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
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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
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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
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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
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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.
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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
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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
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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 plaintiff argued, 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 court of 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
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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
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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
the filing fee is not timely paid, the transferee court may dismiss without prejudice to
refiling. Id. If the filing fee is timely paid, the case will be subject to trial thirty days
after the mailing of the notification to the parties. Id.
Therefore, if a 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
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determination be made early in the case. See id. at 718, citing In re Darling Homes,
2005 WL 1390378 at *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
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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, and contemporaneously 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]
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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
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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
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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
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Cause No.: CVv{4~~_l~t:.,5
Date of Orders
Mo. Day Year ORDERS OF COURT CONTINUED
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CIVIL CASE lNFOR1\1ATION SHEET
CAUSE NUMBER (FOR CLERK USE ONLY): C:>! J t4 4l (c2.La:.S COURT (FOR CLEUK l!SE ONLlj: ~
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STYLEDPENTEXFOUNDATIONVKENNETHVERYGIBBS,CANDACEGIBBSWALTON,ANDHOWA@-I and ratiftes aU ofthe terms andprovisions ofthis Agreement as represented by hi.r
execution ofthis Agreement. The Parties agree that the interest ofKathryn and the interest ofKip, respectively, is
not and shaU never be affected or reduced in any way because of any as.vignment ofany interest made hy Ken,
Howard Kirk or Candy to Al Barcroft or any other person and that any such assignment shan only affect or
reduce the interest ofKen, Howard Kirk and/or Candy in any Property covered hy this FSA ."
10 4
22. The FSA also restates the fact that Ken, Candy and Howard are solely responsible for any
attorney feei; thereby confirming that provision in the contract.
23. In August, 2013, Plaintiff learned that attorney fees that were agreed would be paid by
Ken, Candy and Howard had actually been coming out ofPlaintiff's share all along.
24. Under the terms of the FSA, Ken, Candy and Howard were each awarded 25% of both
their father's and mother's estates, totaling 75% of the total of the combined estates.
a. Each had previously sold 30% of their share to Barcroft under the Contract; meaning that
Barcroft, or his assigns, had an unmitigated interest in the combined estates of 22.50%
[30% of75%].
25. Through agreement and instruction from Plaintiff, the estate attorneys assigned 2.46% of
Plaintiff's 30% share; leaving 20.04% belonging to Barcroft or his assigns [22.50% less 2.46%].
26. Pursuant to the Contract, Ken, Candy, Howard and PENTEX [assignee of Barcroft's
interests] all assigned their entire share to GWB.
27. Unbeknownst to Plaintiff until October of 2013, the contingency fee attorneys were
deducting their fees from the total due PENTEX, Ken, Candy and Howard, then issuing one
check to GWB.
a. The result is that Plaintiff has paid over a million dollars in attorney fees that were due to
be paid solely by and from Ken, Candy and Howard.
28. When Plaintiff learned of this error, it immediately moved under the terms of the original
Contract to demand a split of the assets of the business organization.
6
FSA, page 22, section 3. I 5A:"Attorney's fees ofKen, Candy and Howard Kirk. Parties acknowledge and agree
that Ken, Candy and Howard have incurred with their attorneys, attorney's fees and expenses based upon a
contingency fee contract of 50% ofthe amounts recovered and distributed to dlem as henejiciarie.v of the Et.tates
of the Decedent and the Ward. The Parties agree that all attorneys' fees paid or owed hy Ken, Candy and Howard
Kirk shllll he horne by and shaU be the sole obligation ofKen, Candy and Howard Kirk and shall be paid solely /~~"
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29. Demand was made upon Beverly Miller, the trustee of the purported GWB trust, to divide
and distribute to PENTEX [or its assign] its 20.04% of the assets from the estates.
30. Miller examined the demand and decided that it was a valid demand; where upon, she
transferred enough property to equal 20.04% of the estate distribution to GWB [mineral
interests] out of the property received from the estates, to a trust designated by Plaintiff
31. Ken and Candy hired an attorney, to try to take back the share rightfully due PENTEX.
32. The attorney for Ken and Candy also contacted the gas companies, with which PENTEX
and others do business, by letter, tortiously interfering with the contracts between Plaintiff and
the various oil companies; all in the name and at the command of Candy and Ken.
33. As a direct result of the frivolous contacts made to the gas companies by the attorney for
Ken and Candy, the gas companies discontinued payments of royalties rightfully due PENTEX.
DAMAGES
34. The actions on behalf of Ken and Candy have damaged Plaintiff by causing business
associates to discontinue doing business with them, stop paying them money due under contract,
and generally distrust them.
35. PENTEX is being unjustly denied its money and assets all because of groundless,
unproven, and false accusations made on behalf of Ken and Candy, both in conversation and in
writing.
36. Defendants' actions amount to Tortious interference with the Contract, subject of this
suit.
by them ... These Attorney'sfees will only he paid out of the percentage share allocated to Ken, Candy and
Howard at the time ofadual distribution to them.
12 6
37. Plaintiff has had over a million dollars of money rightfully due Plaintiff taken by Ken,
Candy and Howard to pay the attorney fees that were due to be paid only by Ken, Candy and
Howard under written agreement, i.e. the Contract here.
38. In addition, under the terms of the Contract, Plaintiff was to receive 30% of all proceeds
from any lawsuit involving Ken, Candy and Howard. At the time the Contract was agreed to and
executed, there was an Abstract of Judgment filed in Denton County [Document Number 2008-
38029] against Ken, Candy and Howard in the amount of $911,252.87 plus $149,546.34 in
interest, in favor of Kip H. Gibbs as NEXT FRIEND FOR Kathryn Houseworth Gibbs.
a. As a result of Plaintiffs efforts, that judgment was retired.
b. It is therefore proceeds from a lawsuit, and Plaintiff is entitled to its 30% share, equaling
$318,239.76.
SPECIFIC PERFORMANCE
39. Plaintiff has a right to performance under the Contract. Plaintiff has honored every
consideration placed on it by the Contract; and, now, Plaintiff has a right to the consideration
promised it.
40. P1aintiffwould ask the court to order that the provisions of the Contract be fully enforced
without delay; and, that the proper gas companies be notified of the action.
41. Plaintiff's only offense was in utilizing a provision within the Contract to withdraw its
money and assets from a situation in which Plaintiff has been taken advantage of and stolen from
since the outset.
42. Plaintiff asks the court to grant specific performance under the Contract without delay.
CONDITIONS PRECEDENT
43. Plaintiff avers that all conditions precedent have occurred prior to filing of this suit.
13 7
EXEMPLARY DAMAGES
44. Plaintiff would further show that the acts and omissions of Defendants, Ken and Candy,
complained of herein were committed knowingly, willfully, intentionally, with actual awareness,
and with the specific and predetermined intention of enriching said Defendants at the expense of
Plaintiff In order to punish said Defendants for such unconscionable overreaching and to deter
such actions and omissions in the future, Plaintiff also seeks recovery from Defendants for
exemplary damages as provided by Section 41.003(1) ofthe Texas Civil Practice and Remedies
Code.
OTHER RELIEF REQUESTED
45. Specific Performance: Plaintiff seeks specific performance of the Contract as alleged and
as will be proven.
46. Declaratory Judgment: Plaintiff{s] request[s] that declaratory judgment be entered under
Chapter 37 of the Texas Civil Practice and Remedies Code, declaring the Contract between
Plaintiff and the Defendants as parties to contract, valid and enforceable under the laws of the
State of Texas.
47. Restitution: Plaintiff requests that the Court enter an order requiring Defendants to pay
restitution to Plaintiff.
ATTORNEY'S FEES
48. Request is made for all costs and reasonable and necessary attorney's fees incurred by or
on behalf of Plaintiff herein, including all fees necessary in the event of an appeal of this cause to
the Court of Appeals and the Supreme Court of Texas, as the Court deems equitable and just, as
14 8
provided by Chapter 38 of the Texas Civil Practice and Remedies Code and Section 37.009 of
the Texas Civil Practice and Remedies Code, amongst others.
ALTERNATIVE ALLEGATIONS
'49. Pursuant to Rules 47 and 48, Texas Rules of Civil Procedure and the rules of pleadings,
allegations in this petition are made in the altemative.
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY I!
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be
cited to appear and answer herein, and that upon a fmal hearing of the cause, judgment be
entered by this Court for Plaintiff and against the Defendants for the following:
A. All actual damages; but, in any case, no less than one million dollars
[$1,000,000.00];
B. Restitution in the exact amount that has been unjustly taken from Plaintiff by
defendants and used to pay Defendant's legal fees;
C. Judgment against Defendant's for $318,239.76 plus interest as Plaintiff's share of
the proceeds from the Abstract of Judgment referenced herein;
D. Declaratory judgment at the earliest possible time to determine the proper
ownership of the mineral interest put in dispute at the oil and gas company level by
baseless letters from the Defendants;
E. Specific Performance
F. Grant any other relief to which plaintiff has shown itself entitled both at law and
in equity, whether pled or unpled.
15 9
B ham; Texas 75418
(903)640-4300 * FAX 640-4344
Attorney for Plaintiff,
PENTEX FOUNDATION
16 10
Denton County
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17
C():ntracr for Sale of Lsntd, Mineral Rigbl$ aad Royalties.
an~ aU 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.
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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#
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K~nneth Ven1 :Gibbs
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Subscribed and sworn to bcilorc me thi~ l01h day of May in the year 2005 .
S4l¢ Of UtloCkM.rMt~l RtKiii~.
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R~y•lllcs ~rod Othor A»<:ili •~! 1\,Ji>nrt;
23
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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
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- - - - - - - - - - - - - - - - - - - Deputy(!| :"', ...~"' ~--.,.,.
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"<;,/
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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
{
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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.
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John Skotnik, :-·,
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: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
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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
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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
fOI 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',:pecliti1et• 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 J1f)li1 tj . .
86
.
' '
Howard Gibbs
4360 Western Center Blvd. #205
Fort Worth, Texas 76137
817-233-4423
Email: hkgibbs@gmail.com
May 1, 2014
Dear Mr. Skotnik:
As per our earlier communication, I have no objection to your withdrawal from the
case to which I am a party in Fannin County, Texas, case number CV-14-41665.
Sincerely,
Howard Kirk Gibbs
87
SCOTT SMITH
ATTORNEY AND COUNSELOR AT LAW
E-MAIL: smithlaw@airmail.net t
l
FACSIMILE: (903) 870-1446
TELEPHONE: (903) 868-8686
May 7, 2014
Nancy Young, District Clerk
Fannin County Courthouse ~
101 East Sam Rayburn Dr., Ste. 201 l
j
I
Bonham, Texas 75418
RE: Pentex Foundation v. Kenneth Vern Gibbs, et al.; Cause Number
ll
I 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 following: Notice
of Appearance of Counsel. This will also confirm that a request for disclosure
was served upon counsel for Kenneth Gibbs and Candace Walton on this date.
Please be advised, pursuant to the State Bar Rules, the Texas Lawyer's
Creed, and respective local rules, that I will be out of the office on the following
dates for vacation and continuing education requirements:
May 22-31, 2014
July 24-25, 2014
September 3-12, 2014
Please do not set any matter for hearing or trial during this time, or within
three days after the date of such period. I would request that no discovery be
served during this period or served as to require a response during this period.
I thank you for your attention to this matter.
TSS/bhs
cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, Pro Se.
