management of his finances. Albert created GWB Trust into which any interest he may have
held in the Estate could be funneled. He then created Renhaw, Inc., and Pentex FILED IN
Royalty Trust,
6th COURT OF APPEALS
TEXARKANA, TEXAS
into which any interest he may have held in GWB Trust could be funneled.1/12/2015
When a federal tax
4:29:33 PM
lien was filed against Pentex Royalty Trust in Fall 2013, Albert then createdDEBBIE
GBU AUTREY
Trust
Clerk
into
which any interest he held in Pentex. Royalty Trust could be funneled. Albert's plan was that by
the time the I.R.S. caught up with his own specialized version of the trickle-down theory, Albert
would be long gone to Central America.
14. Scott is aware that Albert deliberately engages in fraud and that he illegally
drafted the CSL. By seeking protection for Albert in tenns of the deposition while still
maintaining that Albert is not his. client, Scott knowingly furthers Albert's e~orts to elude
justice, in violation of Texas Rules of Evidence Rule No. 503(d)(1).
15. Albert's defense that he is too ill to travel is blatant subterfuge, designed to
protect Albert from exposure to this suit, including the deposition. The statement provided by
Albert's alleged physician, Leoncl Montenegro, did not declare that Dr. Montenegro examined
Albert, only that Albert's medical file was in the office, and that the statement was presented at
the request of an interested party. See Exhibit D. Albert has a history of faking health issues to
avoid legal action. For instance, in or around November 30, 2009, Albert was said to have faked
a heart attack in order to avoid prosecution for not cleaning the wreckage of his $500,000 yacht,
The Great Escape, which ran agrpund off the Coast of Belize and fouled its pristine barrier reef.
News reports from Channel 5 of Belize quoted Newspaper Editor Roy McNett, who stated that
he spoke with Albert following the accident According to Roy, Albert "did not have a heart
attack," and at that time was buying land in Rio Dulce. See Exhibit E.
OsmcllONS TO MOTION TO QuASH OR FOR PROTECI1VE ORDER
RELATING TO SUBPOENAS AND DEPOSmON NO'llCES AND
MonON TO COMPEL OEPOSmONS OF ALBERT BARCROFT AND CAUSBNO. CV-14-41665
ANGELL1CARRASCOON0CToBER13,2014 -6-
PENTEX FOUNDATION Y. GIBBS, E1' AI..
406
16. The Subpoena to Albert stated that the deposition would take place in the office
of Pentex's Counsel, on October 13, 2014. The location is obviously convenient to Pentex's
Counsel, and the date was offered as available by Pentex's Counsel. There can be no place and
time more convenient for the deposition.3
17. Pentex's resistance to the Subpoena is because Albert and Pentex have a great
deal of infonnation that each wistt.es to bide, as it promises to affect the outcome of this suit
adversely. Albert is a crucial elem~nt in the events addressed in this suit Albert is the admitted
Legal Representative for Pentex. Pentex must therefore produce Albert for deposition at the
appointed place and time.
ID; DEPosmON OF ANGELLI CARRASCO.
18. On September 2, 2014, Ken and Candy issued Angelli 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 F.
19. Based on infonnation provided to· Ken and Candy during discovery, Angelli
Carrasco is President, Director, and Chainnan of Pentex- three (3) apex-level positions of
authority in Pentex. Per the Texas Rules of Civil Procedure requiring service to counsel when
counsel exists, the Subpoena to Angelli was rightfully served to Scott. Service to any other
party would not be effective, as Scott represents Pentex.
3
Ken and Candy believe that Albert, whose residence is in Guatemala, is currently traveling in Texas. Although
Scott was able to produce a signed unverified Affidavit ftom Albert on September 3, 2014, Scott claimed that
obtaining an Affidavit fiom Angelli Cattasco, ftom Panama, was impossible due to logistics.
OBJECJ'IONS TO ManoN TO QuASH OR FOR PROTECTIVE ORDER
RELATING TO SUBPOENAS AND DEPOSmON NoTICES AND ·
MonON TO COMPEL DEPOSmONS OF ALBERT BARCROFT AND CAUSE No. CV-14-41665
ANGELLI CARRASCO ON 0croBER 13,2014 -7-
PENTEX FOUNDATION r. GIBBS, El' AI..
407
20. AngeJIPs deposition is necessary to achieve justice in this matter. Angelli was
noticed that her deposition will address questions concerning her personal knowledge of the
following: (1) the incorporation ofPentex Foundation; (2) daily activities ofPentex Foundation;
(3) all monies received from the Estate and GWB Trust; (4) the board minutes on or about
August 4, 2014, in which she agreed to file suit against Kenneth Gibbs and Candace Gibbs in
Fannin County; and (5) Albert'$ and Danny Unger's legal authority to act on Pentex
Foundation's behalf. Each of the issues goes to allegations made by Albert concerning the
functions of Pentex as relates to the CSL, the FSA, and GWB Trust. Each of these issues is
highly pertinent to the Cause, likely to lead to information which is highly pertinent to the
Cause, and therefore discoverable.
21. As a President and Director and Chairman of a multi-national corporation, which
is currently involved in a lawsuit concerning more than $1 million in assets, Angelli's excuse
that she does not own a passport for travel to the United States is only that - an excuse. The
excuse that Pentex does not control Angelli is yet another excuse - as President and Director
and Chairman of Pentex., Angelli answers to Pentex for her actions involving the organization.
Pentex can indeed require her to attend a deposition on its behalf.
22. The Subpoena to Angelli stated that the deposition would take place in the office
of Pentex's Counsel, on October 13, 2014. The location is obviously convenient to Pentex's
Counsel, and the date was offered as available by Pentex's Counsel. There can be no place and
time more convenient for the deposition.
23. Pentex's resistance to Angelli's Subpoena suggests that, as is the case with
Albert's deposition, Pentex has a great deal to hide. Angelli holds the top-ranked positions in
OBJECTIONS 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-1441665
ANGELLI CARRASCO ON OCToBER 13,2014 -8-
PENTEX FOUNDATION 1'. GIBBS, ET AL
408
Pentex, positions whose responsibilities must necessarily be executed with awareness of the
ongoing affairs of the organization. It is reasonable to think that Angelli, as
President/Director/Chainnan, would know of the ongoing lawsuit (particularly since she
allegedly signed Minutes of Board Meetings approving Scott's retention), just as it is reasonable
to assume that Scott represents her as President/Director/Chairman because he represents
Pentex. Ken and Candy are entitled to depose ADgelli. As Plaintiff in this matter, Pentex is
responsible for producing Angelli for the deposition.
IV. PRAYERFORRELIEF.
24. Ken and Candy therefore respectfully pray that this Court:
2S. Compel Albert Barcroft to appear for deposition at the office of Pentex
Foundations's Counsel, Scott Smith, on October 13,2014, at 10 a.m.; and present upon demand
all relevant documents requested by Defendants; and
26. Compel Angelli Carrasco to appear for deposition at the office of Pentex's
Counse~ Scott Smith, on October 13, 2014, at 10 a.m.; and present upon demand all relevant
documents requested by Defendants;
27. Compel document production as requested from Danny Unger at the deposition
on October 13, 2014 and hearing on September 30, 2014;
28. Compel document production as requested from Joshua Unger at the deposition
on October 13,2014 and hearing on September 30, 2014; or,
29. In the alternative, stay the proceedings until such time that Pentex Foundation
produces Albert Barcroft and Angelli Carrasco for deposition in the matter, and until such time
that all requested discovery is produced by Danny lJnger and Joshua Unger; and
081EC1lONS TO MOTION TO QUASH OR FOR PROTECTIVE ORDER
RELATING 10 SUBPOENAS AND DEPOSmON NOTICES AND
MOTION TO COMPI!L DEI'OSMONS OF ALBERT BARCROFT AND CAUSENO. CV-14-41665
ANGEW CARRASCO ON OCToBER 13,2014 -9-
PENTEX FOUNDATION V. GIBBS, Ef.41..
409
30. Deny Plaintiffs Motion for Sanctions and award Candy and Ken just attorney
fees to defend Plaintiff's frivolous (and very poorly written) Motion to Quash.
Respectfully submitted,
LAW OFFICES OF CHRISTY LEE, P.C.
Chri~
Texas State Bar No. 24052302
777 Main Street, Ste. 600
Fort Worth, Texas 76102
(817) 504-6075
(800) 437-7901 -Fax
clee@christyleelaw.com
AITORNEY FOR CANDACE WALTON AND
KENNETH GIBBS
OBJECTIONS TO MO'IlON TO QUASH OR FOR PROTECTIVE ORDER
RELATING TO SUBPOENAS AND DEI'O$!TION NO"IlCES AND
MOTION TO COMPEL DEPOS!TIONS OF ALI3ERT BARCROFT AND CAUSENO. CV-14-41665
ANGELLI CARRASCO ON OCTOBER 13,2014 -10-
PENT£:< FOUNDATION V. GIBBS, ETA I•.
410
CERTIFICATE OF SERVICE
1 certify that a true and correct copy of the above Defendants' Objections to Motion to Quash
for Protective Order Relating to Subpoenas and Deposition Notices and Motion to Compel
Depositions of Albert Barcroft and Angelli Carrasco on October 13, 2014, and was delivered,
pursuant to Texas Rules of Civil Procedure, to the following parties on this 25th date of
September, 2014:
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
Chr~·
OBJECTIONS TO MOTION TO QUASH OR FOR PROTECTIVE ORDER
RELATING TO SUBPOENAS AND DEPOSITION NOTICES AND
MOTION TO COMPEL DEPOSITIONS OF ALBERT BARCROFT AND CAUSE No. CV -14-41665
ANGEI.LI CARRASCO ON OCTOBER 13,2014 -11-
PENTllX FOUND,ff/ON V. G/8/JS, £TAL
411
CAUSE No. CV-14-41665
PENTEX F'OUI'-!Di\ TION ) IN TilE DISTRICT COURT
PLAII'-!TIFL )
)
336"~' JUDICIAL DISTRICT
11
vs. )
)
KENNETH VERN GIBBS; AND )
CANDACE GIBBS WALTON; AND )
HOWARD KIRK GIBBS, )
DEFENDANTS. J FAN:--:IN COUNTY, TEXAS
THE STATE OF TEXAS S!JIWOENA DUCES TECUM FOR ORAL DEPOStTION
TO: Albert Barcroft, legal repreSentative and alter ego of Pentex Foundation c/o Scott Smith.
120 South Crockett Street. Shcrma11. Texas 75091-0354.
YOU ARE COMMJ\NDUJ by the State of'Tex<~S 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. A}bert Barcroft is be deposed to his personal knowledge of the
following: (l) division and distribution of attorney Ices from the Estate of Bert Gibbs in 2008.
(2) drafting of the GWB Family and Friends Trusi, (3) the Contrm;t fbr 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 llouscwm1h Gibbs Irrl!vncable Trust." {the "CSL") (4) signing of the Family Settlement
Agreement. and (5) Pentcx Royalty Tmst federal tax liens.
The deposition will be stunographically recorded by !Vlcrit Court Reporters, 307 West 7th
Street Ste. 1350, Fort Worth. Texas 76102, ( 817) 336-3042, or such other qualitied court
reporter as may be designated. Such deposition when taken will be used in evidence upon the trial
of this cause. The deposition will conti nul;! from day to day until completed. All counsel and
parties arc invited to attend and cross-examine as they may deem proper.
THE STATE OF TEXAS SUBPOENA CAUSE No. CV-14-41665
l'b\'TEX FOUNDATION I'S. Gmf1S, F:T AI.. -I-
412
ENFORCEMENT ()F SUBPOENA
Pursuant to Texas Rules of Civil Procedure No. 176.8, failure by any person without
adequate excuse to obey a subpoena t1pon 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 conlincment. or both.
YOU ARE FURTHER COMMANDED to produce and pcm1it inspection and copying of
documents or tangible things in your custody or control as follows (if not othcrvvisc noted, the
date is since the inception of Pcntex foundation. or November L 2008, whichever is earlier):
I. A true and correct copy of all documents showing that you had legal authority to act as
legal representative of Pentcx Foundation.
2. A true and correct copy oF all documents showing that you had legal authority to act as
legal representative of Pcntcx Royalty Trust.
3. A true and correct copy of all documents showing that you had legal authority to act as
legal representative or Rc1~shaw, Inc.
4. A true and correct copy or all emails and documents in which you corresponded with the
Estate of Bert Gibbs conceming the distribution of attorney fees associated with Kenneth
Gibbs, Candace Walton. and Howard Kirk Gibbs.
5. A true ami correct copy of any payment (including cancelled checks. money orders.
money transfers. etc.) from you, PenlC'x Royally Trusl Pentex 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 cbcch, money orders.
Tl II: STATE OF TEXAS SliBI'OEN,'\
P£N'I'IiX FOUNDA770N 1<\'. 01/38.~~ ETAL.
413
money transfers. etc.) from you, Pentcx Royalty Trust, Pcntex Foundation, Renshaw,
Inc., CiBU Friends and Associates Trust, or any other entity in which you l1ave an
inicresL paid to John Skotnik.
7. A true and correct copy of any payment (including cancelled checks. money orders,
money transfers. etc.) you, Pcntex Royalty Trust, Pcntcx Foundation, Renshaw. lm: ..
GBLJ Friends and Associates 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 from GWB Family and Friends
Trust.
9. A true and correct copy of all your United States federal incQmc tax returns thm1 2008 to
present filed by you.
10. 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 correct copies of Pcntex Royalty Trust docum\!nl.
12. A true and correct copies of United States federal income tax retums from 2008 to
present filed by Pcntcx Royalty Tmst
13. A true and correct copy t1f your personal phone records from January I, 2013, to the
present.
14. 1\. true and correct copy of your resume.
15. A true and correct copy of your professional certificates and quali!ications to be a legal
rcrrcsentative of an international company.
16. A true and correct copy of all communications (including such things as emails,
THE STATE OF TEXAS SUBPOENA CAUSE NO. CV -14-41665
PENrn· FnwmAT/ON rs Gmus. r;TAJ..
414 Page 3
documents. tape recordings. memorandums, etc.) with Scott Smith in association with
GWB Family and Friends Trust, Pcntex foundation, Pentcx Royalty Trust, GBU Friends
and Associates Trust, and l~e Estate of Bert Gibbs, since January. 1, 2013, in regard to
monies r~ccived 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 or 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 emails,
documents. tape recordings~ memorandums, etc.) with Beverly Miller, and her attorneys
Shan·on 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 distrihuted to anyone or any entity. GBU
Friends and Associates Tn.!sl existence, employer identillcation number, communications
with the Intemal Revenue Service. the CSL. Family Settlement Agreement. any
distributions of attorney fees from the Estate of Bert Gibbs, and the administration of the
Estate or Bert Gibbs.
