complaint against or dispute with a lawyer involves professional misconduct} the State Bar Office of General Counsel will provide you with information about how to file a complaint. For more information, please call 1-800-932-1900. This is a toll-fi•ee call. SIGNED AND AGRnED on May 5, 2014. \ AGREEMENT FOR LEOAk SF.RV!CfiS ... PAGE 2 191 ·,· . THE TEXAS LAWYER'S CREED A MANDATE FOR PROFESSIONALISM am a lawyer. I am entrusted by the People of Texas to persons, as soon as practicable, when hearings, depositions, I preserve and improve our legal system. I am licensed by the Supreme Court of'Thxas.l must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the meetings, conferences or closings are cancelled. • I will agree to reasonable requests for extensions of rime and for waiver of procedural fonnalities, provided legitimate objectives or my client will not be adversely affected. • I will not serve motions or pleadings in any manner that unfairly limit another party's violation of laws and rules. I am committed to this Creed for no other reason than it is right. opportunity to respond. • I will attempt to resol\'e by agreement m)' obj«:lions to mailers contained in pleadings and discovery requests I. OUR LEGAL SYSTEM, A lawyer owes to the and responses. • I can disagree without being disagreeable. I administration of justice personal dignity, integrity and recognize that effe<;live representation does not require antagonistic independence. A lawyer should always adhere to the highest or obnoxious behavior. I will neither encourage nor knowingly principles of professionalism • I am passionately proud of my permit my client or anyone under my control to do anything which profession. Therefore, "My word is my bond." • I am responsible to would be unethical or improper if done by me. • I will not, without assure that all persons have access to competent representation good cause, attribute bad moti\'es or unetllical conduct to opposing regardless of wealrh or position in life. • I commit myself to an counsel nor bring the prufession into disrepute by unfounded adequate and effective pro bono program • I am obligated to accusations of impropriety. I will avoid disparaging personal educate my clients, the public and other lawyers regarding the spirit remarks or acrimony towards opposing counsel, parties and and letter of this Creed. • I will always be conscious of my duty to witnesses. I will not be influenced by any ill feeling between the judicial system. clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies or opposing counsel. • I will not take advantage, by lJ. LAWYER TO CLIENT. A lawyer owes to a client causing any default or dismissal to be rendered, when I know the allegiance, learning, skill and industry. A lawyer shall employ all identity of an opposing counsel, without ftrst inquiring about that appropriate means to protect and advance the client's legitimate counsel's intenlion to proceed. • I will promptly submit orders to rights, claims, and objectives, Alawyer shall not be deterred by any the Court. I will deliver copies to opposing counsel before or real or imagined fear of judicial disfavor or public unpopularity, contemporaneously with submission to the court. I will promptly nor be influenced by mere self-interest. • I will advise my client of approve the form of orders which accurately reflect the substance the contents of !his Creed when undertaking representation. •I will of the rulings of the Court. • I will not attempt to gain an unfair endeavor to achieve my client's lawful objectives in legal advantage by sending the Court or its staff correspondence or transactions and in litigation as quickly and economically as copies of correspondence. • I will not arbitrarily schedule a possible. • I will be loyal and committed to my client's lawful deposition, Court appearance, or hearing until a good faith effort objectives, but I will not permit thllt loyalty and commitment to has been made to schedule it by agreement. • I will readily stipulate interfere with my duty to provide objective and independent advice. to undisputed facts In order to avoid needless costs or • I will advise my client !hat civility and courtesy are expected and inconvenience for any party. • I will refrain from excessive and are not a sign of weakness. • I will advise my client of proper and abusive discovery. • I will comply with all reasonable discovery expected behavior. • I will treat adverse parties and witnesses with requests. I will not resist discovery requests which are nor fairness and due consideration. Aclient has no right to demand that objectionable. I will not make objections nor give instructions to a I abuse anyone or indulge in any offensive conduct. • I will advise witness for the purpose of delaying or obstructing the discovery my client that we will not pursue conduct which is intended process. I will encourage witnesses to respond to all deposition primarily to harass or drain the financial resources of the opposing questions which are reasonably understandable. I will neither party. • I will advise my client that we will not pursue tactics which encourage nor permit my witness to quibble about words where are intended primarily for delay. • I will advise my client !hat we their meaning is reasonably clear. • I will not seek Court will not pursue any course or action which is wilhout merit. • I will intervention to obtain discovery which is clearly improper and not advise my client that I reserve the right to determine whether to discoverable. • I will not seek sanction or disqualification unless it grant accommodations to opposing counsel in all mailers !hat do is necessary for protection of my client's lawful objectives or is not adversely affect my client's lawful objectives. A client has no fully justified by the circumstances. right to instruct me to refuse reasonable requests made by other counsel. • I will advise my client regarding the availability of IV. LAWYER AND JUDGE, Lawyers and judges owe each mediation, arbitration, and other alternative methods of resolving other respect, diligence, candor, punctuality, and protection against and sellling disputes. unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Ill. LAWYER TO LAWYER, A lawyer owes to opposing Court and the profession. • I will always recognize that the position counsel, in the conduct of legal transactions and the pursuit or or judge is the symbol of both the judicial system and litigation, courtesy, candor, cooperation, and scrupulous observance administration of justice. I wil! refrain from conduct that degrades of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor this symbol. • I will conduct myself in court in a professional toward opposing counsel. A lawyer shall not engage in manner and demonstrate my respect for the Court and the law. • I unprofessional conduct in retaliation against other unprofessional will treat counsel, opposing parties, the Court, and members of the conduct. •I will be courteous, civil, and prompt in oral and wriuen Court staff with courtesy and civility. • I will be punctual. • I will communications. • I will not quarrel over matters of form or style, not engage in any conduct which offends the dignity and decorum but I will concentrate on matters of substance. • I will identify for of proceedings. • I will not knowingly misrepresent, other counsel or parties all changes I have made in documents mischaracterize, misquote or miscite facts for authorities to gain an submitted for review. • I will auempt to prepare documents which advantage.• I will respect the rulings of the Court. • I will give the correctly reflect the agreement of the parties. I will not include issues in controversy deliberate, impartial and studied analysis and pro.visions which have not been agreed upon or omit provisions consideration.• I will be considerate of the time constraints and wh1ch are necessary to reflect !he agreement of the parties. • I will pressures imposed upon the Court, Court staff and counsel in notify opposing counsel. and. if appropriate, the Court or other efforts to administer justice and resolve disputes. Tile Sr1preme Cmm nfTexns and the Cm1r1 nf Criminal Appeals hereby promulgate a11d adopt "Tile Texas LAwyer:S Creed. A MCllldate for Frofessianallsm •· OJ at/ached hereto a11d made a part hereaf. /11 Cframbers, this 7111 da)' of Novtmbtr, 1989. The Supremt Court aJTexas. 192 E-FILED TARRANT COUNTY, TEXAS ('-"' 8/11/2014 1:19:55 PM MARY LOUISE GARCIA COUNTY CLERK BY: Sarah Vantassel SCOTT SMITH ATIORNEY AND COUNSELOR AT LAW E-MAIL: smithlaw@airmail.net 120 SOUTH CROCKETT STREET FACSIMILE: (903) 870-1446 P.O. Box 354 TELEPHONE: (903) 868·8686 SHERMAN, TEXI\S 75091-0354 August 5, 2014 Honorable Pat Ferchill Judge, Tarrant County Probate Court Number Two The Old Courthouse 100 W. Weatherford, Room 220A Fort Worth, Texas 76196 RE: Candace Walton, eta!. v. Beverly Miller, Trustee, et al.; Cause Number 2005-0000126-2-D in the Probate Comt Number Two of Tarrant County, Texas. Dear Judge Ferchill: As you may recall, I appeared for a special appearance on behalf ofPentex Foundation on July 31, 2014. In connection therewith, I testified regarding a motion to show my authority to represent Pentex Foundation. At that time, I was unsure of the source of payment of my initial retainer. I have reviewed my records and the· payments were each in the sum of$5,000 from Pentex Royalty Trust and Mr. Albert Barcroft. I am also attaching a copy of a resolution from Pentex Foundation regarding my engagement as their counsel. I thank you for your attention to this matter. TSSibhs cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, Pro Se. • PLAitmFPS ~ ~tarr ~-- 193 (...._, l\'IINUTES OF THE BOARD OF DIRECTORS' i'I'IEETING OF PENTEX FOUNDATION A meeting of the Foundation Council ofPENTEX FOUNDATION, organized according to the laws of the Republic of Panama and registered to microjacket twenty nine thousand five hundred nnd thirty six (29536), document one million three hundred fifty four thousand eight hundred ninety three (1354893) of the Mercantile Section of the Public Registry, it was celebrated in the eily of Panama, Republic ofPannnm on the fourth day (4th) of August of the year lwo thousand and fourteen (2014) at 10 o'clock in the morning (10 a.m.). It was a meeting of nil the known Directors: Mrs. ANGELLI MARTHA POLANCO CARRASCO, Mr. CARLOS ALliERTO RIVADENEIRA ESCUDERO and FERNANDO ELIAS BARAHONA PEREZ who had prior wnivcd the cnll. The Chairman was Mrs. ANGELLI MARTHA POLANCO CARRASCO, and the Secretary Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO, both as holders of said positions. The quorum hm•ing been confirmed, the Chairman opened the meeting stating that a question has emerged ns to the authority of Mario Guilermo Hurtarte Arrivil!aga, the Managing Director, Legal Afluirs ofPENTEX FOUNDATION, to hire legal counsel in the United States for nftuirs requiring litigation. Specilically, the hiring of one Scott Smith, Allorney at Law, to represent PENTEX FOUNDATION in ongoing litigation irl\'ol\ting PENTEX FOUNDATION in Fannin County, Texas, U.S.A. Upon motion presented, duly seconded, the following resolution was unanimously approved: IT IS HEREBY RESOLVED: That the Board ofPENTEX FOUNDATION verifies that Mario Guilermo Hurtarte Arrivillaga is authorized to hire legal counsel on bchalfofPENTEX FOUNDATION to litigate any ncccssnry legal matters that might arise in !he United States. llnrthcr, it is resolved that Mario Guilcrmo Hurtarte Arrivillaga, as Managing Director, Legal Aflairs ofPENTEX FOUNDATION, was authorized to sign the "AGREEMENT FOR LEGAL SERVICES" hiring Scott Smith, Attorney At Law, to represent and provide legal serl'ices to PENTEX FOUNDATION on May 5, 2014, in Cause Number CV-14-41665 in Fannin County, Texns, U.S.A. Further, by this resolution, PENTEX FOUNDATION confirms Scott Smith, Texas State Bar Number 18688900, as its attorney in Cause Number CV-14-41665 in Fannin County, Texas, U.S.A.; and, that Scott Smith. has represented PENTEX FOUNDATION in Cnuse Number CV-14-4!665 in Fnnnin County, Texas, U.S.A., since May 5, 2014. By this resolution, it is further resolved that Mario Ouilermo HurtarteArrivillaga, the Mnnaging Director, Legal Affairs ofPENTEX FOUNDATION, is authorized until further notice to make any further necessary changes in legal representation for PENTEX FOUNDATION in any legal proceedings in the United States, and to make any decisions aficcting PENTEX FOUNDATION in any of those legal mailers. The authority gronted I\·!ario Ouilermo Hurtarte Arrivillaga is concurrent with, and does not limit or change, the authority gronted Danny R. Unger through n Limited Power of Attorney ftom PENTEX FOUNDATION in a preceding resolution. There not being nny other matter to attend the meeting was adjourned at eleven (II :00) a.m. on the above mentioned date. The President, ANGELLI MARTHA POLANCO CARRASCO, 194 ._,. ·, ' • 1111 ( The Secretary, CARLOS ALBERTO RIVADENEJRA ESCUDERO. The undersigned, Secretary ofthe foundation named PENTEX FOUNDATION by this means cerlifics that the above minutes is a true copy ofits originnl. It agrees with each and every om: of its parts as the one that remains in the Book of Minutes ofthe foundation. The Secretnry, CARLOS ALBERTO RI,~DENEIRA ESCUDERO. 195 Dr. Leone/ Antonio Ramirez Montenegro MEDICINA INTERNA YELECTROCARDIOGRAFIA Clinic.~ Medica CONSULTORIO Clinica Casa de Los Almendros Los Almendros s~'ll•398 S.W.3d 272,christvle_elaw.com ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure and Rule ll Agreement, to the following parties on this 2nd day of September, 2014: Pentex Foundation am/ Via fax ami email GBU Friends and Associates Trust c/o Scott Smith, Attorney of Record 120 South Crockett Street Sherman, TX 75091-0354 Howard Kirk Gibbs Via mail and email 9929 Crawford Farm Drive Fort Worth, TX 76244 Christy L. Lee THE STATE OF TEXAS SUBPOENA CAUSE NO. CV -14-41665 PENTEX FOUN/JATION VS. GI/JBS, ETAL. -6- 203 CAt 1Sr·: No. CV -14-41665 PENTEX FOUNDATION ) lN THE DISTRICT COURT PLAINTIFF, ) ) VS. ) 336111 JUDICIAL DISTRICT ) KENNI:TH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HowARD KIRK GIBBS, ) DEFENDANTS. ) FANNIN COUNTY. TEX;\S THE STATE OF TEXAS SUBPOENA DUCES TECUM FOI~ ORAL DEPOSITION TO: Joshua Unger. Trustee for CJBU Friends and Associates Trust, c/o Scott Smith, 120 South Crockett Stret:t, Sherman, Texas 75091-0354. YOU ARE COMMANDED by the State of Texas to appear at 120 South Crockett Street. Sherman, Texas 75091-0354, on the 13th day ofOetobcr, 2014, at 10 o'clock a.m., to attend and give testimony at a deposition. The deposition will be stenographically recorded by Merit Court Reporters. 307 West 7th Street, Ste. 1350, Fort Worth. Texas 76102, (817) 336-3042. or such otherqualified court reporter as may be designated. Such deposition when taken will be used in evidence upon the trial of this cause. The deposition wi II continue from day to day until completed. All counsel and parties are invited to attend and cross-examine as they may deem proper. ENFORCEMENTOPSUBPOENA Pursuant to Texas Rules of Civil Procedure No. 176.H. f'ailurc by any person \Vithout adequate excuse to obey a subpoena upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both. TilE STATE OF TEXAS SUBPOENA CAUSE No. CV -14-41665 P£N71::X FOUNDAl10N VS. CiiiJIJS, E'l'AL -I- 204 DUCES TECUM YOU ARE FURTHER COMMANDED to produce and permit inspection and copying of documents or tangible things in your custody or control as fol!O\vs (if not otherwise noted. the date is since the inception of GBU Friends anclt\ssociatcs 'frust or January 1, 2013, whichever is earlier): I. A true and correct copy of all documents showing that you arc the Trustee for the GBU Friends and Associates Trust. 2. A true and correct copy of all verswns of the CiBU Friends and Associates Trust document. 3. A true and correct copy of all documents and emails associated with your tenure as Trustee of GBU Friends and Associates Trust in regard to monies received or distributed to anyone or any entity, GBU Friends and Associates Trust's existence. employer identification number, communications with the Internal Revenue Service, the Contract for Sale of Contract for Sale of Land, Mineral Rights and Royalties and all other Assets or Monies Received from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or "The Kathryn llouseworth Gibbs lrrcvocablc Trust:· (the "CSL"), Family Settlement Agreement and oil and gas mineral rights (including direct communication with Trio Consulting and Management, LLC, JW Operating Company; Devon Energy. and ConcoPhillips). 4. A true and correct copy or all documents showing the members or GBU Friends and Associates Trust. each member's interest. and the total amount each member has received in distributions since GBU Friends and Associates Trust inception. 5. A true and correct copy of any payment (including cancelled checks, money orders. THE STATE OF TEXAS SUBPOENA C:\USE NO. C:V -I <1-41665 PENT/iX FOU."iDATION VS. Gill/IS. ETAL. -2- 205 money transfers, etc.) you or GBU Friends and Associates Trust paid to Scott Smith. 6. A true and correct copy of any payment (including cancelled checks, money orders, money transfers. etc.) you or (113U Friends and As~ociatcs Trust paid to John Skotnik. 7. A true and correct copy of any payment (including cancelled checks, moncv orders. money transfers, etc.) you or (JBU Friends and Associal~s Trust paid to Beverly Miller. 8. A true and correct copy of any payment (including cancelled checks, money orders, money transfers, etc.) you or GBU Friends and Associates Trust paid to Albert or Pamela Barcroft, or anyone else in their immediate family. 9. A true and correct copy of any payment (including cancelled checks, money orders, money transfers, etc.) you or GBU Friends and Associates Trust paid to lloward Kirk Gibbs or to anyone else in his immediate f'amily. 10. A true and correct copy of any payment (including cancelled checks. money orders. money transfers, etc.) you or CJBU Friends and Associates Trust paid to any member of CJBU Friends and Associates Trust. 11. A true and correct copy of all bank account information and bank statements in which GBU Friends and Associates ·rrust holds any interest, showing all funds GBU Friends and Associates Trust received from the Estate of Bert Gibbs; GWB Family and Friends Trust; Albert Barcrofl; Trio Consulting and Management. LLC; JW Operating Company; Devon Energy; and ConcoPhillips. 12. A true and con·cct copy of all United States federal income tax returns from 2012 to the present 11led by GBU Friends and Associates Trust. 13. A true and correct copy of your personal phone records from .January 1, 2013, to the present. TilE STATE OF TEXAS SUIWOENt\ Ci\liSI' No. CV -14-41665 Pl~"NTEX FOUND:I"J10N IS G/f111S, r~TAI .. -.~· 206 14. A true and correct copy of your resume. 15. A true and correct copy of your professional certificates and qualifications. 16. A true and correct copy of all communications (including such things as cmails. documents, tape recordings. memorandums, etc.) \Vith Albert Barcroft in association with GWB Family and Friends Trust, Pcntex Foundation, Pentex Royalty Trust. GBU Friends and Associates Trust, ami the Estate of Bert Gibbs, since January, I, 2013 in regard to monies received or distributed to anyone or any entity. GBU Friends and Associates Trust's existence, employer identification number, communications with the Internal Revenue Service, the CSL, Family Selllement Agreement, any distributions of attorney fees from the Estate of Bert Gibbs, and the administration of the Estate of Bert Gibbs. 17. A true and correct copy of all communications (including such things as emails, documents. tape recordings. memorandums. etc.) with Beverly Miller, and her attorneys Sharron Cox and Earl Hargrave, concerning UWB Family and Friends ·rrust, Pentcx Foundation. GBU Friends and Associates Trust, and the Estate of Bert Gibbs, since January, 1 2013, in regard to monies received or distributed to anyone or any entity, GBU Friends and Associates Trust's existence, employer identitication number. communications with the Internal Revenue Service. the CSL. Family Settlement Agreement. any distributions of attorney fees li·om the Estate of Bert Gibbs. and the administration of the Estate of Bert Gibbs. 18. A true and correct copy of all communications (including such things as emails, documents, tape recordings, memorandums, etc.) with John Skotnik concerning GWB Family and Friends Trust. Pentcx Foundation. CJBU Friends and Associates Trust, and the Estate of Bert Gibbs since January, I 2008, in regard Lo monies r~ccived or THE STATE OF TEXAS SUBPOEN1\ C.<\ liSE NO. CV -14-41665 PENTEX FOIJNDATJON VS. GIBBS, ETA!.. -4- 207 distributed to anyone or any entity, CJBU Friends and Associates ·rrust's existence. employer identification number. communications with the Internal Revenue Service. the CSL, Family Settlement Agreement, any distributions of attorney lees from the Estate of Bert Gibbs, and the administration ofthe Estate or Bert Gibbs. 19. A true and cm·rect copy of all communications (including such things as emails. documents, tape recordings. memorandums, etc.) with Howard Kirk Gibbs concerning GWB Family and Friends Trust, Pentex Foundation, and GBlJ Friends and Associates Trust since January, I 2013, in regard to monies received or distributed to anyone or any entity, GBU Friends and Associates Trust's existence, employer identification number. communications with the Internal Revenue Service, the CSL Family Settlement Agreement, any distributions of attorney Ices from the Estate or Ben Gibbs. and the administration of the Estate of Bert Gibbs. 20. A true and correct copy of all payments you received (includes checks, cash, gold, silver. any other currency, or payment of any other kind) from GWB Family and Friends Trust GBU Friends and Associates Trust, and Pcntex Foundation. 21. A tnte and correct copy of proof of all legal document::-> which attest to anyone's legal representation of Pcntex Foundation. 22. True and correct copies of all clraftq of the CSL since January L 2005. 23. A true and copy of any assignment of any interest in the CSL from or to CiBU Friends and Associates Trust. 24. A true and correct copy of any documents or cmails associated with the transfer or 57.19% of GWB Family and Friends Trust interest in certain oil and gas mineral interests (held with Trio Consulting and Management, LLC; JW Operating Company; Devon TilE STilT!; OF TEXAS SUBPOENA C.!\ US!' No. CY -14-4 1665 PL-:NTI>X FOUNDATION f'S. G/IWS, !:'TAL -5- 208 Energy; and ConcoPhillips) to GBLJ Friends and Associates Trust. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace Walton, by Counsel, in accordance with Rule 176 of the Texas Rules of Civil Procedure. Issued on September, 2, 2014. LAW OFFICES OF CHRISTY LEE::, P.C. -~----··---··········""'"""" Christy L Lee Texas State Bar No. 24052302 777 Main Street, Suite 600 Fort Worth, 'IX 76102 OfTicc: (817) 504-6075 Fax: (800) 437-7901 clcerZV.c llJ.:i.stv Ice Ia w. CO!l1 ATTORNEY FOR KENNE'Tll CIIBBS AND CANDACE WALTON CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe above and foregoing document was delivered, pursuant to Texas Rules of Civil Procedure and Rule 11 Agreement. to the following parties on this 2nd day of September, 2014: Pcntex Foundation am/ Via fax and email GBU Friends and Associates Trust c/o Scott Smith, Attorney of Record 120 South Crockett Street Sherman, TX 75091-0354 Howard Kirk Gibbs Via mail and email 9929 Crawford Farm Drive F011 Worth, TX 76244 j / -~~:,-,-.- Chnsty L. Lee THE STATE OF TEXAS SUBPOENA CAUSE No. CV -14-41665 P ENTEX FOUNDA T!ON 1-:Y. G 1/lfl,\; HT AI.. -6- 209 CAusE No. cv -14-41665 PENTEX FOUNDATION ) fN THE DISTRICT COURT PLAINTIFF. ) ) VS. ) 336'1i JUDICIAL DISTRICT ) KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) llOWARD KIRK GIBBS, ) DEFENDANTS. ) FANNIN COUNTY. TEXAS THE STATE OF TEXAS SUBPOENA DUCES TECUM IcOR ORAL DEPOSITION TO: Albert Barcroft, legal representative and alter ego of Penlcx Foundation c/o Scott Smith. 120 South Crockett Street. Sherman. ·rexns 75091-0354. YOU ARE COMMANDED by the State ofTexas to appear at 120 South Crockett Street. Sherman, Texas 75091-0354, on the 13th clay or October. 2014, at 10 o'clock a.m .. to attend and give testimony at a deposition. Albert Barcroll is be deposed to his personal knowledge of the following: (I) division and distribution of attorney fees from the Estate of Bert Gibbs in 2008. (2) drafting of the GWB Family and Friends Trust, (3) the Contract for Sale of Contract !'or Sale of Land, Mineral Rights and Royalties and all other Assets or Monies Received tl·om the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or "The Kathryn Houseworth Gibbs Irrevocable Trust." (the "CSL") (4) signing of the Family Settlement Agreement, and (5) Pcntex Royalty Trust !edcral Lax liens. The deposition will be stenographically recorded by tv1erit Court Reporters. 307 \Vest 7th Street. Stc. 1350, Fort Wotth, Texas 76102. ( 817) 336-3042, or such other qualified court reporter as may be designated. Such deposition when taken will be used in evidence upon the trial of this cause. 'fhe deposition will conti nuc from day to day until completed. All counsel and parties are invited to attend and cross-examine as they may deem proper. THE STATE OF TEXt\S SUlli'OENA CAUSE No. CV -I •1-41665 f>ENTEX FouND.n'foN 1·:\". GmtJ5; f.TM, -1- 210 Pursuant to Texas Rules of Civil Procedure No. 176.8. failure by any person without adequate excuse to obey a subpoena upon that person may be deemed a contempt or the court ii'om which the subpoena is issued or a district court in the county in which the subpoena is served. and may be punished by fine or confinement, or both. pun:s rr~:cuM_ YOU ARE FURTHER COMMANDED to produce and permit inspection and copying of documents or tangible things in your custody or control as follows (if not otherwise noted, the date is since the inception of Pentcx Foundation, or November I. 2008, whichever is earlier): I. A tn1e and correct copy of all documents sho\ving that you had legal authority to act as legal representative of Pcntex Foundation. 2. A true and correct copy o[ all documents showing that you had legal authority to act as legal representative of Pcntex Royalty Trust. 3. A true and correct copy of all documents showing that you had legal authority to act as legal representative of Renshaw, Inc. 4. A true and correct copy ol' all emails and documents in ·which you corresponded with the Estate of Bert Gibbs concerning the distribution of attorney fees associated with Kenneth Gibbs, Candace Walton. and Howard Kirk Gibbs. 5. A true and correct copy of any payment (including cancelled checks, money orders. money transfers. etc.) from you. Pentcx Royalty Trust. Pentcx Foundation, Renshaw, Inc., GBU Friends and i\ssociatcs Trust, or any other entity in which you have an interest, paid to Scott Smith. 6. A true and correct copy of any payment (including cancelled checks, money orders. TilE STATE OF TEX/1S SUBI'OEN;\ C'\USE No. CY-l4-4t665 PI:NH:X FOUNDATION I'S. Glll/JS, ETAL. -2- 211 mont~Y transfers, etc.) fi'om you, Pentcx Royalty Trust, Pentex Foundation, Renshaw. Inc., CiBU Friends and Associates ·rrust, or any other entity in which you have an interest, paid to .John Skotnik. 7. A true and correct copy of any payment (including cnncclled checks, money orders. money transfers, etc.) you. Pcntex Royalty Trust, Pentex Foundation. Renshaw, Inc .. G BU Friends and Associates Trust. or any other entity in which you have an inll.:rcst. paid to Beverly Miller. 8. A true and correct copy or any payment (including cancelled checks, money orders. money transfers, etc.) you or Pcntcx Foundation received thJin GWB Family and Friends Trust. 9. A true and correct copy of all your United States federal income tax returns t'rom 2008 to present filed by you. I 0. A true and correct copy of all legal rulings in any lawsuit in which you have been a party since January 1. 2005. 11. A true and cOITcct copies of Pentex Royalty Trust document. 12. A true and correct copies or United States !cderal income tax returns from 2008 to present filed by Pcntex Royalty Trust. 13. A true and correct copy or your personal phone records from January 1, 2013, to the present 14. A true and correct copy of your resume. 15. A true and correct copy of your proCessional ccrtilieates and qualifications to be a kgal representative or an international company. 16. A true and correct copy of all communications (including such things as emails, THE STi\TE 01' TEXAS SULWOENA Ci\lJSENo. CV-14-41665 PEXTC\' FOUXIHI'JO.V r·s. Gill/IS, ET.II.. .} .. 212 documents, tape recordings, memorandums, etc.) with Scott Smith in association with GWB Family and Friends Trust, Pcntex Foundation, Pentex Royally Trust, GBU Friends and Associates Tmst, and the Estate of Bert Gibbs, since January, l. 20 I 3, in regard to monies received or distributed to anyone or any entity. GBU Friends and Associates Trust's existence. employer identi lication number. communications \Vith the Internal Revenue Service, the CSL, Family Settlement Agreement, any distributions of attorney fees from the Estate of Bert Gibbs, and the administration of the Estate of Bert Gibbs. I7. A true and correct copy of all communication (including such things as cmails. documents. tape recordings, memorandums, etc.) with Beverly !Vlillcr. and her attorneys Sharron Cox and Earl Hargrave, concerning GWB Family and Friends Trust, Pentex Foundation, GBU Friends and Associates Trust, and the Estate of Bert Gibbs, since January, 1 2013, in regard to monies received or distributed to anyone or any entity. GBU Friends and Associates Trust existence. employer identitication number, communications with the Internal Revenue Service. the CSI., Family Settlement Agreement. any distributions of attorney fees from the Estate of Bert Gibbs, and the administration of the Estate ofBet1 Gibbs. 18. A true and correct copy of all communications (including such things as cmails. documents, tape recordings, memorandums, etc.) with John Skotnik concerning GWB Family and Friends Trust. Pentex Foundation. GBU Friends and Associates Trust. and the Estate of Bert Gibbs since January, l 2008, in regard to monies received or distributed to anyone or any entity, CiBU Friends nnd Associutcs Trust's existence. employer identification number, communications w·ith the Internal Revenue Service, the CSL, Family Settlement Agreement. any distributions of attorney fees from the Estate of TilE STATE OF TEX1\S SUBPOENA C t\\JSE No. CV -14-41665 PE.VT£X F , 293 (Tex. App.- Corpus Christi 2012) For purposes of this provision, a "major transaction" is a transaction evidenced by a written agreement under which a person pays or receives, or is obligated to pay or entitled to receive, consideration with an aggregate stated value equal to or greater than one million. 4. Generally, an action arising from a major transaction must be brought in a particular county if the party against whom the action is brought has agreed in writing that a suit arising from the transaction may be brought in that county. TEX. CIV. PRAC. & REM. CODE§ 15.020(b). Notwithstanding any other venue provision, an action arising from a major transaction may not be brought in a county if (1) the party bringing the action has agreed in writing that an action RESPONSE TO MOTION TO TRANSFER VENUE ... PAGE 2 222 ..._,. arising from the transaction may not be brought in that county, and the action may be brought in another Texas county or in another jurisdiction; or (2) the party bringing the action has agreed in writing that an action arising from the transaction must be brought in another Texas county or in another jurisdiction, and the action may be brought in that other county, under this "major transaction" provision or otherwise, or in the other jurisdiction. TEX. CIV. PRAC. & REM. CODE§ 15.020. Section 15.020 is one ofthe mandatory venue provisions contained in chapter 15 of the Civil Practice and Remedies Code and is therefore enforceable by mandamus. Tex. Civ. Prac. & Rem. Code§ 15.0642; Shamoun,