88
NO. CV-14-41665
PENTEX FOUNDATION, §
Plaintiff §
§
v. §
§ FANNIN COUNTY, TEXAS
KENNETH VERN GIBBS, CANDACE §
GIBBS WALTON and HOWARD §
KIRK GIBBS, Defendants § 3361h JUDICIAL DISTRICT
NOTICE OF APPEARANCE OF COUNSEL
TO THE HONORABLE JUDGE AND CLERK OF SAID COURT:
COMES NOW, Scott Smith, and enters his appearance as counsel for Pentex
Foundation, Plaintiff in this matter.
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
i
1
Telephone (903) 868-8686
1
oj
ATTORNEY FOR PENTEX FOUNDATION
'
NOTICE OF APPEARANCE OF COUNSEL ... PAGE I
89
' 1
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing document was served upon
Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas
76102, by certified mail, return receipt requested number 7009 2250 0000 2311 3876, and to Howard Kirk
Gibbs, ProSe, at 4360 Western Center Blvd., Suite 205, Ft. Worth, Texas 76137, by certified mail, return
receipt requested number 7009 2250 0000 2311 4064, on h" ay 7, 2014.
NOTICE OF APPEARANCE OF COUNSEL ... PAGE 2
90
PENTEX FOUNDATION §
Plaintiff, §
§
v. § 336TH JUDICIAL DISTRICT
§
KENNETH VERN GIBBS, CANDACE §
GIBBS WALTON AND HOWARD §
KIRK GIBBS §
Defendants. § OF FANNIN COUNTY, TEXAS
ORDER GRANTING MOTION FOR WITHDRAWAL OF COUNSEL
On ~~~5_·-~--~J_~--~~-~==~-=~ 2014, the Court considered the Motion for
Withdrawal of Counsel by Movant John Skotnik.
The Court finds that:
1. Good cause exists for withdrawal of Movant as counsel and withdrawal of
Movant is not sought for delay only.
2. Plaintiff consents to the withdrawal of John Skotnik and the court finds that no
party incurs a detriment by allowance of this motion.
3. The Defendants are not opposed to the withdrawal.
4. There is a potentiat conflict of interest.
5. The current settings and deadlines are:
NONE.
IT IS THEREFORE ORDERED that Movant is permitted to withdraw as counsel of
record for Plaintiff and ORDERED that all notices in this cause shall hereafter be served on
Plaintiff either delivered in person or sent by certified and first class mail to the address in the
motion.
IT IS FURTHER ORDERED that John Skotnik, Movant, immediately notify Plaintiff
91
......
Pentex Foundation in writing of any additional settings or deadlines of which John Skotnik now
has knowledge and has not already notified Plaintiff.
--~~9~-~
~m the dttte ofth1s Ortl@J:
IT IS ORDERED that the Plamttffhtts-"
(l S;-t-~ ~~-·-it> cR.t,~~ ~ .{;~
mseetue ~thcr~~preser.tt 1t te t~~ e~~ 6L.. -f~--.,.._1'~ fL.--/7 -IYj.'rJ2fllt
~NED on ::vhj 2-_ , 2014. ~
~
JUDGE LAURINE BLAKE, PRESIDING
92
."",...l
·,'
.-·,_
~ .. "'!
• >' -.
Case No. CV-14-41665
PENTEX FOUNDATION §
Plaintiff §
§
Vs. §
§ FANNIN COUNTY, TEXAS
KENNETH VERN GffiBS §
CANDACE GIBBS WALTON §
HOWARD KIRK GIBBS § 336th JUDICIAL DISTRICT
Defendants §
DEFENDANT HOWARD GIBBS' RESPONSE TO
DEFENDANTS CANDACE WALTON AND KENNETH GIBBS
REQUEST FOR DISCLOSURE
In response to a request for Rule 194 disclosure made by Defendants Candace Walton and
Kenneth Gibbs.
COMES NOW, Howard Kirk Gibbs, Defendant, and submits his response to Defendant's
Candace Walton and Kenneth Gibbs Request for Disclosure.
a. The correct names of the parties to the lawsuit.
RESPONSE:
1. Plaintiff, Pentex Foundation;
2. Defendant, Kenneth Gibbs;
3. Defendant, Candace Walton; and
4. Defendant, Howard Kirk Gibbs
b. The name, address, and telephone number of any potential parties.
RESPONSE: None.
c. The legal theories and, in general, the factual bases of your claims or defenses of
the responding party.
RESPONSE: Defendant, Howard Gibbs, has not committed any wrongful acts as
alleged in Plaintiffs' Original Petition.
DEFENDANT'S RESPONSE TO DEFENDANT'S
RE~3"T FOR DISCLOSURE -Page 1-
d. The amount and any method of calculating economic damages.
RESPONSE: No calculations made at this time. Defendant, Howard Gibbs, will
amend this response when the same becomes available.
e. The name, address, and telephone number of persons having knowledge of
relevant facts, and a brief statement of each identified person's connection with the case.
RESPONSE:
I. Plaintiff, Pentex Foundation, whose address is Panama Gardens- Unit 2, Hacie
Lidice, Cap ira, Republic of Panama, Central America;
Phone number unknown;
2. Defendant, Candace Walton, by and through her attorney of record, Christy Lee;
3. Defendant, Kenneth Gibbs, by and through his attorney of record, Christy Lee;
4. Defendant, Howard Kirk Gibbs, whose mailing address is:
4360 Western Center Blvd. #205, Fort Worth, Texas 76137;
Phone number is 817-233-4423; and
5. Albert Barcroft, the legal representative ofPentex Foundation, P.O. Box 03,
Morales, Izabal, 18004, Izabal, Guatemala, Central America;
Phone number is 011-502-4888 0964
6. Danny Unger, address unknown to Defendant;
Phone number is 903-948-9708
f. For any testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance ofthe expert's mental impressions and opinions and a brief
summary of the basis for them, or if the expert is not retained by, employed by or
otherwise subject to the control of the responding party, documents reflecting such
information;
(4) if the expert is retained by, employed by, or otherwise subject to your control:
a. all documents, tangible things, reports, models or data compilations that
have been provided to, reviewed by or prepared by or for the expert in
anticipation ofthe expert's testimony; and
b. the expert's current resume and bibliography;
RESPONSE: None.
g. Any indemnity and insuring agreements described in Rule 192.3(1) of the Texas
Rules of Civil Procedure.
RESPONSE: None
DEFENDANT'S RESPONSE TO DEFENDANT'S Cause~J!;-14-4!
REQ~4T FOR DISCLOSURE -Page 2- Pentex Foundatl/'fs. Gibbs et.
b. Any settlement agreements described in Rule 192.3(g) of the Texas Rules of Civil
Procedure.
RESPONSE: None
i. Any witness statements described in Rule 192.3(b) of the Texas Rules of Civil
Procedure.
RESPONSE: None
Respectfully Submitted
~~
Howard Kirk Gibbs
4360 Western Center Blvd. #205
Fort Worth, Texas 76137
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing Response to Request
for Disclosure was delivered to the following parties on this 291h day of May, 2014:
Pentex Foundation Via Email to SmithLaw@Airmail.net
c/o Scott Smith
Attorney of Record
Ken Gibbs & Candy Walton Via Email to CLee@ChristyLeeLaw.com
c/o Christy Lee
Attorney of Record
Dated and signed this 291h day of May, 2014.
DEFENDANT'S RESPONSE TO DEFENDANT'S Cause No. CV-14-41
RE~~T FOR DISCLOSURE -Page 3- Pentex Foundation vs. Gibbs
'.,
NO. CV-14-41665
PENTEX FOUNDATION, §
Plaintiff §
§
v. §
§ FANNIN COUNTY, TEXAS
KENNETH VERN GIBBS, CANDACE §
GIBBS WALTON and HOWARD §
KIRK GIBBS, Defendants § 3361h JUDICIAL DISTRICT
ORIGINAL PETITION IN INTERVENTION
COMES NOW, Joshua Unger, Trustee of the GBU Friends and Associates
Trust, Intervenor, pursuant to TEX. R. CIV. P 40, and intervenes as the real party in
interest in this suit against Kenneth Vern Gibbs, Candace Gibbs Walton, and
Howard Kirk Gibbs,; and, would show the honorable court as follows: 1
1. Intervenor is the trustee of the GBU Friends and Associates Trust, and
is the recipient of the rights initially assigned to Albert Lynn Barcroft by virtue of
the Contract. 2 All defendants have appeared and answered herein, and may be
served pursuant to TEX. R. CIV. P. 21 a.
2. The subject matter in controversy is within the jurisdictional limits of
this Court. Additionally, venue is proper in Fannin County, pursuant to TEX. CIV.
PRAC. & REM. CODE§ 15.035(a), as the Defendants herein agreed in writing that
As used herein the abbreviations used by Plaintiff in the Original Petition shall be used herein.
Additionally, pursuant to TEX. R. Ctv. P. 58, Intervenor adopts by reference the exhibits attached to the Original
Petition.
When the term "Intervenor" is used herein, it is meant to refer to Intervenor and his predecessors in interest.
PETITION IN INTERVENTION .... PAGE I
96
the Contract was performable only in Fannin County, Texas and that any dispute
would be resolved in the courts of Fannin County, Texas.
3. On or about the lOth day ofMay, 2005, the Contract was entered
into between Mr. Barcroft and all three Defendants, whereby the Defendants each
sold to Mr. Barcroft a thirty percent interest in specified estates and related
interests. A true and correct copy of the Contract is attached to the Plaintiffs
Original Petition as Exhibit "A". Intervenor is the present holder of the interest
conveyed to Mr. Barcroft by the Defendants pursuant to the terms of the Contract.
4. Pursuant to the terms of the Contract, a business organization was to
be created to facilitate the terms of the Contract. The Contract additionally
provided, on page 4, that any party could demand a split of the assets out of the
business organization at any time.
5. In the Fall of 2008, the Defendants purportedly created a business
organization known as GWB Family and Friends Trust ("GWB"), a purported
trust, supposedly in compliance with the terms of the Contract to "help facilitate
the terms of the contract". It is questionable whether the GWB was validly
created, but regardless if GWB is, in fact, a trust, it is a revocable trust pursuant to
the terms of the Contract and/or is not binding on Intervenor.
6. On or about September 5, 2008, a Family Settlement Agreement
PETITION IN INTERVENTION .... PAGE 2
97
.'-'.
("FSA") agreement was reached by Intervenor's predecessor in interest and the
Defendants with respect to the estates of Bert Hughes Gibbs and Kathryn
Houseworth Gibbs (Defendants' parents) would be divided. The Contract the
subject of this suit was recognized and confirmed in the FSA, at page 33, section
3.25 (c). The FSA, page 22, section 3.15A, also restated and reconfirmed that
Defendants were solely responsible for any attorney fees; thereby confirming that
provision in the Contract.
7. Pursuant to the terms of the FSA, Defendants were each awarded 25%
of both their father's and mother's estates, totaling 75% of the total of the
combined estates. Each Defendant had previously sold 30% of their share to
Barcroft under the Contract; meaning that Barcroft, or his assigns, had an
unmitigated interest in the combined estates of22.50% (or 30% of75%). 3
Through agreement and instruction from Plaintiff, the estate attorneys assigned
2.46% of Plaintiffs 30%; leaving 20.04% belonging to Barcroft or his assigns
(22.50% less 2.46%). In sum, the Intervenor's interest in said estates is 20.04%.