18. A true and correct copy of all communications (including such things as emails,
documents, tape recordings, memorandums, etc.) with John Skotnik conccming G\VB
Family and Friends Trust. P~ntcx Foundation. GBU Friends and Associates Trust, and
the Estate of Bert Gibbs since .lanumy, 1 2008, in regard to monies received or
distributed to anyone or any entity, GBU Friends and Associates Trust's existence.
employer identification nllmber, communications with the Internal Revenue Service. the
CSL, Family Settlement Agreement. any distributions of attorney fees from the Estate of
TilE STATE OF TEXAS SUBPOENA CAliSE No. CV-14-41665
PF'flrri::X FOUNOArtON I'S. GI/JB!.~ ETA/..
-4-
• • A , ' ~h
Exh1b1t. ? ; · d1i:Jj.£; .
Page_~ ~{~~;~J~~
415
Bert Gibbs, and the administJ·ation or the Estate ofBert Gibbs.
19. A true and correct copy of nil communications (including such things as emails.
documents. tape recordings 1 memorandums, clc.) with Howard Kirk Gibbs concerning
GWB Family und Friends Trust, Pcntex Foundation. und GBU Friends and Associates
Trust since January, 1 1008, in regards to monies received or distributed Lo 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 distributilJns of attomey fees from the Estate of Bett Gibbs. and the
administration of the Estato of Bert Gibbs.
20. A true and correct copy of all communications (including such things as emails.
documents. tape rccordin,gs. memorandums. etc.) with Earl Hargrave concerning the
Estate of Bert Gibbs, including the administration of the estate and distribution of
attomey 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 thG: Internal Revenue Service, the CSL, Family Settlement
Agreement, any distributions of attorney fees 1rom the Estate of Bert Gibbs, and the
administration of the Esta1c of Bert Gibbs.
21. A true and correct copy of all communications (including such things as cmails,
documents. tape recordings. memorandums. etc.) with Rickey Brantley or his office
concerning the Estate of Bert Gibbs, including the adminislration of the estate and
distribution ofattomcy fees since January. l 2008.
22. True and correct copies of all drafts or the GWB Family and Friends Trust.
23. True and conect copies of all drafts of GBU Friends and Associates Trust.
TilE STATE OF TEXAS SUIWOENA CAUSE No. CV ·14-41665
I'F:".VTf:.'X FOUNl>ATION rs. CJ/IJJJS, ETA/.. ·5-
Exhibit
416 c-.:)
Page_........,_,__
24. 1\ true and correct copy of any articles 1 books. blogs, or any communications in which
you advised any person on how to avoid paying United States fhlcral income taxes or
avoiding participation in lawsuits.
25. Tme and corn:ct copies of all drafts of the CSL since .January I. 2005.
16. A true ~111d cQrrcct copy of proof of all legal documents in your pos5cssion which attest
to your legal representative of any entity that have been provided to GWB Family and
Friends Trust and to the EstOll.te of Bert Hughes Gibbs.
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 Pmcedure
Issued on September, 2, 20 14.
LAW OFFICES OF CHRlSTY LEE, P.C.
--- M
Christy L. Lee
·---·-------·-·
Texas State Bar No. 24052302
777 Main Street, Suite 600
Fmt Worth, TX 76102
Office: (IS 17) 504-607 5
Fax: (800) 437-7901
clee@christyleclaw .com
ATTORNEY FOR KENNETH GIBBS
AND CANDACE WALTON
CERTIFICATI~ OF SERVICE
I hereby certify that a true and correct copy of the above and l'orcgoing document was delivered.
pursuant to Texas Rules of Civil Procedure and Rule II Agreement. to the rollowing partie~ on
this 2nd day ofSeplcmber, 2014:
Pcntex Foundation ami Via fax and email
CiBU Friends and Associates Trust
c/o Scott Smith. Attomcy of Record
TilE STATE OF TEXAS St.!IWOENI\
f'J;xn;x fOI:NfJATION IX GIBUS, ETtll..
417
Page
I20 South Crockett Street
Sherman, TX 75091-0354
HO\vard Kirk Gibbs Via mail and email
9929 Crawford Farm Drive
Fort Worth. TX 76244
-~---·-·--····-
Christy L. Lee
THE STATE Of TEXAS SUBPOENA
PENTt:X FOUNDATION VS. 0/IJJJS, !ITAL.
418
NO. CV-14-41665
PENTEX FOUNDATION, § IN THE DISTRICT COURT OF
Plaintiff §
§
v. §
§ FANNIN COUNTY, TEXAS
KENNETH VERN GIBBS, CANDACE §
GIBBS WALTON and HOWARl> §
KIRK GIBBS, Defendants § 3361h JUDICIAL DISTRICT
PENTE~ FOUNDATION'S RESPONSE
TO DISCQVERY 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 o~ects to producing any documents in the offices of
counsel. To the extent there are documents 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 <)nly 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 GIBBS Page 1
419
Page
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 ext~nt it requests "letters, emails, bank records,
correspondence, and aqcountings related to Albert's involvement in your
formation." Subject to: this objection, please see the documents attached
hereto as Plaintiff/Inte:tpleader 0000 1-0003 3.
REQUEST FOR PRODUCTlON 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
420 Page
with Danny Unger concerning 1GBU Trust.
RESPONSE: Pentex Foundation objects to any such communications
initiated after the anticipation of litigation and/or protected pursuant to the
"joint defense doctrine" recognized in TEX. R. EVID. 503(b)(1) and such
cases as Ryals v. Canales, 767 S.W.2d 226, 228 (Tex. App.-Dallas 1989,
orig. proceeding). Subject to these objections, Pentex Foundation has no
documeP..tation 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 F(!)undation 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 anti¢ipation 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 DISCOVERY FROM KENNETH GIBBS Page3
421 Page )
responsive to this request.
REQUEST FOR PRODUCTION NO. 13: Produce all documentation dating back
to September 1, 2008, which you have concerning Renhaw, Inc., including the
transfer of rights of the CSL to you, letters, emails, tape recordings, and any other
records involving Renhaw, Inc ..
RESPONSE: Please see Plaintiff/Intervenor 000123, 000034.
REQUEST FOR PRODUCTION NO. 14: Produce any communication dating back
to May 1, 2008, including letters, tape recordings, or emails, that you have had
with Albert concerning GWB Trust.
RESPONSE: Pentex Foundation objects to any such communications
initiated after the anticipation of litigation and/or protected pursuant to the
"joint defense doctrine' recognized in TEX. R EVID. 503{b)(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
"joint defense doctrine>' recognized in TEX. R EVID. 503{b)(1) and such
cases as Ryals v. Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989,
orig. proceeding). Subject to these objections, Pentex Foundation has no
documentation in its possession responsive to this request.
REQUEST FOR PRODUCTION NO. 16: Produce any communication dating back
to May 1, 2008, including letters, tape recordings, or emails, that you have had
from Albert concerning distributions from the Estate.
RESPONSE: Pentex Foundation objects to any such communications
initiated after the anticipation oflitigation and/or protected pursuant to the
"joint defense doctrin¢" recognized in TEX. R EVID. 503(b)(l) and such
cases as Ryals v. Can4les, 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
PENIEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page4
422 Page _ _i~J-
with Albert concerning Pentex Trust.
RESPONSE: Pentex Foundation objects to any such communications
initiated after the anticipation of litigation and/or protected pursuant to the
"joint defense doctrine" recognized in TEx. R. EVID. 503(b)(1) and such
cases as Ryals v. Canales, 767 S.W.2d 226,228 (Tex. App.-Dallas 1989,
orig. proceeding). Additionally, this request is outside the scope of
discovery. Subject to these objections, Pentex Foundation has no
documentation in its possession responsive to this request.
REQUEST FOR PRODUCTION NO. 18: Produce any communication dating back
to September 1, 2008, including letters, tape recordings, or emails, that you have
had with Candy concerning GWB Trust.
RESPONSE: Pentex Foundation has no documentation in its possession
responsive to this request.
REQUEST FOR PRODUCTION NO. 19: Produce any communication dating back
to January 1, 2013, including letters, tape recordings, or emails, that you have had
with Candy concerning GBU Trust.
RESPONSE: Pentex Foundation has no documentation in its possession
responsive to this request.
REQUEST FOR PRODUCTION NO. 20: Produce all documents related to Pentex
Trust's interest in the Estate and GWB Trust, and dating back to September 1,
2008, including, but not limited to, documents verifying its existence, letters,
emails, bank records, correspondence, and accountings.
RESPONSE: Pentex Foundation has no documentation in its possession
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)(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 other than as may be produced herewith.
REQUEST FOR PRODUCTION NO. 22: Produce all documents upon which you
PENTEX FOUNDATION'S RESPONSE TO DlSCOVERY FROM KENNETH GIBBS PageS
Exhibit
423 Page _
c<
_./
__
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 tQ any class or type of documents. See, Loftin v.
Martin, 766 S.W.2d 14$ (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 concerni~g Pentex Trust.
RESPONSE: Pentex Foundation objects to this request as outside the scope
of discovery, and additionally as to any such commtmications protected
pursuant to the "joint defense doctrine" recognized in TEX. R. EVID.
503(b)(l) and such cas¢s 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 anticijpation 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. Cana,es, 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 anticlpation 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. CancOes, 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 Poge6
424 Page L
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 GffiBS Page7
425 Page -7
Representative for both entities; whether you or Pentex Trust was formed first; the
management associated with Ptmtex Trust in Texas, as effected from a Panamanian
locale; the manner in which you determine tax obligations; and arrangement with
Pentex Trust concerning voting rights in GWB Trust
ANSWER: Pentex Foundation objects to this interrogatory as outside the
scope of permissible discovery and overly broad. Interrogatories may be
used to ascertain basic legal and factual claims and defenses, but may not be
used to force a party to marshal evidence." See, Rule 197 of the Texas Rules
of Civil Procedure, at c0mment 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 ~venue 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 of Pentex Foundation. The tax
obligations are figured, by computing and filing a Return 1042 with the
Internal Revenue Servjce meeting the requirements of the Internal Revenue
Code. The voting rights issue was always a problem because the purported
trustees of GWB trust never had a clear and defined way of doing anything.
For that reason, Pentex Foundation assigned it voting shares by proxy to Jim
Walton as long as he was the purported trustee. We have no record of any
official votes after Beverly Miller became the purported trustee.
INTERROGATORY NO. 2: Detail your relationship with Albert, including
specifics concerning his activities within your entity; on whose authority Albert
serves as your Legal Representative; amounts of payment for Albert's services to
you; percentages of distributions to you from GWB Trust which Albert ultimately
receives; Albert's arrangements to pay Estate attorneys in order to uphold his
responsibilities to the CSL and the FSA; Albert's payments of legal fees with
regard to this lawsuit; Albert's involvement in this lawsuit (i.e., whether Albert was
responsible for instigating the lawsuit); and all other involvement of Albert
concerning your involvement with GWB Trust.
ANSWER: Pentex Foundation objects to this interrogatory as outside the
scope of permissible discovery and overly broad. Interrogatories may be
used to ascertain basic legal and factual claims and defenses, but may not be
used to force a party to marshal evidence." See, Rule 197 of the Texas Rules
of Civil Procedure, at comment 1. Pentex Foundation objects to the terms of
payments as confidential under the laws of Panama, and outside the scope of
discovery in any event. Subject to these objection, Pentex Foundation
answers as follows, and under a defintion of "you" and "your" to refer to
PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 8
426
Page
Pentex Foundation only as specified in the general objections:
Pentex Foundation purchased an interest in the Contract for Sale that Albert
Barcroft originally owned. It was mutually advantageous to continue to
work with Albert to bring the terms of the contract to conclusion, and he
served and serves on our behalf in the matter. To the knowledge ofPentex
Foundation, Albert had ~o 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: JExplain 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 defintion of"you" and "your" to
refer to Pentex Foundation only as specified in the general objections:
The percentage due Pentex Foundation under the Contract for Sale.
Barcroft's share was 30% of everything Ken, Candy and Howard received.
Ken, Candy and Howard each received 25%, for a total of75%, of the
estates. Of the 75%, Pentex Foundation owned 30%, equaling 22.5% of
everything distributed by the estate (75% X 30%=22.5%). The estate
distributed mineral interests to GWB Trust equaling 35.04% of the total
minerals owned by the estate. It also distributed 2.46% directly to John
Skotnik in payment for his services as attorney (an amount due solely by
Barcroft). Of the 35.04% distributed to GWB Trust, Pentex Foundation
owned 20.04% (22.5% minus the 2.46% already distributed to Skotnik).
20.04% is 57.19% of35.04%; thus, Pentex Foundation owned 57.19% of the
PENTEX FOUNDATION'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 9
427
Page _ _ (-+J-
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 d~scovery and overly broad. Subject to these objection,
Pentex Foundation answers as follows, and under a defintion of "you" and
"your" to refer to Pentex Foundation only as specified in the general
objections:
Pentex Foundation has had no such communications with Howard Kirk.
REQUEST FOR ADMISSION NO. 1: Admit or deny that Scott Smith and Howard
Kirk consulted with each other at the July 31, 2014, hearing in the Tarrant County
case.
RESPONSE: Pentex Foundation objects to this request as (1) well outside
the scope oflegitimate discovery; (2) a communication initiated after the
anticipation of litigati 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 ADMISSlON 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 1-'ROM KENNETH GIDBS Page 18
436 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 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 AD:MISSION 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: PentexFoundation 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 DISCOVERY FROM KENNETH GffiBS Page 19
437
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)(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 Page20
438
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. 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 KENNh"'TH GIBBS Page 21
439 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 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 KENNETH GIBBS Page22
440
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
contro] 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 lmown 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 iriterest 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, 161 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
441
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 Fo1;1ndation 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 GIDBS Page 24
Exhibit
442 Page )lj_
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 oflegitimate
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 Page 26
443
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 ofGBU 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, wi11 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
Shennan, 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
444
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 GIDBS Page 28
445 Page
Unsworn Delcaration Pursuant tq
TEX. CIV. PRAC. & REM.CODE § 132.001
. I reside at
-"-='~..JL%'-----
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 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 l97~~(d)(2:},92~S, npt,requ~r~:~~t;I swear to interrogatory
answers about persqiis ,~~.t~. kP..~,\\'.J~9gt?-~Pf·F..~J~YMtf~Q!St,,tri~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~··:.- : <,....· · ,
,• "' I
''I··...._· .•
. .. ' '. - ~ ' . r".
·'.' I
·' ... L
... ;. ....
446
\ I 'I
I EXHIBIT
F
State,.,ent Given Under Penalty of Perju(Y I
I, Albert Lynn Barcroft, being born on August 20, l9461n 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
-- -leg·alproceedings·linnelJnltea'States:-niereby certifY ari(faffirm-the folfowfng-fur-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 conditlQns 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.
1hereby 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 of perjury under the prevailing laws ofthe State ofTexas that
the statements In this docum~nt are true and correct, and not Intended to mislead.
Executed this 3rd day of September, 2014, In San Marcos, lzabal, Guaternala, Central America.
y
Agent/Legal Representative
PENTEX FOUNDATION
447
. '
Dr. Leone/ Antonio Ramirez Montenegro
MEDICINA INTERNA YELECTROCARDIOGRAFIA
Clfnlca Medica COHSULTORIO
Cl!nlca Casa de Los Almendros
Los Almendros
Salud ymSs ... Calle de Atras 9·66 Morales lzabal
Tel.: 7823-2060
EMERGENCIAS: 5412-0504 • E-mall:leoram_chey@yahoo.com
__ ., _____ --·---·--···--· - --.---------
. --· -·---
- .. -.