398 S.W.3d 293-294. WHEREFORE, Pentex Foundation, Plaintiff, and Joshua Unger, Trustee of the GBU Friends and Associates Trust, Intervenor request that the Court deny the motion to transfer venue, and other and further relief to which movants may be entitled. State Bar Number I 8688900 120 South Crockett Street P.O. Box 354 Sherman, Texas 75091-0354 e-mail smithlaw@airmail.net Facsimile (903) 870-1446 Telephone (903) 868-8686 RESPONSE TO MOTION TO TRANSFER VENUE ... PAGE 3 223 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing document was served, by certified mail, return receipt requested number 7009 2250 0000 2311 4187 toChristy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, ProSe, at 4360 Western Center Blvd., S · t. orth, Texas 76137, on this the 3'd day of September, 2014. RESPONSE TO MOTION TO TRANSFER VENUE ... PAGE 4 224 o.nton Coun11 Cynth,_ Mitchell County Ctltftc o.nton, TX 71201 h11Crumtftt Numbtr: 200U14U AI Reconitcl On: Miry 24, 2001 Mlec
May, 889 S.W.2d at 276tiOn '*•In wt'odl -.ell h Sa• RenUII 0< 11• r;J lht OMCfll)t(l REAl PROPERTY ~ al CIOIO< 01 rae. 11 nvtlo:l- ..-b(;Nbllo ~ ~ '"" Fne lnl'onnatlon: RKotd and R.wtn To: ~~ Numbef ~I.U3 Reeetpt NUI'Iltlef I i6064 Al BARCFtOFT Recorded DalaiTlme May 2-4. 200S 11 4-4A PO BOX 1&8 TRENTON TX 7~90 U1611 S'*' passed to Gibbs. or any of the indi\·iduals referred to collecuvely us "Gibbs" in this agreement, li·om any source involving Ben Hughes G1bbs. Kathryn G. Uihhs, "'The Kathryn Houseworth Gibbs Irrevocable (: . 7 I{I))Jiun IUld Ol"c• A>~CIS Jndloi Mon~• 232 .. ;1!_;·.6~,e. c/t.' F 7 c(CJP, O· ~x: t?P Tt€-' . II. When a movant seeks to take testimony of a corporate president or other otlicial at the highest level of corporate management, and that official moves for a protective order to prohibit this, the trial court should first determine whether the movant has shown good cause that the official has unique or superior personal knowledge of discoverable information. In re Burlington Northern and Santa Fe Railway Company,
99 S.W.3d 323(Tex.App.-Fort Worth 2003). 12. A party seeking to prevent the testimony of an apex-level witness must move for protection and must file the corporate official's affidavit denying any knowledge of relevant facts. Crown Central Petroleum Corporation and Crown Central Pipe Line Company v. The Honorable Carolyn Garcia, Judge,
Re.\pondent, 904 S.W.2d at 128; In re Alcatel USA, Inc.,
11 S.W.3d 173(Tex. 2000). Carrasco. DEFENDANTS' MUrtON TO COMPEl. APPI:t\RANCE AND TESTIMONY OF ANGU .1.1 CARRASCO AT HEARINU ON SEPTEMBER 30,2014 CAUSENO. CV-14-41665 f'lo'.\'IFX Fm ·.\IJ..fl'f()\' 1'. GIIJHS, /J,.I/ __ -4- 244 13. Federal Rule 30 addresses apex-level testimony. Courts follow a three- (3-) to five- (5-) prong test as to whether a designated witness qualifies as a managing agent, including whether the individual (I) possesses general powers to exercise judgment and discretion in corporate matters; (2) can be reasonably relied on to give testimony; (3) can be expected to identify with the interests of the corporation; (4) is the highest authority in the organization; and (5) is empowered to provide services and decisions concerning matters involved in the litigation. Ill. ARGlJMENTS. 14. Ken and Candy have the right to face Pentex's established presence in this case. This is a basic tenant in judicial proceedings. However, Pentex refused for months to name its representatives regarding the lawsuit. Two and a half (2 Y2) months following Pentex 's Original Pentex, Scott still denied being able to recall who provided a substantial retainer fee to his firm. 15. Pentex' s consistent delays in naming its representative regarding the lawsuit points to a systematic attempt to stall proceedings until such time that the true responsible parties could be protected and safeguarded from the production of discovery and the necessity to answer to the Court for pursuing frivolous litigation. Thus far, Pentex has consistently maintained that this assumption is incorrect. Pentcx must therefore clarify the situation by allowing Ms. Carrasco to testify to the facts, or the lawsuit should be dismissed. 16. The law permits Ken and Candy to question Ms. Carrasco, who holds not one (I), not two (2), but three-- 3 -influential and decisive positions within Pentex. It is reasonable to believe that at least one of these three (3) high-ranking officials of an organization would notice a lawsuit alleging in excess of $1 million in damages to the organization. And it is also DI'FJ-:NIJANTS' MOTION TO COMPEl. APPEARANCF AND T/-:STIMONY OF ANl;ELI.I CARRASCO AT llLARIN(; ON SI:PTIJv11ll:R 30. 2014 CAlJSI' No. CV-14-41665 Puvn;x Fm:.'l·n.-mo.v 1. GIIJIIS. rr.11 .. -5- 245 equally reasonable to expect that a lawsuit alleging damages in excess of $1 million would definitely draw the attention of a single individual who serves in all three (3) capacities within an organization. In other words, if Ms. Carrasco is really President, Director, and Chair of Pentex, logically she should know ofPentex's suit against Ken and Candy. 17. According to Scott's Motion to Quash, Pentex has no control over Ms. Carrasco's actions. Ken and Candy enjoyed a chuckle or two over the idea that a president/director/chairman is not answerable to the very organization which the president/director/chair serves. As Scott is well aware, Pentex can remove its President/ Director/Chairman on its own accord. Pentex can also require its President/Director/Chairman to appear in lawsuits instigated by Pentex itself. 18. Under the standards of apex depositions and testimony, Ms. Carrasco meets all five (5) criteria. Ms. Carrasco possesses general powers to exercise judgment and discretion in the corporate matter: as President Director, and Chairman, Ms. Carrasco can be called on to testify concerning facts related to administrative decisions concerning Pentex; Ms. Carrasco can be relied on to identify with the interest of Pentex; Ms. Carrasco is allegedly the highest authority in Pentex: and. if Ms. Carrasco is truly President, Director, and Chairman of Pentex, her general responsibilities to Pcntcx would presumably involve decisions concerning areas of administration such as litigation. 19. Pentex's contention that service through him to Ms. Carrasco was conducted incorrectly. This is a ridiculous assertion. Pursuant to Texas Rules of Civil Procedure, service to a party of an organization is appropriately effected through service to the organization's counsel. Scott is allegedly the attorney for the entity - Pentex - and therefore providing him DUTNDt\NlS' MoTION TO COM I'l-l. API'Lt\Rt\NCI' i\ND TFSTIMONY 01' ANtii'LLI Ct\RRt\Sl'O t\T HI:ARIN(i ON SI:PTFMBI:R 30, 2014 Ct\USENO. CV-14-41665 PtNTEX F'
Respondent, 904 S.W.2d at 128 ; In re Alcatel USA, Inc., II S.WJd 173 (Tex. 2000). Scott did not provide an affidavit because Scott has never spoken to Ms. Carrasco, Ms. Carrasco did not sign the Board Minutes, and she has no knowledge of this lawsuit. Scott continues to perpetrate a fraud on this Court, because, as he stated during the July 31, 2014, hearing in Tarrant County, he takes any client who can pay him a retainer. The fact remains that he must have authority from the entity to tile a lawsuit. He did not obtain this, as no authority exists. Ms. Carrasco, the President, Director, and Chairman, is the only person who can verify if this is a lawsuit which Pentex provided authority to pursue. DllTND/\NTS' MOTION TO COMPU. AI'I'Li\R/\NCI' liND Ti-:STIMONY OF ANCiU .LI CARRASCO 1\l HI:ARIN(i ON SJ:l'TI:Mill'l{ 30, 2014 CAliSE No. CV-14-41665 Pt~Nl'lcXFOUN/JAl'IOl'l 1·. GIHBS, /~TAl.. -9- 249 28. Scott did not rece1ve any funds from Pentex to pursue this lawsuit. He has received money only from Albert Barcroft, Pentex Royalty Trust, and GBU Friends and Associates Trust. Pentex has not paid Scott one dime for pursuing this lawsuit. 29. Ken and Candy arc entitled to face their accuser, in this case, Pentex, and to question those with the authority to represent Pentex. The law is clear in that Ken and Candy are allowed to ask for Ms. Carrasco's testimony, as she meets the five- (5-) pronged test of managing agent of Pentex. As President/Director/Chairman of Pentex. Ms. Carrasco has the unique opportunity to provide highly relevant infmmation concerning this matter and therefore must show herself to the Court and respond to examination concerning the legitimacy of the suit. IV. PRAYER FOR RELIEF. Candy and Ken therefore respectfully pray that this Court: 30. Compel the appearance and testimony of Angelli Carrasco, and her production of relevant corporate documents attesting to Pentex's authority to file this lawsuit, at the hearing for the Motion to Show Authority, to be held on September 30, 2014; or, 31. In the alternative, stay the proceedings until such time that Angelli Carrasco can attend a hearing on the matter; and 32. Enter all other Orders and further relief, legal and equitable, that the Court deems appropriate in this matter. DEITNDANTS' MOTION TO COMI'I'I. API'J·:,\RANCI: AND T!:STIMONY OF ANOJ:I.I.I C ARRASl'O AT HFAR IN(i ON S EPTFMBFR 30, 20 14 CAliSLNO. CV-14-41665 PI~NT!:X FOUNDAI'Iot•: 1". GIBBS, !:TAL -10- 250 Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C. Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Ste. 600 Fort Worth, Texas 76102 (817) 504-6075 (800) 437-7901 -Fax clee(c/)christyleclaw.com ATTORNEY FOR PLAINTIFFS FIAT The above and foregoing Defendants' Motion to Compel Appearance and Testimony of Angelli Carrasco at Hearing on September 30, 2014, is approved. The Motion shall be heard by the Court on the day of , 2014, at _ _ _ __ o'clock, .m. Presiding Judge or Clerk of the Court DI'ITNDANTS' MOTION TO 0JMI'I"I. Al'l'li\IU\NlT AND TESTIMONY OF AN(ii:I.Ll CARRASl'O AT Ht:ARIN(i ON SI'I'TJ:MBI'R 30,2014 CALJSL No. CV-14-41665 PEN7EX FOIJNDAYWA' 1'. GIBBS, !:.TAL -II- 251 CERTIFICATE OF SERVICE I certify that a true and correct copy of the above Defendants' Motion to Compel Appearance and Testimony of Angelli Carrasco at the Hearing on September 30, 2014, was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this 15th date of September, 2014: Via: Howard Kirk Gibbs Mail 4360 Western Center Blvd., No. 205 Email: hkgibbs@gmail.com Fort Worth, TX 76157 Pentex Foundation, and Email: smithlaw@airmail.net GBU Friends and Associates Trust Fax: c/o Scott Smith, Attorney of Record I 20 South Crockett Street Sherman, TX 75091-0354 Christy L. Lee DEFENDANTS' MOTION TO COMPLL APPLARANCI: AND TESTIMONY OF AN·· SCOTT SMITH ATTORNEY AND COUNSELOR AT LAW E-MAIL: smithlaw@airmail.net 120 SOUTH CROCKETI STREET fACSIMILE: (903) 870-1446 P.O. Box354 TELEPHONE: (903) 868-8686 SHERMAN, TEXAS 75091-0354 August 5, 2014 Honorable Pat Ferchill Judge, Tarrant County Probate Court Number Two The Old Courthouse 100 W. Weatherford, Room 220A Fort Worth, Texas 76196 RE: Candace Walton, et al. v. Beverly Miller, Trustee, et al.; Cause Number 2005-0000126-2-D in the Probate Court Number Two of Tarrant County, Texas. Dear Judge Ferchill: As you may recall, I appeared for a special appearance on behalf ofPentex Foundation on July 31, 2014. In connection therewith, I testified regarding a motion to show my authority to represent Pentex Foundation. At that time, I was unsure of the source of payment of my initial retainer. I have reviewed my records and the payments were each in the sum of$5,000 from Pentex Royalty Trust and Mr. Albert Barcroft. I am also attaching a copy of a resolution from Pentex Foundation regarding my engagement as their counsel. I thank you for your attention to this matter. TSS/bhs cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, Pro Se. 257 Page I MINUTES OF THE BOARD OF DIRECTORS' l\'IEETING OF PENTEX FOUNDATION A meeting of the Foundation Council ofPENTEX FOUNDATION, organized according to the laws oftl1e Republic of Panama and registered to microjacket twenty nine thousand five hundred and thirty six (29536), document one million three hundred fifty four thousand eight hundred ninety three (1354893) of the Mercantile Section of the Public Registry, it was celebrated in the city ofPanmna, Republic ofPanmna on the fourth day (4~~>) of August ofthc year two thousand and fourteen (2014) at 10 o'clock in the morning (10 a.m.). It was a meeting of nil the known Directors: Mrs. ANGELLI MARTHA POLANCO CARRASCO, Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO and FERNANDO ELIAS BARAHONA PEREZ who had prior waived the call. The Chairman was Mrs. ANGELLI MARTHA POLANCO CARRASCO, and the Secretary Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO, both as holders of said positions. The quomm hm•ing been confirmed, the Chairman opened the meeting stating that a question has emergeti as to the authority of Mario Guilermo Hurtarte Arrivillaga, the Managing Director, Legal Aflairs ofPENTEX FOUNDATION, to hire legal counsel in the United States for affairs requiring liligation. Specifically, the hiring of one Scott Smith, Attorney at Law, to represent PENTEX FOUNDATION in ongoing litigation involving PENTEX FOUNDATION in Fannin County, Texas, U.S.A. Upon motion presented, duly seconded, the following resohltion was unanimously approved: IT IS HEREBY RESOLVED: That the Board ofPENTEX FOUNDATION verifies that Mario Guilermo Hurtarte Arrivillaga is authorized to hire legal counsel on behnlfofPENTEX FOUNDATION to litigate any necessary legal matters tbat might arise in the United States. Further, it is resolved that Mario Guilermo HurtarteArrivillagn, as Manuging Director, Legal Affairs ofPENTEX FOUNDATION, was authorized to sign the "AGREEMENT FOR LEGAL SERVICES" hiring Scott Smith, Attorney At Law, to represent and provide legal services to PENTEX FOUNDATION on May 5, 2014, in Cause Number CV-14-41665 in Fannin County, Te:ws, U.S.A. Further, by this resolution, PENTEX FOUNDATION conlirms Scott Smith, Texas State Bnr Number 18688900, as its attorney in Cause Number CV-14-41665 in Fannin County, Texas, U.S.A.; and, that Scott Smith hns represented PENTEX FOUNDATION in Cause Number CV-14-41665 in Fnnnin County, Texns, U.S.A., since May 5, 2014. By this resolution, it is further resolved that Mnrio Guilermo HurtarteArrh•illaga, the Managing Director, Legal Affairs ofPENTEX FOUNDATION, is authorized until further notice to make any further necessary changes In legol representation for PENTEX FOUNDATION in any legal proceedings in the United States, and to make any decisions afl'ecting PENTEX FOUNDATION in any oithose legal matters. The authority granted M11rio Guilermo Hurtarte Arrivillnga is concurrent with, and does not limit or change, the authority granted Dmmy R. Unger through a Limited Power of Attorney from PENTEX FOUNDATION in a preceding resolution. l11ere not being any other matter to attend the meeting was adjourned at ele1•en (II :00) a.m. on the above mentioned date. The President, ANGELLI MARTHA POLANCO CARRASCO, 258 The Secretary, CARLOS ALBERTO RIVADENEJRA ESCUDERO. The undersigned, Secretary of the foundation named PENT EX FOUNDATION by Ihis means ccrtilies thnt the above minutes is a true copy of its original. rt agrees with each and every one of its parts as U1e one that remains in the Book of Minutes of the foundation. The Secretory, CARLOS ALBERTO RIVADENEIRA ESCUDERO. Exhibit Page _] of 259 ,• ,. PENTEX FOUNDATION PLAINTIFF. vs. KENNETH VERN GIBBS; AND CANDACE GIBBS WALTON; AND HOWARD KIRK GIBBS, DEfENDANTS. DEFENDANTS' MOTION TO COMPEL APPEARANCEAND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 Come now, Defendants Kenneth "Ken" Vern Gibbs and Candace "Candy'' Walton. through their Counsel of Record. Law Offices of Christy Lee, P.C., and respectfully move the Court to compel the appearance and testimony of Albert Barcroft, Pentex Foundation's (''Pentex") Legal Representative, at the hearing for the Motion to Show Authority, which is scheduled in this matter for September 30, 2014. For approximately two and a half (2 Yz) months after the initiation of the lawsuit, Pentex claimed that no representative for this lawsuit had been decided. This was - and continues to be - a shocking claim, especially since, dating back to the creation of Pentex in 2008, Albert has proclaimed himself the Legal Representative of Pentex. As recently as September 3, 2014, Albert was still professing to be an agent tor Pentex. Evidence proves, and Ken and Candy know. that Albert is the alter ego of Pentex: Pentex Royalty Trust: Renhaw, Inc.; and GBU Friends and Associates Trust ("GBU Trust"); all of which are major players in this Cause. The evidence obtained thus far during this lawsuit shows that Albert possesses exclusive information pertinent to this suit. Albert's testimony, DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALI3ER'f BARCROFT AT HEARING ON SEPTEMBER 30, 2014 CAUSE No. CV -14-41665 PENTF.X FOUNDATION 1'. GIBBS, ETAI.. -1- 260 including the declaration of the authorized Pentex representative, is paramount to achieving justice in this matter. Albert is the touchstone for this matter. I. FACTS. 1. On August 28, 2014, Ken and Candy served Albert with a State of Texas Subpoena, requiring his appearance at the hearing for the Motion to Show Authority scheduled in this matter for September 30, 2014. See Exhibit A. The Subpoena was issued as a result of Ken and Candy's communications with Albert dating back to 2005 and their repeated unsuccessful inquiries to Pentex as to its designated Representative for this lawsuit. 2. Ken and Candy perceive the Subpoena as critical to their defense, because Albert possesses specific knowledge as to the allegations in Pentex's Original Petition. Since Pentex's establishment in 2008, Albert has consistently represented himself both in private communications and publicly as Pentex's Legal Representative. The Subpoena was served to Scott Smith, who, since the beginning of his legal services to Pentex. consistently denied that Albert is his client, but also consistently admitted that he and Albert spoke numerous times about the facts related to this case. 3. It is Ken and Candy's conviction, and there is a great deal of evidence to suggest, that Albert is the party responsible for this lawsuit. Currently pending in this matter is Ken and Candy's Motion for Leave of Court to File Third-Party Petition and Alter Ego concerning Albert's involvement with Pentex. 4. Albert's connection to Pentex is well-documented. According to formation 1 records. Pentex was established on May 21, 2008 - about three (3) years following the 1 Pentex was not registered in Panama until June 26, 2014. DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMHER 30,2014 PENTEX FOUNDATION 1'. GiBBS, fTA/.. 261 2 execution of the Contract for Sale of Land ("the CSL"), which Albert illegally drafted, and which concerned assets of the Estate of Belt Hughes Gibbs ("the Estate"); and about four (4) months prior to the execution of the Family Settlement Agreement ("FSA"), which specified the terms under which certain parties would receive their distributions from the Estate, including the creation of an entity to receive the distributions. Pentex alluded to the CSL numerous times in its Original Petition, while Albert was a party to the FSA, along with Defendants Howard Kirk Gibbs, Ken, and Candy. At the time of Pentex's creation, Albert confided to Ken and Candy that he created Pentex to avoid seizure of his assets by the I.R.S., and he assigned Pentex his interest in GWB Family and Friends Trust ("GWB Trust"), the entity established to receive distributions from the Estate. 5. Through discovery, it has been determined that, in late 2008, Albert provided all communications with the Estate concerning any and all attorney fee distributions for Ken and Candy. Albert signed all the documents associated with these distributions and distributions to GWB Trust. Albert signed all these documents as the Legal Representative for Pentex. From the moment Pentex was established, Albert portrayed to everyone, including Ken and Candy, that he was the Legal Representative tor the entity. 6. By 2013, as a result of Ken and Candy's inquiries concerning its administration, communications among GWB Trust members had irrevocably broken down. On November 25, 2013, acting as Legal Representative of both Pentex and Renhaw, Inc., which he described as a Panamanian, wholly-owned subsidiary of Pentex, Albert issued to the Beneficiaries a letter entitled ·'Formal Notice of Revocation of GWB Family and Friends Trust and split of assets 2 It is an undisputed fact that Albert drafted the CSL. Albert is not a lawyer and was practicing law without a license. Albert threatened Ken and Candy not to obtain legal counsel to review the CSL prior to signing it. DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 PE\"11:'.\' FOiiNJJATION 1'. GJJJ/JS, 1:1' ill.. 262 pursuant to original contract between the parties." In the letter, Albert identified himself as "Agent" for Pentex, and its affiliates, Pentex Royalty Trust and Renhaw, Inc. See Exhibit B. 7. On November 28, 2013, upon receiving instructions from Albert as Legal Representative of Pentex, GWB Trust Trustee Beverly Miller transferred 57.19% interest in GWB Trust to GBU Trust. 8. On December 18, 2013, Albert sent a letter to Counsel for the Estate, which was the originating entity of the assets distributed to GWB Trust. Albert signed the letter in his "personal capacity, and as legal representative for PENTEX FOUNDATION, Pentex Royalty Trust, and Renhaw, Inc." The letter contained Albert's certification and affirmation under penalty of perjury that he was "the legal representative for Pentex Royalty Trust, PENTEX FOUNDATION, and Renhaw, Inc.; and as such, [he had] the authority to make all legal decisions on their behalf. [~8 USC § 1746(1 )]." See Exhibit C. 9. Approximately five (5) months ago, Albert consulted RayAnswers, Attorney, an on-line "Estate Law Specialist." The consultation consisted of Albert's disclosure of confidential information, including the names of Ken, Candy, and Pentex. 3 He provided details concerning the CSL and the FSA, and asked for an assessment of the situation as he promoted it. See Exhibit D. 10. Pentex filed the current suit on April l, 2014. Despite Ken and Candy's repeated requests for full disclosure as to the identity of the Pentex representative who authorized filing the suit, no such information was forthcoming from Pentex, immediately or otherwise. John -' While no doubt the consultation should have remained confidential, in fact, the posting is available to the public and was found on various dates, including September II, 2014, at the following web address: h!JQ://"'fW't{.justansw_\;_r:,_g_gm/.est&t~!!!.'!'d8d±I . Ill. ARGUMENTS. 23. Ken and Candy have the right to face Pentex's established presence in this case. This is a basic tenant in judicial proceedings. However, Pentex refused for months to name its representatives regarding the lawsuit. Two and a half (2 liz) months following Pentex's Original Pentex, Scott still denied being able to recall who provided a substantial retainer fee to his firm. 24. Ken and Candy believe that Pentex's consistent delays in naming its representative regarding the lawsuit points to a systematic attempt to stall proceedings until such time that the true responsible parties could be protected and safeguarded from the production of discovery and the necessity to answer to the Court for pursuing frivolous litigation. Thus far, Pentex has consistently maintained that this assumption is incorrect, while DEFENDANT'S MOTION TO COMPEl. APPEARIINCI' AND T!-SriMONY OF ALBUn BARCROFT AT HEARING ON SI:l'TLMBER 30,2014 PENTEX FOUNOATJO;Ii 1'. GJJJBS, !:TAL 267 also maintaining that Alber~ is the sole point of contact for Pentex regarding this lawsuit. Pentex must therefore clarify the situation by allowing Albert Barcroft to testify to the facts, or the lawsuit should be dismissed. 25. The law permits Ken and Candy to question Albert who. since 2008, has consistently characterized himself as Legal Representative for Pentex. Scott admitted that he has spoken with Albert multiple times concerning this lawsuit, while Scott has provided no other names of parties with whom he has engaged in discussions concerning Pentex. Scott admitted that he accepted a $5,000 retainer fee from Albert. Although in August 2014, Danny Unger was named to be Pentex's representative concerning this suit, Danny's specific interest in the matter has never been clarified. Danny Unger's name cropped up briefly in Pentex's disclosure as party who is generally familiar with "all of the transactions involving the Barcroft interest and its successiOn. Scott also denied that Angelli Carrasco. Pentex's President/Director/Chairman, is responsible for this suit. ln other words, Albert is apparently the only individual from Pentex who is actively pursuing this suit. 26. The argument that Albert is too ill to travel is highly suspect. In the past, Albert allegedly confessed that he faked a heart attack to avoid legal proceedings when his yacht sank off the coast of Belize. Albert's September 3, 2014, physician's statement did not state that Albert was under the physician's immediate care - only that there was a file in the medical office. At this time, Albert is believed to be traveling in Texas. 5 How else can Pentex explain 5 Ken and Candy have cause to believe that Albert is currently traveling in the United States, although his residence is in Guatemala, where he fled in 2008 to escape collection efforts by the Internal Revenue Service ("the I.R.S."). In 2013, Albert provided written instructions to relevant parties that he could not be served official documents in Guatemala, since mail service is notoriously poor. His written communications to Ken and Candy failed to contain return addresses. Because of the difficulty of communicating with Albert, on August 20, 2014, Tarrant County Probate Court No. 2 ordered Substitute Service of Citation to him. Cause No. 2005-0000126-2-D, Walton and DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SFI''I'FMBFR 30, 2014 CAlJSI'NO. CV-14-41665 8ENn;x FOUNDA1WN V. GIBBS, Cf'AL -9- 26 how Scott easily produced an unsworn Affidavit from Albe1i, while Scott claimed that an Affidavit from Pentex's President in Panama, Angelli Carrasco, was not obtainable due to logistical difficulties? 