8. In August, 2013, Intervenor learned that attorney fees that were
agreed would be paid by Defendants had actually been coming out of Intervenor's
share. Unbeknownst to Intervenor, until October of2013, the contingency fee
attorneys were deducting their fees from the total due Pentex Foundation, Ken,
PETITION IN INTERVENTION .... PAGE 3
98
Candy and Howard, then issuing one check to GWB. The result is that Intervenor
has involuntarily incurred in excess of a million dollars in attorney fees that were
due to be paid solely by Defendants. When Intervenor learned of this error, his
predecessor in interest immediately moved under the terms of the Contract to
demand a split of the assets of the business organization. Beverly Miller, the
putative trustee of GWB, determined that the demand was valid, whereupon
she transferred enough property to equal20.04% of the total estate, previously
distributed to GWB [mineral interests], to the GBU Friends and Associates Trust.
9. In response, Kenneth Gibbs and Candace Walton engaged counsel
who contacted the gas companies, with whom Intervenor does business, by letter,
tortiously interfering with the contracts between Intervenor and the various oil
compames.
10. Intervenor has a right to performance under the Contract. Intervenor
seeks judgment that the provisions of the Contract be fully enforced without delay;
and, that the proper gas companies be notified of the action. Intervenor
additionally requests that the Court enter an order requiring Defendants to pay
restitution to Intervenor.
11. In addition, under the terms of the Contract, Intervenor was to receive
30% of all proceeds from any lawsuit involving Defendants. At the time the
PETITION IN INTERVENTION .... PAGE 4
99
"-"'
Contract was agreed to and executed, there was an Abstract of Judgment filed in
Denton County against Defendants in the amount of $1 ,234,205 .64, in favor of Kip
H. Gibbs as NEXT FRIEND FOR Kathryn Houseworth Gibbs. As a result of the
efforts of Intervenor's predecessors in interest, that judgment was retired. It is
therefore proceeds from a lawsuit, and Intervenor is entitled to 30%, equaling
$370,262.70.
12. Intervenor additionally requests that declaratory judgment be entered
under Chapter 37 of the Texas Civil Practice and Remedies Code, declaring the
Contract valid and enforceable under the laws of the State of Texas.
13. As a direct and proximate result, and as intended, the frivolous
contacts compelled the gas companies to discontinue payments of royalties
rightfully due Intervenor, in a sum in excess of the minimum jurisdictional limits
of this Court. Intervenor is being unjustly denied its money and assets all because
of groundless, unproven, and false accusations made on behalf of Kenneth Gibbs
and Candace Walton, both in conversation and in writing.
14. Intervenor would further show that the acts and omissions of
Defendants, Kenneth Gibbs and Candace Walton, complained of herein were
committed knowingly, willfully, intentionally, with actual awareness, and with the
specific and predetermined intention of enriching said Defendants at the expense of
PETITION IN INTERVENTION .... PAGE 5
100
...,.
.
Intervenor. In order to punish said Defendants, Kenneth Gibbs and Candace
Walton, for such unconscionable overreaching and to deter such actions and
omissions in the future, Intervenor also seeks recovery from Defendants, Kenneth
Gibbs and Candace Walton, for exemplary damages as provided by Section
41.003(1) of the Texas Civil Practice and Remedies Code.
15. Request is made for all costs and reasonable and necessary attorney's
fees incurred by or on behalf of Intervenor herein, including all fees necessary in
the event of an appeal of this cause to the Court of Appeals and the Supreme Court
of Texas, as the Court deems equitable and just, as provided by Chapters 37 and 38
of the Texas Civil Practice and Remedies Code.
16. Pursuant to Rules 47 and 48, Texas Rules of Civil Procedure and the
rules of pleadings, allegations in this petition are made in the alternative.
17. Plaintiff avers that all conditions precedent have occurred prior to
filing of this suit.
18. Pursuant to Tex. R. Civ. P. 193.7, Intervenor gives notice that he will
use any and all of the documents produced by Defendants in this litigation, and in
response to written discovery at the trial to be held in this case.
19. Intervenor makes demand for trial by jury pursuant to TEx. R. Ctv P.
216.
PETITION IN INTERVENTION .... PAGE 6
101
' '
20. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, each
Defendant is requested to disclose within the later of fifty days of service of this
request, the material described in Rule 194 of the Texas Rules of Civil Procedure.
WHEREFORE, PREMISES CONSIDERED, Intervenor prays that upon a
final hearing of the cause, judgment be entered by this Court for Intervenor and
against the Defendants, jointly and severally, for the following:
A. All actual damages; but, in any case, no less than one million dollars
$1 ,000,000.00;
B. Restitution in the exact amount that has been unjustly taken from
Intervenor by Defendants and used to pay Defendant's legal fees;
C. Declaratory judgment at the earliest possible time to determine the
proper ownership of the mineral interest put in dispute at the oil and
gas company level by baseless letters from the Defendants;
D. Specific Performance;
E. Judgment against Defendant's for $370,262.70, together with interest
as Intervenor's share of the proceeds from the Abstract of Judgment
referenced herein; and
F. Grant any other relief to which Intervenor has shown himself entitled
both at law and in equity, whether pled or unpled.
PETITION IN INTERVENTION .... PAGE 7
102
, • I' '
Respectfully submitted,
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
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing document was served upon
Christy L. Lee, Esq., of Law Offices of Christy Lee, P.C., 777 Main Street, Suite 600, Fort Worth, Texas
76102, by certified mail, return receipt requested number 7009 2250 0000 2311 3937, and to Howard Kirk
Gibbs, ProSe, at 4360 Western Center Blvd., Suite 205, Ft. h, Texas 76137, email, by on this June 17,
2014. .
PETITION IN INTERVENTION .... PAGE 8
103
CAUSE No. CV-14-41665
PENTEX FOUNDATION )
)
PLAINTIFF, )
)
vs. )
)
KENNETH VERN GIBBS; AND )
CANDACE GIBBS WALTON; AND )
HOWARD KIRK GIBBS, )
)
DEFENDANTS. ) FANNIN COUNTY, TEXAS
MOTION TO STRIKE INTERVENTION, MOTION TO DISMISS WITH PREJUDICE,
AND RULE 13 MOTION FOR SANCTIONS OF KENNETH VERN GIBBS AND
CANDACE GIBBS WALTON
TO THE HONORABLE JUDGE OF THE COURT:
COME NOW, KENNETH "Ken" GIBBS and CANDACE "Candy" WALTON,
Defendants, by and through their Counsel ofRecord, Law Offices of Christy Lee, P.C., and file
this Motion to Strike Intervention, Motion to Dismiss, and Rule 13 Motion for Sanctions, and
would respectfully show the Court the following:
I. MOTION TO STRIKE INTERVENTION
1. Pursuant to Rule 60 of Texas Rules of Civil Procedure, an applicant's right to
intervene in litigation is "subject to being stricken out by the court for sufficient cause on the
motion of any party." An intervenor bears the burden to show a justiciable interest, legal or
equitable in the lawsuit, while the trial court has broad and sound discretion concerning the
intervention. Mendez v. Brewer, 626 S. W.2d 498, 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
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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.
/• ,/
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-----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
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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.
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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~- ·
---- ~"-~
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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
./ .../' /' /
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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-l
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To: "Christy Lee" ; "Howard Gibbs"
Sent: Thursday, July 17, 201411:55AM
Attach: 14-7-17 Motion to Compel.pdf
Subject: Pentex v. Gibbs-- CV-14-41665
Attached is Plaintiffs Motion to Compel.
Regards,
Scott
Scott Smith
Attorney and Counselor At Law
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75091-0354
Facsimile 903.870.1446
Telephone 903.868.8686
125
7/1
....I --~PLAI~NTI!!FP!!!S--
~ EXHIBIT
~ A
CAUSE NO. CV -14-41665
PENTEX FOUNDATION ) lN THE DISTRICT COURT
PLAINTIFF, )
)
vs. ) 336m JUDICIAL DISTRICT
)
KENNETH VERN GIBBS; AND )
CANDACE GIBBS WALTON; AND )
HOWARD KIRK GIBBS, )
DEFENDANTS. ) FANNIN COUNTY, TEXAS
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS
TO: PENTEX FOUNDATION, Plaintiff, by and through its attorney of record, Scott Smith,
120 South Crockett Road, Shem1an, Texas 75091-0354; email: smithlaw@airmail.net:
COME NOW, KENNETH GIBBS and CANDACE WALTON, Defendants, and serve
their Objections and Responses to Plaintiff Pentex Foundation's First Set of Admissions,
pursuant to Rule 198 of the Texas Rules of Civil Procedure, as follows:
PRELIMINARY STATEMENTS
1. These responses and objections reflect the current state of Defendants'
investigation concerning the discovery request that Plaintiff has propounded. Defendants are
still in the process of investigating the facts and attempting to conduct depositions relating to this
action. To date, Plaintiff and Intervenor have refused to set any deposition dates. Accordingly,
Defendants reserve the right to supplement these responses and objections with subsequently
discovered infommtion. Furthermore, these responses and objections are given without
prejudice to the right of Defendants to use or to rely upon at any time subsequent to discovered
information or documents.
KENNETII GIBBS AND CANDACE WAtTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV-14-41665
Pentex Foundation vs. Kenneth Vem Gibbs. eta/. -1-
126
2. Defendants produce the Admissions subject to their objection that no discovery is
due until Plaintiff's authority regarding this matter is determined. Defendants object to the use
of these Admissions pending settlement of the issue of Plaintiff's authority.
Respectfully submitted,
LAW OFFICES OF CHRISTY LEE, P.C.
ATTORNEY FOR KENNETH GIBBS AND
CANDACE WALTON
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESI'ONSF.S TO PBNTI:X FOUNl>ATION'S FIRST Sur 01' ADMISSIONS CAUSE NO. CY-14-41665
?entex Foundation vs. Kenneth Vern Gibbs, eta!. -2-
127
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 party on this 27th day of June,
2014:
Pentex Foundation and Via email
GBU Family and Friends Trust
do Scott Smith
P.O. Box 354
Sherman, TX 75091-0354
Howard Kirk Gibbs Via email
4360 Western Center Boulevard
No. 205
Fort Worth, TX 76137
Christy L. Lee
KENNETII GI!1BS AND CANDACE WALTON'S OBJECTIONS
AND RESI'ONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV -14-41665
Pente.> Foundationt•s. Kenneth Vern Gihhs. eta!. -3-
128
EXHIBIT '1A"-FactstobeAdmitted
1. The Contract was signed by Candace, Ken, Howard and Barcroft on May I 0, 2005.
Admit.
2. Candace received and accepted consideration either directly from, or as a result of,
the Contract.
Object, as this Request is vague and ambiguous as to consideration in question and
calls for legal interpretation of the validity of the Contract. Cannot admit or deny.
3. Ken received and accepted consideration either directly from, or as a result of, the
Contract.
Object, as this Request is vague and ambiguous as to consideration in question and
calls for legal interpretation of the validity of the Contract. Cannot admit or deny.
4. Prior to filing the Answer, Candace had never challenged the validity of the
Contract.
Deny.
5. Prior to filing the Answer, Ken had never challenged the validity of the Contract.
Deny.
6. Pursuant to the Contract, Candace sold 30% of all land and other property that came
to her through her inheritance fTOm the Estates to Barcroft for the consideration
provided therein.
Object, as Request calls for legal interpretation. Subject to that objection, admit.
7. Pursuant to the Contract, Ken sold 30% of all land and other property that came
to his through her inheritance from the Estates to Barcroft for the consideration
provided therein.
Object, as Request calls for legal interpretation. Subject to that objection, admit,
under the presumption that the stated "her" in fact refers to "Ken's inheritance."
8. Barcroft has rendered, and Candace received or benefitted from, the consideration
due Candace from Barcroft under the tenns of the Contract.
KENNETII GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTf:X FOUNDATION'S FIRST SET OF ADMISSIONS
Pentex Foundation I'S. Kenneth Vern Gibbs, eta!.
129
Deny.