El infrascrito Dr. LEONEL ANIONIO RAMIREZ MONTENEGRO, medico y cirujano
colegiado activo numero ocho mil ciento treinta y cuatro, egresado de Ia
Universdiad de San Carlos de Guatemala CERTIFICA: Que dentro de los arch!vos
de este consultorio aparece reglst~i;) d'~i senor ALBERT LYNN BARCROFT. Quien
padece HIPERTENSION ARTERIAL, fiBRilACION AURICULAR CRONICA Y
OSTEOARTROSIS DEGENERATIVA pE Ro·b.ILlAS, por lo que no puede viajar
debido su codidon de salud, Ia t~af :re impide movilizarse por si mismo, asr
como tambien representa desgo para su vida dado que problema
cardiovascualar he emperado en los ultlrrios meses. A solicitud de Ia parte
interesada se extiende Ia presehte al ve'intlcich6 de Agosto del dos mll catorce .
. ,,
, l"~~~ "~~lrel
0uEDlCO INTHII.fi'tl\
Col ') 136
,
.. I
~ r' -----------....
J
• • ._ -'f.J. •.. e-c.-r:,-z:..-!:1!.,
.. _,;; .? ., -
W' ~-. ,
Dr. Leonel Ramirez. ·~ontenegr:o ·'·. ·.
Medicina l.n!.¢-na {
Col. 8,134 ~
PLAINTIFF'S
I EXHIBIT
D
I
448 Page
Although an exact interpretation from Spanish to English of a document of this sort Is
virtually Impossible, below is a general interpretation Into English of the foregoing medical
report and evaluation for your convenience:
- ---------::-::= - _:..._::-=:---=-:---:::.-----·--~--=---.::--:"":".::-.:=-:::.-:·.·:-:·-:.:::·-:-.7::::-·-
. -- -----------
----- -~-----·-------·· ·- ..-----------------
--- ---.- --
~
The undersigned Dr. LEONELANTONIO MONTENEGR RAMIREZ, physician and surgeon gives
active number eight thousand one hundred thirty-four, graduated in the University of San
Carlos De Guatemala CERTIFY that within the files of this office record appears Mr. Albert Lynn
Barcroft who suffers HYPERTENSION, CHRONIC ATRIAL FIBRILLATION AND KNEE
OSTEOARTHRITIS DEGENERATIVE therefore he is not able travel due to his health condition,
this condition makes it difficult for him to move himself, and also this represents a life risk
because the cardiovascular problem has worsened in recent months. At the request of the
interested party present at the August 28 of two thousand fourteen runs.
449 __
_;;__ Page
The Grt::;:.~t Escape, the luxury yacl1t, that damaged
B<:lize's pristine barrier reef on l'lovemrH! reported on the incident, the Department oi Envlronnwn1 indic.nted the ,:;wner of the vessel,
tdbert Barr.roH, l1ad suffc~retl heart failure and hac! to be mshecl to Guatemala to Si:Jett, Editor, Rio Dulce Cilisme Vinr.licator
450
f.~.,1!e are fccaf(Ui :n RuJ rJufco an{t tht:t't~~ is quttt.:: a larq6· Voating caJnnuutity oui t;ett;'J. probaf)fy close to four
rrunctro<1 teats tf}at at~;:, JkJrc . •4nd rn&riy of t/t(: l.>oaft":;tS i:ere an: upst?t -r1!;out i.-1.4tat hapr..letK·:d. ()f' CYJl!tse
v,:rilie:d ut iili."
Jose Sanchez
"Tht:- ~c1st \'le itc:~uc! Ctf Albert Barc1nn~ t:c l'l~~cJ a tv::an aHHck CHK~ he; \Vc\nt !o f3uott;;~naln <:l~'ld k.~rt tr1ece.
V\li"wt do you aciunl!y i'.now? ·
Via Phone: Roy McNett
·f-fr: tclri n te lie: f8heo Uk: heart altacf< so !Je Vsite- tliat silOt:'/S tf}t: hoat out tih-:!6'. Jf;; a navJS}ation lu::zar(j_ irs very
··si:lce yon ~.;poke t(i f\Alster Baret oit hHs htj accepted responsib!iity kif lanett no fHs bo.~1t on the rt:t;(?''
Via P!10ne: Roy McNeH
-h,~ s v;rrften in tile !Jfng that he IW$ no iines at ol/ l.furinQ /iie it:quines_ .Ire was not ilelU responsible cr
.Jose Sanchez
nn:l") / '
)·/,./
ll .)"--
/
----~----
Christy L. Lee
Texas State Bar No. 24052302
777 Main Street, Suite 600
Fort Worth, TX 76102
Office: (817) 504-6075
Fax: (800) 43 7-790 I
clce@christyleelaw.com
ATTORNEY FOR KENNETH GIBBS
AND CANDACE WALTON
CERTIFICATE OF SERVICI~
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 II Agreement, to the following parties on
this 2nd day of September, 2014:
Pentex 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
Fort Worth. TX 76244
Christy L. Lee
TilE STATE OF TEXAS SU!Jl'OENA CAUSE NO. CV-14-41665
Pr:Nrr:x FouNn,trmN vs Gums. f:'TAt .. -3-
Exhibit
:3
Page_~L.:::;__
455
.. ~·
.
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 Defendants' Motion for Leave of Court to File Third-Party Petition. This hearing is
set for September 30, 2014, from 8:30 AM to 12 PM, in 336111 Judicial District Court of Fannin
County, Texas.
Respectfully submitted,
LAW OFFICES OF CHRISTY LEE, P.C.
Christy I!. Lee
Texas State Bar No. 24052302
777 Main Street, Ste. 600
Fort Worth, Texas 76102
(817) 504-6075
(800) 437-7901- Fax
clee@christylee1aw.com
NOTICE OF HEARING CAUSE No. CV -14-41665
PENTEX FOUNDATION 1'. GIBBS, liT AL. -!-
456
..
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above Notice of Hearing was delivered, pursuant to
Texas Rules of Civil Procedure, to the following parties on this 19th date of September, 2014:
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@airmail.net
c/o Scott Smith, Attorney
120 South Crockett Street
Sherman, TX 75091-0354
~- . -L. . ;_
Christy L. Lee
NOTICE OF HHARJNG CAUSE NO. CV -14-41665
PENTEX FOUNDATION I~ G/JJB.\; ETA/,. -2-
457
CAUSE No. CV-14-41665
PENTEX FOUNDATION )
~~. )
)
vs. )
)
KENNB1H VERN GIBBS; AND )
CANDACE GIBBS WALTON; AND )
HOWARDKIRKGIBBS, )
DEFENDANTS. ) F ANN1N COUNIY; TEXAS
DEFENDANTS' MOTION TO COMPEL DISCOVERY
FROM GBU F'lliJmDs AND AssOCIATES TRUST
Come now, Defendants Kenneth "Ken" Vern Gibbs and Candace "Candy" Walton,
through their Counsel of Record, Law Offices of Christy Lee, P.C., and file this Motion to
Compel Discovery from GBU Friends and Associates Trust ("GBU Trust"), Intervenor. Ken
served GBU Trust his First Request for Discovery on August 12,2014. Attached as Exhibit A is
Joshua Unger, Trustee's Response to Discovery from Kenneth Gibbs ("Ken").
H. MOTION TO COMPEL TilE PRODUCI'ION OF DocuMENTS AND REsPONSFS
TO INTERROGATORIES AND ADMISSIONS BY JOSHUA UNGER, AS TRUSTEE
Production of Documents.
I. GBU Trust served incomplete documentation to Ken on September 3, 2014.
GBU Trust objected to the allowable production of information crucial to Ken's defense. GBU
Trust indicated that it would supplement documentation as found. To date, no amended
documentation has been produced. Ken seeks an Order overruling the objections of Joshua
Unger, as Trustee of GBU Trust, and compelling discovery as follows:
Request for Production Nos. 2, 4- S, 1, 9- 11, 14- 18, 21 - 25,
33, 36, 38- 39, 41 -54, 51- 59, 62, 64, and 68- 72.
DEFENDANI'S' ManON TO COMPEL DISCOVERY
FROM GBU FRIENDS AND AssoclATES TRUST CAUSBNo. CV-14-41665
PENTEXFOUNDA170NJI. GIBBS, El'AL. -1-
458
Ken appeals to the Court because GBU Trust's objections to production requests were
not appropriate, as follows:
2. GBU Trust objected to Request for Production Nos. 2, 7, 9- 11, 14- 18, 21,23-
25, 41 - 54, 51 - 59, 62, and 68, based on the joint defense doctrine. The documentation
requested is not covered by the joint defense doctrine, as none of the involved parties are argued
or proven to be allied litigants. In re XL Specialty IIISW'ance Company and Cambridge
Integrated Services, Group, Inc., 2012 WL 2476851 (Tex. June 29, 2012). The documentation
requested involves evidence relating to the following:
A. Pentex Foundation as the Beneficiary to GWB Trust;
B. Albert Barcroft's involvement with GWB Trust;
C. Danny Unger's involvement with GWB Trust;
D. Danny Unger's involvement with GBU Trust as relates to this Cause;
E. Danny Unger's involvement as it relates to Pentex Royalty Trust;
F. Albert Barcroft's knowledge of the distributions of the attorneys' fees by the
Estate of Bert Hughes Gibbs (''the Estate");
G. Albert Barcroft's involvement with Pentex Royalty Trust;
H. Albert Barcroft's communications concerning distributions from the Estate and
distributions of attorneys' fees by the Estate;
I. Albert Barcroft's communications concerning Pentex;
J. Communications with Ken concerning distributions of the Estate's attorneys'
fees;
K. Communications with Beverly Miller concerning this lawsuit, Tarrant County
Probate Court No. 2 Cause No. 2005-0000146-2-D, Pentex, GBU Trust, GWB
Trust, distributions from the Estate, distributions of attorneys' fees by the Estate,
distributions from GWB Trust, and Albert Barcroft;
L. Communications with Howard Kirk Gibbs concerning GBU Trust, Pentex, Pentex
Trust, GWB Trust, the Heirs to the Estate, distributions from the Estate,
distributions of attorneys' fees by the Estate, and this lawsuit; and
M. Communications with Danny Unger concerning Pentex, distributions from the
Estate, attorneys' fees distributed by the Estate; and communications involving
transfers in which Albert Barcroft engaged on behalf of Pentex, Pentex Royalty
Trust, Renhaw, Inc., GBU Trust, and any other entity.
3. Request for Production Nos. 4 and 64 are allowable and not protected from
discovery. Albert Barcroft, creator ofPentex Foundation, Pentex Royalty Trust, GWB Trust, and
GBU Trust, and Joshua Unger, Trustee of GBU Trust, are both known tax protesters. GBU Trust
was fraudulently created in' order to avoid paying federal income taxes and continue their tax
fraud schemes. Tax returns and infonnation relevant to tax returns are discoverable when they
are relevant to the cause or when they are likely to lead to relevant information concerning the
cause. Hall v. Lawlis, 907 S.W.2d 493 (Tex. 1995); Chamberlain v. Cherry, 818 S.W.2d 201
(Amarillo 1991). Crime, including fraud, is an exception to the assertion of client-attorney
DEFENDANTS' MOTION TO COMPEL DISCOVERY
FROM GBU FRIENDS AND AsSOCIATES TRUST CAUSBNO. CV-14-41665
PENTEX FOUNDATION V. GIBBS, E1' AL. -2-
459
privilege. Plaintiff and Counsel are engaged in fraud before this Court, and Plaintiff is
committing tax fraud. The objection to No. 64 as overly broad is ridiculous. No. 64 speciracally
asks, "Produce any copy of any payments you made to the Internal Revenue Service of
Department of Treasury," and No.4 states, "Produce a copy of your IRS Form 1041 for 2013."
4. The objection of invasion of privacy and harassment to Request for Production
Nos. 5, and 69 - 72 is not appropriate, and frankly ridiculous. Axelson, Inc. v. Mci/hany, 798
S.W.2d 500, 553 (Tex. 1990). The Request seeks infonnation about income to GBU Trust, which
was established solely to receive distributions from GWB Trust. GBU Trust states that it has not
received the money from GWB Trust to which it is entitled. Defendants strongly object to this
assertion and lawsuit. Defendants are entitled to know how much money GBU Trust has
received. All related discovery, including OBU Trust's distributions to members, is allowable, as
the discovery is likely to lead to discovery relevant to this Cause. Again, the objection to
"outside scope of legitimate discovery" is not an appropriate objection.
5. The objection of overly broad categories to Request for Production Nos. 5, 22, 33,
36, 38, 39, and 64 is not appropriate. The Requests posit that the infonnation requested is to date
back to the inception of GBU Trust (November 1, 2013). Again, the objection to "outside scope
of legitimate discovery" is not an appropriate objection. Also, see No. 4 above. In addition, in
response to No. 22 ("produce all documents upon which you base the claims that you are the
'real party in interest in this suit ... "'), the response was, "objection as it is overly broad and
invades work product [and protected]." What? How is this overly broad? And even more
confusing, why is GBU Trust refusing to provide information concerning its declaration that it is
the real party in interest in this litigation? Defendants are entitled to this information, as it is
likely to be a crucial element in their defense.
6. The objection of work product and client-attorney privilege to Request for
Production Nos. 22, and 38 - 39 is not appropriate. Such an objection points to furtherance of
fraud. Jim Waller Homes, Inc. v. Foster, 593 S.W.2d 749, 752 (Tex. Civ. App.- Eastland 1979,
no writ). Texas Rules of Evidence Rule No. 503(d)(l). As Intervenor, GBU Trust must provide
evidence of the claims to the assets currently under dispute. Joshua Unger, as Trustee of GBU
Trust, was not involved with the Estate's calculations for the attorneys' fees in dispute. No
client-attorney privilege or work product privilege can attach. Also, see No. 5 above.
7. The objection of falling outside the scope of legitimate discovery to Request for
Production Nos. 6, 64, and 69 - 72 is not an appropriate objection to discovery, and all
information should be produced immediately, as that information promises to lead to discovery
highly relevant to this Cause.
Resoonses to Interrogatories.
8. The objections to Interrogatory No. 2 and 4 as being outside the scope of
pennissible discovery and overly broad and assuming facts not in evidence are not appropriate.
The Interrogatories ask for specific information concerning GBU Trust's relationship to the CSL
DEFENDANTS' MOTION TO COMPEL DISCOVERY
FROM GBU FRIENDS AND ASSoclATES TRUST CAUSENo. CV-14-41665
PENTEX FOUNDA'170N Y. GIBBS, EI' AL -3-
460
and FSA, and GBU Trust's intervention in this lawsuit. The answers to the Interrogatories
promise to lead to relevant information concerning this lawsuit Facts presented in the
Interrogatories are not assumed, but evidenced by information provided by GBU Trust.