27. Scott's protestations to the contrary aside, the reason for Scott's ability to produce an Affidavit from Albert is that Albert was the Pentex representative who retained Scott. Although Scott claimed not to be able to recall who retained him, he eventually forwarded a letter to Judge Ferchill affirming that Albert provided him a retainer of $5,000 for this matter. Pentex Royalty Trust provided another $5,000. What is Pentex Royalty Trust? Albert designed this entity specifically designed to receive GWB Trust funds, then funnel them on to Pentex. As the name indicates, Pentex Royalty Trust is virtually the same entity as Pentex. And both are alter egos for Albert. 28. Scott's lack of recall before the Tarrant County Probate Court indicates a distinct effort to protect Albert from having to testify. The August 5, 2014, disclosure that Albert and Pentex Royalty Trust paid Pentex's retainer confirmed Ken and Candy's conviction that it has been Albert who has pursued the suit all along. Albert clearly felt that by hiding Pentex's representative's identity from Ken and Candy, that representative would be sheltered from the suit individually. This should not be the case. 29. The argument that Pentex does not control Albert is ludicrous - and may paradoxically be somewhat a skewed truth. In all likelihood, in as far as one alter ego does not control the other, Pentcx docs not control Albert, and Albert does not control Pentex. They are one and the same. Gibbs vs. Miller. eta/. ("the Tarrant County Cause"). DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 CAUSE NO. CV -14-41 26f:JNTEX FOUNDATION V. GIBBS, t'TAL. -1 30. Albert's appearance at the Motion to Show Authority is necessary to provide testimony as to his role regarding the lawsuit. From the beginning of the lawsuit, Counsel for Pentex has lagged in producing the individual responsible for the suit. And from the beginning of the lawsuit Albert's name has repeatedly emerged as the crux around which this lawsuit revolves. If Albert does not present testimony, Ken and Candy will be irrevocably harmed, as they will be unable to cross-examine the party whose manipulations of alter egos has resulted in this suit. Currently Pentex, a.k.a. Albert, is attempting to block Albert's testimony, so that the true party in this case is sheltered and protected. Albert's past acts show him to be an individual openly contemptuous of governmental authority. Albert should not be allowed, then, to use that governmental authority vicariously, through Pentex, to harass Ken and Candy by the pursuit of frivolous, meaningless legal action. IV. PRAYER FOR RELIEF. Candy and Ken therefore respectfully pray that this Court: 31. Compel the appearance and testimony of Albert Barcroft, and his production of relevant corporate documents attesting to Pentex's authority to file this lawsuit, at the hearing for the Motion to Show Authority, to be held on September 30, 2014; or, 32. In the alternative, stay the proceedings until such time that Albert Barcroft can attend a hearing on the matter; and 33. Enter all other Orders and further relief, legal and equitable, that the Court deems appropriate in this matter. DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 CAUSE No. CV -14-41665 2 ?{fNTt:X FOUN/JAT/DN 1". GII3BS; £TAL -11- Respectfully submitted. LAW OFFICES OF CHRISTY LEE, P.C. ,' / 1·(.,.:'/ r • } .,. -· 1,_, ·/- ..<::~~ Christy L. Lee Texas State Bar 1\o. 24052302 777 Main Strc~t Ste. 600 Fort Worth. Texas 76102 (R 17) 504-6075 (800) 437-7901- Fax _ _ ..,_ ______ '-"-'-'-== ckc'ci'christvkclaw.com ATTORNEY FOR PLAINTIFFS The ahow and f(m:going Motion to Cnmpd ;\ppcarancc and Testimony of Albert Ban.:roft at I karing nn September 30. 20 I··L is approved. The tvlotion shall be heard by the Court on the -·-day or._ . ---··· _ . 2014. at------··-----·--- o'clock . .m. Presiding Judge or Clerk of the Court Dt:FEI\IMN t'S MOTION TO COMI't't. 1\PPI:;\R/\Nl 'I' AN!J lt:S'i'IMO"JY OF AtnHn B:\ltctH>FT ,\l 1-11'/\RlNc; 1 >"J St:t"lHvllli'R 30.2014 Ct\l!SI' Nl>. CV-14-41665 P!i\TI:'X Ft Jt :_,·/uTJ(p; 1·. Gmus. r.r.-11 .. -l 271 Respectfully submitted, LAW OFFICES OF CHRISTY LEE, P.C. Christy L. Lee Texas State Bar No. 24052302 777 Main Street, Ste. 600 Fort Worth, Texas 76102 (817) 504-6075 (800) 437-7901 -Fax clce@christyleelaw.com ATTORNEY FOR PLAINTIFFS The above and foregoing Motion to Compel Appearance and Testimony of Albert Barcroft at Hearing on September 30, 2014, is approved. The Motion shall be heard by the Court on the _ _ _ day of , 2014, at o'clock, .m. DEFENDANT'S MOTION TO COMPIJ. APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SU'TEMBF.R 30, 2014 CALJSENO. CV-14-41 2 ]'};.NT!:X FOUNDATION V. GIBBS, ETAL. CERTIFICATE OF SERVICE I certify that a true and correct copy of the above Defendants' Motion to Compel Appearance and Testimony of Albert Barcroft at the Hearing on September 30, 2014, was delivered, pursuant to Texas Rules of Civil Procedure, to the following parties on this ~ date of September, 2014: Via: Howard Kirk Gibbs Mail 4360 Western Center Blvd., No. 205 Email: hkgibbs@gmail.com Fort Worth, TX 76157 Pentex Foundation, and Email: smithlaw@airmail.net GBU Friends and Associates Trust Fax: c/o Scott Smith, Attorney of Record 120 South Crockett Street Sherman, TX 75091-0354 Christy L. Lee DEFENDANT'S MOTION TO COMPEL APPEARANCE AND TESTIMONY OF ALBERT BARCROFT AT HEARING ON SEPTEMBER 30,2014 CAUSE No. CV -14-41665 2 7~EN'/EX FOUNDA710N 1'. GIBBS, ET Al.. -1 CAUSE No. CV -14-41665 PE\!TEX FOUNDATION lN TilE DISTRICT COURT PLA !:":TIFF. ) ) VS. ) 336 111 JUDICIAL DISTI~ICT ) KENNETH VERN GIBBS; AND ) CANDACE GIBBS WALTON; AND ) HOWARD KIRK G1£3BS, ) DEFENDANTS. ) FANNIN COUNTY. TEXAS THE STATE OF TEXAS SUBPOENA DUCES TECUM FOR ORAL DEPOSITION TO: Albett Barcroft, legal representative and alter ego of Pentex Foundation c/o Scott Smith, 120 South Crockett Street, Shcrmun. Texas 75091-03 54. YOU ARE COMtvlANDED by the Stale ofTexas to appear ntl20 South Crockett Street, Shennan. Texas 75091-0354. on the 13th day of October, 2014. at 10 o'clock a.m., to attend and give testimony at a deposition. Albert Barcroft is be deposed to his personal knowledge of the lollowing: (I) division and distribution or attorney fees 11-mn the Estate of Bert Gibbs in 2008. (2) drafting of the GWB Family and Friends Trust, (3) the Contract for Sale of Contract for Sale or Land, Mineral Rights and Royalties and all other Assets or tvlonies Received from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or "The Kathryn Houseworth Gibbs Irrevocable Trust." (the "CSL") (4) signing of the Family Settlement Agreement. and (5) Pentcx Royalty Trust federal Lax liens. Th~ deposition will be stenographically recorded by Merit Comt Reporters, 307 West 7th Street, Ste. 1350, Fort Worth, Texas 76102, ( 817) 336-3042, or such other qualified coUJt reporter as may be designated. Such deposition when taken will be used in evidence upon the trial of this cause. The deposition will conti nuc li·om day to day until completed. All counsel and parties are invited to attend and cross-examine as they may deem proper. nm STATE 01' TEXAS SIJIWOENA l'F:NT£X FOUNDATION VS. Cif8BS, ET AI.. 274 ENFORCEMENT OF SUBPOE~(.l Pursuant to Texas Rules of Civil Procedure No. 176.8, failure by any person without adequate excuse to obey a subpoena upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by line or confinement. or both. YOU ARE FURTHER COMMANDED to produce and permit inspection and copying of documents or tangible things in your custody or control as follows (if not otherwise noted, the date is since the inception of Pentcx Foundation, or November 1. 2008, whichever is earlier): 1. A true and correct copy of all documents showing that you had legal authority to act as legal representative of Pentex Foundation. 2. A true and correct copy of all documents showing that you had legal authority to act as legal representative of Pentcx Royalty Trust. 3. A ttue and correct copy of all documents showing that you had legal authority to act as legal representative of Renshaw, Inc. 4. A true and correct copy of all cmails and documents in which you corresponded with the Estate of Bert Gibbs concerning the distribution of attorney fees associated with Kenneth Gibbs, Candace Walton, and Howard Kirk Gibbs. 5. A true and correct copy of any payment (including cancelled checks, money orders. money transfers. etc.) from you, Pcntex Royally Trust, Pcntex Foundation, Renshaw, Inc., GBU Friends and Associates Trust, or any other entity in which you have an interest, paid to Scott Smith. 6. A true and correct copy of any payment (including cancelled checks, mom:y orders, THE STAn: OF TEXAS SUBPOENA CAliSE NO. CV -14-41665 Pr:NTE:< FOUNDATION VS. CiiiJBS, £T,l/.. -2- 275 Page ,;) of money transfers, etc.) from you, Pentcx Royalty Trust, Pcntcx Foundation, Renshaw, lnc .. GBU Friends and Associates Trust, or any other entity in which you have an interest paid to John Skolnik. 7. A true and correct copy of any payment (including cancelled checks, money orders, money transfers, etc.) you. Pentex Royally Trust, Pcntcx Foundation, Renshaw. Inc., GBU Friends and A:-;sociatcs Trust, or any other entity in which you have an interest. paid to Beverly Miller. 8. A true and correct copy of any payment (including cancelled checks, money orders. money transfers, etc.) you or Pentex Foundation received n·om GWB Family and Friends Trust. 9. A true and correct copy of all your United States lhkral income tax returns from 2008 to present tiled by you. 10. A true and correct copy of all legal rulings in any lawsuit in which you have been a party since .January I, 2005. 11. A true and correct copies of Pentex Royalty Trust document. 12. A true and correct copies of United States federal income tax retums fi·om 2008 to present filed by J>cntc>~ Royalty Trust. 13. A true and correct copy or your personal phone records from January I. 2013, to the present. 14. A true and correct copy of your resume. 15. A true and correct copy of your pwfcssional certificult~s and qualilications to be a legal representative of an international company. 16. A true and correct copy of all communications (including such things as cmails, THE STATE OF TEXAS SUfli'OENi\ Nxnx Fot :,vo.mox 1·s. G1/JIJS. cr . 11.. 276 Page documents, tape recordings, memorandums, etc.) with Scott Smith in association with GWB Family and Friends Trust. Pcntcx Foundation, Pentcx Royalty Trust, GBU Friends and Associates Trust, and the Estate of Bert Gibbs, since January, 1, 2013, in regard to monies received or distributed to anyone or any entity, GBU Friends and Associates Trust's existence, employer identification number. communications \Vith the Internal Revenue Service, the CSL. Family Settlement Agreement. any distributions of attorney fees from the Estate of Bert Gibbs, and the administration of the Estate of Bert Gibbs. 17. A true and correct copy of all communication (including such things as cmails, documents, tape recordings, memorandums, etc.) with Beverly Miller. and her attorneys Sharron Cox and Earl Hargrave, conceming GWB Family and Friends Trust, Pcntex Foundation. GBU Friends and Assl)ciatcs Trust. and the Estate of Bert Gibbs, since .January. l 2013. in regard to monies received or distributed to anyone or any entity, GBU Friends and Associates Trust existence, employer identilication number, communications with the Internal Revenue Service. the CSL, Family Settlement Agreement any distributions of attorney fees from the Estate of Bert Gibbs, and the administratior. of the Estate of Bert Gibbs. l 8. A true and correct copy of all communications (including such things as emails, documents, tape recordings, memorandums. etc.) with John Skolnik concerning GWB Family and Friends Trust. Pentex Foundation. GBU Friends and Associates Trust, and the Estate of Bert Gibbs since January, l 2008. in regard to monies received or distributed to anyone or any entity. GBU Friends and Associates Trust's existence, employer identification number, communications with the Internal Revenue Service, the CSL, Family Settlement Agreement, any distributions of attorney fees from the Estate of Tt IE STATE OF TEXAS StliWOENt\ CAUSE No. CV • 14-41665 l'hATf.\' FOUNDA110N t:'i. GIJJBS, ETAI.. -4- Exhlbit , 47,,,:;.·..... ~•.• 277 Page _ _.l.j-L- Bert Gibbs, and the administration of the Estate of Bert Gibhs. !9. A true and correct copy of all communications (including such things as emails. documents, tape recordings. memorandums, etc.) with Howard Kirk Gibbs concerning G\VB Family and Friends Trust, Pcntcx Foundation. and CIBU Friends and Associates Trust since January, l 2008, in regards to monies received or distributed to anyone or any entity. GBU Friends and Associates Trust's cxistt:nce, employer identification number. communications with the Internal Revenue Service, the CSL Family Settlement Agreement, any distributions of attorney ices from the Estate of Bert Gibbs, and the administration of the Estate of Bert Gibbs. 20. A true and correct copy of all communications (including such things as emails, clor.:umcnts, tape recordings. memorandums. etc.) ,,·ith Earl Hargrave concerning the Estate of Bert Gibbs. including the administration of the estate and distribution of attorney fees since June I, 2014, in regard to monies received or distributed to anyone or any entity. GBU Friends and Associates Trust existence, employer identification number. communication with the Internal Revenue Service. the CSL, Family Settlement Agreement, any distributions of attorney fees from the Estate of Bert Gibbs, and the administration of the Estate of Bert Gibbs. 21. A true and correct copy of all communications (including such things as emai!s, documents, tape recordings, memorandums. etc.) with Rickey Brantley or his office concerning the Estate of Bert Gibbs, including the administration of the estate and distribution or attorney fees since January, } 2008. 22. True and correct copies of all drafts of the GWB Family and Friends Trust. 23. True and correct copies of all drat1s of GBU Friends and Associates Trust. TI-lE STA11' OF TEXAS SUBPOENA C /\liSE No. CV -14-41665 l'E.VTEX FOUNDA170N VS. GIBBS, Et Al.. -5- Exhibit 278 P:1ge_ 5 of _ _,_,.,~ 24. A true and correct copy of any articles, books. blogs, or any communications in which you advised any person on how to avoid paying United States federal income taxes or avoiding patticipation in lawsuits. :?.5. True and correct copies or all drafts of the CSL since January I, 2005. 26. A true and cOITect copy of proof of all legal documents in your possession which attest to your legal representative of any entity thnl have been provided to GWB Family and Friends Trust and to the Estate of Bert Hughes Gibbs. The subpoena is prepared and issued for Defendants Kenneth Gibbs and Candace Walton. by Counsel, in accordance with Rule 176 ofthe Texas Rules of Civil Procedure Issued on September, 2, 2014. LAW OFFICES OF CHRlSTY LEE. P.C. ···----········-'·---·----···-·-····· ·------···--------- Christy L. Lee Texas Stale Bar No. 24052302 777 Main Street, Suite 600 Fort Worth, TX 76102 Ortice: (S\7) 504-6075 Fax: (800) 437-7901 ~lee(~.brist vleelaw .r;om ATTORNEY FOR KENNETH GIBBS AND CANDACE WALTON CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was delivered. pursuant 10 Texas Rules nf Civil Procedure and Rule 11 Agreement. to the following parties on this 2nd day of September. 2014: Pentex Foundation ami Via H\x and email GBU r:riends and Associates Trust c/o Scott Smith. Attorney of Record Till: S'IXI'E OF TEXIIS SUI\I'OEN!\ C\LSE No. CV -14-41665 f'J-Tr!:X FOI!X/J:I'f'/OX IS. GI!!!JS. lil'AL -6- Exhibit ) 279 120 South Crockett Street Sherman, TX 75091-0354 Howard Kirk Gibbs Via mail and email 9929 Crawford Farm Drive Fort Worth. TX 76244 --~~-----··-·-- Christy L. Lee THE STi\TE OF TEXAS SUBPOENi\ Ct\USE No. CV-14-41665 f'EN11:"X FOUNDATlON VS. GIIJJJ.\; ETAL. -7- Exhibit 280 Page 7 CANDYWAKTON 8172704383» 8006802804 p 1/4 2013-12-02 '12;33 PENTEX FOUNDATION A Private Foundation of Panama, C.A. November 25, 2013 Kenneth Vern Gibbs [Ken] Candace Gibbs Walton [Candy] Howard Kirk Gibbs [Howard] RE: Formal Notice of Revocation of GWB Family and Friends Trust and split of assets pursuant to original contract between the parties Ken, Candy and Howard: This is my formal notice on behalf of myself, and as Agent for Pentex Royalty Trust and its sole beneficiary PENTEX FOUNDATION, and RENHAW, INC., a Panama corporation and wholly owned subsidiary of PENTEX FOUNDATION, that 1/we are utilizing Item #6 on page 4 of the "Contract for Sale of Land, Mineral Rights and Royalties, and all other Assets or Monies Received from the Estate of Bert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L. Houseworth Trust(s) or 'The Kathryn Houseworth Gibbs Irrevocable Trust"', herein also referred to as "Contract for Sale of Land", to split the assets of the GWB Family ar.a Friends Trust1 herein also ''GWB", under the terms provided in said Contract for Sale of Land. The relationship between us has deteriorated to the point that i no longer wish to be associated with you. I have accused you of not honoring the agreement between us; and you, or at least some of you, have accused me of plotting to steal your portion of the "Estate of Ber~ Hughes Gibbs", herein also "Estate", at the point of any of your deaths. I was even told by Candy that I was not the honorable man I once was. 281 CANDY WAKTON 8172704383 » 8006802804 P214 2013-12-02 12:33 You have not confined those remarks to conversations between us, because Jay Henderson asked me if I intended to steal your shares. You hired an attorney who made ridiculous demands of me, told me how stupid I was~ tried to [and succeeded in your mind] create a problem where none existed, explained to me that no one but a BAR attorney could read or understand the law/code, and called me a liar and thief. Where was she when all you had were judgments against you? She even admitted to me that she would never have taken your case back then. In addition, I do believe that at least two of you have broken our deal and your word to me. When I asked that GWB move to enforce the provision in the Gibbs Family Settlement Agreement, herein also "FSA", to seoll the land, Candy had the nerve to tell me that I had been paid very well for what I did, and that she wanted to keep the land for her daughter. Ken continues to use the "home place" as his own personal property, and refuses to pursue selling it in a viable manner. The fact is that neither I nor my assigns have been paid what was agreed to and promised. Bert died 9 years ago, the FSA is now 5 years old, and we're no closer to closing the Estate than we were 5 years age. Ken has given an exclusive listing on well over 200 pieces of property tc a car salesman, and that "agent" has not produced a new contract for sale of any land in over a year with some 230 pieces of p;·operty in wha·: everybody calls a "hot11 area at his, and only his, disposal. Further, it is my belief that virtually all the sales this uagent11 has ever "made" have been handed to him by the Estate when someone called the Estate requesting to buy certain property. Essentially, he is a high~priced order taker. These situations are not acceptable. I intend to move forward aggressively on behalf of PENTEX FOUNDATION to force compliance with the FSA. As a member of GWB, Exhibit 282 Page ~ of 2013-12-02 12;33 CANDYWAKTON 8172704383» 8006802804 P3/4 PENTEX FOUNDATION has restraints on what it can do; and, every timE: there is a vote in GWB that doesn't go your way, you yell foul. Further, there is a conflict of interest because an action must be brought again~·: Ken to force compliance with the FSA or to remove Ken as Executor, and Ken is a yoting member and beneficiary of GWB. Therefore, any action by GWB would involve using Ken's money to sue him. I cannot imagine how that would play out, or how the court would handle that scenario; therefore, we never moved forward. That is the main reaso:-: why PENTEX FOUNDATION has not been able to proceed with enforcement actions earlier. All this adds up to the fact that PENTEX FOUNDATION simply docs not wish to remain a party in GWB. Under the terms of the Contract for Sale of Land and the laws of the State of Texas, it does not have tc. Therefore, this is my formal notice to each of you that, as agent for PENTEX FOUNDATION, I am revoking PENTEX FOUNDATION's entl~e contribution to GWB, and demanding a split of its assets pursuant to the Contract for Sale of Land at page 4, Item #6, to wit: 11 1t Is hereby agreed that there shall be a business organization . the exact type to be agreed upon at a later date, created by the parties hereto; and, that all revenue of any kind received from any of the property and/or assets covered herein shall be deposited into a bank account in that entity's name, and thcot ~.: expenses necessary to the continuation of revenue being paid tc. the parties hereto (i.e. property taxes on the royalties or property covered herein, and any necessary expenses such as well upkeep, etc.) shall be deducted and paid as required bef~vt;: the 70/30 division agreed to in this contract. Barcroft shall havt: a 50% vote in the operation of said business organization; and, the only function of said business organization shall be to facilitate the agreement in this contract. Any monies paid out c:·; said business organization, other than the agreed upon split Exhibit 283 Page 3 of~....., CANDYWAKTON 8172704383:>> 8006802804 P4/5 2013-12·03 ,03;06 between the parties, shall be agreed upon by all parties hereto. The division shall be divided on a basis of 30% to Barcroft, 23.34% to Kenneth Vern Gibbs, 23.33% to Candace Walton Gibbs, and 23.33% to Howard Kirk Gibbs, at each instance of disper$al to the parties. Any party may demand a split of the assets of said business organization at any time." The business organization described at page 4, item #6, and show!"! 1:i its entirety directly herein above, is GWB, which was created to Llfi:: this provision of the Contract for Sale of Land; therefore, the optior. tc demand a split of the assets applies to GWB and is enforceable. I regret that your actions have necessitated this action. I h:.c hoped always to remain friends. It doesn 1t appear that was in the cards. After this, I will have no way to '1steal" anything that beior:gs T: you, or visit any other false threat your attorney has created in your mind on you; but, I intend to fully collect what belongs to PENTEX FOUNDATION. PENTEX FOUNDATION is assigning its share of the Estate p,...oceea~ from the Contract for Sale of Land to the GBU Friends and Assoc;ates Trust, 410 Anderson County Road 154, Palestine, Texas 75801. PEl\ Tt).: FOUNDATION will receive regular mail, but not certified or registered mail or service, at 210 West Oak Street #151, Palestine, Texas 75801. Service and mail that must be signed for must be made through r·:£ home office: PENTEX FOUNDATION 1 Panama Gardens- Unit 2, Hade Lidice, Capira, Republic· of Panama; or, through me at Rancho Las Bris2:, San Marcos, Livingston, lzabal, Guatemala, Central America. AI nn Barcroft Agent for PENTEX FOUNDATION Exhibit 284 Page J1 of~~"i& ~ -;; 0.. 141 C) as D.. Copies of this notice have been sent by Certified Mait Return Re,:::e:~t Requested~ to: re""" 0 Kenneth Vern Gibbs Candace Gibbs Walton Howard Kirk Gi::.t£ fg 0 4212 Wheeler Street 500 Logan Dr. 4005 Vernon ·.;\.fa'-.; = C> Ft. Worth, TX 76117 Azle 1 TX 76020 Keller~ TX 76243 J\ ...., J\ = .... 2; !;:; ,_ = z c ~ ~ :::! ~. 1.1"') N 0 00 ..:, C"l ; re PENTEX FOUNDATION A Private Foundation of Panama, C.A. December 18, 2013 To: Kenneth Vern Gibbs, Executor for the Estate of Bert Hughes Gibbs 4212 Wheeler, Ft. Worth, TX 76117 To: Rickey Brantley, Attorney for the Estate of Bert Hughes Gibbs 855 Texas St, Fort Worth, TX 76102 To: Scott Pelley, Attorney for the Estate of Bert Hughes Gibbs 707 West Washington, Sherman, TX 75092-5639 To: Jimmy Walker, Attorney, Permanent Guardian of Kathryn Gibbs 815 Walker, Suite 2401 Houston, TX 77002-5762 Dear Mr. Gibbs, Mr. Brantley, Mr. Pelley and Mr. Walker: This notice is to inform the Estates of Bert and Kathryn Gibbs restates"] that the original 30% assignment titled 11Contract for Sale of Land, Mineral "Rflhts and Royalties, and all other Assets or Monies Received from the Estate of Bert Hushes Gibbs, Kathryn G. Gibbs, and/or the Mary L Houseworth Trust(s) or 'The Kathryn Houseworth Gibbs Irrevocable Trust'" ["CSLI#] to AI Barcroft has been transferred to GBU Friends and Assoc1ates Trust ["GBlY'] from GWB Family and Friends Trust ["GWB"] effective November 26, 2013; an·d, that all future distributions relating to this 30% assignment by Kenneth Vern Gibbs, candace Walton Gibbs and Howard Kirk Gibbs ["Gibbs Children") to AI Barcroft should be remitted directly to GBU, 410 Anderson County Rd 154, Palestine, Texas 75801. Item number 6 of the CSL provided for the creation of a business organization that would receive and distribute the 70% portion of the Estates' distributions owned by Kenneth Vern Gibbs, Candace Gibbs Walton and Howard Kirk Gibbs [collectively "Gibbs Children"} along with the 30% assignment to AI Barcroft; and GWB, a revocable trust, was created on or about November 7, 2008, in accordance with that requirement. The CSL Notice of Transfer to GBU Page 1 of3 Exhibit 286 Page___,/~--- further provided in the same paraaraph tbot an, party may demand a split of the assets of said business organization at anv time. PENTEX FOUNDATION, a settlor of GWB and current assignee of the 30% assignment from AI Barcroft, has revoked Its contribution to GWB and assigned its share of the assets residing in GWB to GBU. PENTEX FOUNDATIION hereby affirms that its share due from the Estates relating to the 30% assignment are now transferred to the GBU, and all future distributions relating to said 30% assignment by either Estate should be made payable to GBU. In accordance with the Gibbs Family Settlement Agreement ["'FSA"], Kip Gibbs was to receive 25% of the Estates of Bert and Kathryn Gibbs with the remaining 75% going to the Gibbs Children. In accordance with the FSA and the CSL, 22.5% of the distributions by the Estates is owned by and related to this original 30% assignment. However, 2.46% of the original22.5% of the gross Estates is being paid directly to John Skotnik, leaving the assignee with 20.0496 of the gross distributions of the Estates. THEREFOR!, FROM THIS DATE FORWARD, Notice and Demand is hereby made upon the Estates of Bert and Kathryn Gibbs, that from the date of this notice forward, that portion of all distributions made by the Estates of Bert and/or Kathryn Gibbs related to the original30% assignment made by the Gibbs Children to AI Barcroft, and currently being paid to GWB Family and Friends Trust, be distributed and made payable to; and, be sent directly to: GBU Friends and Associates Trust 410 Anderson County Road 154 Palestine, Texas 75801 The tax number for GBU Friends and Assodates Trust is 3&-7103561. If either Estate disagrees with the calculation referred to herein, or needs any further verification of any documents related to this transfer, please notify me 1mmediately by e-mail to albertbarcroft@gmail.com. specifically identifying any mistake in the calculation and/or required verification; or, as to any reason why future distributions will not be made directly go GBU Friends and Associates Trust as requested. Notic:e of Transfer to GBU Page2of3 Exhibit 287 Page ;J, of ---fi~Cj-~ I·· On behalf of At Barcroft, Pentex Royal Trust, PENTEX FOUNDATION, and/or RENHAW, INC., conjunctively and/or individually, I hereby stipulate that a photocopy of a scanned e-mail or fax of this document, and any attachments, may be used as originals for all legal purposes. I hereby certify and affirm with my sJanature below under penalty of perJ&r/ under the laws of the United States of America that I am the lepl representative for Pentex Royalty Trust, PENTEX FOUNDATION, and RENHAW, INC.; and, as such, I have the authority to make alllepl decisions on their behalf. [28 USC§ 1746(1)) Further, Beverly Miller, Trustee of the GWB Family and Friends Trust, is in the possession of the original authorization for me to represent those entities; and, she will provide copies of same If necessary. Dated and Signed this 18th day of December, 2013. ~~ Albert Lynn Barcroft In my personal capacity, and as legal representative for PENTEX FOUNDATION, Pentex Royalty Trust, and RENHAW, INC. cc: Kenneth Vern Gibbs, Rickey J. Brantley, and Scott Pelley by United States Postal Service, Certified Mail, Return Receipt Requested to the addresses shown in the heading hereto. cc: By e-mail to: Rickey Brantley at rickey@rickeybrantley.com Scott Pelley at soelley@npwlawfirm.com Notice of Transfer to GBU Page 3 of3 288 Page 3 fl!iDanswer estate Law To be answered by a Texas Trust attorney: Three individuals Resolved Question: To be answered by a Texas Trust attorney: Three individuals (A, B, & C) sold to one OJ:her person (D) exactly 30% of their inheritance before the fact of the inheritance (for D's assistance in dealing with all problems and concerns of securing the inheritance). B. The people did this by a contract for sale ["Contract"] executed and filed 1n the public record. c. Under the terms of the contract, a busmess organization would be established so that all money to be paid from the inheritance pursuant to the contract would be deposited into the business organization. D. The percentages due to each would be as follows: D= 30%, A==23.34%, B=23.33% and C=23.33%. E. The language of the contract was as follows: 1. "It is hereby agreed that there shall be a busmess organization, the exact type to be agreed upon at a later date, created by the parties hereto; and, that all revenue of any kind received from any of the property and/or assets covered herein shall be deposited into a bank account in that entity's name, and that all expenses necessary to the continuation of revenue being paid to the parties hereto (i.e. property taxes on the royalties or property covered herein, and any necessary expenses such as 1vell :.JpKeep, etc.) shall be deducted and paid as required before the 70/30 division agreed to 1n this contl-act ... ; and, the only function of said business organization shall be to facilitate the agreement in this contract. Any monies paid out of said business organization shall be agreed upon by all parties hereto, and shall be divided on a 70/30 basis at each instance of dispersal to the parties. Any party may demand a split of the assets of said business organization at any time.'' F. The business organization that was created in compliance with the Contract was specifically a revocable trust. [The trust document specifically states: "This trust shall be revocable."] G. Three of the parties (A, B, & C) to the contract became named settlors in the trust and contributed their entire share; and, the fourth party (D) to the Contract cont:ibuted his entire share as well, but was not a named settlor in the trust. H. Under the definitions 1n the trust document, "settlor" is defined as: 1. "Settlor" means a person [or persons] who creates a trust or contributes property 289 2. If more than one person contributes property· to a trustee of a trust, each person IS a Settlor Of the portion of the property 1n the trust attributable to that person's contribution to the trust." I. The proceeds from the contract were the only contributions to the trust. J. The beneficial distribution within the trust was different tnan the settlor's contributions for several reasons; but the settlors or their mterests never o-,anged. K. The person D decided to revoke his contribution to the trust. Questions based on these facts 1. If a person (D) who was not specifically named as a settlor 1n the origmal trust document contributes property to the trust, in accordance with the above trust definition, does that person's contribution cause him to become a settlor of the trust with a revocable interest for his entire share of the contribution? 