9. Barcroft has rendered, and Ken received or benefitted from, the consideration due
Ken from Barcroft under the terms of the Contract.
Deny.
I 0. Pursuant to the terms of the Contract, Barcroft was required to furnish a licensed
attorney to pursue the collection of the Estates.
Admit.
11. Barcroft did furnish a licensed attorney to pursue the collection of the Estates.
Admit in part; deny in part. Barcroft stated that he drafted all related legal documents
and provided that he had a Jaw degree and could legally draft such documents. It is
unknown which, if any, attorney pursued collections from the Estates.
12. Barcroft himself or someone on his behalf paid the entire fee of the licensed
attorney engaged to pursue the collection ofthe Estates.
Object, as Request calls for information beyond the scope of our knowledge. Cannot
admit or deny.
13. Barcroft has not breached the Contract.
Deny. Ifthe Contract is legal, Barcroft most certainly breached it.
14. Pentex Foundation has not breached the Contract.
Deny. If the Contract is legal, and if Pentex Foundation was legally assigned the
interest as Pentex alleges, Pentex most certainly breached the Contract.
15. Candace signed the Contract under oath.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subject to that objection, admit.
16. Ken signed the Contract under oath.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subject to that objection, admit.
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE No. CV-14-41665
Pente.x Foundation vs. Kenneth Vern Gihhs, eta!. -5-
130
17. Candace signed the Contract before a notary public.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subject to this objection, admit.
18. Ken signed the Contract before a notary public.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subject to this objection, admit.
19. Pursuant to the Contract, any additional attorneys hired by Candace, Howard or Ken
would be paid for solely by Candace, Ken and/or Howard.
Object, as Request calls for legal interpretation of the validity of the Contract. Subject
to that objection, admit in part; deny in part. If Candace, Ken, or Howard wanted to
pursue collection actions, then fees would be paid by each individual personally.
20. The Contract is valid and enforceable.
Deny.
21. Pursuant to the Contract, Candace agreed that should she break the terms of the
Contract in any fashion, or attempt to render the Contract invalid in any way, which
would require legal action to correct or enforce, that should Candace not prevail, she
would pay all legal expenses of any type for herself, and for the prevailing party.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subject to that objection, admit.
22. Pursuant to the Contract, Ken agreed that should he break the terms of the
Contract in any fashion, or attempt to render the Contract invalid in any way, which
would require legal action to correct or enforce, that should Ken not prevail, he
would pay all legal expenses of any type for himself, and for the prevailing party.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subjection to that objection, admit.
23. Pursuant to the Contract, Candace agreed that any dispute(s) concerning the
Contract would be resolved in the courts ofFannin County, Texas.
Object, as this Request calls for legal interpretation of the validity of the Contract.
KENNETII GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSENO. CV-14-41665
Pentex Foundation vs. Kenneth Vem Gibbs, et at. -6-
131
Subject to that objection, admit in part; deny in part, as the Contract is vague and
ambiguous as to disputes in question; also, disputes about Estate assets must be
addressed in Tarrant County.
24. Pursuant to the Contract, Ken agreed that any dispute(s) concerning the Contract
would be resolved in the courts of Fannin County, Texas.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subject to that objection, admit in part, deny in part, as the Contract is vague and
ambiguous as to disputes in question; also, disputes about Estate assets must be
addressed in Tarrant County.
25. Pursuant to the Contract, Candace agreed that the Contract was written with the
intent to comply with the laws of the State of Texas; and, any provision found by a
court of competent jurisdiction to be in non-compliance would be automatically
amended to comply with said laws in such a manner as to keep the original intent of
the provision as closely in place as possible.
Object, as this Request calls for legal interpretation of the validity of the Contracl.
Subject to that objection, admit.
26. Pursuant to the Contract, Ken agreed that the Contract was written with the intent
to comply with the laws ofthe State of Texas; and, any provision found by a court of
competent jurisdiction to be in non-compfiance would be automatically amended to
comply with said taws in such a manner as to keep the original intent of the
provision as closely in place as possible.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subject to that objection, admit.
27. The Contract provides that its terms will be binding on heirs and assigns of the parties
to the Contract.
Object, as this Request calls for legal interpretation of the validity of the Contract.
Subject to that objection, admit.
28. Pursuant to the tenns of the Contract, all parties agreed that all agreements
between the parties were contained in writing in the Contract, and that no verbal
agreements would be deemed valid unless contained in writing in the Contract.
Object, as this Request calls for legal interpretation of the validity of the Contract.
KENNETH GIBBS AND CANDACE WALTON'S OllJECTIONS
AND RESPONSES TO Pf\NTEX fOUNDATION'S FIRST SET Of' ADMISSIONS CAUSE NO. CV -14-41665
Pellfex Foundation vs. Kenneth Vern Gihhs, era!. -7-
132
Subject to that objection, admit.
29. Pursuant to the tem1s of the Contract, all parties that all amendments to the
Contract must be in writing, and signed by all parties to the Contract before a notary
public.
Object, as Request is rendered incomplete. Cannot admit or deny.
30. The only document subsequent to the Contract that was signed by all four parties
to the Contract before a notary public is the Family Settlement Agreement.
Admit.
31. Pursuant to the tem1s of the Contract, a business organization was to be formed and the
only function of said business organization was to facilitate the agreement in the
Contract.
Object, as Request calls for legal interpretation. Subject to that objection, admit.
32. Pursuant to the terms of the Contract, it was agreed that Barcroft would have a 50%
vote in all decisions made with regards to the administration and management of
the business organization formed pursuant to the terms ofthe Contract.
Object, as Request calls for legal interpretation. Subject to that objection, deny.
Barcroft had a 50% vote, but not regarding the management ofGWB Trust.
33. Pursuant to the terms of the Contract, it was agreed that any party could demand
a split of the assets of the business organization at any time.
Object, as Request calls for legal interpretation of the validity of the Contract. Subject
to that objection, admit.
34. The business organization created pursuant to the terms of the Contract is the GWB
Trust.
Object, as Request calls for legal interpretation of the validity of the Contract. Subject
to that objection, admit.
35. Pentex is the assignee ofthe rights of Barcroft under the Contract.
Object, as Request calls for information beyond the scope or our knowledge.
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV-14-41665
Pentex Foundation vs. Kennerh Vern Gihhs, et al. -8-
133
36. Pentex has exercised a 50% vote on decisions requiring a vote in the GWB Trust.
Deny. Barcroft has always exercised a 50% vote.
37. The GWB Trust was formed in November of 2008.
Admit.
38. Candace was aware, at the point in time when GWB Trust was formed, that
Barcroft had sold his interest under the Contract.
Deny.
39. Candace was aware, at the point in time when GWB Trust was formed, that
Barcroft had assigned his interest under the Contract.
Deny.
40. Ken was aware, at the point in time when GWB Trust was formed, that Barcroft
had sold his interest under the Contract.
Deny.
41. Ken was aware, at the point in time when GWB Trust was formed, that Barcroft
had assigned his interest under the Contract.
Deny.
42. Candace was aware, at the point in time when GWB Trust was formed, that the interest
of Barcroft under the Contract was owned by Pentex.
Deny.
43. Ken was aware, at the point in time when GWB Trust was formed, that the
interest of Barcroft under the Contract was owned by Pentex.
Deny.
44. Prior to filing the Answer, Candace had never objected to the assertion that Pentex
was the owner of Barcroft's interest in the Contract.
KENNETH GII3BS AND CANDACE WALTON'S OBJECTIONS
AND R~SPONSES TO PENTEX FOUNDATION'S FIRST SET 01' ADt>·IISSIONS CAUSE NO. CV-14-41665
Pen/ex Foundation vs. Kenneth Vern Gihbs, eta/. -9- .·
134
Deny.
45. Prior to filing the Answer, Ken had never objected to the assertion that Pent ex was the
owner ofBarcroft's interest in the Contract.
Deny.
46. Pentex was a voting member and beneticiary of the GWB Trust.
Admit in part; deny in part. Barcroft himself cast votes as Legal Representative for
Pentex. Pentex Royalty Trust was Beneficiary.
47. Waymond James Walton was the tirst trustee of the GWB Trust.
Admit.
48. Waymond James Walton is the husband of Candace.
Admit.
49. Every distribution ever made by Waymond James Walton as trustee from the GWB
Trust with respect to the Pentex beneficial share was made to Pentex Royalty Trust.
Object, as Request calls for infom1ation beyond the scope of our knowledge and no
longer available. Subject to that objection, deny.
50. There is no document to create the GWB Trust signed by all four parties to the
Contact.
Admit.
51. The trustee of the GWB Trust has accepted the money and assets due Pent ex starting
with the tirst distribution from the Estates, and including every distribution from the
Estates.
Object. Cannot admit or deny, as Request calls for infom1ation beyond the scope of our
knowledge.
52. Candace entered into the Family Settlement Agreement.
Object, as Request calls for legal interpretation. Subject to that objection, admit.
KENNETII GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FotJNDATION'S FIRST SET OF ADMISSIONS CAUSE No. CV-14-41665
Pente.\ Fo1111dation vs. Kenneth Vern Gibbs, et al. -10-
135
53. Ken entered into the Family Settlement Agreement.
Object, as Request calls for legal interpretation. Subject to that objection, admit.
54. In the Family Settlement Agreement, Candace represented that she had assigned a
share of her inheritance to Barcroft.
Object, as Request calls for legal interpretation. Cannot admit or deny.
55. In the Family Settlement Agreement, Ken represented that he had assigned a share
of his inheritance to Barcroft.
Object, as Request calls for legal interpretation. Cannot admit or deny.
56.· The Family Settlement Agreement governs and controls assets and funds only until
distribution to the heirs and beneficiaries, and after distribution, the Family
Settlement Agreement does not control what a beneficiary does with his or her
proceeds.
Object, as Request calls for legal interpretation. Subject to that objection, deny.
57. The terms of the Family Settlement Agreement are in relation to, and dictate only,
those things that are in the Estates before distribution.
Object, as Request calls for legal interpretation. Subject to this objection, deny.
58 The tem1s of the Family Settlement Agreement have an effect on property of the
Estates only until distribution.
Object, as Request calls for legal interpretation. Subject to this objection, deny.
59. John Skotnik is a licensed attorney by the State of Texas.
Admit.
60. A portion of the Pentex share in the Estate of Bert Gibbs, Deceased, was assigned
by Ken, as Executor, directly from the Estate of Bert Gibbs, Deceased, to John
Skotnik.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Subject to this objection, deny, as Pentex owns no
share in the Estate of Burt Gibbs.
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV -14-41665
Pentex Found(tlion vs. Kenneth Vern Gihh.v, et af. -11-
136
60. Barcroft's original share from the Estate of Bert Gibbs, Deceased, was decreased
from the Estate ofBert Gibbs, Deceased, by the amount assigned to John Skolnik.
Object, as Request calls for infom1ation that is not relevant or likely to lead to the
discovery of admissible evidence. Subject to this objection, deny, as Barcroft does not
own a share of the Estate of Bert Gibbs.
61 . There was no written document provided to the Estate of Bert Gibbs, Deceased,
from Barcroft or Pentex assigning a portion of the Pentex share from the Estate of Bert
Gibbs, Deceased, to John Skotnik.
Deny.
62. Ken, as Executor, relied solely on the Contract to make the assignment to John Skotnik
from the Estate of Bert Gibbs, Deceased.
Object, as Request calls for infonnation that is not relevant or likely to lead to the
discovery of admissible evidence. Subject to this objection, deny.