Responses to Admissions.
9. The response to Request for Admission No. 50 is not appropriate. GBU Trust
claims to have made reasonable inquiry concerning calculations for percentages due Heirs from
the Estate, as calculated by Albert Barcroft, but GBU Trust was unable to obtain the information.
Counsel for GBU Trust admitted to having repeated contact with Albert Barcroft and could
easily respond with an admission or denial.
I0. The objection to Request for Admission No. 65 is not appropriate. The Request
addresses the creation of the CSL, which Plaintiff argues is crucial to this lawsuit. The Request
does not fall outside the scope of legitimate discovery, as an Admission or Denial promises to
lead to relevant discovery.
II. PRAYER TO THE COURT.
Ken respectfully prays that the Court:
II. Compel GBU Trust and its Trustee, Joshua Unger to comply with this discovery
request;
12. GBU Trust should pay all attorney fees associated with the drafting and
presentation of this Motion; and
13. And any other relief the Court finds appropriate.
Respectfully submitted,
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
DEfENDANTS' MOTION TO COMPEL DISCOVERY
FROM GBU FRIENDS AND ASSOCIATES TRUST CAUSENO. CV-14-41665
PENTK'( FOUNDATION V. GIBBS, ET AL. -4-
461
ATIORNEY FOR CANDACE WALTON AND
KENNETH GIBBS
CERTIFICATE OF CONFERENCE
This document was provided to Scott Smith on September 22, 2014, concerning the production
of discovery as requested in Kenneth Vern Gibbs's First Request for Discovery to GBU Friends
and Associates Trust. Scott Smith did not comply with any ofthe request in this document, nor
responded to my email, and refused to take my phone call. Agreement could not be reached;
therefore, it is presented to the Court for determination.
~
Christy L. Lee
This Motion to Compel Discovery from GBU Friends and Associates Trust is set for hearing on
the _ _ day of , 2014, in the 3361h Judicial District Court of
Fannin County, Texas, at M.
Judge Presiding
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above Defendants' Motion to Compel Discovery from
GBU Friends and Associates Trust was delivered. pursuant to Texas Rules of Civil Procedure, to
the following parties on this 25th date of September, 2014:
Howard Kirk Gibbs Mail
4360 Western Center Blvd., No. 205 Email: hkgibbs@gmail.com
Fort Worth, TX 76157
DEFENDANTS' MOTION TO COMPEL DISCOVERY
FROM GBU FRIENDS AND ASSOCIATES TRUST CAUSE NO. CV -14-41665
PENTEX FOUNDATION V. GI/JBS, &T AI•. -5-
462
Pentex Foundation, and Email: smithlaw@ainnail.net
GBU Friends and Associates Trust Fax:
c/o Scott Smith, Attorney of Record
120 South Crockett Street
Shennan, TX 75091-0354
Christy L. Lee
DEFENDANTS' MOTION TO COMPEL DISCOVERY
FROM GBU FRIENDS AND ASSOCIATES TRUST CAUSE NO. CV -14-41665
PENTEX FOUNDATION V. GIBBS, ET AL. -6-
463
NO. CV-14-41665
PENTEX FOUNDATION, § IN THE DISTRICT COURT OF
Plaintiff §
§
v. §
§ FANNIN COUNTY, TEXAS
KENNETH VERN GIBBS, CANDACE §
GffiBSWALTONandHOWARD §
KIRK GIDBS, Defendants § 336'b JUDICIAL DISTRICT
JOSIHJA UNGER, TRUSTEE'S RESPONSE
TO DISCOVERY FROM KENNETH GIDBS
TO: KelUleth Vern Gibbs, by and through his attorney of record.
COMES NOW, Joshua Unger, Trustee of the GBU Friends and Associates
Trust, Intervenor, files this its response to the First Request for Discovery received
on August 12,2014, and would show as follows:
GENERAL OBJECTION
The discovery was served upon "GBU Friends and Associates Trust", when
in reality the Intervenor is Joshua Unger, Trustee of the GBU Friends and
Associates Trust. Intervenor assumes this is an oversight, and will respond in his
capacity as Intervenor.
Intervenor objects to the Instructions and Defmitions to the extent they
enlarge the responsibilities of a litigant under the Texas Rules of Civil Procedure.
The Intervenor will respond subject to the Rules.
Intervenor objects to producing any documents in the offices of counsel. To
the extent there are documents to be produced, they will be produced at the offices
of counsel for the responding party.
Submitted herewith are documents marked as Plaintiff/Intervenor 0000 I-
000257.
RESPONSE TO DISCOVERY REQUESTS
REQUEST FOR PRODUCTION NO. I: Produce all documents dating back to
September I, 2008, that you have in your possession concerning the GWB Trust.
RESPONSE: None
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page I
Exhibit
464
REQUEST FOR PRODUCTION NO. 2: Produce all documents dating back to May
1, 2008, that you have in your possession concerning Pentex.
RESPONSE: Intervenor objects to any such documents created 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, see, the Pentex Foundation organization papers
and the demand that assigned its share of the Contract to GBU Trust.
Plaintiff/Intervenor 000001-000022, 000027-000033, 000035-000040,
000135-000256.
REQUEST FOR PRODUCTION NO. 3: Produce all documents proving your
existence and validity, including a true and correct copy of the original Trust
document, names of all Trustees who have served since your inception, and names
of your members and beneficiaries.
RESPONSE: See, Plaintiff/Intervenor 000041-000049.
REQUEST FOR PRODUCTION NO.4: Produce a copy of your IRS Form 1041 for
2013.
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 all monthly statements
from all bank accounts (or any accounts owned through other fmancial institutions)
owned by GBU Trust from the date of your inception to the present.
RESPONSE: Intervenor objects to this request as outside the scope of
legitimate discovery, invasive of privacy, and overly broad.
REQUEST FOR PRODUCTION NO. 6: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you
have had with any representative of ConocoPhillips concerning you yourself,
Albert, GWB Trust, Pentex, Pentex Trust, or the Estate as it relates to GWB Trust or
GWBTrust.
RESPONSE: The Intervenor is searching for documents, if any, which may
be responsive to this request. If any such documents are located this response
will be supplemented.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page2
465
REQUEST FOR PRODUCTION NO. 7: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you
have had with Albert concerning GWB Trust.
RESPONSE: Intervenor objects to any such documents created 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, no such documents exist.
REQUEST FOR PRODUCTION NO. 8: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you have
had with Howard Kirk concerning GWB Trust.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 9: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Danny Unger concerning GWB Trust.
RESPONSE: Intervenor objects to any such documents created 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, no such documents exist.
REQUEST FOR PRODUCTION NO. 10: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Danny Unger concerning GBU Trust.
RESPONSE: Intervenor objects to any such communications initiated after the
anticipation of litigation and/or protected pursuant to the "joint defense doctrine"
recognized in TEX. R. EVID. 503(b)(l) and such cases as Ryals v. Canales, 767
S.W.2d 226,228 {Tex. App.-Dallas 1989, orig. proceeding). Subject to this
objection, Intervenor is searching for any responsive documents and if they are
located this response will be supplemented.
REQUEST FOR PRODUCTION NO. 11: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Danny Unger concerning Pentex Trust.
RESPONSE: Intervenor objects to any such documents created after the
anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
recognized in TEX. R Evm. 503(b)(1) and such cases as Ryals v. Canales, 767
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Pagel
466
S.W.2d 226, 228 (Tex. App.-Dallas 1989, orig. proceeding). Subject to these
objections, no such documents exist except as may be indetified in response to
Request for Production number 2.
REQUEST FOR PRODUCTION NO. 12: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have
had with Ken concerning GWB Trust.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 13: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Ken concerning Pentex Trust.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 14: Produce any communication dating back to
the date of your ince,Ption, including letters, tape recordings, or emails, that you have had
with Albert concemmg the Estate's distributions of assets and the calculations of the
Heirs' attorneys' fees related to services involving the settlement of the Estate.
RESPONSE: Intervenor objects to any such documents created 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, no such documents exist. .
REQUEST FOR PRODUCTION NO. 15: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Albert concerning Pentex Trust.
RESPONSE: futervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to these
objections, no such documents exist.
REQUEST FOR PRODUCTION NO. 16: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
from Albert concemmg distributions from the Estate.
RESPONSE: futervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to these
objections, no such documents exist.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page4
467
REQUEST FOR PRODUCTION NO. 17: Produce any communication dating back to
the date of your ince,Ption, including letters, tape recordings, or emails, that you have had
with Albert concernmg Pentex.
RESPONSE: Intervenor objects to any such documents created after the
anticipation oflitigation and/or protected pursuant to the "joint defense doctrine"
recognized in TEx.REVID. 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, no such documents exist.
REQUEST FOR PRODUCTION NO. 18: Produce any communication dating back to
the date of your inception, including letters,--tape-recordings, or-emails,- that-you have-had
with Ken, individually, as having any authority or influence on the distributtons of the
Estate attorney fees.
RESPONSE: Intervenor objects to any such documents created after the
anticipation oflitigation 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.-Daflas 1989, orig. proceeding). Subject to these
objections, no such documents exist.
REQUEST FOR PRODUCTION NO. 19: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Candy, individually, as having any authority or influence on the distributions of the
Estate attorney fees.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 20: Produce all documents related to Pentex
Trust's interest in the Estate and GWB Trust, and dating back to the date of your
inception, including, but not limited to, docwnents verifying GWB Trust's existence,
letters, emails, bank records, correspondence, and accountings.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 21: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Beverly Miller mvolving Pentex.
RESPONSE: Intervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to these
objections, no such documents exist.
REQUEST FOR PRODUCTION NO. 22: Produce all docwnents upon which you base
the claims that you are the "real party in interest in this suit," including, but not limited
to, correspondence, contracts, agreements, assignments of interest, and transfers.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page5
468
RESPONSE: Intervenor objects as overly broad and invade the work product
exemption from discovery and the attorney/client privilege. Whether a document
relates to a legal contention made in the pleadings is plaiilly a determination made
by legal counsel, or at best, a determination made by and between counsel and
client. Absent a rule to the contrary, these determinations are protected
information. TEX.R. CN.P. 197.1 allows ~'contention" interrogatories: "An
interro~atory may inquire whether a party makes specific legal or factual
contentions . . .. (emphasis added). Thus, for interrogatories, by rule there can be
no objection that contention interrogatories invade the attorney/client or work
product exemption. There is no such corresponding rule for requests for
production. Subject to this objection, see Plaintiff/Intervenor 000040-000049.
REQUEST FOR PRODUCTION NO. 23: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Beverly Miller concerning GBU Trust.
RESPONSE: Intervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to these
objections, no such documents exist.
REQUEST FOR PRODUCTION NO. 24: Produce any communications dating back to
the date of your inception, including letters, tape recordings, or emails, that you have had
with Beverly Miller concerning GWB Trust.
RESPONSE: Intervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to these
objections, no such documents exist.
REQUEST FOR PRODUCTION NO. 25: Produce any communications dating back to
the date of your inceP.tion, including letters, tape recordings, or emails, that you have
had with Beverly Miller concerning Albert.
RESPONSE: Intervenor objects to any such documents created after the
antici.Pation of litigation ana/or protected pursuant to the "joint defense
doctrme" 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, no such documents exist.
REQUEST FOR PRODUCTION NO. 26: Produce all documents and
communications dating back to the date of your inception, including letters, tape
recordings, or emails, that you have had with Rickey Brantley concerning the
Estate's distributions to Herrs and the calculations of the Heirs' attorneys' fees.
RESPONSE: No such documents exist.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page 6
469
REQUEST FOR PRODUCTION NO. 27: Produce all documents and
communications dating back to the date of your inception, including letters, tape
recordin~s, 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: No such documents exist.
REQUEST FOR PRODUCTION NO. 28: Produce any communication dating back
to the date of your inception, 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, Pentex, or the Estate as it relates to
distributions to GWB Trust.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 29: Produce any communication dating back
to the date of your inception, including letters, ta~e recordings, or emails, that you
have had with any representative of Trio Consultmg and Management, LLC,
concerning you yourself, Albert, GWB Trust, Pentex Trust, GBU Trust, or the
Estate as it relates to distributions to GWB Trust.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 30: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you
have had with any representative of Devon Energy concerning you yourself, Albert,
GWB Trust, Pentex Trust, Pentex, or the Estate as it relates to distributions to GWB
Trust.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 31: Produce all documentation dating back to
the date of your inception, which you have concerning Renhaw, Inc., including the
transfer of rights of the CSL to Pentex, letters, emails, tape recordings, and any
other records involving Renhaw, Inc.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 32: Produce all documentation dating back to
May 1, 2008, which is in your possession relating to the Estate's calculations of the
Heirs' attorneys' fees and the method by which the attorneys' fees were distributed.
RESPONSE: No such documents exist except as may be indetified in
response to Request for Production number 2.
REQUEST FOR PRODUCTION NO. 32: Produce all documentation dating back to
May 1, 2008, which is in your possession relating to GWB Trust.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page7
470
RESPONSE: No such documents exist except as may be indetified in
response to Request for Production number 2.
REQUEST FOR PRODUCTION NO. 33: Produce all documentation dating back to
May 1, 2008, which is in your possession relating to Pentex.
RESPONSE: Objection. This request is overly broad. Subject to this
objection, see the documents produced in response to Request for Production
2.
REQUEST FOR PRODUCTION NO. 34: Produce all documentation dating back to
September 1, 2005, which is in your possession relating to the CSL.
RESPONSE: The Intervenor has a copy of the CSL.
REQUEST FOR PRODUCTION NO. 35: Produce all documentation dating back to
May I, 2008, which is in your possession relating to the FSA.
RESPONSE: The Intervenor has a copy of what is believed to be the FSA.
REQUEST FOR PRODUCTION NO. 36: Produce all documentation dating back to
May I, 2008, which is in your possession relating to Pentex Foundation.
RESPONSE: Objection. This request is overly broad. Subject to this
objection, see the documents produced in response to Request for Production
2.
REQUEST FOR PRODUCTION NO. 37: Produce all contracts with the gas
companies with whom you do business and in whose contracts with you in which
Ken allegedly tortuously interfered, as claimed in your Petition in Intervention.
RESPONSE: Intervenor is searching for any responsive documents and will
supplement if they become available.
REQUEST FOR PRODUCTION NO. 38: Produce all evidence, including
calculations, records, accountings, books, and other documents upon which you
base your claim that the Estate deducted contingent attorneys' fees owing by
Defendants prior to making distributions to GWB 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
I45 (I989). Additionally, this invades the work product exemption and
attorney cfient privilege, as the determination of evidence is one made by
counsel in consultation with the client.
REQUEST FOR PRODUCTION NO. 39: Produce all evidence, including
calculations, records, accountin~s, books, and other documents upon which you base
your claim that Candy and Ken mdividually are responsible for tlie distributiOns to
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 8
471
Beneficiaries by GWB 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). Additionally, this invades the work product exemption and
attorney cfient privilege, as the determination of evidence is one made by
counsel in consultation with the client.