2. Can any settlor revoke all of his contribution, even if his defined beneficiary interest percentage in the trust was less than the percentage contribution he made? a. For example, a settlor contnbutes 30% of tne total assets to a trust, but he receives only 25% of the beneficial distributions from the trust. b. If he revokes his contribution, can he revoke the full 30% he contributed? 3. Can the underlying contract that caused the creation of the trust be enforced after the trust is created and m force and action? Expert: RayAnswers Hi and welcome to JA. I am Ray and will De the expert help1ng you today. Let's go through your questions here. 1. If a person (D) who was not specifically named as a settlor in the original trust document contributes property to the trust, in accordance with the above trust definition, does that person's contribution cause him to become a settlor of the trust with a revocable interest for his entire share of the contribution? Answer: He would not be a settlor unless he either set up the trust or their was an amendment done adding him as a settlor.If the other parties agree you can amend the revocable trust here and make him a settlor to the trust. 2. Can any settlor revoke all of his contribution, even if his defined benef!Ciary Interest percentage in the trust was less than the percentage contribution he made7 a. For example/ a settlor contributes 30% of the total assets to a trust, t Exhibit ben~~~~ distributions from the trust. Page Here ·th~ terms of the trust control as far as the trust and again a trsut amendment could be done to allow for this. Sample trust amendment. ''ttP . .·:v,w .lgqgroup .com/htm\/plan-ar,d- .:Jrospc:•- Qdr;REVOCABLE%20LIVING%20TRUST%20Amendment Form.pdf b. If he revokes h1s contribution, can he revoKe the full 30°;o he contributed? If the trust does not allow for this then no under the trust.He could sue under breach of contract here for the amount of contribution if the contract allows for that. You would have four years from the date of breach to bring suit. http: I /codes.lp.findlaw .com/txstatutes/BC 112/G/_2. 725 3. Can the underlying contract that caused the creation of the trust be enforced after the trust is created and in force and action? Yes the contract can be enforced as breach of contract suit. I appreciate the chance to help you today.Piease let me know if you have more follow up.Thanks again. RayAnswers, Attorney Category: Estate Law Satisfied Customers: 29595 Experience: Texas lawyer for 29 years in Estate law Ray Answers and 7 other Estate Law Specialists are ready to help you 291 Page 3 Expert:· RayAnswers ~1, 0ere is the law that allows you to amenc the trust. SUBCHAPTER C. REVOCATION, MODIFICATION, AND TERMINATION OF TRUSTS Sec. 112.051. REVOCATION, MODIFICATION, OR AMENDMENT BY SETTLOR. (a} A settlor may revoke the trust unless it is irrevocable by the express terms of the instrument creating it or of an instrument modifying it. (b) The settlor may modify or amend a trust that is revocable, but the settlor may not enlarge the duties of the trustee without the trustee's express consent. (c) If the trust was created by a written instrument, a revocation, modification, or amendment of the trust must be in writing. Expert: RayAnswers AI here is a very detailed article about amending trusts in Texas under the law. http :Ji www .qalliganmannmq.com/documemstModlf!cation-and-Termination-of- Trusts-and-Trustee- Resignations. pdf An amendment would allow the settlers to add a third one and to incorporate the contract details into the trust where needed. Thanks again. '-'::;i<; Your Own Estate Law Qu>.::stion Customer: (D) is a foundation. It was added to the trust as follows: 3.1 Bendiciaries: The beneticiaries. and percentage of beneficial interests. are as follows: Page Candac~ Glbbs Walton: 25.011613% ofthe trust: Howard K1rk G1bbs: 25.011613 "·o of the trusr: Pentex Royalty Trust: 24.96516 ~·o of tht.: trust. } .2 \. otinl{ Shares: Acuons and dec1sions con,·ermng the m1st ,;hall be governed by vote of the beneftciaries hereto. Sixteen (16) votes will represent a majority of rhe votes on any issue unless specitically ser herein at a different vote requirement. Each beneficiary shall have following votes in any matter of the trust for which a vote is called: Kenneth \'em G1bbs: 5 votes: Candace Gibbs Walton: 5 votes; IIO\~ard Kirk Gibbs. 5 votes. Pentex Foundation: 15 votes. Peme.\ Fl)undat1on actual!) has 50°·o v·ote in matters concemtng the trust. Does that make a difference. Exhibit 293 Page __~ __ of Expert:' RayAnswers l)nl~ss the trust allows for the person D to retrieve his contribution or the beneficiaries all agree he woudl have to file suit against the trust to seek his contribution and add a breach of contract claim as well. He might be able to prevail on either one and the court might revoke the trust divide out the assets here and any otehr orders they feel neecssary to resolve the exit1ng trust. unless ther is voluntary agreement here of all the beneficiaries such a suit would be necessary and the court here would decide whether he gets the full contribution back.Ther eis some uniqueness or case by case. For example if there was real estae contributed to the trust and 1t went down and had less value the court would have to use its equitable powers for a fiar resolution.Base on what you present there is no language that allows a party to get out here short of a suit and the court revoking the trust or awarding him his contribution here. This section really doesn't address any refund of contribution. Unless the trsut does the options are amend the trust again, resolve it with the benefic1ae1es, or a civil su1t to seek to have the court revoke it or resolve it. Thanks for the follow up. •• . !. .. '.' ••-.... :.• ~ .... Customer: One last follow up in this case. There is a dispute in this case as to the trust document. The document filed in the court case is a copy that has many flaws, including no date and some of the pages not being number in sequence. To perform on the trust if there is a dispute, would it be necessary for the moving party to actually present the original trust document? Expert: R;;wAnswers Yes either the original here or convince the copy is a trust correct and completed one.From what you present that might be hard to do here. 294 T_he _following are the legal requirements for a valid trust 1n Texas: The Settlor must have a present intent to create a trust. According to the Texas statutes, a trust is created if the Settlor manifests an intention to create a trust. No specific words are required." The Settlor must have capacity to convey assets to the trust. The Settlor has capacity if: he or she is over the age of 18 or has been lawfully married or a member of the armed forces, and is of sound mind, which means he knows the nature and extent of h1s property, the persons who are the natural objects of his bounty, the disposition that he is making, and how these elements relate to form an orderly plan for the disposition of his property. The trust must comply with the Statute of Frauds. A trust may be created orally through a declaration of trust; however, if it involves the transfer of real property, it must be in writing. The trust must have a legal purpose. The terms of a trust may not require the trustee to commit a criminal or tortious act or an act that IS contrary to public policy. The Settlor must identify the property covered by the trust and place it in the trust for the benefit of the beneficiary. The Texas statutes specify that a trust cannot be created unless there is trust property. The trust must have a Trustee who holds legal title of property for the benefit of the trust's Beneficiaries. If there is no Trustee named, or if the Trustee that is named does not want to serve or cannot serve for any reason, the court can appoint a Trustee for the trust. The trust must have ascertainable Beneficiaries. If the Settlor does not name the Beneficiaries with sufficient certainty, the trust will fail. The trust my not violate the Rule Against Perpetuities, which says that an interest is not good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest, plus a period of gP.station. AI thanks for letting me be of service.! wish you the best w1th all of this. ,.--·--------·- ----·--·-·-··--···---·---.--., i Ask Your Own Estate Law Questim' i \_ __ . _ _ _ _ . ·--~---··-------- - - - - - - - - - - · · - - - - - · · - ··-·-· -- .. -- ! Customer: Tha~u for good answers. Most not what I wanted to hear, but what I needed. Page You have answered my questions in the past, and you give much more complete answers than the others I have had. Is there any way to request you? I have more question about the Contract in which the 30% was sold to me, but those questions are unrelated to the trust questions and would require me to pay again. Tweet Share ;..;: Ask RayAnswers Ye:;q ~--, ·._. t ~"'t '4....1" :.·., :;. RayAnswers. Attorr.:2v C.ategurv · :-:_ :. =,;_;_ -- J'.\ Satisfied Customers: ·"·'- --~ Type Your Estate Law Question Here ... DISCLAiMER. Answers from Experts on JustAnswe.· ar·e noc suostrt ... tes for the aavtce of an attorney. JustAnswer is a public forum and quest1ons and responses are not pnvate or confident.a: or protected bv the attorney-cnent pnvdege. The Expert above is not your attorney, and the response above IS not legal advice. You should not read this response to pr·opose specific act1on or address specific circumstances, but only to give you a sense of general principles of law that rnrght affect the sltJation you describe. Application of these general principles to particular circumstances must be done bv a i3·.-.yec ,-.,~·:J ":as spok<::r: Nttr, you 111 conftdence, learned ail relevant Information, and explored vanous optrc'•5. Befo•·e act;ng ore (hese ge:~erai pr nc:ples. vou should hire a lawyer licensed to ;Jra~tlCE lev.' 1n the ~ur766 S.W.2d 145~rta r·~s 'he responses above are from rndtv1dual Experts, n;;: :.:stAnswe!·. The Site and ser-v:ces are prOVided "as 1s". To v1ew the verified c.;edenttal of an Expert. click on the "VerifieC" s·ymbol .n '"'" EA;Jert's ;Jrofi!e. -:-:-,is site is r•ut fcc er:-,ergercv questtons which should be d~rected Immediately by telephone or in-person to qualifieo professionals. Please carefuli·l read the Terms of Service (last updated February 8, 2012). 296 Page_?].;;...__._ A+ rating with BBB Contact Us I Terms of Service 1 Privacy & Security I About Us I Our Network ~ 2003-2014 JustAnswer LLC Exhibit 297 Page_9..J--_ of ' . .Filters Used: Date Printed: 9/1412014 1 Tagged Record Email Report Time Printed: 11 :07AM Printed By: LAURA Form Format Date 6/20/2014 Time 8:24AM 8:24AM Duration 0.00 (hours) Code Subject Re: Pentex Admissions Staff Christy L Lee Client Smith, Scott MatterRef Litigation - Pentex Foundation vs. G MatterNo From smithlaw@ainnail.net To Christy Lee; Howard Gibbs CCTo BCCTo Reminders (days before) Follow N Done N Notify Y Hide N Trigger N Private N Status Custom1 Custom3 Custom2 Custom4 Christy, I am fine with accepting email as a form of service, provided we also agree to acknowledge receipt by email. Also, if you want discovery to end on December 3rd, that is fine with me. I am not sure the Judge actually was addressing discovery, but was just expressing her view that the case be ready to go by that date. I have modified the proposed scheduling order, and have attached it. Enclosed please find the Response to the Request for Disclosure by Pentex Foundation. With respect to depositions, I will not be able to agree to have the entire board of Pentex deposed. That is harassing and outside the scope of permissible discovery. Moreover, unless and until Mr. Barcroft is the designated corporate representative of Pentex, I cannot produce him. He may be a fact witness, but he is not my client We have not yet determined who will be the corporate representative for Pentex in this litigation, but will do so in the near future. Regards, Sco.. 298 SCOTTSMlTH ATIORNEY AND COUNSELOR AT LAW E-MAIL: smithlaw@airmailnet 120 SOUTH CROCKETT STREET FACSIMILE: (903) 870-1446 P.O. Box354 TELEPHONE: (903) 868-8686 SHERMAN, TEXAS 75091-0354 August 5, 2014 Honorable Pat Ferchill Judge, Tarrant County Probate Court Number Two The Old Courthouse 100 W. Weatherford, Room 220A Fort Worth, Texas 76196 RE: Candace Walton, et al. v. Beverly Miller, Trustee, et a!.; Cause Number 2005-0000126-2-D in the Probate Comt Number Two of Tarrant County, Texas. Dear Judge Ferchill: As you may recall, I appeared for a special appearance on behalf ofPentex Foundation on July 31, 2014. In connection therewith, I testified regarding a motion to show my authority to represent Pentex Foundation. At that time, I was unsure of the source of payment of my initial retainer. I have reviewed my records and the payments were each in the sum of$5,000 from Pentex Royalty Trust and Mr. Albert Barcroft. I am also attaching a copy of a resolution from Pentex Foundation regarding my engagement as their counsel. I thank you for your attention to this matter. TSS/bhs cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, Pro Se. ,-"' Exhibit ,_ 299 Page _ __ MINUTES OF THE BOARD OF DIRECTORS' MEETING OFI'ENTEX FOUNDATION A meeting of the Foundation Council ofPENTEX FOUNDATION, organi:l:ed according to the laws ofthe Republic of Panama and registered to microjacket twenty nine thousand five hundred and thirty six (29536), document one million three hundred fifty four thousand eight hundred ninety three (1354893) of the Mercantile Scclion of the Public Registry, it was celebrated in tl1e city ofPmmmn, Republic ofPnnnma on the fourth day (411o) of August oftl1e year lwo thousand and fourteen (2014) at 10 o'clock in the morning (10 a.m.). It was n meeting of all the known Directors: Mrs. ANGELL! MARTHA POLANCO CARRASCO, Mr. CARLOS ALBERTO RIVADENEIRA ESCUDERO and FERNANDO ELIAS BARAHONA PEREZ who had prior waived the call. The Chairman was Mrs. ANGELLI MARTHA POLANCO CARRASCO, and the Secretary tvir. CARLOS ALBERTO RIVADENETRA ESCUDERO, both a~ holders of said positions. The quomm having been confirmed, the Chairman opened the meeting sll\ting thatn question has emerged as to the authority of Mario Guilermo Hurtarte Arrivillaga, the Managing Director, Legal Allairs ofPENTEX FOUNDATION, to hire legal counsel in the United States for affairs requiring litigation. Specifically, the hiring of one Scott Smith, Attorney at Law, to represent PENTEX FOUNDATION in ongoing litigation involving PENTEX FOUNDATION in Fannin County, TexiiS, U.S.A. Upon motion presented, duly seconded, the following resolution was unanimously approved: IT IS HEREBY RESOLVED: That the Board ofPENTEX FOUNDATION verifies that Mario Guilermo Hurlllrte Arrivillllgn is authorized to hire legal counsel on behalf ofPENTEX FOUNDATION to litigate any necessary legal mailers that might arise in the United States. Ftlrther, it is resolved that Mllfio Guilcnno Hurtarte Arrivillaga, as Managing Director, Legal AfThirs ofPENTEX FOUNDATION, was authorized to sign the "AGREEMENT FOR LEGAL SERVICES" hiring Scott Smith, Attorney At Law, to represent and provide legal services to PENTEX FOUNDATION on May 5, 2014, in Cause Number CV-14·41665 in Fannin County, Tcxns, U.S.A. Further, by this resolution, PENTEX FOUNDATION conlirms Scott Smith, Texas State BllfNumber 18688900, as its nttorncy in Cause Number CV-14-41665 in Fannin County, Texas, U.S.A.; and, thnt Scolt Smith hns represented PENTEX FOUNDATION in Cause Number CV-14-41665 in Fannin County, 'lbxns, U.S.A., since May 5, 2014. By this resolution, it is further resolved that Mario Guilermo Hurtarte Arrivillaga, the Managing Director, Legal Affairs ofPENTEX FOUNDATION, is authorized until further notice to make any further necessary changes in legal representation for PENTEX FOUNDATION in any legal proceedings in the United States, and to make any decisions alll:cling PENTEX FOUNDATION in any ofthos~: legal matters. The authority granted Mario Guilermo Hurtarte Arrivilluga is concurrent with, and does not limit or change, the authority granted Dmul)' R. Unger through 11 Limited Power of Attorney from PENTEX FOUNDATION in 11 preceding resolution. There not being any other matter to attend the meeting was aqiourned at ele\•en (II :00) a.m. on the above mention~:d date. The President, ANGELLI MARTHA POLANCO CARR..o\.SCO, Exhibit 300 The Secretary, CARLOS ALBERTO RlVADENEIRA ESCUDERO. The undersigned, Secretary of the foundation named PENTEX FOUNDATION by this means certifies thnt the above minutes is a true copy of irs originul. It ugrecs with each nnd C\'ery one of its parts as the one that remains in the Book ofMinu(es of the foundation. The Secretary, CARLOS ALBERTO RIVADENEIRA ESCUDERO. 301 Page __3 ___ NO. CV-14-41665 PENTEX FOUNDATION, § IN THE DISTRICT COURT OF Plaintiff § § ~ § § FANNIN COUNTY, TEXAS KENNETH VERN GffiBS, CANDACE § GIBBS WALTON and HOWARD § KIRK GIBBS, Defendants § 3361h JUDICIAL DISTRICT PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS TO: Kenneth Vern Gibbs, by and through his attorney of record. COMES NOW, Pentex Foundation, files this its response to the First Request for Discovery received on August 11,2014, and would show as follows: GENERAL OBJECTION Pentex Foundation objects to the Instructions and Definitions to the extent they enlarge the responsibilities of a litigant under the Texas Rules of Civil Procedure. Pentex Foundation specifically objects to the definition of"You" and "Your" to the extent it combines the existence ofPentex Foundation with "Albert Barcroft, as Legal Representative." They are not one in the same. Pentex Foundation answers and responds only in its own right. Pentex Foundation will respond subject to the Rules. Pentex Foundation objects to producing any documents in the offices of counsel. To the extent there are docwnents to be produced, they will be produced at the offices of counsel for the responding party. RESPONSE TO DISCOVERY REQUESTS As a predicate to responding, pursuant to the laws of Panama, a foundation is required to keep records only for the current year. Submitted herewith are documents marked as Plaintiff/Intervenor 00001-000257. DISCOVERY REQUESTS REQUEST FOR PRODUCTION NO. 1: Produce all documents dating back to September 1, 2008, that you have concerning distribution of attorney fees from the Estate. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request, except those marked Plaintiff/Intervenor 000135- PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page 1 Exhibit-~,/ f /a, "d 302 Page I ~'f/ -..J...-- ,u 175. REQUEST FOR PRODUCTION NO. 2: Produce all documents dating back to January 1, 2013, that you have concerning the GBU Trust. RESPONSE: Objection. This request is overly broad and fails to direct Plaintiff to any class or type of documents. See, Loftin v. Martin, (1989). REQUEST FOR PRODUCTION NO. 3: Produce all documents proving your existence and validity, including names of the Board of Directors and Legal Representatives who have served since the inception of the entity; and letters, emails, bank records, correspondence, and accountings related to Albert's involvement in your formation. RESPONSE: Objection. This request is overly broad and outside the scope of discovery to the extent it requests "letters, emails, bank records, correspondence, and accountings related to Albert's involvement in your formation." Subject to this objection, please see the documents attached hereto as Plaintiff/Interpleader 00001-00033. REQUEST FOR PRODUCTION NO. 4: Produce a copy of every federal tax return that you and Pentex Trust has filed with the Internal Revenue Service since 2008. RESPONSE: Objection, the request is made merely to harass and no other purpose, as tax returns are generally not discoverable, see Hall v. Lawlis,
907 S.W.2d 493(Tex. 1995); Chamberlain v. Cherry,
818 S.W.2d 201(Amarillo 1991). REQUEST FOR PRODUCTION NO. 5: Produce a copy of the Pentex Trust. RESPONSE: Objection. This request seeks information which is outside the scope of discovery. REQUEST FOR PRODUCTION NO. 6: Produce all communication dating back to September 1, 2008. including letters, tape recordings, or emails, that you have had with any representative of ConocoPhillips concerning you yourself, Albert, GWB Trust, Pentex Trust, or GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 7: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page2 303 Page with Danny Unger concerning GBU Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the ')oint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) ahd such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 8: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Howard Kirk concerning the Estate's attorney fees. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 9: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had with Howard Kirk concerning GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. None REQUEST FOR PRODUCTION NO. 10: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Rickey Brantley or Scott Pelley concerning the Estate's attorney fees. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 11: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had with Danny Unger concerning GBU Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 12: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Ken concerning the Estate's attorney fees. RESPONSE: Pentex Foundation has no documentation in its possession PENTEX FOUNDATION'S RESPONSE TO DlSCOVERY FROM KENNETH GIBBS Pagel 304 responsive to this request. REQUEST FOR PRODUCTION NO. 13: Produce all documentation dating back to September 1, 2008, which you have concerning Renhaw, Inc., including the transfer of rights of the CSL to you, letters, emails, tape recordings, and any other records involving Renhaw, Inc .. RESPONSE: Please see Plaintiff/Intervenor 000123,000034. REQUEST FOR PRODUCTION NO. 14: Produce any communication dating back to May 1, 2008, including letters, tape recordings, or emails, that you have had with Albert concerning GWB Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the ')oint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 15: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had with Albert concerning GBU Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the ')oint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 16: Produce any communication dating back to May 1, 2008, including letters, tape recordings, or emails, that you have had from Albert concerning distributions from the Estate. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 17: Produce any communication dating back to May 1, 2008, including letters, tape recordings, or emails, that you have had PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page4 305 with Albert concerning Pentex Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine, recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Additionally, this request is outside the scope of discovery. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 18: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Candy concerning GWB Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 19: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had with Candy concerning GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 20: Produce all documents related to Pentex Trust•s interest in the Estate and GWB Trust, and dating back to September 1, 2008, including, but not limited to, documents verifying its existence, letters, emails, bank records, correspondence, and accountings. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 21: Produce any communication dating back to January 1, 2011, including letters, tape recordings, or emails, that you have had with Beverly Miller involving Albert. RESPONSE: Pentex Foundation objects to any such communications protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to this objection, Pentex Foundation has no documentation in its possession responsive to this request other than as may be produced herewith. REQUEST FOR PRODUCTION NO. 22: Produce all documents upon which you - -- PENTEXFOUNDATION'SRESPONSETODISCOVERYFROMKENNETHGIBBS PageS 306 Page base the claims against Candy and Ken in your Original Petition. RESPONSE: Pentex Foundation objects to this request as overly broad and fails to direct Plaintiff to any class or type of documents. See, Loftin v. Martin,