63. Ken, as Executor, made the transfer to John Skotnik from the Estate of Bert Gibbs,
Deceased, because he knew that Pentex owned Barcroft's share of the Estate of Bert
Gibbs, Deceased, and because Barcroft agreed in the Contract to pay Skotnik's fees
out of Barcroft's share from the Contract.
Object, as Request calls for infom1ation that is not relevant or likely to lead to the
discovery of admissible evidence. Subject to this objection, deny.
64. Pentex did not instruct Ken, as Executor, in writing, to pay its share from the Estate
of Bert Gibbs, Deceased, to the GWB Trust.
Admit in part; deny in part. Barcroft instructed the Estate in writing to decrease his
portion ofGWB Trust in relation to John Skotnik.
65. Ken, as Executor, and signer of the Family Settlement Agreement as executor, has a
fiduciary duty and responsibility to carry out the terms and conditions set forth in the
Family Settlement Agreement.
Object, as Request is made for purposes of harassment and calls for legal interpretation.
Cannot admit or deny.
66. Ken, as Executor, has a fiduciary duty distribute funds from the Estate of Bert Gibbs.
KENNETII GH311S AND CANDACE WAI:fON'S OBJECTIONS
i\NIJ RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE No. CV-14-41665
Pen/ex Foundation vs. Kenneth Vern Gihhs. eta/. -12-
137
66. Ken, as Executor, has a fiduciary duty distribute funds from the Estate of Bert Gibbs,
Deceased, in the proper amount to the proper beneficiaries.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. The Request is made for purposes of harassment;
also, it calls for legal interpretation. Cannot admit or deny.
6 7. Ken, as Executor, has a fiduciary duty to maintain an accounting of expenses and
distributions of funds from the Estate of Bert Gibbs, Deceased.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Request is made for purposes of harassment; also, it
calls for legal interpretation. Cannot admit or deny.
68. Subsequent to the execution of the Family Settlement Agreement, Ken, as
Executor, has used funds from the Estate of Bert Gibbs, Deceased to pay
attorneys' fees that were owed by Candace.
Object, as Request is made for purposes of harassment. Subject to this objection, deny.
69. Subsequent to the execution of the Fan1ily Settlement Agreement, Ken, as
Executor, has used funds from the Estate of Bert Gibbs, Deceased to pay
attorneys' fees that were owed by Ken.
Object, as Request is made for purposes of harassment. Subject to this objection, deny.
70. Subsequent to the execution of the Family Settlement Agreement, Ken, as
Executor, has used funds from the Estate of Bert Gibbs, Deceased to pay
attorneys' fees that were owed by Howard Gibbs.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Also, Request is made for purposes of harassment.
Subject to this objection, deny.
71. Ken, as Executor, has charged fees for hunting and shooting on real property owned
by the Estate ofBert Gibbs, Deceased to his acquaintances and friends, and that he has
kept that money for himself.
Object, as Request calls for infmmation that is not relevant or likely to lead to the
discovery of admissible evidence. Also, Request is made for purposes of harassment.
Subject to this objection, deny.
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSF. No. CV -14-41665
Penfe.>: Foundation vs. Kenneth Vern Gihhs, eta!. -13-
138
72. Candace is aware that Ken, as Executor, has charged fees for hunting and
shooting on real property owned by the Estate of Bert Gibbs, Deceased, to his
acquaintances and friends, and that he has kept that money for himself.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Also, Request is made for purposes of harassment.
Subject to this objection, deny.
73. Ken, as Executor, has benefitted financially from real property owned by the Estate
of Bert Gibbs, Deceased being used to raise cattle; and, that he kept all those gains
for himself.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Also, Request is made for purposes of harassment.
Subject to this objection, deny.
73. Candace is aware that Ken, as Executor, has benefitted financially from real
property owned by the Estate of Bert Gibbs, Deceased being used to raise cattle;
and, that he kept all those gains for himself.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Also, Request is made for purposes of harassment.
Subject to this objection, deny.
74. The Family Settlement Agreement was signed by Ken on September 5, 2008.
Admit.
75. The Family Settlement Agreement was signed by Candace on September 5, 2008.
Admit.
76. The Family Settlement Agreement described that the "Gibb's Homeplace" consisted
of 532 acres of land.
Object, as Request calls for infommtion that is not relevant or likely to lead to the
discovery of admissible evidence. Subject to this objection, deny.
77. The Family Settlement Agreement required that the "Gibbs Home place" would be
immediately placed on the market for sale at a current market price.
Object, as Request calls for infonnation that is not relevant or likely to lead to the
KENNETH GIBBS AND CANDACE WAt:roN'S OBJEC"l"IONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET Of ADMISSIONS CAUSE No. CV -14-41665
Pcme.r Foundation vs. Kenneth Vern Gihhs, eta!. -14-
139
discovery of admissible evidence. Cannot admit or deny, as the Family Settlement
Agreement is not clear.
78. Ken, as Executor, did not list the "Gibbs Homeplace" for sale for more than three
years after he signed the Family Settlement Agreement.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Cannot admit or deny at this time, as it is unknown
as to when the Gibbs' Homeplac was placed for sale.
79. Ken does not want to sell the land known as the "Gibbs Homeplace."
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Also, Request is made for purposes of harassment.
Subjection to this object, deny.
80. Candace is aware that Ken does not want to sell the land known as the "Gibbs
Homeplace."
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Also, Request is made for purposes of harassment.
Subject to this objection, deny.
81. Candace has expressed in emails that she is aware that Ken does not want to sell the
land known as the "Gibbs Homeplace.''
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Also, Request is made for purposes of harassment.
Subject to this objection, deny. Ken does not want to "fire sale" the property, but
obtain fair market value.
82. Candace has stated in email that she has supported Ken's decision not to seek a sale
of the home place at current market value.
Object, as Request calls for information that is not relevant or likely to lead to the
discovery of admissible evidence. Subject to this objection, deny, as Candace has
stated that the "Homeplace" should be sold at least at fair market value.
83. Candace has breached the Contract.
Object, as Request calls for legal interpretation as to the validity of the Contract.
Subject to this objection, deny.
KENNETH GIBBS AND CANDJ\C'E WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE No. CV-14-41665
Pentex Foundation vs. Kenneth Vern Gihhs. eta!. -15-
140
Subject to this objection, deny.
84. Ken has breached the Contract.
Object, as Request calls for legal interpretation as to the validity of the Contract.
Subject to this objection, deny.
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV-14-41665
Pen/ex Foundationvs. Kenneth Vern Gihbs, et al.
141
CAUSE NO. CV-14-41665
PENTEX FOUNDATION )
)
PLAINTIFF, )
)
vs. )
)
KENNETH VERN GIBBS; AND )
CANDACE GIBBS WALTON; AND )
HowARD KIRK GIBBS, )
)
DEFENDANTS. ) FANNIN COUNTY, TEXAS
FIRST SUPPLEMENT TO OJ!IGINAL ANSWER AND AFFIRMATIVE DEFENSES
OF DEFENDANTS KENNEJH VERN GmBS AND CANDACE GmBS WALTON
TO THE HONORABLE JUDGE QF THE COURT:
COME NOW, KENNETfl "Ken" VERN GIBBS and CANDACE "Candy" GIBBS
WALTON, Defendants, by and thtough their Counsel of Record, Law Offices of Christy Lee,
P.C., and file this First Supplement to their Original Answer and No. 20 of their Affirmative
Defenses, and would show the Court, as follows:
I. Ij)EFECTS IN LEGAL CAP ACITY.
1. Pursuant to Rule 93.2 of the Texas Rules of Civil Procedure, Ken denies that
Pentex Foundation or GBU Friends and Associates Trust (collectively, Pentex") has the legal
capacity to sue him, and alternatively, Ken denies that Pentex sued him in the appropriate legal
capacity. See Exhibit A, Affidavit ofKenneth Vern Gibbs.
2. By naming Defendhnts in their individual capacity, Pentex's Original Petition
suggested that Defendants somehow controlled the amounts of distributions to them from the
Estate of Burt Gibbs ("the Estate").
3. Ken is Independent Administrator of the Estate, which is currently in proceedings
FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES
OF DEFENDANTS KENNETII VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV -14-41
142-roN AND GIBBS VS. MiLLER, ET AL. -1
in Statutory Probate Court No.2, Tarrant County, Texas. Cause No. 2205-000126-2.
4. The Heirs litigated several years concerning the Estate, and the Family Settlement
Agreement ("FSA") contained the t~rms to which the parties consented. The FSA was signed by
all the Heirs to the Estate, includipg all three (3) defendants. Albert Barcroft ("Albert") also
signed the FSA.
5. Albert allegedly transferred all of his interest in the FSA, Contract for Sale of
Land ("the CSL"), and the Estate to Pentex. See Exhibit B.
6. The FSA contained :provisions which concerned the Estate's distributions of the
Defendants percentages of interest cimd the payment of attorneys' fees from the Estate. According
to Pentex's Original Petition, from September or October 2008 until April 2014, the Estate
reduced funds due Pentex by the cost of attorney fees that were the obligations of Defendants.
7. In September of 2008, when the FSA was executed, the matter of attorney fees
was accounted for in the calculatioris, and all attorney fees distributions were made by the Estate.
8. At the time the distributions began from the Estate, neither Candy, nor Ken in his
individual capacity held the power or authority to assign interest in the Estate to themselves, to
calculate the percentages of distributions to themselves, to distribute the assets, or pay attorney
fees. Neither Candy, nor Ken in his individual capacity now holds the power or authority to
assign interest in the Estate to tfuemselves or to others, including Pentex, to calculate the
percentages of distributions to themselves, or to distribute Estate assets. Only the Independent
Administrator had and has this authority.
:11. INVALID CONTRACT.
9. Pentex Original Petition argued that Defendants breached the CSL. The CSL
addressed the sale to Albert of a percentage of the Defendants' interest in the Estate.
FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES
OF DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON
l~!J'ON AND GIBBS VS. MiLLER, ET AL.
10. Albert is the alter ego and Legal Representative of Pentex. At the time the CSL
was executed, Albert did not, artd does not now, hold a license to practice law. Albert
represented himself to Defendants as possessing a law degree and being fully qualified to
provide legal counsel and to draft legal documents.
11. Albert fraudulently :convinced Defendants of his ability to provide legal advice
regarding the settlement of the Estate. In this capacity as lawyer, Albert presented settlement
terms to Defendants and persuaded: Defendants to agree to the terms in the CSL, in which Albert
was a party.
12. On several occasion; Albert stated to Defendants that he himself drafted the CSL.
13. Albert persuaded Defendants that signing the CSL was in their best interest.
14. As a recipient of a portion of Defendants' proceeds from the Estate, Albert stood
to profit greatly from the CSL. fu addition to his lack of authority to act as legal advisor to
Defendants, Albert engaged in a serious conflict of interest with regard to the CSL. Albert
breached his fiduciary duty to Defendants through his simultaneous involvement with the CSL
and the benefits he derived from it..
15. The validity and legality of the CSL have not been determined and remain highly
dubious.
IIIJ. STATUTE OF LIMITATIONS.
16. Pentex' s Original Petition acknowledged that the FSA, executed in September
2008, "set the terms and conditions; as well as the respective shares due each heir, for the probate
and disbursal" of the Estate. Para;. 19. Pentex further maintained that Defendants unlawfully
enriched themselves by violating the terms under which the distributions of the Estate were to be
made. The specific terms in question addressed the way in which Defendants' payment of
FIRST SUPPLEMENT TO ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES
OF DEFENDANTS KENNETH VERN GIBBS AND CANDACE GIBBS WALTON CAUSE NO. CV-14-41665
!ff4'l£0N AND GIBBS VS. MILLER, ET AL. -3-
attorney fees would be accomplished.