REQUEST FOR PRODUCTION NO. 40: Produce all documents that you have in
your possession related to the Estate's distributions to GWB Trust as related to
royaltiesirom oifandgrufcothpanies. - - - -
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 41: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you
have had with Howard Kirk concerning GBU Trust.
RESPONSE: Intervenor objects to any such documents created after the
anticipation of litigation ana/or protected pursuant to the "joint defense
doctrme" 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, no such documents exist.
REQUEST FOR PRODUCTION NO. 42: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you
have had with Howard Kirk concerning Pentex.
RESPONSE: Intervenor objects to any such documents created after the
anticipation of litigation anO/or protected pursuant to the "joint defense
doctnne" 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, no such documents exist.
REQUEST FOR PRODUCTION NO. 43: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you
have had with Howard Kirk concerning this lawsuit.
RESPONSE: Intervenor objects to any such documents created after the
anticipation of litigation and/or protected pursuant to the "joint defense
doctnne" 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 PRODUCTION NO. 44: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you
have had with Beverly Miller or Sharron Cox concerning this lawsuit.
RESPONSE: Intervenor objects to any such documents created after the
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page9
472
anticipation of litigation and/or protected pursuant to the "joint defense
doctrme" 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, no such documents exist.
REQUEST FOR PRODUCTION NO. 45: Produce any communication dating back
to the date of your inception, including letters, tape recordings, or emails, that you
have had with Howard Kirk concerning Pentex Trust.
RESPONSE: Intervenor objects to any such documents created after the
anticipation of litigation and/or protected pursuanttcrthe ']oint 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 46: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have
had with Howard Kirk concerning the Estate as it concerns its distributions to GWB
Trust or to the Heirs.
RESPONSE: Intervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 47: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have
had with Beverly Miller or Sharron Cox concerning Pentex Trust.
RESPONSE: Intervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 48: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have
had with Danny Unger concerning Pentex.
RESPONSE: Intervenor objects to any such documents created after the
anticipation oflitigation 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist except as may be indetined in response to
Request for Production number 2.
REQUEST FOR PRODUCTION NO. 49: Produce any communication dating back to
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DlSCOVERY FROM KENNETH GIBBS Page 10
Exhibit
473 Page I 0 of
the date of your inception, including letters, tape recordings, or emails, that you have
had with Beverly Miller or Sharron Cox concerning distributions from the Estate.
RESPONSE: Intervenor objects to any such documents created after the
anticipation of litigation and/or protected pursuant to the ')oint 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.-Dafias 1989, orig. proceedfug). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 50: Produce any communication dating back to
· the date of your inception; including .letters, tape recordings, or emails, that you have
had with Danny Unger concerning distributions from the Estate.
RESPONSE: Intervenor objects to any such documents created after the
anticipation oflitigation 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 51: Produce any communication dating back to
the date of your inception, including letters, tape recordings, or emails, that you have
had with Howard Kirk concerning distributions from the Estate.
RESPONSE: Intervenor objects to any such docwnents created 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 this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 52: Produce any communication dating back to
May 1, 2008, imluding letters, tape recordings, or emails, that you have had with Darmy
Unger concerning attorney fee distributions from the Estate.
RESPONSE: Intervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 53: Produce any communication datine; back to
May 1, 2008, including letters, tape recordings, or emails, that you have had With Albert
concerning attorney fee distributions from the Estate.
RESPONSE: Intervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page ll
474
REQUEST FOR PRODUCTION NO. 54: Produce an¥. communication dating back to
May 1, 2008, including letters, "tape recordings, or ematls, that you have had with
Howard Kirk concerning attorney fee distributions from the Estate.
RESPONSE: Intervenor objects to any such documents created 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such docwnents exist.
REQUEST FOR PRODUCTION NO. 55: Produce anr. communication dating back to
May 1, 2008, including letters, tape recordings, or ematls, that you have had with Ken
concerning attorney fee distributions from the Estate.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 56: Produce any communication dating back to
May 1, 2008, including letters, tape recordings, or emails, that you have had with Candy
concerning attorney fee distributions from the Estate.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 57: Produce anr. communication dating back to
May 1, 2008, including letters, tape recordings, or emruls, that you have had with
Beverly Miller or Sharron Cox concerning attorney fee distributions from the Estate.
RESPONSE: Intervenor objects to any such documents created after the ·
anticipation oflitigation and/or protected pursuant to the "joint defense doctrine"
recognized in TEX. R. Evrn. 503(b)( 1) and such cases as Ryals v. Canales, 767
S.W.2d 226, 228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 58: Produce any communication dating back to
May 1, 2008, including letters, tape recordings, or emails, that you have had with
Beverly Miller or Sharron Cox concerning the distribution of GWB Trust assets.
RESPONSE: Intervenor objects to any such documents created 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.-Dafias 1989, orig. proceeding). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 59: Produce any communication dating back to
May 1, 2008, in~luding letters, tape recordings, or emails, that Pentex has had with Beverly
Miller or Sharron Cox concerning the distribution of GWB Trust assets.
RESPONSE: Intervenor objects to any such documents created after the
anticipation of litigation and/or protected pursuant to the ')oint defense doctrine"
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page 12
475
recognized in TEX. R. EVID. 503(b)(1) and such cases as Ryals v. Canales, 767
S.W.2d 226,228 (Tex. App.-Daflas 1989, orig. proceeding). Subject to this
objection, no such documents exist.
REQUEST FOR PRODUCTION NO. 60: Produce an:r. communication dating back to
May 1, 2008, including letters, tape recordings, or emruls, that you have had with the
Estate or its representatives concerning the FSA.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 61: Produce any communication dating back to
May 1, 2008, including letters, tape recordings, or emails, that you have had with
the Estate or its representatives concerning the CSL.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 62: Produce any communication dating back to
May 1, 2008, including letters, tape recordings, or emails, relevant to transfers of
GWB Trust interest in which Albert engaged, either on his own behalf, or on behalf of
Pentex; Pentex Trust; Renhaw, Inc.; GBU Trust; or any other entity in which he was an
interested party.
RESPONSE: Intervenor objects to any such documents created after the
anticipation of litigation and/or protected pursuant to the ')oint 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.-Daflas 1989, orig.J?roceeding). Subject to this
objection, see the response to Request for Production number 2.
REQUEST FOR PRODUCTION NO. 63: Produce all documentation in your
possession dating back to May 1, 2008, regarding the FSA.
RESPONSE: See the response to request for production 35.
REQUEST FOR PRODUCTION NO. 64: Produce a copy of any payments you
made to the lnttmial Revenue Service or Department of Treasury.
RESPONSE: Intervenor objects to this request as outside the scope of legitimate
discovery, invasive of privacy, and overly broad.
REQUEST FOR PRODUCTION NO. 65: Produce all documents in your possession
dating back to May 1, 2008, regarding the CSL.
RESPONSE: See the response to Request for Production number 34.
REQUEST FOR PRODUCTION NO. 66: Produce all communication and documents
you have had with Ken regarding distribution of Estate funds for attorney fees on behalf
of Ken, Candy, or Howard Kirk.
JOSHUA UNGER. TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 13
476
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 67: Produce all communication and documents
you have had with Rickey Brantley or Scott Pelley regarding distribution ofEstate funds
for attorney fees on behalf of Ken, Candy, or Howard Kirk.
RESPONSE: No such documents exist.
REQUEST FOR PRODUCTION NO. 68: Produce all communication and documents
you have had with Beverly Miller or her attorney Sharron Cox with regards to this
lawsuit or the Tarrant case.
RESPONSE: Intervenor objects to any such documents created after the
anticipation oflitigation and/or protected pursuant to the ')oint 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.-Daflas 1989, orig. proceeding). Subject to this
objection, no such docwnents exist.
REQUEST FOR PRODUCTION NO. 69: Produce all documentation concerning
transfers and distributions to/from GBU Trust assets dating from its inception to the
present, including assignments of interest and distributions to all beneficiaries and other
parties of monies, real property, and personal properties.
RESPONSE: Intervenor objects as this is outside the scope oflegitimate
discovery, and submitted solely for the purpose of invasion of privacy and
harassment.
REQUEST FOR PRODUCTION NO. 70: Produce an inventory of all assets held by
GBU Trust, dating back to its inception.
RESPONSE: Intervenor objects as this is outside the scope of le~itimate
discovery, and submitted solely for the purpose of invasion ofpnvacy and
harassment.
REQUEST FOR PRODUCTION NO. 71: Produce documentation concerning
membership interest in GBU Trust.
RESPONSE: Intervenor objects as this is outside the scope of legitimate
discovery, and submitted solely for the purpose of invasion of privacy and
harassment.
REQUEST FOR PRODUCTION NO. 72: Produce documentation concerning any
and all monies you have received from the oil and gas companies.
RESPONSE: Intervenor objects as this is outside the scope oflegitimate
discovery, and submitted solely for the purpose of invasion of privacy and
harassment.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 14
477 Page
REQUEST FOR PRODUCTION NO. 73: Produce documentation or
communication in which Albert transferred any and all interest in the CSL to
Renshaw, Pentex, Pentex Trust, and GBU Trust.
RESPONSE: Except as was produced in response to Request for Production
number 2, no such documents exist within the possession of Intervenor.
REQUEST FOR PRODUCTION NO. 74: Produce documentation or
communication in which Albert transferred any and all interest in the FSA to
Renshaw, Pentex, Pentex Trust, and GBU Trust.
RESPONSE: Except as was produced in response to Request for Production
number 2, no such documents exist within tlie possession of Intervenor.
REQUEST FOR PRODUCTION NO. 75: Produce documentation or
communication in which Renshaw transferred any and all interest in the CSL to
Albert, Pentex, Pentex Trust, and GBU Trust.
RESPONSE: Except as was produced in response to Request for Production
number 2, no such documents exist within the possession of Intervenor.
REQUEST FOR PRODUCTION NO. 76: Produce documentation or
communication in which Renshaw transferred any and all interest in the FSA to
Albert, Pentex, Pentex Trust, and GBU Trust.
RESPONSE: Except as was produced in response to Request for Production
number 2, no such documents exist within the possession of Intervenor.
REQUEST FOR PRODUCTION NO. 77: Produce documentation or
communication in which Pentex transferred any and all interest in the CSL to
Albert, Renshaw, Pentex Trust, and GBU Trust.
RESPONSE: Except as was produced in response to Request for Production
number 2, no such documents exist within the possession of Intervenor.
REQUEST FOR PRODUCTION NO. 78: Produce documentation or
communication in which Pentex transferred any and all interest in the FSA to
Albert, Renshaw, Pentex Trust, and GBU Trust.
RESPONSE: Except as was produced in response to Request for Production
number 2, no such documents exist within the possession of Intervenor.
REQUEST FOR PRODUCTION NO. 79: Produce documentation or
communication in which GBU Trust transferred any and all interest in the CSL to
anyone or any entity.
RESPONSE: No such documents exist.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page IS
478 Page
REQUEST FOR PRODUCTION NO. 80: Produce documentation or
communication in which GBU Trust transferred any and all interest in the FSA to
anyone or any entity.
RESPONSE: No such documents exist.
INTERROGATORY NO. 1: Fully detail and explain your claim that you are the
"real party in interest in this suit," rather than Pentex, the Original Plaintiff,
including how you arrived at the status of being the "real party in interest in this
suit" and explam in detail your reasoning for not being the Original Plaintiff in this
suit, while Pentex, whom you deny is the "real party in interest," initiated this suit.
ANSWER: Intervenor objects to this interrogatory as outside the scope of
permissible discovery and overly broad. Interrogatories may be used to
ascertain basic legal and factual claims and defenses, but may not be used to
force a party to marshal evidence." See, Rule 197 of the Texas Rules of Civil
Procedure, at comment 1. Subject to this objection, Intervenor answers as
follows:
GBU Trust accepted the contribution from Pentex Foundation as one of the
settlors to GBU Trust. As such, GBU Trust has full ownership at this point of
time of the interests Pentex Foundation did hold in the "Contract for Sale of
Land, Mineral Rights and Royalties, and all other Assets or Monies Received
from the Estate otBert Hughes Gibbs, Kathryn G. Gibbs, and/or the Mary L.
Houseworth Trust(s)", referred to herein throughout as "Contract". The fact .
that GBU Trust should have been a co-plaintiflin this suit from the beginning
was an oversight by the original attorney, John Skotnik, which was later
corrected.
INTERROGATORY NO.2: Explain your rationale for entering a lawsuit as
Intervenor, when you believe that you are not bound by the agreement previously
established by the parties of GWB Trust, the CSL, and the FSA, agreements whtch
form the basis for your intervention, including your relationship to each of the
parties you deem to be interested J?arties to the matter at hand, mcluding explaining
why you believe yourself to have mterest in the Estate, and why you believe that
attorneys' fees belonging to Defendants were being deducted from your alleged
share of the Estate.
ANSWER: Intervenor 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 ofthe Texas Rules of Civil
Procedure, at comment 1. Intervenor further objects that this interrogatory
states incorrect and false premises, and as such 1s incapable of being
answered. The trustee of the GBU Trust has never stated that it was not
bound by the Contract or the FSA.
INTERROGATORY NO.3: Provide calculations upon which you base your claim
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 16
479
that you are owed in excess of$1 million because of payments due you which were
reduced by the amount of attorneys' fees, when GWB Trust was not aware of your
alleged existence until November or December 2013 and had never incurred such
debt to you.
ANSWER: The Barcroft share of the Contract was 30% of the shares of the
inheritance received by Ken, candy and Howard. Ken, Candy and Howard
collectively received 75% of the entire estate; therefore, Pentex Foundation
owned 22.5% of the entire estate (75% X 30% = 22.5%). 2.46% of the
Pentex share was taken out at the estate level to pay John Skotnik the fees
Barcroft owed him, leaving 20.04% being owned by Pentex Foundation. For
the first 5 years of distribution, Pentex Foundation has only been receiving
10.02%. That means that Pentex Foundation should have received double
what it was paid by GWB Trust. That is over a million dollars. GBU Trust
now owns the rights to everything that Pentex Foundation previously owned,
including the payment of underpayment of distributions. The only attorney
fees that were supposed to reduce the Barcroft share of the Contract are those
paid to John Skotnik. See also the computation of damages submitted as
Plaintiff/Intervenor 00255-256.
INTERROGATORY NO. 4: Explain why you claim to be entitled to 30% of all
proceeds arising from any lawsmt involving Defendants, under the terms of the
Contract, when you deny being held to the terms of the Contract; and explain why
you request the Court to declare the Contract valid and enforceable if in fact, you
cannot be bound by the tenns of the Contract; and explain your reasoning for filing
the Plaintiffs and Intervener's Motion for Partial Summary Judgment in conjunction
with Pentex, revealing a lack of clarity as to which party actually holds interest in
GWB Trust.
ANSWER: Intervenor 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. Intervenor further objects that this interrogatory states incorrect,
argumentative, and false premises, and as such is incapable of being answered. The
trustee of the GBU Trust has never stated that it was not bound by the Contract or
the FSA.