766 S.W.2d 145(1989). Subject to this objection, please see the documents attached to the Motion for Partial Summary Judgment submitted in this case. REQUEST FOR PRODUCTION NO. 23: Produce any communication dating back to January 1, 2011, including letters, tape recordings, or emails, that you have had with Beverly Miller concerning Pentex Trust. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery, and additionally as to any such communications protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to this objection, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 24: Produce any communications dating back to January 1, 2011, including letters, tape recordings, or emails, that you have had with Beverly Miller concerning GBU Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Additionally, this request is outside the scope of discovery. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request other than as may be produced herewith. REQUEST FOR PRODUCTION NO. 25: Produce any communications dating back to January 1, 2011, including letters, tape recordings, or emails, that you have had with Beverly Miller concerning GWB Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Additionally, this request is outside the scope of discovery. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request other than as may PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page6 307 be produced herewith. REQUEST FOR PRODUCTION NO. 26: Produce all documents and communications dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Rickey Brantley concerning the Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 27: Produce all documents and communications dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Scott Pelley concerning the Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 28: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of JW Operating Company concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 29: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of Trio Consulting and Management, LLC, concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 30: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of Devon Energy concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. INTERROGATORY NO. 1: Explain your relationship with Pentex Trust, including details concerning your agreement with Pentex Trust to receive distributions from GWB Trust; your arrangement with Albert to act as Legal PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page7 308 Page 7 Representative for both entities; whether you or Pentex Trust was fonned first; the management associated with Pentex Trust in Texas, as effected from a Panamanian locale; the manner in which you detennine tax obligations; and arrangement with Pentex Trust concerning voting rights in GWB Trust ANSWER: Pentex Foundation objects to this interrogatory as outside the scope of pennissible discovery and overly broad. Interrogatories may be used to ascertain basic legal and factual claims and defenses, but may not be used to force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at comment 1. Subject to this objection, Pentex Foundation answers as follows: Pentex Royalty Trust is a trust domestic to the United States that was created as a trust to take in all revenue due from taxable sources within the United States, pay any U.S. taxes or other obligations due, and then distribute its remaining beneficial interests. Pentex Foundation is the sole beneficiary of Pentex Royalty Trust. Pentex Royalty Trust has a paid trustee who is not associated, or familiar with, any other phase ofPentex Foundation. The tax obligations are figured by computing and filing a Return 1042 with the Internal Revenue Service meeting the requirements of the Internal Revenue Code. The voting rights issue was always a problem because the purported trustees of GWB trust never had a clear and defined way of doing anything. For that reason, Pentex Foundation assigned it voting shares by proxy to Jim Walton as long as he was the purported trustee. We have no record of any official votes after Beverly Miller became the purported trustee. INTERROGATORY NO. 2: Detail your relationship with Albert, including specifics concerning his activities within your entity; on whose authority Albert serves as your Legal Representative; amounts of payment for Albert's services to you; percentages of distributions to you from GWB Trust which Albert ultimately receives; Albert's arrangements to pay Estate attorneys in order to uphold his responsibilities to the CSL and the FSA; Albert's payments of legal fees with regard to this lawsuit; Albert's involvement in this lawsuit (i.e., whether Albert was responsible for instigating the lawsuit); and all other involvement of Albert concerning your involvement with GWB Trust. ANSWER: Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Interrogatories may be used to ascertain basic legal and factual claims and defenses, but may not be used to force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at comment 1. Pentex Foundation objects to the terms of payments as confidential under the laws of Panama, and outside the scope of discovery in any event. Subject to these objection, Pentex Foundation answers as follows, and under a defintion of "you" and "your" to refer to PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GWBS Page 8 309 ' . Pentex Foundation only as specified in the general objections: Pentex Foundation purchased an interest in the Contract for Sale that Albert Barcroft originally owned. It was mutually advantageous to continue to work with Albert to bring the terms of the contract to conclusion, and he served and serves on our behalf in the matter. To the knowledge ofPentex Foundation, Albert had no responsibilities to pay any attorneys other than John Skotnik in the matter, and such was not shown in any documentation presented to Pentex Foundation. When Pentex was forced to hire new counsel in the case, it did not have sufficient funds in the United States to pay the full retainer. Mr. Barcroft did. Pentex Foundation gave Mr. Barcroft money here, and he sent that money to Scott Smith in the United States. Mr. Barcroft definitely made Pentex Foundation aware that he thought there was a problem in the way proceeds were being paid by GWB Trust, if that qualifies as instigation. In brief, Barcroft was our express liaison with GWB trust, whatever it is. INTERROGATORY NO. 3: Explain the reasons you came to believe that contingency fee attorneys were deducting their fees from the total due you, Ken, Candy, and Howard Kirk, then issuing one check to GWB Trust, including the rationale for believing that in excess of$ 1 million in attorney fees were due from Ken, Candy, and Howard Kirk; when and how you arrived at these alleged facts; and the reason that Beverly Miller was instructed to assign 57.19% interest in GWB Trust to GBU Trust, when you were entitled to a far smaller percentage. ANSWER: Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Interrogatories may be used to ascertain basic legal and factual claims and defenses, but may not be used to force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at comment 1. Subject to these objection, Pentex Foundation answers as follows, and under a defmtion of"you" and "your" to refer to Pentex Foundation only as specified in the general objections: The percentage due Pentex Foundation under the Contract for Sale. Barcroft's share was 30% of everything Ken, Candy and Howard received. Ken, Candy and Howard each received 25%, for a total of75%, of the estates. Of the 75%, Pentex Foundation owned 30%, equaling 22.5% of everything distributed by the estate (75% X 30%=22.5%). The estate distributed mineral interests to GWB Trust equaling 35.04% of the total minerals owned by the estate. It also distributed 2.46% directly to John Skotnik in payment for his services as attorney (an amount due solely by Barcroft). Of the 35.04% distributed to GWB Trust, Pentex Foundation owned 20.04% (22.5% minus the 2.46% already distributed to Skotnik). 20.04% is 57.19% of35.04%; thus, PentexFoundation owned 57.19% ofthe PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page9 310 Page__,'?,____ minerals transferred to GWB Trust by the estate. INTERROGATORY NO. 4: Detail and explain the contents of all oral communications dating back to September 1, 2008, which you have had with Howard Kirk, including all agreements to cooperate with you, Albert or Danny Unger in this lawsuit; including your communications with Howard Kirk at the Tarrant case hearing on July 31, 2014, including the reason for conferring with him, when he is a Defendant in this case; and disclose whether you consulted Howard Kirk in drafting your requests for Admissions and whether you assisted Howard Kirk in producing his responses to your demands for discovery, since he was capable of response to you within fewer than five (5) hours of receiving your Requests; and disclose whether John Skotnik, when acting as your Counsel, cooperated with Howard Kirk in motioning the Court to remove Ken as Independent Administrator of the Estate. ANSWER: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Subject to these objection, Pentex Foundation answers as follows, and under a defmtion of "you" and "your" to refer to Pentex Foundation only as specified in the general objections: Pentex Foundation has had no such communications with Howard Kirk. REQUEST FOR ADMISSION NO. 1: Admit or deny that Scott Smith and Howard Kirk consulted with each other at the July 31, 2014, hearing in the Tarrant County case. RESPONSE: Pentex Foundation objects to this request as (1) well outside the scope of legitimate discovery; (2) a communication initiated after the anticipation of litigation; (3) protected pursuant to the work product exemption from discovery; and/or (4) protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 {Tex. App.-Dallas 1989, orig. proceeding). REQUEST FOR ADMISSION NO.2: Admit or Deny that you, Ken, Candy, and Howard Kirk are members of the GWB Family and Friends Trust. RESPONSE: Admit that Pentex Foundation is an an assignee of the business organization created pursuant to the CSL, if "you" refers to Pentex PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS PagelO Exhibit 311 Page 10 Foundation as discussed in the general objections; otherwise, deny. REQUEST FOR ADMISSION NO. 3: Admit or Deny that you were formed specifically because Albert stood to receive proceeds from the Estate as a result of the CSL and FSA, and Albert wanted the funds to flow through a third party in order to avoid federal tax and similar obligations. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 4: Admit or Deny that you have received no money from GWB Trust. RESPONSE: Assuming that "you'' refers solely to Pentex Foundation as discussed in the general objections: admit, as all money was received by Pentex Trust). REQUEST FOR ADMISSION NO. 5: Admit or Deny that Albert is your Primary Beneficiary. RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 6: Admit or Deny that Pentex Trust is your Primary Beneficiary. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 7: Admit or Deny that the GWB Trust document established the process and percentages by which Howard Kirk, Candy, Ken, and you received interest from the Estate. RESPONSE: Pentex Foundation objects to this request as misleading and assuming facts which do not exist. There is no known GWB Trust document. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR AD:MISSION NO. 8: Admit or Deny that the GWB Trust Trustee is responsible for distributing assets to the Beneficiaries according to the PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page II 312 Page Exh~~~:t~ /i percentages specified in the GWB Trust document. RESPONSE: Pentex Foundation objects to this request as misleading and assuming facts which do not exist. There is no known GWB Trust document. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 9: Admit or Deny that if the percentages of interest specified in the GWB Trust document are incorrect, then you are fully responsible for the inaccuracy because Albert, as your Legal Representative, entered into negotiations with the Estate's attorneys concerning the appropriate distributions. RESPONSE: Pentex Foundation objects to this request as misleading and assuming facts which do not exist. There is no known GWB Trust document. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 10: Admit or Deny that you authorized Albert to serve as your Legal Representative with regard to GWB Trust, GBU Trust, Pentex Trust, and the Estate. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 11: Admit or Deny that Pentex Trust is a Trust which Albert, acting on your behalf, established in the United States in order to receive funds because you are a foreign entity, and as such, it is difficult to receive distributions from the Estate. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR AD:rviiSSION NO. 12: Admit or Deny that Albert, acting on your behalf, resisted Candy and Ken's inquiries into the legitimacy of your existence. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 13: Admit or Deny that there are active United States Federal Tax Liens filed against you in Texas. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page 12 313 Page RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 14: Admit or Deny that Albert approached you previous to 2008 to invest in the settlement of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Subject to this objection, assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 15: Admit or Deny that you invested $250,000 for expenses related to the settlement of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 16: Admit or Deny that you were established after Albert entered into discussions with Candy, Howard Kirk, and concerning the settlement of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery, unclear and ambiguous, and unspecified as to time. REQUEST FOR ADMISSION NO. 17: Admit or Deny that, Pentex Trust was a Beneficiary ofGWB Trust with 24.965 16% interest. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. Pentex Foundation held the Barcroft interests in the original Contract for Sale, but it is unclear as to how that was interpreted by the original purported trustee. REQUEST FOR ADMISSION NO. 18: Admit or Deny that you compensated Albert, John Skotnik, and Danny Unger for their services regarding the Estate and GWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETII OffiBS Page 13 Exhibit 314 Page /3 REQUEST FOR ADMISSION NO. 19: Admit or Deny that the GWB Trust owns 35.04% of the assets that are still left in the estate, including real estate. RESPONSE: Pentex Foundation objects to this request as calling for pure legal question. Plaintiff has made reasonable inquiry and the information known to it or easily obtainable to it is insufficient with which to either admit or deny this request. REQUEST FOR ADMISSION NO. 20: Admit or Deny that GWB Trust receives oil and gas royalties from the Estate, from which administrative costs are deducted before the Trustee distributes the assets to the Beneficiaries, yourself including, according to the percentages as stated in the GWB Trust document. RESPONSE: Pentex Foundation objects to this request as misleading and assuming facts which do not exist. There is no known GWB Trust document. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 21: Admit or Deny that you have not received any funds from GWB Trust or the Estate. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, it is admitted that all funds to Pentex Foundation have come through Pentex Royalty Trust. REQUEST FOR ADMISSION NO. 22: Admit or Deny that Albert drafted the Pentex Trust document. RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 23: Admit or Deny that your Board of Directors profit, or have profited, from GWB Trust. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 24: Admit or Deny that you have distributed, or will distribute, to Albert any proceeds from GWB Trust in excess of the $250,000 which Albert claimed you originally invested in settlement of the Estate. RESPONSE: Pentex Foundation objects to this request as multifarious and PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 14 315 Page /"' speculative (when speaking about future events which may or may not occur). Pentex Foundation objects to this request as outside the scope of legitimate discovery. REQUEST FOR ADMISSION NO. 25: Admit or Deny that you authorized Albert to vote on your behalf in decisions concerning GWB Trust, from its' inception to around February 2014. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, admit that Albert had the authority to carry on all business in the United States for Pentex Foundation. REQUEST FOR ADMISSION NO. 26: Admit or Deny that Beverly Miller acts according to your instructions in performing her duties as Trustee of GWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMJSSION NO. 27: Admit or Deny that on September 11, 2013, Albert, acting on your behalf, stated in an email that he refused to allow for Candy and Ken to remove their interest from GWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 28: Admit or Deny that, in or around November 2013, you, or Albert acting on your behalf, instructed the GWB Trust Trustee, Beverly Miller, to transfer 57.19% of the existing GWB Trust assets into a newly created trust, the GBU Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, admit. REQUEST FOR ADMISSION NO. 29: Admit or Deny that you, or Albert acting on your behal( informed Beverly Miller that, if she did not transfer 57.19% of GWB Trust assets into the GBU Trust, she would be held personally liable for any losses. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, admit that she was told she "could" be held responsible for not doing her duties. REQUEST FOR ADMISSION NO. 30: Admit or Deny that upon your instructions, or upon instructions from Albert acting on your behalf, Beverly Miller PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page IS 316 transferred 57.19% interest from GWB Trust to GBU Trust. RESPONSE: If"you" refers solely to Pentex Foundation as discussed in the general objections, admit that Pentex Foundation demand to split the assets according to the Contract for Sale was honored by the Trustee, Beverly Miller. REQUEST FOR ADMISSION NO. 31: Admit or Deny that GWB Trust was formed to receive the Heirs' distributions from the Estate. RESPONSE: Admit that GWB trust was created by the expression of the Contract for Sale to help facilitate the terms of that Contract for Sale. REQUEST FOR ADMISSION NO. 32: Admit or Deny that your Original Petition admits that the FSA, as an extension of the CSL, is the subject of this suit. RESPONSE: Objection. The pleadings speak for themselves. Subject to this objection, assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMI:SSION NO. 33: Admit or Deny that you protested moving this case to Tarrant County Probate Court No. 2 because the Estate was responsible for establishing the amounts of the distributions to the heirs, but you could not challenge the Estate because you would be disqualified as recipient of Estate assets due to the tenns of the FSA. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection, assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 34: Admit or Deny that you instigated the Fannin County lawsuit. RESPONSE: Pentex Foundation objects to this request as argumentative. Subject to this objection, assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, admit that it is the Plaintiff and filed this suit. REQUEST FOR ADMISSION N0.35: Admit or Deny that your lawsuit against Candy and Ken was filed as revenge because of their inquiries into the administration of GWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GmBS Page 16 317 REQUEST FOR ADMISSION NO. 36: Admit or Deny that you have ordered and received assets from GWB Trust in addition to the 24.96515% you were originally assigned. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 37: Admit or Deny that you willingly engaged in discussions of the creation ofPentex Trust in order to avoid having to observed United States and Texas State law. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Assuming that "you,' refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 38: Admit or Deny that you existed prior to 2008 and that you provide multiple benefits to Beneficiaries other than Albert. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied as to the date, and admit the balance of this request. REQUEST FOR ADMISSION NO. 39: Admit or Deny that the Estate is responsible for the flow of cash to GWB Trust, which in tum flows to the Beneficiaries. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 40: Admit or Deny that Candy does not have the authority to control the Estate's distributions to the Heirs. RESPONSE: Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 41: Admit or Deny that Ken does not have the authority to control the Estate's distributions to the Heirs. RESPONSE: Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 42: Admit or Deny that suing Ken individually PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 17 318 Page was inappropriate, as Ken individually does not have the authority to control the Estate's distributions to the Heirs. RESPONSE: Denied. REQUEST FOR ADMISSION N0.43: Admit or Deny that Renhaw, Inc., received your interest in GWB Trust, then transferred it back to you. RESPONSE: If "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUES1FORADMISSIONN0.44: Admit or Deny that you were effectively rendered a "nonentity" with regard to GWB Trust, because of the transfers as follows: Albert Barcroft> Renhaw > GWB Trust. RESPONSE: If"you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 45. Admit or Deny that Howard Kirk and you worked together to remove assets from GWB Trust which did not belong to you in order to benefit unjustly from those assets. RESPONSE: If"you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 46: Admit or Deny that prior to around November 2013, you did not question the distributions from GWB Trust. RESPONSE: If"you" refers solely to Pentex Foundation as discussed in the general objections, admit. REQUEST FOR ADMISSION NO. 47: Admit or Deny that you issued instructions via Albert to Beverly Miller concerning the administration of GWB Trust. RESPONSE: Ojbection. This request is ambiguous. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 48: Admit or Deny that you occasionally hired and paid Danny Unger to perform minor accounting work, as well as research. RESPONSE: Admit that he did some accounting for Pentex Foundation. REQUEST FOR ADMISSION N0.49: Admit or Deny that you were aware that you were entitled to less than a quarter of the proceeds in GWB Trust, after PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETII GffiBS Page 18 Exhibit 319 Page /~' expenses, when you, or Albert acting on your behalf, instructed Beverly Miller to transfer 57.19% interest in GWB Trust to GBU Trust. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 50: Admit or Deny that you were aware that you were entitled to only 24.96516% interest ofGWB Trust at the time you instructed Beverly Miller to transfer 57.19% to GBU Trust. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 51: Admit or Deny that you benefitted substantially from GWB Trust since the time it was established in September 2008. RESPONSE: Pentex Foundation objects to this request as vague and ambiguous. · REQUEST FOR ADMISSION NO. 52: Admit or Deny that Albert drafted the Original Petition in this lawsuit. RESPONSE: Denied. REQUEST FOR ADMlSSION NO. 53: Admit or Deny that no changes could be made to GWB Trust distributions unless approved by unanimous vote. RESPONSE: Pentex Foundation objects to this request as assuming facts that have not been established, namely the terms of the GWB Trust. Admit that the CSL which established GBW Trust required that all 4 parties to the CSL sign any amendments before a notary. REQUEST FOR ADMISSION NO. 54: Admit or Deny that, once Renhaw transferred its share of assets to the GWB Trust, Ken, Candy, and Howard Kirk are the only three (3) remaining members, as well as Beneficiaries, of the GWB Trust, and that therefore you are no longer a Beneficiary of GWB Trust. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 55: Admit that Albert authorized the percentages of interest which the Estate assigned to the Heirs. RESPONSE: Objection. This request is ambiguous and vague. It is also outside the scope oflegitimate discovery. Pentex Foundation has made PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS Page 19 320 reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 56: Admit or Deny that, under the terms of the FSA, an Heir who disputes the terms can lose his or her interest in the Estate. RESPONSE: Denied. REQUEST TO ADMISSION NO. 57: Admit or Deny that Admit your inclusion of Howard Kirk as a Defendant in this Cause is a smoke screen designed to deflect from the fact that Howard Kirk is cooperating with you in this lawsuit and in the lawsuit filed in Tarrant County, which involves Albert, Howard Kirk, Candy, and Ken. RESPONSE: The Intervenor objects to this request as argumentative, multifarious, and outside the scope oflegitimate discovery. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 58: Admit or Deny that John Skotnik was forced to withdraw from representing you in this case, as he originally assisted in the Estate settlement involving the Heirs. RESPONSE: Pentex Foundation objects to this request as calling for a legal conclusion as to why Mr. Skotnik withdrew, and as being outside the scope of any legitimate discovery. Subject to these objections, Pentex Foundation admits that it was agreed in the CSL that John Skotnik could represent Barcroft's interests if a dispute ever arose, admit that Defendants reneged on that provision of the CSL, thereby breaching the contract. REQUEST FOR ADMISSION NO. 59: Admit or Deny that you, or your representative, assisted Howard Kirk in his Answer and his Admission responses in this case. RESPONSE: Objection. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)( 1) and such cases as Ryals v. Canales,767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections: Denied. REQUEST FOR ADMISSION NO. 60: Admit or Deny that you, or your representative, assisted Howard Kirk in his Answer in the Tarrant County case. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Pagc20 321 Page J0 RESPONSE: Objection. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation of litigation and/or protected pursuant to the ')oint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales)
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections: Denied. REQUEST FOR ADMISSION NO. 61: Admit or Deny that you function as a shell entity for Albert. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 62: Admit or Deny that, on or about December 2, 2013, Albert sent Candy Walton and Ken letters stating that Albert, as agent for Pentex and Renhaw, were invoking the right to demand a split of the GWB Trust assets, as you wished to withdraw from GWB Trust. RESPONSE: Admit that Pentex demanded a split of assets under the CSL. REQUEST FOR ADMISSION NO. 63: Admit or Deny that Albert has been your Legal Representative up until there was a demand to have Albert deposed. RESPONSE: Objection. This request is ambiguous with respect to the term "Legal Representative." Subject to this objection, Mr. Danny Unger is the designated representative for Pentex Foundation in this litigation. REQUEST FOR ADMISSION NO. 64: Admit or Deny that you informed GWB Trust Beneficiaries of all transfers of your interest in GWB Trust each time a transfer was effected. RESPONSE: Admit that the beneficiaries were informed. REQUEST FOR ADMISSION NO. 65: Admit or Deny that on December 18, 2013, signing in the capacity of "Legal Representative" of Pentex, you noticed the Estate, including Executor Kenneth Gibbs, and the Estate's (3) three attorneys that a substantial part of GWB's Trust assets must be distributed and made payable to the GBU Trust. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection, it is admitted that the document numbered Plaintiff/Intervenor 00035 is authentic and speaks for itself. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page21 Exhibit 322 Page .2/ REQUEST FOR ADMISSION NO. 66: Admit or Deny that, you are a not-for-profit private foundation established and operated in Panama. RESPONSE: Admit REQUEST FOR ADMISSION NO. 67: Admit or Deny that in a very small sentence, at the end of a long tirade of explanations, GWB Trust accounting reflected that 20.04% ofthe 35.04% ofGWB Trust•s assets had been transferred to GBU. RESPONSE: Pentex Foundation objects to this request as argumentative and vague. Subject to this objection, admitted that the document numbered Plaintiff/Intervenor 00035 is authentic and speaks for itself. REQUEST FOR ADMISSION NO. 68: Admit or Deny that GWB Trust is responsible for paying administrative costs, such as property taxes, for assets assigned to GWB Trust by the Estate and which benefit you. RESPONSE: Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 69: Admit or Deny that Albert, as your Legal Representative, exerted undue influence over Beverly Miller. RESPONSE: Objection vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 70: Admit or Deny that, although you are based in Panama, the majority of your affairs originate in Texas. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 71: Admit or Deny that Albert, not you, is the one ultimately receiving income out of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 72: Admit or Deny that you donate funds to a medical facility that is located outside of the United States, claiming the act to be the primary reason for your existence. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied, other than to admit that Pentex Foundation donates to numerous causes. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNE1H GIBBS Page22 Exhibit 323 Page ).2 REQUEST FOR ADMISSION NO. 73: Admit or Deny that Albert assisted in calculating the percentages due Heirs from the Estate and that Albert provided the calculations to the attorneys of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 74: Admit or Deny that neither Ken individually nor Candy individually had or now have the authority or the ability to control the distributions from the Estate to the Heirs. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 75: Admit or Deny that Albert assigned John Skotnik a percentage of his interest as detailed in the FSA. RESPONSE: Objection. The terms of the FSA speak for themselves. Subject to this objection, Pentex Foundation admits that the FSA, as submitted as Plaintiff/Intervenor 00059-122 is authentic and that John Skotnik was assigned a share. REQUEST FOR ADMISSION NO. 76: Admit or Deny that the subject matter in this case is not in the Fannin County Court's jurisdiction, since land in which GWB Trust holds interest remains in and under the control of the Estate. RESPONSE: Denied. REQUEST FOR AD:MISSION NO. 77: Admit or Deny that you drafted and persuaded Howard Kirk Gibbs to file documents in this Cause and in the Fannin County District Court Cause on your behalf. RESPONSE: Objection again. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation of litigation and/or protected pursuant to the ''joint defense doctrine" recognized in TEX. R. EVID. 503(b)( 1) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections: Denied. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 23 Exhibit 324 REQUEST FOR ADMISSION NO. 78: Admit or Deny that GWB Trust document, not the CSL or the FSA, establishes the exact percentage of interest which Pentex held. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 79: Admit or Deny that Candace Walton and Kenneth Gibbs do not want to sell the Homeplace. RESPONSE: Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 80: Admit or Deny that the land in which GWB Trust holds interest belongs to the Estate, and therefore GWB Trust issues must be handled as Estate matters. RESPONSE: Objection. This calls for a pure legal question. Subject to this objection, PentexFoundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 81: Admit or Deny that you transferred interest in GWB Trust to Renhaw, Inc., because doing so aided Albert in eluding the Internal Revenue Service's collection activities against him. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 82: Admit or Deny that GWB Trust is a legitimate Trust, which was designed to receive interest from the Estate and which has distributed you substantial assets in the past. RESPONSE: Objection. This calls for a pure legal question. Subject to this objection, Admit that it is a business organization created under the terms of the CSL. REQUEST FOR ADMISSION NO. 83: Admit or Deny that the FSA is a legitimate and binding contract. RESPONSE: Admit. REQUEST FOR ADMISSION NO. 84: Admit or Deny that Albert drafted the CSL. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 24 325 Page ,) "' RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 85: Admit or Deny that Albert drafted the GWB Trust agreement. RESPONSE: Objection. This request assumes facts in dispute, to wit: whether there even is a GWB Trust agreement. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 86: Admit or Deny that the Estate is being mismanaged. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 87: Admit or Deny that the Estate's calculations concerning the percentages of the Heirs' interest in the Estate impact GWB Trust. RESPONSE: Objection. This request is confusing and vague, and seems to suggest a pure question of law. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 88: Admit or Deny that you have a true and correct copy of the CSL. RESPONSE: Admit. REQUEST FOR ADMISSION NO. 89: Admit or Deny that you have a true and correct copy of the FSA. RESPONSE: Admit we believe we do. REQUEST FOR ADJvllSSION NO. 90: Admit or Deny that, according to the FSA, Albert is responsible for paying his own attorneys' fees. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page25 Exhibit 326 Page JS of RESPONSE: Objection this calls for a pure legal conclusion. Subject to this objection, admit as to our understanding of that to be the case. REQUEST FOR ADMISSION NO. 91: Admit or Deny that Candy and Ken are not responsible for any tortious interference between GWB Trust and yourself, as neither Candy nor Ken ever interfered with the appropriate distributions to you of approximately one-quarter (1/4) interest in GWB Trust. RESPONSE: Object to this request as multifarious and vague. Subject to these objections: Denied. REQUEST FOR ADMISSION NO. 92: Admit or Deny that Albert breached the FSA. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 93: Admit or Deny that Albert breached the CSL. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 94: Admit or Deny that you are bound by the conditions of the FSA. RESPONSE: Admit that some of the provisions of the FSA apply to Pentex Foundation and any other successor to the interest originally conveyed to Mr. Barcroft. REQUEST FOR ADMISSION NO. 95: Admit or Deny that Danny Unger has been your Legal Representative since the inception of this lawsuit. RESPONSE: Objection. This request is ambiguous with respect to the term "Legal Representative." Subject to this objection, it is admitted that Mr. Danny Unger is the designated representative for Pentex Foundation in this litigation. REQUEST FOR ADMISSION NO. 96: Admit or Deny that Albert, not Danny Unger, initiated this lawsuit on your behalf. RESPONSE: Objection. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation oflitigation, the attorney/client privilege and work product communication. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS Page26 327 Page REQUEST FOR ADMISSION NO. 97: Admit or Deny that on a yearly basis, GWB Trust provided you accountings concerning income and distributions to Beneficiaries. RESPONSE: Objection. This request is vague. Subject to that objection, it is admitted that only tax returns were submitted. REQUEST FOR ADMISSION NO. 98: Admit or Deny that you breached the FSL. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 99: Admit or Deny that Scott Smith stated during the July 31, 2014, hearing in Tarrant County, that he received his retainer from beneficiaries of GBU Trust, including Danny Unger. RESPONSE: Objection. This request is outside the scope of legitimate discovery. Additionally, the transcript of that proceeding would be the best evide{lce of what was said. REQUEST FOR ADMISSION NO. 100: Admit or Deny that Scott Smith stated during the July 31, 2014, hearing in Tarrant County, that he took this case because, he like most attorneys, will take any case that can pay him a retainer. RESPONSE: Objection. This request is outside the scope of legitimate discovery. Additionally, the transcript of that proceeding would be the best evidence of what was said. Respectfully submitted, Scott Smith State Bar Number 18688900 120 South Crockett Street P.O. Box 354 Sherman, Texas 75091-0354 e-mail smithlaw@ainnail.net Facsimile (903) 870-1446 Telephone (903) 868-8686 PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page27 328 Page CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing document was served, by certified mail, return receipt requested number 7009 2~50 0000 2311 4187 toChristy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, ProSe, at 4360 Western Center Blvd., Suite Ft Worth, Texas 76137, on this the 3"' day of September, 2014. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS 329 Page J~ Unsworn Delcaration Pursuant t9 TEX. CIV. PRAC, & REM. CODE § 132.001 -~-;:c-.K.=~-- . I reside at 1 am the designated representati e of P ntex Foundation, that I have read the above and foregoing Answers to Interrogatories and subscribes to the same on behalf ofPentex Foundation;· that said· responses, subject to inadvertent or undiscovered errors, are based on and therefore limited by the records and information still in existence, presently recollected and this far discovered in the course of the preparation of these responses; that, consequently, l reserve the right to make changes in responses if it appears at any time that omissions or errors have been made therein or that more accurate information is available; and that subject to the limitations set forth herein, the said responses are true and correct and within my personal knowledge. I have been advised that Rule 1J7·~(d)(f}Ag.~s. nel=. ~eqt}~r~::ttt~t~I swear to interrogatory answers abou' persq11s ,"Y:~.tti kp_~-~·lf!4S~.·.o(,r.~*~y~~-:f~.9Y~t'!t'~~l witnesses or legal contentions. Since I am not an attorney, I therefore do not swear to the truth of any interrogatory answers containing·. inf.,
132 S.W.2d 100, 103 (1939). Alter ego "is shown from the total dealings ofthe corporation and the individual, including the degree to which ... corporate and individual property have been kept separately, the amount of financial interest, ownership and control the individual maintains over the corporation, and whether the corporation has been used for personal purposes." Castleberry v.
Branscum, 721 S.W.2d at 272: Hall v. Timmons, 987 S.W.2d248, 250 (Tex. Appi.-Beaumont 1999, no pet.). 19. Granting the motion for leave to file a third-party petition is within the sound discretion of a trial court, and leave to file such a petition should be ''liberally granted." In re Arthur Andersen rrP. 121 S.W.3d 471,483 (Tcx.App.-Houston l14t 11 Dist.]2003, no pet.). Ill. ARGlJMENTS 20. Albert is undeniably the alter ego of Pentex Foundation, Pentex Royalty Trust, Renhaw, Inc., and GBU Trust. Albert's actions regarding Pentex's administrative decisions in DEFENDANTS' MOTION FOR LEAVE t)F COURT TO FILE TIIIRD-PARTY PETITION ANd ALTER EGO 343 PfNTEX FouNOA7'/0N ,._Gums, ct.-fL.; 5 the matter at hand meet the standards established by the courts for an alter ego. 21. The Purpose of the Organization. A review of the facts emphasizes the fact that Albert established Pentex specifically for his own advantage. Originally Albert purported that, upon learning about Pentex's philanthropic efforts, he approached some of the Estate's Heirs with the proposal that Pentex invest in the Heirs' legal fight for Estate assets. However, the timeline posited by Albert is not feasible. Albert began discussions with the Heirs as far back as 2005. These discussions were documented in the CSL which Pentex claimed formed the crux of its Original Complaint, and which. again, was illegally drafted by Albert. However, according to its formation documents obtained in discovery, Pentcx was not established until 2008. This means that, way back in 2005. Albert must have concocted a plan in which he would create a Panamanian foundation once he and the Heirs came close to agreement concerning Estate assets. In other words, Pentex did not exist prior to Albert's assumption that he would profit greatly from providing unauthorized legal advice to the Heirs. Clearly Pentex was established to benefit Albert, and only Albert. 22. Use of the Organization. Specifically, by allowing funds to flow from the Estate through GWB Trust to Pentex, then on to him, Albert could largely escape the collecting hand of the I.R.S. Albert's stance regarding the I.R.S. was, and is. infamous. In 2001, he copyrighted an on-line nonfiction work, which he entitled The Greatest Story Never Told - Until Now, and which addressed strategies to avoid legal process and other uncomfortable governmental things, 5 While the courts reference "corporations" in terms of alter egos, the function of Pentex within this Cause places it well within the definition of a business structure. On June 20, 2014, in an email from Pentex's Counsel, Pentex is referred to as a corporation. DEFENDANTS' MOTION FOR LEAVE Of COURT TO FILE THIRD-PARTY PI·TITION AND 'ALTER EGO CAUSE No. CV- 344 flc'Xl'I:X FOl/r\'U·IT/0.\ 1·. Cll/1/iS, IJ.ll.. such as federal taxes. 6 Thus. as Pentex's designer and maker. Albert could enjoy a great number of monetary rewards without the hassle of governmental oversight. Pentex was a conduit which allowed Albert to elude the I.R.S. In effect, Pentex is Albert. And vice versa. 23. Control of the Organi~ation. Once established. Albert exercised control over Pentex. According to Albert's self-avowed position as "'Legal Representative," and according to Pentex's own Admissions, during the time of the alleged damage to Pcntex, Albert possessed the authority "to carry on all business in the United States for Pentex." 24. On behalf of Pentex, Albert fully demonstrated this control when asstgnmg Pcntex's interest 111 GWB Trust to Renhaw. Inc .. and agam when he reassigned Renhaw's interest back to Pentex. 25. On behalf of Pentex, Albert fully demonstrated this control when wielding the majority vote of G WB Trust. 26. On behalf of Pcntex, Albert fully demonstrated this control during increasingly heated discussions with other GWB Trust members over the provisions of GWB Trust. 27. On behalf of Pentex, Albert fully demonstrated this control when he denied that accurate and complete accountings of GWB Trust were necessary. 28. On behalf of Pentcx. Albert fully demonstrated this control when he demanded a split ofGWB Trust assets. 29. On behalf of Pentex, Albert fully demonstrated this control when he ordered Beverly Miller to assign all of Pentex 's interest (and a great deal of interest not belonging to 7 Pentex) in GWB Trust to CJBU Trust. 6 As recently as September 14, 2014, Albert's treatise on the evils of governmental influences could be found at: h~_p_;i[~WW:!!..l!!!IJ.illly!2f_@en t&om"0_r._~~tes_tl:Q~Q§.tory%~QN ~y~o2 QToJQ-J)_Nilk'Y~Q N0 W_,nsjf. DEFENDANTS' MOTION FOR LEA VI- OF ColiRT TO F11.1: THIRD-PARTY PI'TITION AND AI TFJ~ E
> 8006802804 P3/4 PENTEX FOUNDATION has restraints on what it can do; and, every timE: there is a vote in GWB that doesn't go your way, you yell foul. Further, there is a conflict of interest because an action must be brought agair:s·: Ken to force compliance with the FSA or to remove Ken as Executor, and Ken is a voting member and beneficiary of GWB. Therefore, any action by GWB would involve using Ken's money to sue him. I cannot imagine how that would play out, or how the court would handle that scenario; therefore, we never moved forward. That is the main reaso:-: why PENTEX FOUNDATION has not been able to proceed with enforcement actions earlier. All this adds up to the fact that PENTEX FOUNDATION simply doe5 not wish to remain a party in GWB. Under the terms of the Contract for Sale of Land and the laws of the State of Texas, it does not have tc. Therefore, this is my formal notice to each of you that, as agent for PENTEX FOUNDATION, I am revoking PENTEX FOUNDATION's entl~2 contribution to GWB, and demanding a split of its assets pursuant to the Contract for Sale of Land at page 4, Item #6, to wit: "It is hereby agreed that there shall be a business organization, the exact type to be agreed upon at a later date, created by the parties hereto; and, that all revenue of any kind received from any of the property and/or assets covered herein shall be deposited into a bank account in that entity's name, and that ::=.: expenses necessary to the continuation of revenue being paid t~ the parties hereto (i.e. property taxes on the royalties or property covered herein, and any necessary expenses such as well upkeep, etc.) shall be deducted and paid as required bef~ve the 70/30 division agreed to in this contract. Barcroft shaU have: a 50% vote in the operation of said business organization; and~ the only fundion of said business organization shall be to facilitate the agreement in this contract. Any monies paid out c~~ said business organization, other than the agreed upon split 7 351 Page----L.)_ 2013-12:03 03:06 CANDY WAKTON 8172704383 » 8006802804 between the parties, shall be agreed upon by all parties hereto. The division shall be divided on a basis of 30% to Barcroft, 23.34% to Kenneth Vern Gibbs, 23.33% to Candace Walton Gibbs, and 23.33% to Howard Kirk Gibbs, at each instance of dispel"$al to the parties. Any party may demand a split of the assets of said business organization at any time." The business organization described at page 41 item #6, and showr~ [;, its entirety directly herein above, is GWB, which was created to Llfi:: this provision of the Contract for Sale of Land; therefore, the optior. tc demand a split of the assets applies to GWB and is enforceable. I regret that your actions have necessitated this action. I h2.c hoped afways to remain friends. It doesn't appear that was in the cards. After this, I will have no way to "steal" anything that beior:gs r: you, or visit any other false threat your attorney has created in vo-.... ( mind on you; but, I intend to fully coltect what belongs to PENTEX FOUNDATION. PENTEX FOUNDATION is assigning its share of the Estate p~oceeo~ from the Contract for Sale of Land to the GBU Friends and Associates Trust, 410 Anderson County Road 154, Palestine, Texas 75801. PEl\ Tt). FOUNDATION will receive regular mail, but not certified or registered mail or service, at 210 West Oak Street #151, Palestine, Texas 75801. Service and mail that must be signed for must be made through h: home office; PENTEX FOUNDATION, Panama Gardens" Unit 2, Hade Udice, Capiral Republic· of Panama; or, through me at Rancho L:;s Bris.2~, San Marcos, livingston, lzabal, Guatemala, Central America. AI nn Barcroft Agent for PENTEX FOUNDATION 352 Page ~ ..,. !~~):\ 'C::'t::-::)1~::?' Q.. :s ~ ~ ~l Cl) l Copies of this notice have been sent by Certified Mail, Return Re.::e!;H Requested~ to: ..,. = Howard Kirk Gi~-bs 00 ~ Kenneth Vern Gibbs Candace Gibbs Walton ...= 00 Cl 4212 Wheeler Street 500 Logan Dr. 4005 Vernon --.;V?='/ 00 Ft. Worth, TX 76117 Azle, TX 76020 Keller, TX 76243 " " "" 00 ..,. "" .... Cl ~ ;; z 0 ~ '~"' z t:5 M ~ If") ~ M N = ·~ .:, ~ PENTEX FOUNDATION A Private Foundation of Panama, C.A. December 18, 2013 To: Kenneth Vern Gibbs, Executor for the Estate of Bert Hughes Gibbs 4212 Wheeler, Ft. Worth, TX 76117 To: Rickey Brantley, Attorney for the Estate of Bert Hughes Gibbs 855 Texas St, Fort Worth, TX 76102 To: Scott Pelley, Attorney for the Estate of Bert Hughes Gibbs 707 West Washington, Sherman, TX 75092-5639 To: Jimmy Walker, Attorney, Permanent Guardian of Kathryn Gibbs 815 Walker, Suite 240, Houston, TX 77002-5762 Dear Mr. Gibbs, Mr. Brantley, Mr. Pelley and Mr. Walker: This notice is to inform the Estates of Bert and Kathryn Gibbs rEstates"} that the origlnal3096 assignment titled 11Contract for Sale of Land, Mineral 1tfahts and Royalties, and all other Assets or Monies Received from the Estate of Bert Hushes Gibbs, Kathryn G. Gibbs, and/or the Mary L Houseworth Trust(s) or 1'be Kathryn Houseworth Gibbs Irrevocable Trust'~#["CSL.,] to AI Barcroft has been transferred to GBU Friends and Associates Trust (,GBU"] from GWB Family and Friends Trust [11GWB11] effective November 26, 2013; and, that all future distributions relating to this 3096 assignment by Kenneth Vern Gibbs, candace Walton Gibbs and Howard Kirk Gibbs [..,Gibbs Children.,] to AI Barcroft should be remitted directly to GBU, 410 Anderson County Rd 154, Palestine, Texas 75801. Item number 6 of the CSL provided for the creation of a business organization that would receive and distribute the 70% portion of the Estates' distributions owned by Kenneth Vern Gibbs, Candace Gibbs Walton and Howard Kirk Gibbs (collectively "Gibbs Children"] along with the 3096 assignment to AI Barcroft; and GWB, a revocable trust, was created on or about November 7, 2008, in accordance with that requirement. The CSL Notice of Transfer to GBU Page 1 of3 354 Page further provided in the same paragraph thot ony potty may demand o split of the assets of st1ld business organlzotlon at any time. PENTEX FOUNDATION, a settlor of GWB and current assignee of the 30% assignment from AI Barcroft, has revoked Its contribution to GWB and assigned its share of the assets residing in GWB to GBU. PENTEX FOUNDATIION hereby affirms that its share due from the Estates relating to the 30% assignment are now transferred to the GBU, and all future distributions relating to said 30% assignment by either Estate should be made payable to GBU. In accordance with the Gibbs Family Settlement Agreement ["FSA"], Kip Gibbs was to receive 25% of the Estates of Bert and Kathryn Gibbs with the remaining 75% going to the Gibbs Children. In accordance with the FSA and the CSL, 22.5% of the distributions by the Estates is owned by and related to this original 3096 assignment. However, 2.46% of the original 22.5% of the gross E5tates is being paid directly to John Skotnik, leaving the assignee wfth 20.0496 of the gross distributions of the Estates. THEREFORE, FROM THIS DATE FORWARD, Notice and Demand is hereby made upon the Estates of Bert and Kathryn Gibbs, that from the date of this notice forward, that portion of all distributions made by the Estates of Bert and/or Kathryn Gibbs related to the original 3D% assignment made by the Gibbs Children to AI Barcroft, and currently being paid to GWB Family and Friends Trust, be distributed and made payable to; and, be sent directly to: GBU Friends and Associates Trust 410 Anderson County Road 154 Palestine, Texas 75801 The tax number for GBU Friends and Assadates Trust is 38--7103561. If either Estate disagrees with the calculation referred to herein, or needs any further verification of any documents related to this transfer, please notify me Immediately by e-mail to albertbarcroft@gmail.com, specifically identifying any mistake in the calculation and/or required verification; or, as to any reason why future distributions will not be made directly go GBU Friends and Associates Trust as requested. Notice of Transfer to GBU Page2of3 Exhibit 355 Page J On behalf of At Barcroft, Pentex Royal Trust, PENTEX FOUNDATION, and/or RENHAW, INC., conjunctively and/or individually, I hereby stipulate that a photocopy of a scanned e-mail or fax of this document, and any attachments, may be used as originals for all legal purposes. I hereby certify and affirm with my slanature below under penalty of perJury under the laws of the United States of America that lam the lepl repreyntatlve for Pentex Royalty Trust, PENTEX FOUNDATION, and RENHAW, INC.: and, as such, I have the authority to make alllepl decisions on their behalf. [28 USC§ 1746(1)) Further, Beverly Miller, Trustee of the GWB Family and Friends Trust, is in the possession of the original authorization for me to represent those entities; and, she will provide copies of same if necessary. Dated and Signed this 18th day of December, 2013. ~~ Albert Lynn Barcroft In my personal capacity, and as legal representative for PENTEX FOUNDATION, Pentex Royalty Trust, and RENHAWI INC. a:: Kenneth Vern Gibbs, Rickey J. Brantley, and Scott Pelley by United .. States Postal Service, Certified Mail, Return Receipt Requested to the addresses shown In the heading hereto. cc: By e-mail to: Rickey Brantley at rickey@rickeybrantley.com Scott Pelley at spelley@npwlawfirm.com Notice of Transfer to GBU Page 3 of3 ·-:, r;)\: ..•.. Exhibit /~;>/ A 356 Page 3 of (~~~?( Estate Law To be answered by a Texas Trust attorney: Three individuals Resolved Question: To be answered by a Texas Trust attorney: Three individuals (A, B, & C) sold to one other person (D) exactly 30% of their inheritance before the fact of the inheritance (for D's assistance in dealing with all problems and concerns of securing the inheritance). B. The people did this by a contract for sale ("Contract") executed and filed in the public record. C. Under the terms of the contract, a business organization would be established so that all money to be paid from the inheritance pursuant to the contract would be deposited into the business organization. D. The percentages due to each would be as follows: D= 30%, A=23.34%, B=23.33% and C=23.33%. E. The language of the contract was as follows: 1. "It is hereby agreed that there shall be a business organization, the exact type to be agreed upon at a later date, created by the parties hereto; and, that all revenue of any kind received from any of the property and/or assets covered herein shall be deposited into a bank account in that entity's name, and that all expenses necessary to the continuation of revenue being paid to the parties hereto (i.e. property taxes on the royalties or property covered herein, and any necessary expenses such as well upkeep, etc.) shall be deducted and paid as required before the 70/30 division agreed to in this contl-act... ; and, the only function of said business organization shall be to facilitate the agreement in this contract. Any monies paid out of said business organization shall be agreed upon by all parties hereto, and shall be divided on a 70/30 basis at each instance of dispersal to the parties. Any party may demand a split of the assets of said business organization at any time." F. The business organization that was created in compliance with the Contract was specifically a revocable trust. [The trust document specifically states: "This trust shall be revocable."] G. Three of the parties (A, B, & C) to the contract became named settlers in the trust and contributed their entire share; and, the fourth party (D) to the Contract contributed his entire share as well, but was not a named settlor in the trust. H. Under the definitions in the trust document, "settlor" is defined as: 1. "Settlor" means a person [or persons] Who creates a trust or contributes property to 357 Page 2. If more than one person contributes property to a trustee of a trust, each person is a settlor of the portion 'of the property in the trust attributable to that person's contribution to the trust." I. The proceeds from the contract were the only contributions to the trust. J. The beneficial distribution within the trust was different than the settlor's contributions for several reasons; but the settlors or their interests never changed. K. The person D decided to revoke his contribution to the trust. Questions based on these facts 1. If a person (D) who was not specifically named as a settlor in the original trust document contributes property to the trust, in accordance with the above trust definition, does that person's contribution cause him to become a settlor of the trust with a revocable interest for his entire share of the contribution? 2. Can any settlor revoke all of his contribution, even if his defined beneficiary interest percentage in the trust was less than the percentage contribution he made? a. For example, a settlor contributes 30% of the total assets to a trust, but he receives only 25% of the beneficial distributions from the trust. b. If he revokes his contribution, can he revoke the full 30% he contributed? 3. Can the underlying contract that caused the creation of the trust be enforced after the trust is created and in force and action? Expert: RayAnswers Hi and welcome to JA. I am Ray and will be the expert helping you today. Let's go through your questions here. 1. If a person (D) who was not specifically named as a settlor in the original trust document contributes property to the trust, in accordance with the above trust definition, does that person's contribution cause him to become a settlor of the trust with a revocable interest for his entire share of the contribution? Answer: He would not be a settlor unless he either set up the trust or their was an amendment done adding him as a settlor.If the other parties agree you can amend the revocable trust here and make him a settlor to the trust. 2. Can any settlor revoke all of his contribution, even if his defined beneficiary interest percentage in the trust was less than the percentage contribution he made? a. For example, a settlor contributes 30% of the total assets to a trust, but he receives only 25% of the beneficial distributions from the trust. Exhibit 358 Page ___ -;).__ Here the terms of the trust control as far as the trust and again a trsut amendment could be done to allow for this. Sample trust amendment. ~1ttp: //www .lgggroup.com/html/pla n-and- prosper- pdf/REVOCABLE%20LIVING%20TRUST%20Amendment Form. Qdf b. If he revokes his contribution, can he revoke the full 30% he contributed? If the trust does not allow for this then no under the trust. He could sue under breach of contract here for the amount of contribution if the contract allows for that. You would have four years from the date of breach to bring suit. http: /lcodes.lp. findlaw .com/txstatutes/BC/ 1/2/G/2. 725 3. Can the underlying contract that caused the creation of the trust be enforced after the trust is created and in force and action? Yes the contract can be enforced as breach of contract suit. I appreciate the chance to help you today.Piease let me know if you have more follow up.Thanks again. RayAnswers, Attorney Category: Estate Law Satisfied Customers: 29595 Experience: Texas lawyer for 29 years in Estate law RayAnswers and 7 other Estate Law Specialists are ready to help you Exhibit 359 Page 3 Expert: RayAnswers AI, here is the law that allows you to amend the trust. SUBCHAPTER C. REVOCATION, MODIFICATION, AND TERMINATION OF TRUSTS Sec. 112.051. REVOCATION, MODIFICATION, OR AMENDMENT BY SETTLOR. (a} A settlor may revoke the trust unless it is irrevocable by the express terms of the instrument creating it or of an instrument modifying it. (b) The settlor may modify or amend a trust that is revocable, but the settlor may not enlarge the duties of the trustee without the trustee's express consent. (c) If the trust was created by a written instrument, a revocation, modification, or amendment of the trust must be in writing. . I ~ .J~:;_&-.1 \fi! 766 S.W.2d 145 (1989). REQUEST FOR PRODUCTION NO.3: Produce all documents proving your existence and validity, including names of the Board of Directors and Legal Representatives who have served since the inception of the entity; and letters, emails, bank records, correspondence, and accountings related to Albert's involvement in your formation. RESPONSE: Objection. This request is overly broad and outside the scope of discovery to the extent it requests "letters, emails, bank records, correspondence, and accountings related to Albert's involvement in your formation." Subject to this objection, please see the documents attached hereto as Plaintiff/Interpleader 00001-00033. REQUEST FOR PRODUCTION NO. 4: Produce a copy of every federal tax return that you and Pentex Trust has filed with the Internal Revenue Service since 2008. RESPONSE: Objection, the request is made merely to harass and no other purpose, as tax returns are generally not discoverable, see Hall v. Lawlis,
907 S.W.2d 493(Tex. 1995); Chamberlain v. Cherry,