17. Pursuant to Section, 16.004 of the Texas Civil Practice and Remedies Code, from
the date of execution of a contract, a party has four (4) years to sue for breach of contract or debt.
18. The statute of limitations for Pentex expired roughly five (5) years ago in
relationship to the CSL, and approximately two (2) years ago in relationship to the FSA.
19. There is no applicable extension to the statute of limitations, as many years ago
Albert, acting in his self-claimed '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
Sent: Wednesday, September 03, 2014 2:27 PM
To: Patty Kreider
Subject: Re: Request for hearing on CV-14-41665 Pentex vs. Gibbs
After I filed the motion she voluntarily moved the date. It is moot now but another one is on its way to you. When you get
it, I am fine with it being put on the September 30th setting.
Regards,
Scott
----- Original Message -----
From: Pattv Kreider
To: 'Scott Smith'
Sent: Wednesday, September 03, 2014 2:22PM
Subject: Request for hearing on CV-14-41665 Pentex vs. Gibbs
Scott,
Your request for a hearing on the defendant's disposition date has made its way to my desk. I'm
assuming you want it long before the existing hearing date on September 3Qth since the disposition is
set for the 25th. The following are possibilities for a 30 minute hearing:
• September 12th, 8:30a.m.
• September 15th, 8:30a.m.
• September 16th, 8:30 a.m. or 1:00 p.m.
• September 19th, 8:30a.m.
If one of these dates will work for you and Ms. Lee (in light of her medical leave), let me know. If
not we can go into the week of the 22nd, although that is pushing it and we have a criminal jury trial
set to start that morning.
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.
From: Scott Smith [mailto:smithlaw@airmail.net]
Sent: Tuesday, September 02, 2014 3:00PM
To: Patty Kreider
Subject: Re: Atty Lee's medical Leave
Patty,
164 1
Patty Kreider
From: Patty Kreider < pdkreider@fanninco.net>
Sent: Wednesday, September 03, 2014 2:23 PM
To: 'Scott Smith'
SubjeCt: Request for hearing on CV-14-41665 Pentex vs. Gibbs
Scott,
Your request for a hearing on the defendant's disposition date has made its way to my desk. I'm
assuming you want it long before the existing hearing date on September 3Qth since the disposition is
set for the 25th. The following are possibilities for a 30 minute hearing:
• September 12th, 8:30a.m.
• September 15th, 8:30a.m.
• September 16th, 8:30a.m. or 1:00 p.m.
• September 19th, 8:30a.m.
If one of these dates will work for you and Ms. Lee (in light of her medical leave), let me know. If not
we can go into the week of the 22nd, although that is pushing it and we have a criminal jury trial set to
stqrt that morning.
Patty Kreider
Court Coordinator
336th Judkial 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.
From: Scott Smith [mailto:smithlaw@airmail.net]
Sent: Tuesday, September 02, 2014 3:00 PM
To: Patty Kreider
Subject: Re: Atty Lee's medical Leave
Patty,
Her father is terminally ill. As I recall, her letter advising of her leave did indicate that she would still
attend to this hearing.
Regards,
Scott
Sent from my iPad
165 1
I
On Sep 2, 2014, at 2:52PM, "Patty Kreider" wrote:
You're welcome. I've still had no response from Ms. Lee's office. I'll copy you on any
correspondence I have from her. Perhaps this was a family emergency. It doesn't make
sense that they didn't file appropriate motions for continuance and work with your
office to get these matters rescheduled.
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.
'
'
From: Scott Smith [mailto:smithla~airmail.net]
Sent: Tuesday, September 02, 2014 1:41 PM
To: Patty Kreider
Subject: Re: Atty Lee's medical Leave
Thank you very much.
Scott
Sent from my iPad
.· On Sep 2, 2014, at 1:09PM, "Patty Kreider" wrote:
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, 754 S.W.2d 153 (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-
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._..
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-
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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-
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·..._,;
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
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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
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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•,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 FOSlTION
TO: Angelli Martha Polanco Carrasco. President. Chairman. and Din:ctor or Pcntcx Foundation
c/o Scott Smith. 120 South Crockett Street. Sherman, Texas 75091-0354.
YOU ARE COMMANDED by the State ofTexas to appear at 120 South Crockett Street,
Sherman, Texas 75091-0354, on the 13th day of October, 2014. at 10 o'clock a.m .. to attend and
give testimony at a deposition. Angelli Martha Polanco Carrasco is be deposed to her personal
knowledge of the following: ( 1) the incorporation of Pentcx Foundation, (2) daily activities or
Pentex Foundation, (3) all monies received from the Estate of Bert Gibbs. and GWB Family and
Friends Trust. (4) the board minutes on or ahoul August 4, 2014, in which you agreed to fik suit
against Kenneth Gibbs and Candace Gibbs in Fannin County. and (5) Albert Barcrotrs and
Danny Unger's legal authority to act on Pentcx Foundation's behalf
The deposition will be stenographically recorded by !Vlcrit Court Reporters, 307 West 7th
Street, Ste. 1350, Fort Worth, 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. The deposition will continue from day to day until completed. All counsel and
parties are invited to attend and cross-examine as they may deem proper.
Till: ST/\TE OF TEXAS Sllllf'OI 'NA C AI!SI' No. CV -14-·1166 .'i
PloNTEX /:'OUNDATIO.V JS. 0'111/JS, UAI.. -I-
217
. . .
ENFORCEMENT OF SUBPOENA
Pursuant to ·rexas Rules of Civil Procedure No. 176.8. failure by any person without
adequate excuse to obey a subpoena upon that pcrsnn 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.
DUCES TECUM
YOU ARE FURTHER COM1v1ANDED to produce and permit inspection and copymg or
documents or tangible things in your custody or control as follows (if not otherwise noted. the
date is since the inception of Pcntcx Foundation, November I, 2008):
1. A true and correct copy or all incorporation paperwork and annual board meeting minutes
for Pcntex Foundation.
2. A true and correct copy of your n.:sume.
3. A true and correct copy oC your professional certificates and qualifications to be a
president, chairman, and board member of an international entity.
4. A true and correct copy of all documents showing Albert Barcroft's and Danny Unger's
legal authot·ity to act on Pentcx Foundation's behalf.
5. True and correct copies of all dralts 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 Mnry L. Houseworth Trust(s) or "The Kathryn Houseworth
Gibbs Irrevocable Trust" (the "CSL") since January l, 2005.
6. True and correct copies of the assignments of the CSL to and fl·om Pcntcx Foundation.
TilE Sl'/1 TE OF TEXAS SUBPOENA CAUSE No. CV-14-41665
PENTEX FOUNDtiTfON VS. Gum.~: E"f'Al.. -2-
218
. . .
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 CIIRJS'fY LEE, P.C.
/l /]
(.r//tL~/
. . _'=:'~:-=q~-·--
Christy L. Lee -·
Texas State Bar No. 24052302
777 Main Street. Suite 600
Fort Worth, TX 76102
Office: (817) 504-6075
Fax: (800) 43 7-7901
~lcc@chrisl v lee law.com
ATTORNEY FOR KENNETH GIBBS
AND CAN!MCE 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 11 Agreement, to the l()llowing parties on
this 2nd clay of September. 20 l4:
Pentex Foundation mul Via rax and emai I
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, ·rx 76244
- (2,~-
Christy L. Lee
TilE STATE OF TEXAS SUBPOENA CAUSE NO. CV -14·41665
__.,,_
PENTEX FOUNDA'f10N VS. Gmns, ITA/..
219
; ,., .
PLAINTIFPS
EXHIBIT
F
Statement Given Under Penalty of Perjury
I, Albert lynn Barcroft, being born on August 20, 1946 in 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 proceedings in the United States. I hereby certify and affirm the following for the record:
1. I am not an 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 ofthe United States of America that
the foregoing is true and correct.
Further, I certify under penalty ofperjury 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
220
,.
NO. CV-14-41665
PENTEX FOUNDATION, § IN THE DISTRICT COURT·-OF .- __<- ,
FANNINCOU~•\ ,,\\:~
Plaintiff §
§
v. §
§
'(") (C .
KENNETH VERN GIBBS, CANDACE § ...,
\.......j
-~·;·.u'
";q,.,.
,~')
GIBBS WALTON and HOWARD
KIRK GIBBS, Defendants
§
§ 336'h JUDICIAL DISTRI€T
s
RESPONSE TO MOTION TO TRANSFER VENUE
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 Response to the Motion to Transfer Venue, and in
support of the order shows:
1. Venue is proper in Fannin County, Texas. This case concerns a
contract entered into between the defendants and the predecessor in interest to
Plaintiff and Intervenor. A true and correct copy of that contract is attached hereto
as Plaintiffs Exhibit "A". It's authenticity is not in dispute} This is a major
transaction as defined by law. Paragraph 4 of the contract references a buyout
provision of $5,000,000.
Attached hereto as Plaintiffs Exhibit "B" is a copy of a portion of the Response
to a Request for Admissions, by which the Contract is acknowledged in Response to Request for
Admission number 1.
RESPONSE TO MOTION TO TRANSFER VENUE ,. PAGE 1
221
2. Importantly the Contract addressed venue in a very direct and forceful
manner in paragraph 9:
Notwithstanding any other provisions of the law, it is expressly
agreed that this contract shall be performable only in Fannin County,
Texas; and, any dispute(s) will be resolved in the Courts of Fannin
County, Texas.
(Emphasis original).
3. Contractual venue provisions are mandatory and enforceable. TEX.
CIV. PRAC. & REM. CODE§ 15.020 states that contractual venue selection clauses
may be enforceable in cases involving "major transactions" Shamoun & Norman,
LLP v. Yarto Intern., 398 S.W.3d 272, 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 tiOn
'*•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
(:lnl~•
dA.
~
UIJ./
J5,.!k_
"'tJ'
~
1
226
Tntst", andlor "The Kathryn Houseworth Gibbs Irrevocable Trust"; or, any other
lrusl(s) or busmess orgamzalion(s) of any kind, which might be uncovered or
discovered in the future; and/or.
g) All propeny and/or other assets in any trust or former trust; and, any property or
other assets in any corporation, limited liability company. partnetship(s}. sole
propnetorship{s), or any other business organization of any kind in which one or
more of the Gibbs are owners, trustee(s) or bendictiU')'(tes).
h.) Specifically exempted from this agreement are any properties and/or other assets
which are currently under the full control of Gibbs. or any of the individuals
referred to collccti\·ely as "Gibbs" Ill lhts agreement; provided, however. thai if
an)• legal work IS required to aid in the collection of said assets. or the sale or
control of said property, then said property or other assets shall be subject to the
teJIDs, conditions. and considerations set forth within this agreement as part of the
property amllor assets listed above. and shall have no exemption to the terms ;md
considerations of this agreement. Also exempted from this agreement are any
peNonal items that were passed to Gibbs from their father, which were not
included m the divorce d1stnbution between their mother and father.
This sale of 30% of all land~ properly and othu asset5 described herein above shall
he governed by the following terms, condition~ and tonslder.Uons:
I Gibbs, or :.my of the indivir.luals referred to collectively as. "Gibbs'' in this agreement,
shall give their/his/her full cooperation to all efforts by Barcrof'\ to collect uny of the
funds referred to 1n thts agreement Said cooperation shull include, but not be hmitc:d to,
providing necessary tnfonnation and documentatton. being available to gtve testimony.
and givmg full support to the overall effon of collecting funds and assets from the
sources s1at-:d herein.