INTERROGATORY NO.5: Explain your statement that you and Defendants have
a long history, when Candy and Ken deny knowing of your existence until late
2013; and
ANSWER: (Assuming that there should be a period after 2013), the "long
history" is with the predecessors, Albert Barcroft and Pentex Foundation; the
position that Intervenor now holds.
INTERROGATORY NO.6: Explain the reasoning behind aligning with Pentex in
its claim against Defendants while you yourself insist that you are entitled to the
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 17
EXh I'b't
I
A_. 'f~;iC
/,A~-~~
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480 Page_}lof (~
exact same assets that Pentex claims from Defendants.
ANSWER: GBU Trust owns the Pentex Foundation share. Pentex
Foundation is simyly the settlor of that share, but it does have an interest in
the proper collection of that share. The amount is owed only to GBU Trust.
REQUEST FOR ADMISSION NO. 1: Admit or deny that Howard Kirk is a party
holdmg interest in you.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR AD:rvfiSSION NO. 2: Admit or Deny that Howard Kirk has paid
money to Scott Smith or GBU Trust on your behalf in this lawsuit.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR AD:rvfiSSION NO.3: Admit or Deny that you were formed in part
because discord developed among the members of GWB Trust in 2013.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Admit.
REQUEST FOR ADMISSION NO. 4: Admit or Deny that you distribute benefits to
Albert.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 5: Admit or Deny that you distribute benefits to
Howard Kirk or his immediate family members.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 6: Admit or Deny that you distribute benefits to
Danny Unger.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 7: Admit or Deny that at the time of your
formation, there was at least one (1) Federal Tax Lien filed against Pentex and that a
transfer of GWB Trust interest from Pentex to you might ultimately allow the flow
of GWB Trust funds to Albert to continue without substantial interruption.
RESPONSE: The Intervenor objects to this request as outside the scope of
JOSHUA UNGilR, TRUSTEil'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 18
Exhibit
481 Page ) 7J of
legitimate discovery, and multifarious. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 8: Admit or Deny that on or around March 17,
2014, Danny Unger called Julie Walker at JW Operating Company and professed to
Julie Walker that Danny Unger was the Trustee of GBU Trust.
RESPONSE: Deny that Danny Unger was ever trustee. The Intervenor
cannot admit or deny the balance as beyond GBU Trust knowledge.
REQUEST FOR ADMISSION NO. 9: Admit or Deny that you are an alter ego for
Albert.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 10: Admit or Deny that Albert claimed to be,
and served, as your Legal Representative in November and December 2013.
RESPONSE: Deny that Albert was ever our representative, cannot admit or
deny the balance as beyond GBU Trust know ledge.
REQUEST FOR ADMISSION NO. 11: Admit or Deny that your suit against
Howard Kirk, Heir to the Estate, is a sham, designed to legitimize allegations
against Ken individually, as an Heir to the Estate.
RESPONSE: Intervenor objects to this request as argumentative. Subject to
this objection: Denied.
REQUEST FOR ADMISSION NO. 12: Admit or Deny that GWB Trust is a
legitimate entity and has distributed to you assets original to the Estate.
RESPONSE: Admit that GWB Trust transferred mineral rights to GBU Trust
that were owned by the estate at one time in the distant past, cannot admit or
deny as to the legitimacy ofGWB Trust.
REQUEST FOR ADMISSION NO. 13: Admit or Deny that you were entitled to
demand 57.19% ofGWB Trust assets.
RESPONSE: Deny that GBU trust demanded 57.19% of the GWB Trust
assets.
REQUEST FOR ADMISSION NO. 14: Admit or Deny that you are a party to the
FSA.
RESPONSE: Admit that GBU Trust holds the interests of a party to the
estate.
REQUEST FOR ADMISSION NO. 15: Admit or Deny that you intervened in this
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page 19
482
suit as the "real party in interest" because Pentex's suit against Defendants had no
legitimate basis m fact or law.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 16: Admit or Deny that you were established
after Candy and Ken demanded an accounting ofGWB Trust.
RESPONSE: Admit to the time frame, deny that there was any relevance to
the coincidence.
REQUEST FOR ADMISSION NO. 17: Admit or Deny that, according to the GWB
Trust document, you hold no interest in GWB Trust.
RESPONSE: The Intervenor has made reasonable inquiry and the
information known to him or easily obtainable to him is msufficient with
which to either admit or deny this request. ·
REQUEST FOR ADMISSION NO. 18: Admit or Deny that Albert drafted the
GBU Trust agreement.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 19: Admit or Deny that the GWB Trust owns
35.04% ofthe assets that are still left in the estate, including real estate.
RESPONSE: Objection. This is a purely legal question which needs to be
answered by a court. Subject to this objection, the Intervenor has made
reasonable mquiry and the information known to him or easily obtainable to
him is insufficient with which to either admit or deny this request.
REQUEST FOR ADMISSION NO. 20: Admit or Deny that you have received
assets in excess of the 57.19% interest in GWB Trust which Beverly Miller
assigned to you.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 21: Admit or Deny that the Estate was
responsible for calculating Defendants' attorneys' fees prior to distributions of
Estate assets.
RESPONSE: the Intervenor has made reasonable inquiry and the
information known to him or easily obtainable to him is insufficient with
which to either admit or deny this request.
REQUEST FOR ADMISSION NO. 22: Admit or Deny that because Candy and
Ken individually were, and are, not responsible for the distributions from the Estate
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS P&ge20
483
to GWB Trust, Candy and Ken individually are not culpable parties in this case.
RESPONSE: Objection. This request assumes legal conclusions which have
not been established and is multifarious.
REQUEST FOR ADMISSION NO. 23: Admit or Deny that your Beneficiaries
profit, or have profited, from GWB Trust.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 24: Admit or Deny that you have a right to
specific perfonnance of the CSL and FSA, even though you allege that you are not
bound by the CSL.
RESPONSE: The Intervenor objects to this request as multifarious and
asserts facts as true which are not so. The GBU Trust ever alleged that it was
not bound by the CSL.
REQUEST FOR ADMISSION NO. 24: Admit or Deny that the in or around
November 2013, you, or Albert acting on your or Pentex's behalf, demanded the
GWB Trust Trustee, Beverly Miller, to transfer 57.19% of the existing GVv'B Trust
assets into a newly created trust, the GBU Trust.
RESPONSE: Objection to this request as multifarious. Admit that Pentex
Foundation demanded a transfer of its contribution to GWB Trust which
equaled 57.19% of the assets ofGWB Trust.
REQUEST FOR ADMISSION NO. 25: Admit or Deny that you, or Albert acting
on your behalf, infonned 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: Objection to this request as multifarious. Deny that GBU Trust
infonned Beverly Miller of anything, cannot admit or deny what Albert did
or did not do.
REQUEST FOR ADMISSION NO. 26: Admit or Deny that upon your instructions, or
upon instructions from Albert acting on your behalf, Beverly Miller transferred 57.19%
interest from GWB Trust to GBU Trust.
RESPONSE: Objection to this request as multifarious. Deny GBU Trust gave
any instructions, deny Albert acted on behalf of GBU trust
REQUEST FOR ADMISSION NO. 27: Admit or Deny that you breached the FSA.
RESPONSE: Denied.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 21
Exhibit A-~-Q'f,
lrJt,;,"<>./'
. ,,
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484 Page ?-.) of '
REQUEST FOR ADMISSION NO. 28:. Admit or Deny that rour lawsuit against
Candy and Ken was filed in part as revenge because of therr inquiries into the
administration of GWB Trust.
RESPONSE: Intervenor objects to this interrogatory as argumentative. Subject
to this objection: Denied.
REQUEST FOR ADMISSION NO. 29: Admit or Deny that any assignee of Albert's
interest in GWB Trust would be entitled to only the amount of interest which he
himself held at the time of the assignment.
RESPONSE: Objection. This is a purely legal question which needs to be
answered by a court.
REQUEST FOR ADMISSION NO. 30: Admit or Deny that the Estate is
responsible for the flow of cash to GWB Trust, which m turn flows to the
Beneficiaries.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 31: Admit or Deny_that Candy does not have
the authority to control the Estate's distributions to the Heirs.
RESPONSE: Intervenor has made reasonable ing_uiry and the information
known to him or easily obtainable to him is insufficient with which to
either admit or deny this request.
REQUEST FOR ADMISSION NO. 33: Admit or Deny that Howard Kirk
cooperated with your intervention in this suit.
~SPpNSE: Opjection. This request is ambiguous. Subject to this
obJection: Derued.
REQUEST FOR ADMISSION NO. 34: Admit or Deny that that y:ou consulted with
Danny Unger concerning_the Estate's distributions to tlie Heirs ana the Heirs'
obligations toward legal-tees and that _you obtained information from Danny Unger
which thus should be confidential, as Danny Unger performed accounting services to
GWB Trust.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION N0.35: Admit or Deny that Albert, Beverly Miller,
Howard Kirk, Danny Ung_e!:t, and yourself worked together to transfer 57.1 Y% of
GWB Trust assets to GB (J 1 rust.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GffiBS Page 22
485 Page
~SPPNSE: Opjection. This request is ambiguous. Subject to this
obJectiOn: Demed.
REQUEST FOR ADMISSION NO. 36: Admit or Deny that you worked together
witli Pat111Y Unger to remove 57.19% of the assets from the GWB Trust without
authonzat10n.
RI}SPPNSE: OJ:>jection. This request is ambiguous. Subject to this
obJectiOn: Demed.
REQUEST FOR ADMISSION NO. 37: Admit or Deny that you worked together
with Beverly Miller to remove 57.19% of the assets from the GWB Trust wtlliout
authorization.
~SP{)NSE: Opjection. This request is ambiguous. Subject to this
obJectiOn: Demed.
REQUEST FOR ADMISSI ON NO. 38: Admit or Deny that you are paying, or
have paid, Beverly Miller to cooperate with your instructions concerning GWB
Trust.
RESPONSE: Denied.
REQUEST FOR ADMISSI ON NO. 39: Admit or Deny_!hat Candy and Ken are
not responsible for any tortious interference between GWB Trust and yourself, as
neither Candy nor Ken ever interfered with the aP.prQ.millte distributions of
Albert's approximately one-quarter (114) interest in G\¥.8 Trust.
~SPPNSE: Qbiection. This request is multifarious. Subject to this
obJectlOn: DemeO..
REQUEST FOR ADMISSION NO. 40: Admit or Deny that, according to the
FS.A, Albert is responsible for paying his own attorneys' fees.
RESPONSE: Objection. This request assumes P.Ure legal conclusions
which have not oeen established and would neea to be aetermined by a
court.
REQUEST FOR ADMISSION NO. 41: Admit or Deny that that you have a true
and correct copy of the FSA.
RESPONSE: Admit that Intervenor thinks he does.
R_EOUEST FOR ADMISSION NO. 42: Admit or Deny that CSL is not a legally
bmding document.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 43: Admit or Deny that the Estate's
calculations concerning the percentages of the Heirs' interest in the Estate impact
GWB Trust.
RESPONSE: Intervenor has made reasonable inq:giry and the information
known to him or easily obtainable to him is insufticient with which to either
JOSHUA UNGER. TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIDBS Page 23
486
admit or deny this request.
~QUESTFORADMISSIONN0.44: Admit or Deny that the Estate is being
mismanaged.
RESPONSE: Intervenor has made reasonable inq!_li:ty and the information
known to him or easily obtainable to him is insu11icient with which to either
admit or deny this request.
REQUEST FOR ADMISSION NO. 45. Admit or Deny that Howard Kirk's wife is a
beneficiary interest in GBU Trust.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REO\]E~T FOR ADMISSION NO. 46: Admit or Deny that the FSA is a legitimate
and bmdmg contract.
RESPONSE: Admit
REQUEST FOR ADMISSION NO. 47: Admit or Deny that GWB Trust document
not fhe CSL or the FSA, establishes the exact percentage of interest which was held
by Pentex, and which was allegedly reassigned to you.
RESPONSE: Objection. This request assumes that there is a valid GWB
Trust document, which is contested. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 48: Admit or Deny that you drafted, or
instructed to be drafted, documents for Howard Kirk to file that you hoped would
benefit you in this Cause.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 49: Admit or Deny that Albert assigned John
Skotnik a percentage of his interest as detailed in the FSA.
RESPONSE: Intervenor has made reasonable inquiry and the information
known to him or easily obtainable to him is insufficient with which to either
admit or deny this request.
REQUEST FOR ADMISSION NO.SO: Admit or Deny that it was Albert that
provided the calculations for the percentages due Ken, Candy, and Howard Kirk
from the Estate and that Albert provided the calculations to the attorneys of the
Estate.
RESPONSE: Intervenor has made reasonable inquiry and the information
known to him or easily obtainable to him is insufficient with which to either
admit or deny this request.
REQUEST FOR ADMISSION NO.Sl: Admit or Deny that you, along with Howard
Kirk, Danny Unger, Joshua Unger, Albert, and Beverly Miller, all worked together
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page24
487
with the specific intent to deprive GWB Trust of its assets.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 52: Admit or Deny that by you and Howard
Kirk Gibbs cooperated and worked with each other to secure assets from GWB Trust
to which you were not entitled.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 53: Admit or Deny that your purpose is to
receive Albert's distributions from the Estate.
RESPONSE: Admit that one of our purposes is to receive the share of the
estate originally owned by Barcroft under the Contract and to have justice
served.
REQUEST FOR ADMISSION NO. 54: Admit or Deny that on December 18, 2013,
signing in the capacity of "Legal Representative" ofPentex, Albert noticed the
Estate, including Ken as indepep.dent Administrator of the Estate and the Estate's (3)
three attorneys that 30% ofGWB's Trust assets must be distributed and made
payable to the GBU Trust.
RESPONSE: Intervenor has made reasonable inquiry and the information
known to him or easily obtainable to him is insufficient with which to either
admit or deny this request.
REQUEST FOR ADMISSION NO. 55: Admit or Deny that Albert is your
Legal Representative.
RESPONSE: Denied.
EQUEST FOR ADMISSION N0. 56: Admit or Deny that you function as a shell
entity for Albert.
RESPONSE: This request is objectionable as it is argumentative. Subject to
this request: Denied.
REQUEST FOR ADMISSION NO. 57: Admit or Deny that you, or your
representative, assisted Howard Kirk in his Answer and his Admission responses in
thts case.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 58: Admit or Deny that Admit your inclusion
of Howard Kirk as a Defendant in this Cause is a smoke screen designed to deflect
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 25
Exhibit
488 Page d 5 of-='+--"
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, and
outside the scope of legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 59: Admit or Deny that, under the terms of the
FSA, a party who disputes the terms can lose his or her interest in the Estate.
RESPONSE: This request is objectionable, as the terms of the FSA speak for
themselves. Subject to this objection, the Intervenor denies that a dispute to
the terms is a cause for loss of interest.
REQUEST FOR ADMISSION NO. 60: Admit or Deny that you worked with
Joshua Unger or Danny Unger to remove 57.19% of the assets from GWB Trust
without authorization.