818 S.W.2d 201(Amarillo 1991). REQUEST FOR PRODUCTION NO. 5: Produce a copy of the Pentex Trust. RESPONSE: Objection. This request seeks information which is outside the scope of discovery. REQUEST FOR PRODUCTION NO. 6: Produce all communication dating back to September 1, 2008. including letters, tape recordings, or emails, that you have had with any representative of ConocoPhillips concerning you yourself, Albert, . GWB Trust, Pentex Trust, or GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 7: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page2 367 Page_..;...~- with Danny Unger concerning GBU Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEx. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 8: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Howard Kirk concerning the Estate's attorney fees. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 9: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had with Howard Kirk concerning GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. None REQUEST FOR PRODUCTION NO. 10: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Rickey Brantley or Scott Pelley concerning the Estate's attorney fees. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 11: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had with Danny Unger concerning GBU Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation oflitigation. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 12: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Ken concerning the Estate's attorney fees. RESPONSE: Pentex Foundation has no documentation in its possession PENTEXFOUNDATION'S RESPONSE TO DISCOVERY FRCM KENNETH GIBBS Pagc3 368 Page J responsive to this request. REQUEST FOR PRODUCTION NO. 13: Produce all documentation dating back to September 1, 2008, which you have concerning Renhaw, Inc., including the transfer of rights of the CSL to you, letters, emails, tape recordings, and any other records involving Renhaw, Inc .. RESPONSE: Please see Plaintiff/Intervenor 000123, 000034. REQUEST FOR PRODUCTION NO. 14: Produce any communication dating back to May 1, 2008, including letters, tape recordings, or emails, that you have had with Albert concerning GWB Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(I) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 15: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had with Albert concerning GBU Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 16: Produce any communication dating back to May 1, 2008, including letters, tape recordings, or emails, that you have had from Albert concerning distributions from the Estate. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the ''joint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 17: Produce any communication dating back to May 1, 2008, including letters, tape recordings, or emails, that you have had PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS Page4 Exhibit 369 Page 1 with Albert concerning Pentex Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the ''joint defense doctrine'' recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Additionally, this request is outside the scope of discovery. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 18: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Candy concerning GWB Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 19: Produce any communication dating back to January 1, 2013, including letters, tape recordings, or emails, that you have had with Candy concerning GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 20: Produce all documents related to Pentex Trust's interest in the Estate and GWB Trust, and dating back to September 1, 2008, including, but not limited to, documents verifying its existence, letters, emails, bank records, correspondence, and accountings. RESPONSE: Pentex Foundation has no documentation in its possession responsjve to this request. REQUEST FOR PRODUCTION NO. 21: Produce any communication dating back to January 1, 2011, including letters, tape recordings, or emails, that you have had with Beverly Miller involving Albert. RESPONSE: Pentex Foundation objects to any such communications protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to this objection, Pentex Foundation has no documentation in its possession responsive to this request other than as may be produced herewith. REQUEST FOR PRODUCTION NO. 22: Produce all documents upon which you PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 5 370 base the claims against Candy and Ken in your Original Petition. RESPONSE: Pentex Foundation objects to this request as overly broad and fails to direct Plaintiffto any class or type of documents. See, Loftin v. Martin,
766 S.W.2d 145(1989). Subject to this objection, please see the documents attached to the Motion for Partial Summary Judgment submitted in this case. REQUEST FOR PRODUCTION NO. 23: Produce any communication dating back to January 1, 20 11, including letters, tape recordings, or emails, that you have had with Beverly Miller concerning Pentex Trust. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery, and additionally as to any such communications protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to this objection, Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 24: Produce any communications dating back to January 1, 2011, including letters, tape recordings, or emails, that you have had with Beverly Miller concerning GBU Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the ''joint defense doctrine" recognized in TEX. R. Evm. 503(b)(1) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Additionally, this request is outside the scope of discovery. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request other than as may be produced herewith. REQUEST FOR PRODUCTION NO. 25: Produce any communications dating back to January 1, 2011, including letters, tape recordings, or emails, that you have had with Beverly Miller concerning GWB Trust. RESPONSE: Pentex Foundation objects to any such communications initiated after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Additionally, this request is outside the scope of discovery. Subject to these objections, Pentex Foundation has no documentation in its possession responsive to this request other than as may PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page6 Exhibit ]) i!),:;:~'· fi 371 Page /(, of -2 :?(' ., '\~':,::~~ir be produced herewith. REQUEST FOR PRODUCTION NO. 26: Produce all documents and communications dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Rickey Brantley concerning the Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 27: Produce all documents and communications dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with Scott Pelley concerning the Estate's distributions to Heirs and the calculations of the Heirs' attorneys' fees. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 28: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of JW Operating Company concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 29: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of Trio Consulting and Management, LLC, concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. REQUEST FOR PRODUCTION NO. 30: Produce any communication dating back to September 1, 2008, including letters, tape recordings, or emails, that you have had with any representative of Devon Energy concerning you yourself, Albert, GWB Trust, Pentex Trust, and GBU Trust. RESPONSE: Pentex Foundation has no documentation in its possession responsive to this request. INTERROGATORY NO. 1: Explain your relationship with Pentex Trust, including details concerning your agreement with Pentex Trust to receive distributions from GWB Trust; your arrangement with Albert to act as Legal PENTEX FOUNDATION'S RESPONSE TO Dl;SCOVERY FROM KENNETH GffiBS Page 7 372 Representative for both entities; whether you or Pentex Trust was formed ftrst; the management associated with Pentex Trust in Texas, as effected from a Panamanian locale; the manner in which you determine tax obligations; and arrangement with Pentex Trust concerning voting rights in GWB Trust ANSWER: Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Interrogatories may be used to ascertain basic legal and factual claims and defenses, but may not be used to force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at comment 1. Subject to this objection, Pentex Foundation answers as follows: Pentex Royalty Trust is a trust domestic to the United States that was created as a trust to take in all revenue due from taxable sources within the United States, pay any U.S. taxes or other obligations due, and then distribute its remaining beneficial interests. Pentex Foundation is the sole beneficiary of Pentex Royalty Trust. Pentex Royalty Trust has a paid trustee who is not associated, or familiar with, any other phase ofPentex Foundation. The tax obligations are figured by computing and filing a Return 1042 with the Internal Revenue Service meeting the requirements of the Internal Revenue Code. The voting rights issue was always a problem because the purported trustees of GWB trust never had a clear and defined way of doing anything. For that reason, Pentex Foundation assigned it voting shares by proxy to Jim Walton as long as he was the purported trustee. We have no record of any official votes after Beverly Miller became the purported trustee. INTERROGATORY NO. 2: Detail your relationship with Albert, including specifics concerning his activities within your entity; on whose authority Albert serves as your Legal Representative; amounts of payment for Albert's services to you; percentages of distributions to you from GWB Trust which Albert ultimately receives; Albert's arrangements to pay Estate attorneys in order to uphold his responsibilities to the CSL and the FSA; Albert's payments of legal fees with regard to this lawsuit; Albert's involvement in this lawsuit (i.e., whether Albert was responsible for instigating the lawsuit); and all other involvement of Albert concerning your involvement with GWB Trust. ANSWER: Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Interrogatories may be used to ascertain basic legal and factual claims and defenses, but may not be used to force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at comment 1. Pentex Foundation objects to the terms of payments as confidential under the laws of Panama, and outside the scope of discovery in any event. Subject to these objection, Pentex Foundation answers as follows, and under a defintion of "you" and "your" to refer to PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 8 373 Page Pentex Foundation only as specified in the general objections: Pentex Foundation purchased an interest in the Contract for Sale that Albert Barcroft originally owned. It was mutually advantageous to continue to work with Albert to bring the terms of the contract to conclusion, and he served and serves on our behalf in the matter. To the knowledge ofPentex Foundation, Albert had no responsibilities to pay any attorneys other than John Skotnik in the matter, and such was not shown in any documentation presented to Pentex Foundation. When Pentex was forced to hire new counsel in the case, it did not have sufficient funds in the United States to pay the full retainer. Mr. Barcroft did. Pentex Foundation gave Mr. Barcroft money here, and he sent that money to Scott Smith in the United States. Mr. Barcroft definitely made Pentex Foundation aware that he thought there was a problem in the way proceeds were being paid by GWB Trust, if that qualifies as instigation. In brief, Barcroft was our express liaison with GWB trust, whatever it is. INTERROGATORY NO.3: Explain the reasons you came to believe that contingency fee attorneys were deducting their fees from the total due you, Ken, Candy, and Howard Kirk, then issuing one check to GWB Trust, including the rationale for believing that in excess of$ 1 million in attorney fees were due from Ken, Candy, and Howard Kirk; when and how you arrived at these alleged facts; and the reason that Beverly Miller was instructed to assign 57.19% interest in GWB Trust to GBU Trust, when you were entitled to a far smaller percentage. ANSWER: Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Interrogatories may be used to ascertain basic legal and factual claims and defenses, but may not be used to force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil Procedure, at comment 1. Subject to these objection, Pentex Foundation answers as follows, and under a defmtion of"you" and "your" to refer to Pentex Foundation only as specified in the general objections: The percentage due Pentex Foundation under the Contract for Sale. Barcroft's share was 30% of everything Ken, Candy and Howard received. Ken, Candy and Howard each received 25%, for a total of75%, of the estates. Of the 75%, Pentex Foundation owned 30%, equaling 22.5% of everything distributed by the estate (75% X 30%=22.5%). The estate distributed mineral interests to GWB Trust equaling 35.04% of the total minerals owned by the estate. It also distributed 2.46% directly to John Skotnik in payment for his services as attorney (an amount due solely by Barcroft). Of the 35.04% distributed to GWB Trust, Pentex Foundation owned 20.04% (22.5% minus the 2.46% already distributed to Skotnik). 20.04% is 57.19% of35.04%; thus, Pentex Foundation owned 57.19% of the PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS Page9 374 minerals transferred to GWB Trust by the estate. INTERROGATORY NO. 4: Detail and explain the contents of all oral communications dating back to September 1, 2008, which you have had with Howard Kirk, including all agreements to cooperate with you, Albert or Danny Unger in this lawsuit; including your communications with Howard Kirk at the Tarrant case hearing on July 31, 2014, including the reason for conferring with him, when he is a Defendant in this case; and disclose whether you consulted Howard Kirk in drafting your requests for Admissions and whether you assisted Howard Kirk in producing his responses to your demands for discovery, since he was capable of response to you within fewer than five {5) hours of receiving your Requests; and disclose whether John Skotnik, when acting as your Counsel, cooperated with Howard Kirk in motioning the Court to remove Ken as Independent Administrator of the Estate. ANSWER: Pentex Foundation objects to any such communications initiated after the anticipation oflitigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales,767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Pentex Foundation objects to this interrogatory as outside the scope of permissible discovery and overly broad. Subject to these objection, Pentex Foundation answers as follows, and under a defmtion of"you" and "your" to refer to Pentex Foundation only as specified in the general objections: Pentex Foundation has had no such communications with Howard Kirk. REQUEST FOR ADMISSION NO. 1: Admit or deny that Scott Smith and Howard Kirk consulted with each other at the July 31, 2014, hearing in the Tarrant County case. RESPONSE: Pentex Foundation objects to this request as (1) well outside the scope oflegitimate discovery; {2) a communication initiated after the anticipation of litigation; (3) protected pursuant to the work product exemption from discovery; and/or (4) protected pursuant to the "joint defense doctrine'' recognized in TEx. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). REQUEST FOR AD:MISSION NO. 2: Admit or Deny that you, Ken, Candy, and Howard Kirk are members of the GWB Family and Friends Trust. RESPONSE: Admit that Pentex Foundation is an an assignee of the business organization created pursuant to the CSL, if "you" refers to Pentex PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 10 375 Foundation as discussed in the general objections; otherwise, deny. REQUEST FOR ADMISSION NO.3: Admit or Deny that you were formed specifically because Albert stood to receive proceeds from the Estate as a result of the CSL and FSA, and Albert wanted the funds to flow through a third party in order to avoid federal tax and similar obligations. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 4: Admit or Deny that you have received no money from GWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections: admit, as all money was received by Pentex Trust). REQUEST FOR ADMISSION NO. 5: Admit or Deny that Albert is your Primary Beneficiary. RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 6: Admit or Deny that Pentex Trust is your Primary Beneficiary. RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 7: Admit or Deny that the GWB Trust document established the process and percentages by which Howard Kirk, Candy, Ken, and you received interest from the Estate. RESPONSE: Pentex Foundation objects to this request as misleading and assuming facts which do not exist. There is no known GWB Trust document. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 8: Admit or Deny that the GWB Trust Trustee is responsible for distributing assets to the Beneficiaries according to the PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page II 376 Page percentages specified in the GWB Trust document. RESPONSE: Pentex Foundation objects to this request as misleading and assuming facts which do not exist. There is no known GWB Trust document. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO.9: Admit or Deny that if the percentages of interest specified in the GWB Trust document are incorrect, then you are fully responsible for the inaccuracy because Albert, as your Legal Representative, entered into negotiations with the Estate's attorneys concerning the appropriate distributions. RESPONSE: Pentex Foundation objects to this request as misleading and assuming facts which do not exist. There is no known GWB Trust document. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 10: Admit or Deny that you authorized Albert to serve as your Legal Representative with regard to GWB Trust, GBU Trust, Pentex Trust, and the Estate. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 11: Admit or Deny that Pentex Trust is a Trust which Albert, acting on your behalf, established in the United States in order to receive funds because you are a foreign entity, and as such, it is difficult to receive distributions from the Estate. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 12: Admit or Deny that Albert, acting on your behalf, resisted Candy and Ken's inquiries into the legitimacy of your existence. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 13: Admit or Deny that there are active United States Federal Tax Liens filed against you in Texas. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 12 377 RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 14: Admit or Deny that Albert approached you previous to 2008 to invest in the settlement of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection, assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FORAD1v1ISSION NO. 15: Admit or Deny that you invested $250,000 for expenses related to the settlement of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope oflegitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR AD1v1ISSION NO. 16: Admit or Deny that you were established after Albert entered into discussions with Candy, Howard Kirk, and concerning the settlement of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery, unclear and ambiguous, and unspecified as to time. REQUEST FOR ADMISSION NO. 17: Admit or Deny that, Pentex Trust was a Beneficiary of GWB Trust with 24.965 16% interest. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. Pentex Foundation held the Barcroft interests in the original Contract for Sale, but it is unclear as to how that was interpreted by the original purported trustee. REQUEST FOR ADMISSION NO. 18: Admit or Deny that you compensated Albert, John Skotnik, and Danny Unger for their services regarding the Estate and GWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNE11! GffiBS Page t3 378 Page REQUEST FOR ADMISSION NO. 19: Admit or Deny that the GWB Trust owns 35.04% of the assets that are still left in the estate, including real estate. RESPONSE: Pentex Foundation objects to this request as calling for pure legal question. Plaintiff has made reasonable inquiry and the information known to it or easily obtainable to it is insufficient with which to either admit or deny this request. REQUEST FOR ADMISSION NO. 20: Admit or Deny that GWB Trust receives oil and gas royalties from the Estate, from which administrative costs are deducted before the Trustee distributes the assets to the Beneficiaries, yourself including, according to the percentages as stated in the GWB Trust document. RESPONSE: Pentex Foundation objects to this request as misleading and assuming facts which do not exist. There is no known GWB Trust document. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 21: Admit or Deny that you have not received any funds from GWB Trust or the Estate. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, it is admitted that all funds to Pentex Foundation have come through Pentex Royalty Trust. REQUEST FOR ADMISSION NO. 22: Admit or Deny that Albert drafted the Pentex Trust document. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 23: Admit or Deny that your Board of Directors profit, or have profited, from GWB Trust. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Subject to this objection, and assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 24: Admit or Deny that you have distributed, or will distribute, to Albert any proceeds from GWB Trust in excess of the $250,000 which Albert claimed you originally invested in settlement of the Estate. RESPONSE: Pentex Foundation objects to this request as multifarious and PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GrBBS Page 14 379 Page speculative (when speaking about future events which may or may not occur). Pentex Foundation objects to this request as outside the scope of legitimate discovery. REQUEST FOR ADMISSION NO. 25: Admit or Deny that you authorized A!bert to vote on your behalf in decisions concerning GWB Trust, from its' inception to around February 2014. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, admit that Albert had the authority to carry on all business in the United States for Pentex Foundation. REQUEST FOR ADMISSION NO. 26: Admit or Deny that Beverly Miller acts according to your instructions in performing her duties as Trustee of GWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 27: Admit or Deny that on September 11, 2013, Albert, acting on your behalf, stated in an email that he refused to allow for Candy and Ken to remove their interest from GWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 28: Admit or Deny that, in or around November 2013, you, or Albert acting on your behalf, instructed the GWB Trust Trustee, Beverly Miller, to transfer 57.19% of the existing GWB Trust assets into a newly created trust, the GBU Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, admit. REQUEST FOR ADMISSION NO. 29: Admit or Deny that you, or Albert acting on your behalf, informed Beverly Miller that, if she did not transfer 57.19% of GWB Trust assets into the GBU Trust, she would be held personally liable for any losses. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, admit that she was told she "could" be held responsible for not doing her duties. REQUEST FOR ADMISSION NO. 30: Admit or Deny that upon your instructions, or upon instructions from Albert acting on your behalf, Beverly Miller PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 15 380 Page transferred 57.19% interest from GWB Trust to GBU Trust. RESPONSE: If "you" refers solely to Pentex Foundation as discussed in the general objections, admit that Pentex Foundation demand to split the assets according to the Contract for Sale was honored by the Trustee, Beverly Miller. REQUEST FOR ADMISSION NO. 31: Admit or Deny that GWB Trust was formed to receive the Heirs' distributions from the Estate. RESPONSE: Admit that GWB trust was created by the expression of the Contract for Sale to help facilitate the terms of that Contract for Sale. REQUEST FOR ADMISSION NO. 32: Admit or Deny that your Original Petition admits that the FSA, as an extension of the CSL, is the subject of this suit. RESPONSE: Objection. The pleadings speak for themselves. Subject to this objection, assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 33: Admit or Deny that you protested moving this case to Tarrant County Probate Court No.2 because the Estate was responsible for establishing the amounts of the distributions to the heirs, but you could not challenge the Estate because you would be disqualified as recipient of Estate assets due to the tenns of the FSA. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection, assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 34: Admit or Deny that you instigated the Fannin County lawsuit. RESPONSE: Pentex Foundation objects to this request as argumentative. Subject to this objection, assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, admit that it is the Plaintiff and filed this suit. REQUEST FOR ADMISSION N0.35: Admit or Deny that your lawsuit against Candy and Ken was filed as revenge because of their inquiries into the administration ofGWB Trust. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 16 381 Page REQUEST FOR ADMISSION NO. 36: Admit or Deny that you have ordered and received assets from GWB Trust in addition to the 24.96515% you were originally assigned. RESPONSE: Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 37: Admit or Deny that you willingly engaged in discussions of the creation ofPentex Trust in order to avoid having to observed United States and Texas State law. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Assuming that "you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 38: Admit or Deny that you existed prior to 2008 and that you provide multiple benefits to Beneficiaries other than Albert. RESPONSE: Pentex Foundation objects to this request as outside the scope of legitimate discovery. Assuming that "you'' refers solely to Pentex Foundation as discussed in the general objections, denied as to the date, and admit the balance of this request. REQUEST FOR ADMISSION NO. 39: Admit or Deny that the Estate is responsible for the flow of cash to GWB Trust, which in turn flows to the Beneficiaries. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 40: Ad1nit or Deny that Candy does not have the authority to control the Estate's distributions to the Heirs. RESPONSE: Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 41: Admit or Deny that Ken does not have the authority to control the Estate's distributions to the Heirs. RESPONSE: Pentex Foundation has made reasonable inquiry and the infonnation known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 42: Admit or Deny that suing Ken individually PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 17 382 was inappropriate, as Ken individually does not have the authority to control the Estate's distributions to the Heirs. RESPONSE: Denied. REQUEST FOR ADMISSION N0.43: Admit or Deny that Renhaw, Inc., received your interest in GWB Trust, then transferred it back to you. RESPONSE: If"you, refers solely to Pentex Foundation as discussed in the general objections, denied. REQUESTFORADMISSIONN0.44: Admit or Deny that you were effectively rendered a "nonentity" with regard to GWB Trust, because of the transfers as follows: Albert Barcroft> Renhaw > GWB Trust. RESPONSE: If"you" refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR AD:MISSION NO. 45. Admit or Deny that Howard Kirk and you worked together to remove assets from GWB Trust which did not belong to you in order to benefit unjustly from those assets. RESPONSE: If"you'' refers solely to Pentex Foundation as discussed in the general objections, denied. REQUEST FOR ADMISSION NO. 46: Admit or Deny that prior to around November 2013, you did not question the distributions from GWB Trust. RESPONS~: If "you" refers solely to Pentex Foundation as discussed in the general objections, admit. REQUEST FOR ADMISSION NO. 47: Admit or Deny that you issued instructions via Albert to Beverly Miller concerning the administration of GWB Trust. RESPONSE: Ojbection. This request is ambiguous. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 48: Admit or Deny that you occasionally hired and paid Danny Unger to perform minor accounting work, as well as research. RESPONSE: Admit that he did some accounting for Pentex Foundation. REQUEST FOR ADMISSION N0.49: Admit or Deny that you were aware that you were entitled to less than a quarter of the proceeds in GWB Trust, after PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM Kh"NNETH GIBBS Page 18 383 expenses, when you, or Albert acting on your behalf, instructed Beverly Miller to transfer 57.19% interest in GWB Trust to GBU Trust. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 50: Admit or Deny that you were aware that you were entitled to only 24.96516% interest of GWB Trust at the time you instructed Beverly Miller to transfer 57.19% to GBU Trust. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 51: Admit or Deny that you benefitted substantially from GWB Trust since the time it was established in September 2008. RESPONSE: Pentex Foundation objects to this request as vague and ambiguous. REQUEST FOR ADMISSION NO. 52: Admit or Deny that Albert drafted the Original Petition in this lawsuit. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 53: Admit or Deny that no changes could be made to GWB Trust distributions unless approved by unanimous vote. RESPONSE: Pentex Foundation objects to this request as assuming facts that have not been established, namely the terms of the GWB Trust. Admit that the CSL which established GBW Trust required that all 4 parties to the CSL sign any amendments before a notary. REQUEST FOR ADMISSION NO. 54: Admit or Deny that, once Renhaw transferred its share of assets to the GWB Trust, Ken, Candy, and Howard Kirk are the only three (3) remaining members, as well as Beneficiaries, of the GWB Trust, and that therefore you are no longer a Beneficiary of GWB Trust. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 55: Admit that Albert authorized the percentages of interest which the Estate assigned to the Heirs. RESPONSE: Objection. This request is ambiguous and vague. It is also outside the scope of legitimate discovery. Pentex Foundation has made PENTEX FOUNDATION'S RESPONSE TO DlSCOVERY FROM KENNETH GffiBS Page 19 384 reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 56: Admit or Deny that, under the terms of the FSA, an Heir who disputes the terms can lose his or her interest in the Estate. RESPONSE: Denied. REQUEST TO ADMISSION NO. 57: Admit or Deny that Admit your inclusion of Howard Kirk as a Defendant in this Cause is a smoke screen designed to deflect from the fact that Howard Kirk is cooperating with you in this lawsuit and in the lawsuit filed in Tarrant County, which involves Albert, Howard Kirk, Candy, and Ken. RESPONSE: The Intervenor objects to this request as argumentative, multifarious, and outside the scope of legitimate discovery. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 58: Admit or Deny that John Skotnik was forced to withdraw from representing you in this case, as he originally assisted in the Estate settlement involving the Heirs. RESPONSE: Pentex Foundation objects to this request as calling for a legal conclusion as to why Mr. Skotnik withdrew, and as being outside the scope of any legitimate discovery. Subject to these objections, Pentex Foundation admits that it was agreed in the CSL that John Skotnik could represent Barcroft's interests if a dispute ever arose, admit that Defendants reneged on that provision of the CSL, thereby breaching the contract. REQUEST FOR ADMISSION NO. 59: Admit or Deny that you, or your representative, assisted Howard Kirk in his Answer and his Admission responses in this case. RESPONSE: Objection. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine'' recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226,228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections: Denied. REQUEST FOR ADMISSION NO. 60: Admit or Deny that you, or your representative, assisted Howard Kirk in his Answer in the Tarrant County case. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page20 385 RESPONSE: Objection. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections: Denied. REQUEST FOR ADMISSION NO. 61: Admit or Deny that you function as a shell entity for Albert. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 62: Admit or Deny that, on or about December 2, 2013, Albert sent Candy Walton and Ken letters stating that Albert, as agent for Pentex and Renhaw, were invoking the right to demand a split of the GWB Trust assets, as you wished to withdraw from GWB Trust. RESPONSE: Admit that Pentex demanded a split of assets under the CSL. REQUEST FOR ADMISSION NO. 63: Admit or Deny that Albert has been your Legal Represer.tative up until there was a demand to have Albert deposed. RESPONSE: Objection. This request is ambiguous with respect to the term "Legal Representative." Subject to this objection, Mr. Danny Unger is the designated representative for Pentex Foundation in this litigation. REQUEST FOR ADMISSION NO. 64: Admit or Deny that you informed GWB Trust Beneficiaries of all transfers of your interest in GWB Trust each time a transfer was effected. RESPONSE: Admit that the beneficiaries were informed. REQUEST FOR ADMISSION NO. 65: Admit or Deny that on December 18, 2013, signing in the capacity of"Legal Representative" ofPentex, you noticed the Estate, including Executor Kenneth Gibbs, and the Estate's (3) three attorneys that a substantial part of GWB's Trust assets must be distributed and made payable to the GBU Trust. RESPONSE: Pentex Foundation objects to this request as multifarious. Subject to this objection, it is admitted that the document numbered Plaintiff/[ntervenor 00035 is authentic and speaks for itself. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS 386 Page REQUEST FOR ADMISSION NO. 66: Admit or Deny that, you are a not-for-profit private foundation established and operated in Panama. RESPONSE: Admit REQUEST FOR ADMISSION NO. 67: Admit or Deny that in a very small sentence, at the end of a long tirade of explanations, GWB Trust accounting reflected that 20.04% of the 35.04% ofGWB Trust's assets had been transferred to GBU. RESPONSE: Pentex Foundation objects to this request as argumentative and vague. Subject to this objection, admitted that the document numbered Plaintiff/Intervenor 00035 is authentic and speaks for itself. REQUEST FOR ADMISSION NO. 68: Admit or Deny that GWB Trust is responsible for paying administrative costs, such as property taxes, for assets assigned to GWB Trust by the Estate and which benefit you. RESPONSE: Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 69: Admit or Deny that Albert, as your Legal Representative, exerted undue influence over Bever1y Miller. RESPONSE: Objection vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 70: Admit or Deny that, although you are based in Panama, the majority of your affairs originate in Texas. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 71: Admit or Deny that Albert, not you, is the one ultimately receiving income out of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 72: Admit or Deny that you donate funds to a medical facility that is located outside of the United States, claiming the act to be the primary reason for your existence. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied, other than to admit that Pentex Fourtdation donates to numerous causes. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 22 387 Page REQUEST FOR ADMISSION NO. 73: Admit or Deny that Albert assisted in calculating the percentages due Heirs from the Estate and that Albert provided the calculations to the attorneys of the Estate. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 74: Admit or Deny that neither Ken individually nor Candy individually had or now have the authority or the ability to control the distributions from the Estate to the Heirs. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 75: Admit or Deny that Albert assigned John Skotnik a percentage of his interest as detailed in the FSA. RESPONSE: Objection. The terms of the FSA speak for themselves. Subject to this objection, Pentex Foundation admits that the FSA, as submitted as Plaintiff/Intervenor 00059-122 is authentic and that John Skotnik was assigned a share. REQUEST FOR ADMISSION NO. 76: Admit or Deny that the subject matter in this case is not in the Fannin County Court's jurisdiction, since land in which GWB Trust holds interest remains in and under the control of the Estate. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 77: Admit or Deny that you drafted and persuaded Howard Kirk Gibbs to file documents in this Cause and in the Fannin County District Court Cause on your behalf. RESPONSE: Objection again. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation of litigation and/or protected pursuant to the "joint defense doctrine" recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales,
767 S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these objections: Denied. PENTEX FOUNDATION'S RESPONSE TO DISOOVERY FROM KENNETH GIBBS Page 23 388 P~e REQUEST FOR ADMISSION NO. 78: Admit or Deny that GWB Trust document, not the CSL or the FSA, establishes the exact percentage of interest which Pentex held. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 79: Admit or Deny that Candace Walton and Kenneth Gibbs do not want to sell the Homeplace. RESPONSE: Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 80: Admit or Deny that the land in which GWB Trust holds interest belongs to the Estate, and therefore GWB Trust issues must be handled as Estate matters. RESPONSE: Objection. This calls for a pure legal question. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 81: Admit or Deny that you transferred interest in GWB Trust to Renhaw, Inc., because doing so aided Albert in eluding the Internal Revenue Service's collection activities against him. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery and is vague. Subject to this objection: Denied. REQUEST FOR ADMISSION NO. 82: Admit or Deny that GWB Trust is a legitimate Trust, which was designed to receive interest from the Estate and which has distributed you substantial assets in the past. RESPONSE: Objection. This calls for a pure legal question. Subject to this objection, Admit that it is a business organization created under the terms of the CSL. REQUEST FOR ADMISSION NO. 83: Admit or Deny that the FSA is a legitimate and binding contract. RESPONSE: Admit. REQUEST FOR ADMISSION NO. 84: Admit or Deny that Albert drafted the CSL. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page24 389 Page RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 85: Admit or Deny that Albert drafted the GWB Trust agreement. RESPONSE: Objection. This request assumes facts in dispute, to wit: whether there even is a GWB Trust agreement. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 86: Admit or Deny that the Estate is being mismanaged. RESPONSE: Pentex Foundation objects to this request as outside the scope of discovery. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable it to admit or deny this request. REQUEST FOR ADMISSION NO. 87: Admit or Deny that the Estate's calculations concerning the percentages of the Heirs' interest in the Estate impact GWB Trust. RESPONSE: Objection. This request is confusing and vague, and seems to suggest a pure question of law. Subject to this objection, Pentex Foundation has made reasonable inquiry and the information known or easily obtainable is insufficient to enable 1t to admit or deny this request. REQUEST FOR ADMISSION NO. 88: Admit or Deny that you have a true and correct copy of the CSL. RESPONSE: Admit. REQUEST FOR ADMISSION NO. 89: Admit or Deny that you have a true and correct copy of the FSA. RESPONSE: Admit we believe we do. REQUEST FOR ADMISSION NO. 90: Admit or Deny that, according to the FSA, Albert is responsible for paying his own attorneys' fees. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 25 390 Page RESPONSE: Objection this calls for a pure legal conclusion. Subject to this objection, admit as to our understanding of that to be the case. REQUEST FOR ADMISSION NO. 91: Admit or Deny that Candy and Ken are not responsible for any tortious interference between GWB Trust and yourself, as neither Candy nor Ken ever interfered with the appropriate distributions to you of approximately one-quarter (1/4) interest in GWB Trust. RESPONSE: Object to this request as multifarious and vague. Subject to these objections: Denied. REQUEST FOR ADMISSION NO. 92: Admit or Deny that Albert breached the FSA. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 93: Admit or Deny that Albert breached the CSL. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 94: Admit or Deny that you are bound by the conditions of the FSA. RESPONSE: Admit that some of the provisions of the FSA apply to Pentex Foundation and any other successor to the interest originally conveyed to Mr. Barcroft. REQUEST FOR ADMISSION NO. 95: Admit or Deny that Danny Unger has been your Legal Representative since the inception of this lawsuit. RESPONSE: Objection. This request is ambiguous with respect to the term "Legal Representative." Subject to this objection, it is admitted that Mr. Danny Unger is the designated representative for Pentex Foundation in this litigation. REQUEST FOR ADMISSION NO. 96: Admit or Deny that Albert, not Danny Unger, initiated this lawsuit on your behalf. RESPONSE: Objection. This request is outside the scope of legitimate discovery. It invades the protections for communications made after the anticipation of litigation, the attorney/client privilege and work product communication. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIDDS Page 26 391 Page . ·····-------------- REQUEST FOR ADMISSION NO. 97: Admit or Deny that on a yearly basis, GWB Trust provided you accountings concerning income and distributions to Beneficiaries. RESPONSE: Objection. This request is vague. Subject to that objection, it is admitted that only tax returns were submitted. REQUEST FOR ADMISSION NO. 98: Admit or Deny that you breached the FSL. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 99: Admit or Deny that Scott Smith stated during the July 31, 2014, hearing in Tarrant County, that he received his retainer from beneficiaries of GBU Trust, including Danny Unger. RESPONSE: Objection. This request is outside the scope of legitimate discovery. Additionally, the transcript of that proceeding would be the best evidence of what was said. REQUEST FOR ADMISSION NO. 100: Admit or Deny that Scott Smith stated during the July 31, 2014, hearing in Tarrant County, that he took this case because, he like most attorneys, will take any case that can pay him a retainer. RESPONSE: Objection. This request is outside the scope of legitimate discovery. Additionally, the transcript of that proceeding would be the best evidence of what was said. Respectfully submitted, Scott Smith State Bar Number 18688900 120 South Crockett Street P.O. Box 354 Sherman, Texas 75091-0354 e-mail smithlaw@ainnail.net Facsimile (903) 870-1446 Telephone (903) 868-8686 PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 27 Exhib1t 392 Page 2? CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing document was served, by certified mail, return receipt requested number 7009 2250 0000 2311 4187 toChristy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas 76102, and to Howard Kirk Gibbs, ProSe, at 4360 Western Center Blvd., Suite Ft. Worth, Texas 76137, on this the 3rd day of September, 2014. PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GillBS Page28 393 Page J:Y Unsworn Delcaration Pursuant to TEX. CIV. PRAC, & REM. CODE§ 132.001 --'-7--i"'---"""''---- . I reside at 1 am the designated representati e of P ntex Foundation, that I have read the above and foregoing Answers to Interrog~tories and subscribes to the same on behalf of Pentex Foundation; that said-responses, subject to inadvertent or undiscovered errors, are based on and therefore limited by the records and information still in existence, presently recollected and this far discovered in the course of the preparation of these responses; that, consequently, 1 reserve the right to make changes in responses if it appears at any time that omissions or errors have been made therein or that more accurate information is available; and that subject to the limitations set forth herein, the said responses are true and correct and within my personal knowledge. I have been advised that Rule 1,97·~(d)(7)Jig.~s. notrequireJ~at) swear to interrogatory answers about persqns .Y!'!.tP.. IQ19.\\f·!e.'!.g~-.of, r~J~Y¥.!~ :f~9ts.t·.,b.Ji~l witnesses or legal contentions. Since I am not an attorney, I therefore do not swear to the truth of any interrogatory llnswers con~ining information.: ,~bout persons with knowledge of relevant facts, trial witnesses 'or legal contentions. I declare under penalty of: perJury that the foregoiii.g,iostrumen~ls,ti.ui-:atid~oroe~t.:~ ·: ~~·~=:: : <.' .· ·· .- :; . . ' ~ ·: ~~ .. .. _tJ9 J~ ~~ ' '' Dated: . :. ' . . ,I . l . . ' ~ _:. ~· . ' ' '. . ~ . .. . ;:·..- .. ·. ~ . ... '· ' . I, 394 Page ::J-'1 'I PLAINTIFFS EXHIBIT F Statement Given Under Penalty of Perjury I, Albert lynn Barcroft, being born on August 20, 19461n Rotan, Texas, give the following statement under penalty of perjury under the laws of the United States of America. I am a resident of Guatemala, Central America, and have resided here for more than five (5) years without interruption. I am aware that I have been asked to attend a hearing and other legal pro-ceedings hi the United States. f hereby certify and affirm the following for the record: 1. I am not a'l employee of PENTEX FOUNDATION; 2. I do not receive a salary or other compensation for the services I provide for PENTEX FOUNDATION; 3. PENTEX FOUNDATION does not, and cannot, control my activities, time or movement, nor can it compel me to attend legal matters in the United States; 4. I am currently under doctor's care for heart and arthritic conditions that have recently gotten worse; 5. My doctors has informed me that any extended travel would be. life threatening for me; and, 6. While I am still technically an agent for PENTEX FOUNDATION, my duties have been greatly reduced in recent months due to my health, and I am not authorized to give testimony on behalf of PENTEX FOUNDATION at this point in time. I hereby certify under penalty of perjury under the laws of the United States of America that the foregoing Is true and correct. Further, I certify under penalty or" perjury under the prevailing laws of the State of Texas that the statements in this document are true and correct, and not intended to mislead. Executed this 3rd day of September, 2014, In San Marcos, lzabal, Guatemala, Central America. y Agent/Legal Representative PENTEX FOUNDATION r.•. Exhibit Page _ _._·_ 395 '_:~, ~,.;; ""' ~ ~}~ ~r A< ~ CO.o. u.: -;p \A) SCOTT SMITH ~~. (9 ~ftc AHORNEY ANDCOUNSELORATLA\\ ---- ~)-.).; ~ :,)' a -t! -I "1--% ~~ '/ . E-MAIL: smithlaw@airmail.net 1 ~u~OCKEQ>SrREET FACSIMILE: (903) 870-1446 ...o P.O. Box 354 TELEPHONE: (903) 868-8686 SHER~~-'··. TEXAS 75091-0354 ~ September 18, 20 14 Nancy Young, District Clerk Fannin County Courthouse 101 East Sam Rayburn Dr., Ste. 201 Bonham, Texas 75418 RE: Pentex Foundation v. Kenneth Vern Gibbs, et al.; Cause Number CV -14-41665 in the 336th Judicial District Court ofFannin County, Texas. Dear Ms. Young: Enclosed please find an original and one copy of the Sworn Affidavit of Fact of Angelli Martha Pollanco Carrasco. This is submitted in support of the previously filed Motion to Quash or for Protective Order Relating to Subpoenas and Deposition Notices (filed September 4, 2014). Please return a file marked copy to me in the enclosed envelope. A copy of this letter and the enclosed is being forward to all counsel of record, by electronic transmission pursuant to a Rule 11 Agreement. I thank you for your attention to this matter. TSS/bhs 396 I am currently serving as Board Member and Officer of Pentex Foundation, a not for profit foundation created under the laws of the Republic ofPIIIU!ma, Cenlral America. I am a I"C8idenl of the Republic of Panama, Cenlrat America. J am aware that I have been asked to attend a hearing and participate in other legal proceedingll in the United States. Originally, John Skotnik was hired to proseo;ute the lawsuit on ·behalf of .Pcntex Foundation; however, ba.•ed upon what was relayed to Pentex Foundation as a ~ible conflict of interest, he resigned, and Scott Smith was hired to proceed with the matter on behalf of Pentex Foundation. 1 have no other knowledge of particulars of the lawsuit. J am not employed by Pentex Foundation, and I am not paid by Pentex Foundation. I am a voluntary, unpaid, board member and officerofPenlex Foundation, and Pentcx Foundation does not control my activities or time. Pentex Foundation cannot compel me to attend to matters in the United States, and I do not have a visa to travel to the United States. Further, I am an attorney licensed under the laws of the Republic of Panama, and I understand law. I am not subject to personal service under the laws ofthe State of Texas as I do not have "minimum contact" with the State of Texas. [conduct no business in the State of Texas. I ha~·c nl) interest in the State of Texas. I have never even visited the State l)fTexas. As such, 1 am not subject w service from Te,..as courts under Texas law. FURTHER, AFFIANT SAYETH NOT. Signed and AekAowledged under penalty of perjury on this 16'" day of September, 2014, in Panama City, Republic of Panama, Central 397 / ·-~' '\. ;/};,;(,~> ······· ·~·:. SWORNAFFIDAVITOFFACT I ~ , ~if~ \~,·: 1 .]:;;.,!,.xU j' • '"Subscribed, Sworn, and Scaled ~ ~~tlfP L~~} i;,:q~'·-,c·-·-··~<;.\~~, ·~:.;?p (• n ~-~ ~,;.-· p, .• Angelli Martha Polanco Carrasco, being of SOU1ld mind, over age of majority, com"':tent to testifY, and having a first hand knowledge of the facts contained herein, hereby certify and '•-.;;·,:-..-.,,.•• ~""'. declare that the following filets are true, correct and complete as stated, and are so stated under the penalty of perjury: l am currently serving as Board Member and Officer of Pentex Foundation, a not for profit foundation created under the laws of the Republic of Panama, Cenlm! America. J am a resident of the Republic of Panama, Cenlml America. I am aware that I hav"' been asked to. attend a hearing and participate in other legal proceedings in the United States. Originally, John Skolnik was hired to prosecute the lawsuit on ·behalf of ,Pentex Foundation; however, based upon what was relayed to Pentex Foundation as a J>OS§ible confii
2012 WL 2476851ll u.:. ,a haye du 5 de 0'-''"'"''"' •:::ru. Pais PANAMA. E.l ~··r"sente documento ., r... ·it1:; fi'·· · 'c· oor-J..t.A-'-"'::::::::::::.-~~:;;;...- qui.:tl' 't'-' utid (j:_::::....lt.l-ii::J.~.::!::::.:::...f y est<> ..,e.· ....• ,i~l ~elloftkn~ d CE.:-tTI;: ICAOO - EN Penam& 5 tt• T1 ltf ·mlr' par Olf,:t:CCION ADMINtSl n .••• ~ 1 B~jc sl numero- !5:£.?K// _ -hr'"· •" <:irr ~~/foU.J!~ J ~·~- 399 Page 1 of 1 Scott Smith From: "Scott Smith" (Tex. June 29, 2012). 4. The scope of discovery is any unprivileged information relevant to the subject matter of the lawsuit, even if it would be inadmissible at trial, as long as the information sought is reasonably calculated to discovery of admissible evidence. Axelson, Inc. v. Mcllhany, 798 S.W.2d 500,553 (Tex. 1990). 5. In general, attorneys' fees are not shielded from disclosure. Borden, Inc. v. Valdez,
773 S.W.2d 718, 720-21 (Tex.App.- Corpus Christi 1989, orig. proceeding); Duval County Ranch Co. v. Alamo Lumber Co.,
663 S.W.2d 627, 634 (Tex. App. - Amarillo 1983, writ refd n.r.e.). An exception to this general rule is in the instance when revelation of fee arrangements would implicate the client in the commission of a crime or to show an admission OBJECTIONS TO MOTION TO QUASH OR FOR PROlECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSmON NOTICES AND MOTION TO COMPEL DEPOSmONS OP ALBERT BARCROFT AND CAUSENO. CV-14-41665 ANGELLl CARRASCO ON OcToBER 13,2014 -2- PENTEX FOUNDATION V. GIBBS, ET AL. 402 subjecting the client to civil liability. Jim Walter Homes, Inc. v. Foster,
593 S.W.2d 749, 752 (rex. Civ. App.- Eastland 1979, no writ). ll. DEPosmoN OF ALBERT BARCROFT. 6. On September 2, 2014, Ken and Candy issued Albert a State of Texas Subpoena Duces Tecum for Oral Deposition, to be conducted on October 13, 2014, at 10 o'clock a.m., at the office ofPentex's Counsel Scott Smith, 120 South Crockett Street, Sherman, Texas 75091- 0354. See Exhibit A. 7. Albert Barcroft's deposition is paramount to achieving justice in this matter. Evidence proves, and Ken and Candy know, that Albert is the alter ego of legal representative of Pentex; Pentex Royalty Trust; Renhaw, Inc.; and GBU Friends and Associates Trust ("GBU Trust''); all of which are major players in this Cause. The evidence obtained thus far during this lawsuit proves that Albert possesses exclusive information pertinent to this suit. Albert is the touchstone for this matter. 1 8. Service of the Subpoena to Albert was appropriately made through Pentex's Counsel, Scott Smith. Texas Rules of Civil Procedures require communications between opposing parties to occur between counsel when the parties are represented by counsel. Albert has portrayed himself as Legal Representative of Pentex since Pentex was founded in 2008. During discovery, Pentex admitted that Albert is its Legal Representative in matters based in the United States. Since Scott represents Pentex, service of a Subpoena to the asserted Legal 1 A more thorough examination of Albert's services as Pentex's Legal Representative can be found in Defendants' Motion for Leave of Court to File Third-Party Petition, filed with this Court on September 18, 2014. OBJECllONS TO MonON TO QUASH OR FOR PROTECTIVE ORDER RELATING TO SUBPOENAS AND DEPOSmON NoTICES AND MonON TO CoMPEL DEPOSmONS OF ALBERT BARCROFT AND CAUSENo. CV-14-41665 ANGELLl CARRASCO ON OCTOBER 13,2014 -3- PBNTEX FOUNDATION 1'. GIBBS, E1' AL. 403 Representative of Pentex would be highly inappropriate if effected through any party but Scott. Any suggestion that Scott does not rt~:present Albert perpetrates a fraud before the Court. 9. While deliberately withholding infonnation as to the named representative for Pentex, Scott stated that, on multiple occasions, he spoke with Albert concerning this Cause. Also, during the discovery process,·on September 3, 2014, Pentex admitted that, at the time of the alleged damage done to Pentex, Albert "had the authority to carry on all business in the United States for Pentex Foundation." See Exhibit B, Admission No. 25. Pentex stated that it worked with Albert concerning what would evolve into some of the major points of contention in this lawsuit because doing so was "mutually advantageous." And, affinned Pentex, "Barcroft was our express liaison with GWB Trust'' (emphasis added). See Exhibit B, Interrogatory No. 2. 10. On September 3, 2014, Albert signed a statement under penalty of perjury, in which he admitted that he is "an agent for Pentex." See Exhibit C. ll. The Court is clear on the point that a claim to joint defense does not necessarily translate into client-attorney privilege. Joint defense applies only in cases of the "allied litigant." Pentex and Albert refuse to admit that Albert is Pentex's allied litigant. Pentex cannot arbitrarily state that Albert is not Scott's client, and therefore Pentex has no control over him, and Pentex is not required to produce him for questioning, while at the same time Pentex states that the proposed questions to be posited to Albert during the deposition are covered by attorney/client communication privilege. In other words, Pentex cannot have it both ways. Either Albert and Pentex are working together,jointly, or they are not. Either Albert is not Scott's client, in which case Albert can be freely questioned regarding the suit because there is no client-attorney 0BJEC1TONS TO MOTION TO QUASH OR fORPROI'EC11VE ORDER REl.AnNG TO SUBPOENAS AND DEPOSll!ION Nona:s AND MoTION TO COMPEL DEPOSmOHS OF ALBERT BARCROFT AND CAUSENO. CV-14-41665 ANGELL! CARRASco ON OCTOBER 13,2014 -4- PBNTEX FOUNDATION Y. GIBBS, Er AI. 404 privilege, or Albert is Scott's client, in which case Albert was appropriately noticed the Subpoena, and Pentex must produce him for the deposition. Those are the only two (2) options available. To suggest otherwise insults the Court, particularly since Albert has been the Counsel's point of contact for PeJltex throughout these proceedings, and Pentex only recently detennined who would represent it regarding this suit 12. The law has established that a broad scope of discovery is appropriate in the likelihood of the discovery 'leading to relevant facts. Albert possesses infonnation to which Ken and Candy are entitled as Defendants in this matter, infonnation which Albert alone knows, and information which is highly pertinent to this case or which promises to lead to highly relevant facts. Albert was at Pentex's helm throughout all events relevant to this suit, including: (1) the drafting the Contract for Sale of Land (''the CSL'j2; (2) agreeing, on behalf of Pentex, to the distributions of attorney fees as relevant to the Estate; (3) signing the Family Settlement Agreement ("the FSA"), which addressed the methods by which some of the Heirs to the Estate would receive their inheritances and which involved Albert; (4) on behalfofPentex drafted and issued a "formal Notice of RevQCation of GWB ... Trust and split of assets pursuant to the original contract between the parties"; and (5) on behalf of Pentex, threatened the GWB Trust Trustee to inappropriately assign· 57.19% interest of GWB Trust assets to GBU Trust 13. Albert orchestrated the inappropriate assignment of GWB Trust interest to GBU Trust. Also, Albert's history is rife with federal income tax issues, including lost battles in Court and seizure of his personal residence in Texas. As a result, Albert turned to the ''funnel" :lAlbert illegally drafted the CSL, a fact established on July 31, 2014, in Tanant County Probate Court No.2, Cause No. 2005-0000126-2-D. The parties to the CSL involved the three (3) Defendants in this matter and Albert himself. OBJECTIONS TO MonON TO QUASH 0~ FOR PR.orncnvE ORDER RElATING TO SUBPOENAS AND OEPOSmON NOTICES AND MOTION TO COMPEL OEPosmoNS Of ALBERT BARCROFJ' AND CAUSE NO. CV-14-41665 ANGELLICARRASCOON0croBER 13,2014 . -5- PENTEX FOUNDATION V. GIBBS, ET AL. 405Document Info
Docket Number： 06-15-00002-CV
Filed Date： 1/12/2015
Precedential Status： Precedential
Modified Date： 9/28/2016
Authorities (25)