2. An)' pany hereto shall ha~·e the ri~lu to order a complete mventory of all proper1y and
other assets described herem at an> time, and all panics agree to prov1de full cooperation
to such an effort. Any co:~ts shall be bom by the party rcqucstmg the mvenlory.
Cunnur for S•lc llfWnd. Mrncr•l Rrghh. 2
R1.1y~llln ~nd Other A•-wls andfo1 Monic\
227
3. As full consideration, Barcroft agrees to provide, or has provided, the following:
a) Barcrofi has paid lo Gibbs a total of twenty-one (21) silver dollars minted by lhc
United Stales Mmt, photocopy of sa1d coms anached·hereto as Exhibit "A". and
mcorporatcd herein for all purposes as real consideration under this agreemt:nt,
and Gibbs hereby acknowledges receipt of same with this ~igning; and,
b) Barcroft will pr<.IV!de his services, knowledge and best efforts in the pursuit of all
available funds, propeny, and/or other assets from the sourct!l> stated herein; and,
c) Barcrofi, at hts expense, will prov1dc legal counsel by acquiring a licensed
anomey for any reasonable and prudent actions necessary to the collecting of the
funds from the sources stated herein; however, should Gibhs, or any of the
indiVidual Gibbs, feel that the1r/lns/her int~rests are not properly served by the
allomey Barcrol\ provides, that party wtll be responsible for the legal fees of any
other anomcy{s) hired by Gibhs, or any indh·idual Gibbs, to protect their/his/her
indivtdual interests. In that event, it Is agreed by all parties hereto that the
attorney hired by Barcroft w•ll represent only Barcroft in all future action(s).
Funhennorc. '' 1s specifically agtet.'\1 that satd anomey hired by Barcroft will
represent only Rarcroft shuulc.J a dtspute anse between the parties hereto; and,
Gibbs, mdividually and collecuvely, agree not to claim conflict of interest should
said altomey represent Barcroft in a conflict between the panies hereto; and,
Gibbs, eollecrively and individually, hereby waive their/his/her right lo claim
connict of interest with regards to saul anomcy m such instance.
4. It is understood and agreed lhat Gibbs may cancel or nullify this contract QD}y untler
the following condirions:
a) If Gibbs pays over to Barcroft the sum of five million dollars ($5,0{10,000.00 US)
in full, in addition to any money rccei\·ed pnor to said one time payment. as
liljuidatcd damages and full settlement of all considt!ration on Gibbs part.
b.) If Barcroft voluntarily abandons the effort to colh:ct the funds from the sources
statt:d herem; ho\\-ever, in th1s event, Barcroft shall retain all amounts already
rece1vcd, and w1ll conltnuc to n'CCIVC
. any futun: proceeds rrum any of the
propeny or other assets. and will retain his ownership interest tn any property
<"·~··•••cl '"' Salt of U.llnocs
4 ln!llal\ oJ
•llpar11cs
a
vpf II &I. J u.
~ A=!! k/.;JJI./ -~·
229
automatically amended to comply with said laws in such a manner as to keep the original
intent of the provision as closely in place as possible. In no event shall any such findings
on one pr~v1sion affect any other provn;mn wllhm the contract.
9. Notwithstanding any other provis1on under the law, it is expressly agreed that this
contract shall be performable only in Fannm County, TeKas; and, any dispute(s) will be
resolved 1n the courts of Fannin Count>·· Texas. The signing hereto of this contract hy all
part1cs completes the sale of 30% of all property and assets of Gibbs to Barcroft
I0. ThiS agreement shall be hinding on all heirs and assigns of the parties hereto.
II. ;\o lien(s) may bt: placed upon any of the property covered herem unless such lien(s)
is/are agreed to by all parties hereto, reduced ro writing. and signed by all parties hereto
before a notary public.
12. All agreements between the parties hereto arc conlained in writing in this contract,
and no verb.alagreemenls shall be deemed valid unless contained in writing herein. All
amendments hereto must be iu writing. and signed by all parties before a notary pubhc.
13. Albert Lynn Barcron, Kenneth Vern Gibbs. Candace G1bb!l Walton, and Howard
Kirk Gibbs, the principal parties herel<.l, hereby agree to this contract in its entirely
without reservation~ and, each pledge never to challenge the tenns, ctl> ~<>dlor !l.foh~<>
230
ACKNOWLEDGEMtST
STATE OF TEXAS
Subscribed, Sworn, and Sealed
COUNTY OF COLLIN
On th1s IOih day of Mily 111 the year 2005, Alberl Lynn Bar(:rofl, known 10 me, d1d
personally appear before me; and, after taking the oath. deposes and say~ that he 1s the man \lthu
executed the foregomg inslrumelll; and. further sllucd that he: executed the same as Ius lrce and
in fmmcd act and deed for the purposes stalt:d thcrcm. and with a full uuderstanding of tlu: scope of
the provisions c:onlamt:d !herein; and. thai he a o a ide by all said prov1s1ons.
Subscribed and sworn to he fore me this I01h day of May in the year 2005.
J!
No~y
. L'~-()~
StatVo'fJI~
e.'or the
Subscribed, Sworn, and Sealed
COUNT\' OF COLLIN
On this 101 ~ duy of May m the year 200.5, Kenneth Vern Gibbs, known to me, did
personally appear before me: and, nfier taking the oBth. depos~:s lllld says that he is the man who
executed the foregoing instrumcnl: 11ntl. further stated th;ll h~ executed the same ns. his free and
infonned act and deed for the pu'lloses stated lhcrcut. and with a full understanding of the &cope of
the provisions contamed the rem; and, that he agrees to abide by all said provisions.
~7/~-~
Kenneth Vem Gibbs
Subscribed and sworn to berore me this I o•• day of Mny in the year 200S.
'
y•htu ~nd Olhu II>!.(IJ •ndlot Monte>
------------··--·
231
STAn.: OF l'EXAS
Subscribed, Sworn, and Sealed
COUNTY o•· (~OLLIN
On this I Ou. day of May in the year 2005, Candace Gibbs Walton, known to me. did
personally appear before nu:; and, aller takmg the oath, deposes and says that she i5 the w. 7
I{I))Jiun IUld Ol"c• A>~CIS Jndloi Mon~•
232
..
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Tt€-'(C.f
7 s-y9c c... L,)
_t- / ./ ' , L~],'"
C::..{h'L}•.,.. /7'
233
PLAINTIFPS
EXHIBIT
B
CAUSE No. CV -14-41665
PENTEX FOUNDATION ) JN THE 0JSmiCT COURT
PLAINTIFF, )
)
vs. ) 336TII JUDICIAL DJSTRICT
)
KENNETH VERN GIBBS; AND )
CANDACE GIBBS WALTON; AND )
HOWARD KIRK GIBBS, )
DEFENDANTS. ) FANNIN COUNTY, TEXAS
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS
TO: PENTEX FOUNDATION, Plaintiff, by and through its attorney of record, Scott Smith,
120 South Crockett Road, Sherman, Texas 75091-0354; email: smithlaw@airmail.net:
COME NOW, KE1\'NETH GIBBS and CANDACE WALTON, Defendants, and serve
their Objections and Responses to Plaintiff Pentex Foundation's First Set of Admissions,
pursuant to Rule 198 of the Texas Rules ofCivil Procedure, as follows:
Pm:.U~HNARY STATEMENTS
I. These responses and objections reflect the current state of Defendants'
investigation concerning the discovery request that Plaintiff bas propounded. Defendants are
still in the process of investigating the facts and attempting to conduct depositions relating to this
action. To date, Plaintiff and Intervenor have refused to set any deposition dates. Accordingly,
.Defendants reserve the right to SURplement these responses and objections with subsequent'ly
discovered information. Furthermore, these responses and objections are given without
prejudice to the right of Defendants to use or to rely upon at any time subsequent to discovered
information or documents.
KENNETH GfBBS AND CANDACE WALTON'S OBJECTIONS
t\ND RESI'ONSES TO PENTEX FOUNDATION'S FIRST SuT OF ADMISSIONS CAUXE No. CY·I4-41665
Prmtex Fmmdation vs. Ken11eth Vern Gibbs, el a/. -1·
234
2. Defendants produce the Admissions subject to their objection that no discovery is
due until Plaintiff's authority regarding this matter is determined. Defendants object to the use
ofthese Admissions pending settlement of the issue of Plaintiff's authority.
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- Office
(800) 437-7901- Fax
cleeril{christyleelaw.com
ATTORNEY FOR KENNETH GIBBS AND
CANDACE WALTON
KENNETH GIBBS AND CANDACE WALTON'S OBJECTIONS
AND RESPONSES TO PENTEX FOUNDATION'S FIRST SET OF ADMISSIONS CAUSE NO. CV-14-41665
Pentex Foundation vs. Kenneth Vern Gibbs, eta!. -2-
235
' .
EXHIBIT "A "-FactstobeAdmitted
I. The Contract was signed by Candace, Ken, Howard and Barcroft on May 10, 2005.
Admit.
2. Candace received and accepted consideration either directly from. or as a result ot:
the Contract.
Object, as this Request is vague and ambiguous as to consideration in question and
calls for legal interpretation of the validity of the Contract. Cannot admit or deny.
3. Ken received and accepted consideration either directly from, or as a result ot: the
Contract.
Object. as this Request is vague and ambiguous as to consideration in question and
calls for legal interpretation of the validity of the Contract. Cannot admit or deny.
4. Prior to filing the Answer, Candace had never challenged the validity of the
Contract.
Deny.
5. Prior to filing the Answer, Ken had never challenged the validity of the Contract.
Deny.
6. Pursuant to the Contract, Candace sold 30% of all land and other property that came
to her through her inheritance from the Estates to Barcroft for the consideration
provided therein.
Object. as Request calis for legal interpretation. Subject to that objection, admit.
7. Pursuant to the Contract, Ken sold 30% of all land and other property that came
to his through her inheritance from the Estates to Barcroft for the consideration
provided therein.
ObJect, as Request calls tor iegal inteipretation. Subject to that objection, admit,
under the presumption that the stated "her'' in fact refers to '"Ken's inheritance."
8. Barcroft has rendered, anti ,Candace received or bcm,efitted from, the consideration
due Candace from Barcroft under the terms of the. Contract.
KENNETH GIBBS AND CANDACE WALTON'S 08JECTJONS
AND RESPONSES iO PENmK FOUNDATION'S fiRST SET OF ADMISSIONS CAliSE NO. CV-14-41665
Pemex Foundatio17 1•s. Kemrelh Vum Gibbs, era/. -4-
236
CAUSE NO. CV-14-41665
PENTEX FOUNDATION )
PLAINTIFF, )
)
vs. )
)
KENNETH VERN GIBBS; AND )
CANDACE GrBBS WALTON; AND )
HOWARD KIRK GIBBS, )
DEFENDANTS. ) FANNIN COUNTY, TEXAS
NOTICE OF LEAVE
COMES NOW, Christy L. Lee, of Law Offices of Christy Lee, P.C., counsel of record
for Defendants Kenneth Vern Gibbs and Candace Gibbs Walton, and notice you that Defendants'
Counsel will be on Family Medical Leave Act ("FMLA") for three (3) months, beginning
Monday, August 25, 2014, and continuing through Tuesday, November 25, 2014, unless
otherwise agreed to in writing. See attachment.
Respectfully submitted,
LAW OFFICES OF CHRISTY LEE, P.C.
ATTORNEY FOR DEFENDANTS
Notice of Leave Cause No. cv-14-4 I665
Pentex Foundation vs. Gibbs, eta/. -I-
237
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above Notice of Leave was delivered, pursuant to
Texas Rules of Civil Procedure, to the following parties on this 22nd day of August, 2014:
Pentex Foundation and Facsimile: 903-870-1446
GBU Friends and Associates Trust Email: smithlaw@airmail.net
c/o Scott Smith
120 South Crockett Street
Sherman, TX 75091
Howard Kirk Gibbs Email: hkgibbs@gmail.com
4360 Western Center Blvd., No. 205
Fort Worth, TX 76157
Christy L. Lee
Notice of Leave Cause No. cv-14-41665
Pentex Foundation vs. Gibbs, eta/. -2-
238
<:III
240
I' I! () \ ( I I \ I I \ \ s I I< \ I I (, I I \
'w'
CAUSE No. CV -14-41665
PENTEX FOUNDATION )
PLAINTIFF, )
)
vs. )
)
KENNETH VERN GIBBS; AND )
CANDACE GIBBS WALTON; AND )
HOWARD KIRK GIBBS, )
DEFENDANTS. ) FANNIN COUNTY, TEXAS
DEFENDANTS' MOTION TO COMPEL APPEARANCE AND TESTIMONY
OF ANGELLI CARRASCO 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 Angelli Martha Polanco Carrasco. Pentex
Foundation's (''Pcntex'') President, Director, and Chairman, at the hearing for the Motion to
Show Authority, which is scheduled in this matter for September 30, 2014. Ms. Carrasco's
appearance and testimony are required to authenticate documents provided by Pentex's alleged
Counsel. Scott Smith. as evidence of the authority to litigate this Cause. and to answer to the
Court as to the legitimacy of this lawsuit.
I. FACTS.
I. On August 28, 2014, Ken and Candy served Ms. Canasco with a State of Texas
Subpoena, requiring her appearance at the hearing for the Motion to Show Authority scheduled
in this matter for September 30. 20 14. .'J'ee Exhibit A. The Subpoena was issued as a result of
Ken and Candy's repeated unsuccessful inquiries to Pentex as to its designated Representative
for the lawsuit.
DI:FI NIMNTS' MOTION TO (Uf\11'1:1. APPI'\1{:\NlT i\ND TI:STIMOr-6
m ANlii:I.LI C\RR.'\SCO AI Ht:,\RINlj ON Si:PTI-:MBU{ 30, 2014 . C i\USE Nu. CV ·14-41665
tli!'fi:X FOU:\DAIWV 1-'. 01/JBS, !-:TAL. -1-
2. John Skotnik, original Counsel for Pentex, did not divulge the name of the
representative of Pentex authorizing him to file the lawsuit on behalf of Pentex. As Successor
Counsel to Pentex beginning in May 2014, Scott Smith also denied knowing the identity of the
representative of Pentex authorizing the lawsuit. When pressed on the point, Scott stated that
who would be representing Pentex had not yet been determined.
3. On June 20, 2014, more than two and a half (2 1;2) months following the filing of
the suit on April 1, 2014, Scott refused to permit deposition of Pentex 's Board of Directors, and
refused to bend on the claim that Pentex still had not determined who would act as Pentex's
representative regarding the suit. See Exhibit B.
4. Also on June 20, 2014, disclosure produced by Pentex failed to provide a single
name of any party from Pentex having knowledge of the relevant facts. The Plaintiff was listed
simply "Pentex Foundation."
5. On July 31, 2014, Scott testified under oath that he could not recall the name of
1
the parties retaining him. Scott was unrelenting on the point that Pentex's Board of Directors
would not appear to testify. He also categorically stated that he did not represent Ms. Carrasco,
had never met her, and indeed, that he had never even spoken or communicated with her in any
way.
6. On August 5. Scott sent the Honorable Pat Fcrchill of Tarrant County Probate
Court No. 2 a letter which contained purported Minutes of the Board of Directors' Meeting of
Pentex Foundation, dated August 4, 2014, at 10 a.m. See Exhibit C. In his letter to Judge
Ferchill, Scott provided that he had received his retainer from Albert Barcroft and Pentex
1
Tarrant County Probate Court No.2, Cause No. 2005-0000 126-2-D, Walton and Cihhs vs. Miller, eta/.
DEFENDANTS' MOTION TO COMPEL APPEARANCE AND TESTIMONY
OF ANGELL! CARRASCO AT HEARING ON SEPTEMBER 30,2014
i4~'loX FOUND/17'/0N V. GIBBS, ErA/..
Royalty Trust. not from Pentex. The Minutes addressed the approval of Pentex's retention of
Scott as Counsel in the current Cause. Signatures of both Ms. Carrasco and Secretary Carlos
Alberto Rivadeneira Escurdero appeared far above the three (3) signature lines. Carlos Escudero
signed the document in two (2) spaces. The signatures appeared identical, as if computer-
generated, and the document did not appear legitimate.
7. Based on the date of the Minutes, which was retroactive to Scott's entry into the
matter, and upon the seeming lack of authenticity of the document, Ken and Candy subpoenaed
Ms. Carrasco, as President, Director, and Chairman of Pentex. The Subpoena was appropriately
served to Scott, as Pentcx's Attorney of Record, due to Ms. Carrasco's tri-fold apex-level
services to Pcntex.
8. On September 3, 2014, Pentex tiled a Motion to Quash or for Protective Order
Relating to Subpoenas and Deposition Notices. The Motion to Quash argued that Ms. Carrasco,
a resident of Panama, does not have a passport for international travel, that travel from Panama,
where she resides, to the Texas courts would he inconvenient, and that Counsel for Pentex had
"repeatedly advised Counsel for Defendants that he does not represent" Ms. Carrasco. Scott
also maintained that Ms. Carrasco is not an employee of Pentex and that Pentex has no control
over Ms. Carrasco. See Para. 6 -- 9. According to Scott. no affidavit from Ms. Carrasco
accompanied the Motion to Quash because of the logistics in obtaining the document from
Panama. 2 Scott contended that the sole reason for Ken and Candy's Subpoena to Ms. Carrasco
was to harass Pentex for filing the suit.
2
Scott did manage. however, to produce an unsworn Affidavit from Albert Barcroft, self-proclaimed Legal
Representative of Pentex, who allegedly resides in Guatemala. Scott failed to explain how he could produce the
Minutes supposedly signed by Ms. Carrasco, but not produce at least a taxed copy of a signed Affidavit from Ms.
DEFENDANTS' MOTION TO COMPEL APPEARANCE AND TESTIMONY
Or ANGELI.I CARRASCO AT HEARING ON SEPTEMBER 30, 2014 CAUSE NO. CV -14-41665
24§/:X FOI.'.\'/!.IrtOV 1". GI/J!JS. IJA/ .. -3-
II. LAW.
9. ·'A party is entitled to discovery that is relevant to the subject matter of the
claim. and which appears reasonably calculated to lead to the discovery of admissible
evidence." Monsanto Co. v. May, 889. S.W.2d 274, 276 (Tex. 1994).
I 0. Rule 200 of the Texas Rules of Civil Procedure permits a party to take the
deposition or testimony of "any person," provided that the person has the right to protection
"from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal,
constitutional, or property rights." Tex.R.Civ.P. 166b(5); Monsanto Co. v. May, 889 S. W.2d at
276.
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'··
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±IFT ,\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&
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141
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Copies of this notice have been sent by Certified Mait Return Re,:::e:~t
Requested~ to:
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Kenneth Vern Gibbs Candace Gibbs Walton Howard Kirk Gi::.t£
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Ft. Worth, TX 76117 Azle 1 TX 76020 Keller~ TX 76243
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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 ;..;:
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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, 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 SW2d 493 (Tex. 1995); Chamberlain v. Cherry, 818 SW2d 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.> 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
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~ Kenneth Vern Gibbs Candace Gibbs Walton
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Ft. Worth, TX 76117 Azle, TX 76020 Keller, TX 76243
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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! 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~ ~~
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Dated: . :. ' .
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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
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SCOTT SMITH ~~. (9 ~ftc
AHORNEY ANDCOUNSELORATLA\\
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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
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;/};,;(,~> ······· ·~·:. SWORNAFFIDAVITOFFACT
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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 confiill u.:. ,a haye du 5 de 0'-''"'"''"' •:::ru.
Pais PANAMA.
E.l ~··r"sente documento
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qui.:tl' 't'-' utid (j:_::::....lt.l-ii::J.~.::!::::.:::...f
y est<> ..,e.· ....• ,i~l ~elloftkn~ d
CE.:-tTI;: ICAOO
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399
Page 1 of 1
Scott Smith
From: "Scott Smith"
To: "Christy Lee" ; "Howard Gibbs"
Sent: Thursday, September 18, 2014 10:15 AM
Attach: 14-9-1 B Clerk re Affidavit.pdf
Subject: CV-14-41665 Letter to Clerk Attached
Scott Smith
Attorney and Counselor At law
120 South Crockett Street
P.O. Box354
Sherman, Texas 75091-0354
Facsimile 903.870.1446
Telephone 903.868.8686
400
9/1
.
•
CAUSE No. CV-14-41665
PENTEX FOUNDATION )
~TIW, )
)
vs. )
)
KENNETH VERN GIBBS; AND )
CANDACE GmBS WALTON; AND )
HOWARD KIRK GIBBS, )
DEFENDANTS. ) FANNIN COUNTY, TEXAS
OBJECI'IONS TO MOTION TO QUASH OR FOR PROTECTIVE ORDER RELATING TO
SUBPOENAS AND DEPOSmON NOTICES AND
MOTION TO COMPEL DEPOSmONS OF ALBERT BARCROFf AND
ANGELU CARRASCO ON OCTOBER 13, 2014
Come now, Defendants Kenneth "Ken" Vern Gibbs and Candace "Candy" Walton,
through their Counsel ofRecord, Law Offices of Christy Lee, P.C., and, in response to Pentex's
Motion to Quash or- for Protective Order Relating to Subpoenas and Deposition Notices,
respectfully move the Court to compel the depositions of Albert Barcroft, Pentex Foundation's
("Pentex") Legal Representative; and Angelli Carrasco, President, Director, and Chainnan of
Pentex; and further request that the Court disallow Pentex' s Objections to the requests for
production of documents by the named Deposed.
I. LAW.
1. Texas Disciplinary Rules of Professional Conduct Rule No. 4.02 requires that, in
representing a client, a lawyer should not communicate with, nor "cause or encourage," another
to communicate about the subject of the representation with a person or entity the lawyer
"knows to be represented by another lawyer'' without consent of the other lawyer.
0BrncnONS TO MOTION TO QUASH OR FOR PR01EC11VE ORDER
RELA11NG TO SUBPOENAS AND OEPOSmON NOTICES AND
MOTION TO CoMPEL OEPOSffiONS OF ALBERT BARCROFT AND CAUSENO. CV-14-41665
ANGELLICARR.ASCOONOcroBER 13,2014 -1-
PBNTEX FOUNDATION II. GIBBS, E1' AL.
401
..
2. Texas Rules of Evidence Rule No. 503(d)(l) specifically disallows a claim of
privilege when there is furtherance of crime or fraud: "If the services of the lawyer were sought
or obtained to enable or aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud."
3. The Court determined that a joint defense or common interest privilege under
Texas evidentiary rules did not apply to prevent production of communications occUlTing
between an attorney and a non-represented, non-named, but relevant party in a proceeding. The
Court observed that "Rule 503(b)(l)(C)'s privilege is more appropriately termed an 'allied
litigant' privilege." The Court found that "joint client" rule of privilege is inapplicable when
there are no arguments or evidence offered that the attorney represents the party claiming
privilege. In re XL Specialty Insurance Company and Cambridge Integrated Services, Group,
Inc., 2012 WL 2476851 (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.
405
|