RESPONSE: This request does not make sense, in that Joshua Unger is
answering these admissions. Denied.
REQUEST FOR ADMISSION NO. 61: Admit or Deny that Albert is not an
attorney.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Admit.
REQUEST FOR ADMISSION NO. 62: Admit or Deny that Albert is a member of
GBUTrust.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 63: Admit or Deny that Danny Unger is a
member of GBU Trust.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 64: Admit or Deny that Howard Kirk is a
member of GBU Trust.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 65: Admit or Deny that Albert drafted the
CSL.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETI-1 GIBBS Page26
489
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 66: Admit or Deny that the name "Albert
Barcroft" does not appear on Albert's birth certificate.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Intervenor has made reasonable inquiry and the
information known to him or easily obtainable to him is msufficient with
which to either admit or deny this request.
REQUEST FOR ADMISSION NO. 67: Admit or Deny that Joshua Unger has a
crimmal history.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 68: Admit or Deny that Danny Unger is a tax
protestor.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. It is also argumentative, vague and ambiguous.
REQUEST FOR ADMISSION NO. 69: Admit or Deny that Albert is a tax
protester.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. It is also argumentative, vague and ambiguous.
REQUEST FOR ADMISSION NO. 70: Admit or Deny that GBU Trust was formed
to aid Albert's avoidance of having to pay federal taxes in the United States.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. It is also argumentative, vague and ambiguous. Subject
to this objection: Denied.
REQUEST FOR ADMISSION NO. 71: Admit or Deny that Albert was Legal
Representative for Pentex at the time this lawsuit was initiated, and that he
consulted with Scott Smith regarding this lawsuit, but that he deliberately
avoided having his name appear in this lawsuit.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. It is also argumentative, vague and ambiguous.
REQUEST FOR ADMISSION NO. 72: Admit or Deny that Danny Unger was
the initial Trustee of GBU Trust.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KEN:~E"IH GffiBS Page 27
Exhibit
490 Page 2 :1 of
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Subject to this objection: Denied.
REQUEST FOR ADMISSION NO. 73: Admit or Deny that Ken as independent
Administrator of the Estate is the person who determined how attorney fees for
Ken, Candy, and Howard Kirk were distributed.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. Intervenor has made reasonable inquiry and the
information known to him or easily obtainable to him is msufficient with
which to either admit or deny this request.
REQUEST FOR ADMISSION NO. 74: Admit or Deny that Judge Ferchill during
the July 31, 2014, hearing stated that only Ken as independent administrator had
the authority to determine how attorney fees for Ken, Candy, and Howard Kirk
were distributed.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimat~ discovery. In addition, even if it was a discoverable fact, a
transcript would be the best evidence of what was said in open court as
opposed to the vagaries of memory.
REQUEST FOR ADMISSION NO. 75: Admit or Deny that Judge Ferchill
during the July 31, 2014, hearing stated that Ken and Candy as individuals
had no authority to determine how attorney fees for Ken, Candy, and Howard
Kirk were distributed.
RESPONSE: The Intervenor objects to this request as outside the scope of
legitimate discovery. In addition, even if it was a discoverable fact, a
transcript would be the best evidence of what was said in open court as
opposed to the vagaries of memory.
REQUEST FOR ADMISSION NO. 76: Admit or Deny that Albert breached the
FSA.
RESPONSE: Intervenor has made reasonable inquiry and the information
known to him or easily obtainable to him is insufficient with which to
either admit or deny this request.
REQUEST FOR ADMISSION NO. 77: Admit or Deny that Howard Kirk
breached the FSA.
RESPONSE: Intervenor has made reasonable inquiry and the information
known to him or easily obtainable to him is insufficient with which to
either admit or deny this request.
REQUEST FOR ADMISSION NO. 77: Admit or Deny that Howard Kirk sent
back Admissions provided from you or Pentex in less than five (5) hours.
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GIBBS Page 28
491 Page ;) ~ of
RESPONSE: The Intervenor objects to this request as multifarious and
outside the scope of legitimate discovery.
REQUEST FOR ADMISSION NO. 78: Admit or Deny that you or your attorney
has consulted with Sharron Cox, the attorney for Beverly Miller.
RESPONSE: Objection. This request is multifarious. It invades the work
product exemption from discovery. It invades the attorney/client privilege.
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).
REQUEST FOR ADMISSION NO. 79: Admit or Deny that Beverly Miller is a
beneficiary of the GBU Trust.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 80: Admit or Deny that Beverly Miller
received some type ofbenefit when she transferred 57.19% interest to you.
RESPONSE: Objection. This request is vague in that it does not specify
from whom she may have a received a benefit, if any. Deny that any
benefit was furnished by GBU Trust.
REQUEST FOR ADMISSION NO. 81: Admit or Deny that Beverly Miller or her
attorney Sharron Cox has provided you with assistance with this lawsuit or the
Tarrant case.
RESPONSE: Objection. This request is multifarious. It invades the work
product exemption from discovery. It invades the attorney/client privilege.
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).
REQUEST FOR ADMISSION NO. 82: Admit or Deny that you have provided
Beverly Miller or her attorney Sharron Cox with assistance in this lawsuit or the
Tarrant case.
RESPONSE: Objection. This request is multifarious. It invades the work
product exemption from discovery. It invades the attorney/client privilege.
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).
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNElH GffiBS Page 29
492
Respectfully submitted,
Scott Smith
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,
by certified mail, return receipt requested number 7009 2250 0000 2311 4187 toChristy L. Lee, Esq., of
Law Offices of Christy Lee, P.C., 177 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'd day
of September, 2014. ~
JOSHUA UNGER, TRUSTEE'S RESPONSE TO DISCOVERY FROM KENNETH GillBS Page 30
493
Unsworn Delcaration Pursuant to
TEX. CIV. PRAC. & REM. CODE § 132.001
My name is Joshua Unger. My date of birth is 3/?o/t'l &'5 . I reside at
Cl.:iiVI 5 ?o..i · .1'.-ii. • I am the trustee
ofthe GBU Friends and As ociates Trust, Intervenor, that I have read the above and
foregoing Answers to Interrogatories and subscribes to the same on behalfofthe GBU
·Friends and .ASsociates·Tru.s.t, Intervenor; 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 ~reparation of these responses; that, consequently, I 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 ~:~-dxJs.ed that Rute 197 ,2(d)(2) does not require that
I swear to interrogatory M.SWers apoutpersol),S wit~ kn~~ledge of relevant facts, trial
witnesses or legal contentions. Since I am not an attorney, I therefore do not swear
to the truth of any interrogatory answers containing information about persons with
knowledge of relevant facts, trial witnesses or legal contentions. I declare under
penalty of perjury_thatthe foregqing1 \Q.str.um~nti~)iue .and corre~t. .
.. .:
9/o I /?..o ry
~.. :
Dated: , 20.14
.. ~- ~ Tr-utee..
1 shua Unger, Tr:ustee_ of the GBU Friends
Md Assoqi~tes Trust, Declarant
t•,: •. '
Exhibit
494 Page ]Lot
·..;"/'/'\ ~
-· ". '
CAUSE NO. CV-14-41665
PENTEX FOUNDATION )
..... C-·'
"'/ (;'.....
•/
:...:: ( /.\:>
...
PLAINTIFF, ) ,......,,;-:: ...___
) 0 ';p(;l 0 '"
vs. ) 336TH JUDICIAL D~Ii?r
) ~
KENNETH VERN GIBBS; AND )
CANDACE GIBBS WALTON; AND )
HOWARD KIRK GIBBS, )
DEFENDANTS. ) FANNIN COUNTY, TEXAS
KEN GIBBS AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
AND INTERNVOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Come now, Defendants Kenneth "Ken" Vern Gibbs and Candace "Candy" Walton,
through their Counsel of Record, Law Offices of Christy Lee, P.C., and, in response to
Plaintiffs and Intervenor's Motion for Partial Summary Judgment, request that the Court deny
the Motion, and would show the Court the following:
I. SUMMARY OF MOTION
1. Although muddily drafted, it appears that the Motion seeks traditional summary
judgment pursuant to Tex. R. Civ. Pro. 166a(b). The Motion did not specify whether a
traditional or a no-evidence summary judgment is sought.
2. Contrary to their mutual assertion, the facts presented in Pentex Foundation
("Pentex") and GBU Friends and Associates Trust's ("GBU Trust") Motion are highly disputed.
3. Although Pentex and GBU Trust are suing Howard Kirk Gibbs, the Motion
excluded Howard Kirk in its mention of the parties supposedly "taking actions" inconsistent
with the Contract for Sale of Land ("the CSL"). No clarifying point was made for this
omission.
KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT CAUSENO. CV-14-41665
PENTEX FOUNDATION V. GIBBS, ET AL. -1-
495
4. In large part, Pentex and GBU Trust based their Motion, including legal
interpretation of various agreements, upon Admissions by Howard Kirk. On receipt of GBU
Trust's Request for Admissions, Howard Kirk responded within fewer than five (5) hours,
evidence of collusion among Plaintiff, Intervener, and Defendant. The preponderance of the
purported facts in the Motion ignored Admissions from Ken and Candy in favor of Admissions
from Howard Kirk, and relied very heavily on Howard Kirk's Admissions concerning his lay
interpretation of provisions in the Family Settlement Agreement ("the FSA"). Pentex and GBU
Trust's Motion ignored all Admissions from Ken and Candy which controverted Admissions
from Howard Kirk.
5. The Motion cited no statutes and no case law upon which Pentex and GBU Trust
based their argument.
6. Since the CSL, there have been subsequent dealings and subsequent agreements,
including the FSA.
7. As Movants for summary judgment, Pentex and GBU Trust bear the burden of
proof of the facts argued.
II. UNDISPUTED FACTS.
8. The number of undisputed facts is small indeed.
9. Albert Barcroft was and is not licensed to practice law.
10. Albert drafted the CSL, with the parties signing on May 10, 2005.
11. The FSA was executed on or about September 5, 2008. See Exhibit A.
12. GWB Family and Friends Trust ("GWB Trust") agreement was executed on
November 7, 2008. See Exhibit B.
KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT
PENTEX FOUNDATION V. GIBBS, ET AL.
496
13. The issue of the CSL's validity was addressed most recently on August 20, 2014,
at a hearing in Tarrant County Probate Court No.2. Cause No. 2005-0000126-2-D, Walton and
Gibbs vs. Miller, et al. As was established at the hearing, the CSL was drafted in 2005 by
Albert, who has portrayed himself repeatedly to multiple parties as the Legal Representative of
Pentex and GBU Trust.
14. Judge Ferchill of the Tarrant County Probate Court No.2 stated:
[Albert] cannot enforce a contract that he participated in. He cannot
get money for - or unjust enrichment for committing what is a
criminal misdemeanor, at least, in Texas. p. 105
[Albert] is practicing law without a license, and he cannot enforce a
contract that brings money into his pocket for violating the law,
period. p. 106
(Emphasis added.)
See Exhibit C. (excerpts ofthe hearing.i
15. Albert was a party to the CSL, as were Ken, Candy, and Howard Kirk Gibbs.
The CSL contained provisions which greatly benefited Albert. Albert advised Ken and Candy
that as he went to law school he was able to draft legal contracts. See Exhibit D.
16. Ken and Candy have raised concerns numerous times over the validity of the
Contract for Sale of Land ("CSL"), including in the Motion to Show Authority, Motion for
Change of Venue, Original Answer, Affirmative Defenses, Original Counterclaim, and Rule 13
Motion for Sanctions, and the subsequent Amended Motion. 2 Ken and Candy observed that
1
Only excerpts of the hearing are provided, as the transcript, with exhibits, is over 200 pages.
2
Although the Original Answer observed that John Skotnik drafted the CSL, Ken and Candy amended the Answer,
stating that Albert drafted the CSL without authority and that there existed a question concerning its validity.
KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT CAUSENO. CV-14-41665
PENTEX FOUNDATION V. GIBBS, ET AL.
497
they were not represented by counsel concerning the CSL. Discovery Requests from Ken to
Pentex and GBU Trust also contained queries about the enforceability of the CSL.
IV. LAW.
17. As a general rule, an agreement simply to enter into negotiations for a contract
later does not create an enforceable contract. Scott v. Ingle Brothers Pacific, Inc., 489 S.W.2d
554 (Tex. 1972).
18. "Unconscionability" has no precise legal definition, and it is to be determined on
a case-by-case basis. In general, "unconscionability" describes a contract that is unfair because
of its overall one-sidedness or the gross one-sidedness of its terms. Arthur's Garage, Inc. v.
Racal-Chubb SEC, Systems, Inc., 997 S.W.2d 803 (Tex. App. 1999).
19. Unconscionable contracts are unenforceable under Texas law. Whether a
contract is unconscionable at the time it is formed is a question of law. Hoover Slovacek LLP v.
Walton, 206 S.W.3d 557, 562 (Tex. 2006).
20. The practice of law includes "preparing or negotiating, in whole or in part, a will,
trust, contract, conveyance, pleading, or other instruction to the extent such preparation or
negotiation is performed or offered explicitly or implicitly to provide legal advice or legal
representation." Tex. HS. Code Ann.§ 81.101.
21. A person practicing law without a license commits a Class A misdemeanor. Tex.
Pen. Code§ 38.123.
22. To prevail on a motion for traditional swnmary judgment, the movant must show
that there are no genuine issues of material fact and that it is entitled to judgment as a matter of
KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT
PENTEX FOUNDATION V. GIBBS, ET AL.
498
law. Tex. R. Civ. P. 116a(c). Nixon v. Mr. Property Management Co., Inc., 690 SW2d 546,
548-49 (Tex. 1985).
II. EXHIBITS IN SUPPORT.
23. In support of Ken and Candy's response to Pentex and GBU Trust's Motion for
Partial Summary Judgment, the following Exhibits are presented:
A. Family Settlement Agreement.
B. GWB Family and Friends Trust.
C. Excerpts from Reporter's Record of Motion Hearing. Cause No. 2005-0000126-
2-D, Tarrant County Probate Court No.2, August 20, 2014.
D. Candy's Affidavit in Support of Response.
IV. SUMMATION OF ARGUMENT.
24. Summary judgment approving Pentex and GBU Trust's Motion is not justified.
As movants for partial summary judgment, Pentex and GBU Trust bear the burden of proof of
material facts presented. Pentex and GBU Trust failed in this regard. They failed to provide
evidence of their claims, and they failed to provide statutes or case law supporting their claims.
25. The facts alleged by Pentex and GBU Trust are not, contrary to their mutual
claim, uncontested. The dispute concerning the validity is well-documented, the facts pertaining
to the CSL have been reviewed by the Court, and the CSL has been determined null and void.
26. It is an established fact that Albert drafted the CSL, and per law, Albert (a.k.a.
Pentex, a.k.a. GBU Trust) cannot enforce its terms, as he drafted and provided advice
concerning an agreement which profited him. Pursuant to public policy, Albert cannot enjoy
gains from the illegal activity of engaging in the practice oflaw without a license.
KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
AND INTERVENOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT CAUSE NO. CV -14-41665
PENTEX FOUNDATION V. GIBBS, ET AL.
499
27. The evidence upon which Pentex and GBU Trust relied in the Motion is
primarily derived from Admissions from Howard Kirk, although Admissions to the contrary
from Ken and Candy are on record. Only in the rare instances of agreement among the parties
do Pentex and GBU Trust recognize Ken and Candy's Admissions. Pentex and GBU Trust
offered no explanation for their straightforward, unquestioning acceptance of Howard Kirk's
Admissions over Ken and Candy's, nor did Pentex and GBU Trust's Motion seek to resolve the
discrepancies, other than to promote Howard Kirk's Admissions. Pentex and GBU Trust's
approach was simply to pretend that inconsistencies and disputes relative to the CSL do not
exist.
V. PRAYER FOR RELIEF.
Ken and Candy ask the Court for the following relief:
28. That Pentex and GBU Trust's Motion be denied in all aspects;
29. That the CSL be declared null, void, and enforceable;
30. Dismissal of the case with prejudice; and
31. An award of attorney's fees to Ken and Candy.
Respectfully submitted,
LAW OFFICES OF CHRISTY LEE, P.C.
ChriC~~
Texas State Bar No. 24052302
777 Main Street, Ste. 600
Fort Worth, Texas 76102
(817) 504-6075
(800) 437-7901 -Fax
clee@christy leelaw.com
KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
AND INTERVENOR'S MOTION FOR PAlt'nAL SUMMARY JUDGMENT CAUSENO. CV-14-41665
PENTEX FOUNDATION V. GIBBS, ET AI. -6-
500
ATTORNEY FOR CANDACE WALTON AND
KENNETH GIBBS
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above Ken Gibbs and Candace Walton's Response to
Plaintiffs and Intervenor's Motion for Partial Summary Judgment was delivered, pursuant to
Texas Rules of Civil Procedure, to the following parties on this 25th date of September, 2014:
Howard Kirk Gibbs Mail
4360 Western Center Blvd., No. 205 Email: hkgibbs@gmail.com
Fort Worth, TX 76157
Pentex Foundation, and Email: smithlaw@ainnail.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
KEN GIBBS'S AND CANDACE WALTON'S RESPONSE TO PLAINTIFF'S
AND INTERVENOR'S MOTION FOR PARTIAl SUMMARY JUDGMENT CAUSENO. CV-14-41665
PENTEX FOUNDATION 1': GiBBS, ET Al.. -7-
501
;:o12-1o-1:1.os:Js
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f '1:.
CAUSE No. GA 2001-00196
IN RE GUARDIANSHIP OF ) IN THE PROBATE COURT
ESTATE OF KATHRYN H. GIBBS, ) OF
AN INCAPACITATED PERSON ) DENTON COUNTY, TEXAS
AND
CAUSE No. 05-126-2
1N RE: THE ESTATE OF § IN THE PROBATE COURT
§
BERT HUGHES GffiBS, § NO.TWOOF
§
DECEASED § TARRANT COUNTY, TEXAS
FAMILY SETTLEMENT AGREEMENT
THIS FAMILY SE'ITLEMENT AGREEMENT (this "Agreement11 or 'TSA'') is
mad~ and entered into by and among the followin& persons. both individually and in the
fiduciazy capacities described below:
I. Kenneth Vern Gibbs ("Ken"), Individually and as Independent Executor of the
Estate of Bert Gibbs, Deceased and in all capacities listed under his signature line
below;
2. Candace Gibbs Walton ("Candy"), Individually and in all capacities listed under
her signature line below;
3. · Kip Hughes Gibbs ("Kip'1 , Individually and in all capacitie~:~ listed w1der his
signature line below;
4, Howard Kirk Gibbs (''Howard Kirk''), Individually and in all capacities listed
under his signature line below;
5. Kathryn Houseworth Gibbs ("Kathryn"), Individually and in all capacities listed
under her signature line below;
6. Sandra Faye Gibbs ("Sandra'') , Individually and in all capacities listed under her
signature line below;
f{!jf_
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and the respective heirs, personal representatives, executors, administrators, successors, agents~
attorneys and assigns of each of them, as evidenced by their signatures affixed hereto. The
preceding persons are sometimes collectively referred to herein as "the Parties" and individually
referred to as "a Party."
Article I
Definitions
1.1 The Parties to this Family Settlement Agree:tn.ent a:re defined as follows:
a. The term "Ken" shall mean Kenneth Vern Gibbs, individually, as Independent
Executor of and as an heir and/or beneficiary of the Estate of Bert H. Gibbs,
Deceased, and as a potential heir and/or beneficiary of the Estate of Kathryn H.
Gibbs, Individually and/or as an Incapacitated Person, and as a contingent
beneficiary of the Mary L. Houseworth Revocable Trust C'Houseworth Trusf)
and the K.aihryn Houseworth Gibbs Irrevocable Trust ("Kathryn Gibbs Trust''),
and as the virtual representative and next friend of his children, and their
successors, plus those minor, unborn, unascertained, and contingent beneficiaries
of the Estates of oither Bert H. Gibbs, Deceased, and/or the Estate of Kathryn H.
Gibbs, Individually and/or as an Incapacitated Person. ·
b. The term "Candy" shall mean Candace Gibbs Walton, individually, as an heir
and/or beneficiary of the Estate of Bert H. Gibbs, Deceased, and as a potential heir
and/or beneficiazy of the Estate of Kathryn H. Gibbs, Individually and/or as an
Incapacitated Person, and as a contingent beneficiary of the Mary L. Houseworth
Revocable Trust ("Houseworth Trost'~ and the Katbryn Houseworth Gibbs
Irrevocable Trust e•Kathryn Gibbs Trusf'), and as the virtual representative and
next friend of her children, and their successors, plus those minor, unborn,
unascertained, and contingent beneficiaries of the Estates of either Bert H. Gibbs,
Deceased, and/or the Estate of Kathryn H. Gibbs, Individually and/or as an
Incapacitated Person.
c. The tenn "Kip" shall mean Kip Hughes Gibbs, individually, as an heir and/or
beneficiary ofthe Estate ofBert H. Gibbs, Deceased, and as a potential heir and/or
beneficiary of the Estate of Kathryn H. Gibbs, Individually and/or as an
Incapacitated Person, and as the Temporary Co-Guardian of the Estate of Kathryn
H. Gibbs, an Incapacitated Person, and as a contingent beneficiary of the Mary L.
Houseworth Revocable Trust ("Houseworth Trust") and the Katluyn Houseworth
Gibbs Irrevocable Trust (..Kathryn Gibbs Trust'), and as the virtual
representative and next friend. of his children. and their successors, plus those
minor, unborn, unascertained, and contingent beneficiaries of the Estates of either
Bert H. Gibbs, Deceased, and/or the Estate of K.athryn H. Gibb~ Individually
and/or as an JJ.lcapacitated Person.
KVO
.:1\
2012·1()-15 08;40
1.7 The term "Effective Date'' of this Agreement means the date the la.it party signs this
Agreement. However, this FSA will not be binding upon each respective Party until all
Parties have signed this Agreement, at which time tbe Agreement shall immediately be
binding upon each respective Party signing this Agreement.
1.8 The terms "the Parties 11 or "the Parties hereto" shall collectively refer to Ken, Candy,
Kip, Howard Kirk. Sandra, and Kathryn.
1.9 The tenn a "Party" shall refer to any one of Ken, Candy, Kip, Howard Kirk, Sandra, and
Kathryn, who shall be referenced specifically.
1.10 The terms "Predecessor" or "Predecessors" shall refer to any person or entity serving
prior in time as a fiduciary to the fiduciary in question.
1.11 The terms "Successor" or "Successors" shall refer to the heirs, devisees, descendants,
legatees, executors, appointees under any power of appointment,. personal
representatives, successor trustees, and any successors of a Successor or Successors.
1.12 The term "Transa.ctioo5" shall mean the following events:
a. Any and all .acts~ transactions, and proceedings (including any failure to aot) of
any of the Parties, the Decedent. the Ward, and their Affiliates on or before the
~f:fective Date; and
b. The negotiation and consummation ofthis Agreement.
1.13 The term "Guardians' and/or ':Guardian'' shall mean Kip Hughes Gibbs and Sandra
Faye Gibbs, either as Temporary Guardians and/or as the purportedly currently appointed
and duly acting Guardians of the Estate of Kathryn H. Gtbbs.
1.14 The tenn "Executor" shall mean Kenneth Vern Gibbs, as the currently appointed and
duly qualified Independent Executor of the Estate of Bert Hughes Gibbs, Deceased.
Kenneth Vern Gibbs was appointed as the Independent Executor of the Estate of Bert
Gtbbs, Deceased on Novembm- 14, 2006. The terro "Executor" shall include both the
singular and the plural and shall mean the executor or executors acting hereunder at my
time, whether one or more.
1.1 S The terms "Guardianship Estate," ' 1Temporary Guardianship Estate," and/or
"Kathryn's Estate'' shall refer and include all properties, real or personal, however and
whenever acquired, and any income there from, which may belong to the Ward, Kathryn
H. Gibbs.
1.16 The term 11 Probate Estate'' shall refer and include all properties, real or personal,
however and whenever acquired, and any income there from, which may belong to the
Decedent, Bert Hughes Gibbs, Deceased
Y StTTLEMENT AGRiir.'I!NT · Page 6
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or within 10 days from the creation of the 867 Management Trust, whichever is later.
Kathryn's undivided one-fourth (114) interest in the surface estate of the Gibbs'
Homeplacc shall be ttansferred to the Kathryn H. Gibbs 867 Management Trust at the
same time as the $1,000,000.00 is transferred, by Special Warranty Deed to the Trustee of
said 867 Management Trust.
3. 7 Ultimate Division Qf Bert's and Kathryn's Propertv. The Property of both Bert Gibbs
and Kathryn Gibbs, following her death, shall ultimately be divided as follows (the
"Distribution Shares"):
a) Bert Gibbs' Estate. By this Family Settlement Agreement (which supersedes and
overrides in every way the tenns of any Will of the Decedent, Bert Gibbs,
regarding the distribution of his Estate), the net property in Bert Gibbs; Estate,
after distributing Kathryn's share per this Agreement and paying all Estate
administrative expenses, shall be divided into four equal shares to be distributed
outright end' free of trust or any encumbrance as follows:
(i) Ken- twenty-five percent (25%);
(ii,) Candy- twenty-five percent (25%);
(iii) Kip -twenty-five percent (25%); and
(iv)' Howard Kirk- twenty-five percent (25%).
In the event that any child should not survive the execution of this agreement, then, in that
event, his or her share of the Bert Gibbs Estate shall pass pursuant to the terms and
provisions of such child's last will and testament. In the event that the deceased child
does not have a last will and testament, then, in that event, his or her share of the Bert
Gibbs Estate shall pass per stirpes, and not per capita, to the child's descendants.
h) Katluyn Gjbbs' Estate. Upon her death, by this Family Settlement Agreement
(which liiUpersc:de.s and override5 in ev!;xy way any Will of Kathryn Gibbs,
regarding distribution ·of her Estate), the net property in Kathryn Gibbs' Estate,
and/or Trusts, after paying all Estate administrative expenses and administrative
expenses of the Mary L. Houseworth Trust, the Kathryn Houseworth Trust, tho
Kathryn H. Gibbs 867 Management Trust and upon termination and. complete
wrap-up of both Kathryn's Estate and the Kathryn H. Gibbs 867 Management
Trust, shall be divided into four equal shares to be distributed outright and free of
trust or any encumbrance as follows:
1. Ken-twenty-fivepercent (25%);
ii. Candy -twenty-five percent (25%);
iii. Kip- twenty-five percent (2S%); and
iv. Howard Kirk- twenty-five percent (25%).
-~ SETI'LEMENT AGREEM£NT ·Page l3
~""b~'lfSA 8'15'08·fiul
514 ~ v ~, c~\JJ }1f.~rt1y
Page
2012-1~ 15 08;43
In the event that any child should not survive Kathryn Gibbs, then. in that event, his or her
share of the Kathryn H. Gibbs Estate shall pass pursuant to the terms and provisions of
such child's last will and testament In the event that the deceased child does not have a
last will and testament, then, in that eventi his or her share of the Kathryn H. Gibbs Estate
shall pass per stirpes, and not per capita, to the child's descendants.
3.8 Decedent's Testamentary Instruments.. Each Party represents to every other Party that
he or she is not aware of any testamentary instruments executed or alleged to have been
executed by Decedent that remained in existence at the time of his death other than the
Last Will and Te5tament of Bert Hughes Gibbs, Deceased, dated December 6, 2004,
which has been admitted to probate in Cause No. 05-0126·2, in the Probate Court No.2 in
and for Tarrant County, Texas, and styled: "Estate ofBert Hughes Gibbs, Deceased. 11 The
Parties agree that, if there are arJ.Y other testamentary instruments of Bert Gibbs in
existence, the December 6, 2004 Will shall remain probated to the exclusion of all others
and ownership of the property of Bert's Estate shall be detennined solely by the tenns of
· this FSA, which shall supersede the dispositive provisions in the Will of Decedent.
3.9 Ward's Iestamtptarv Instruments. Each Party represents to every other Party that
notwithstanding the terms of any testamentary instruments executed or alleged to have
been executed by the Ward and that may remain in existence at the time of her death, ~t
the terms and provisions of this Family Settlement Agreement as to the disposition and
administration of the Ward's assets and estate, will contractually control and supersede
any tenns contained in such testamentary instruments. In the event that the psychiatric
evaluation of Kathryn establishes that she is competent and has the necessary testamentary
capacity to execute a Wil4 then, in that event, Kathryn agrees to execute contemporaneous
with the execution of this Agreement, a new contractual Will (hereinafter referred to as
the "Contractual Will of Kathcyn"}, which provides that upon Kathryn's death all of her
estate will be devised and conveyed in equal shares to Kip, Candy, Kenneth. and Howard
Kirk, if living, and. if not living then to their respective descendants, per stirpes and not per
capita. Further, all Parties agree to produce prior to the exeeution of this Settlement
Agreemen~ copies of any Wills of Katlu'yn, which the Party purports to be the cUlTent
Last Will and Testament of Kathryn. Failure to produce any such Will, will serve as an
additional contractual prohibition against the Party and!or the Affiliates of the Party from
later offering for probate such instrument as a Will.
The Parties agree that no matter what testamentary instrwnents of Kathryn Gibbs may
exist, the Contractual Will of Kathryn (if executed by a competent :Kathryn) shall be
probated in a Probate Court of Denton County, Texas, without contest or objection, to the
exclusion of all other Wills of Kathtyn which might exist, and the ownership of the
property ln Kathryn's Estate shall be detennined solely by the terms of this FSA and the
identical provisions of the Contractual Will of Kathryn, which terms and provisions shall
supersede the dispositive provisions ofany other Will of the Ward. All Parties agree that
for convenience, venue over Kathryn's Estate shall be in Denton County, Texas.
3.10 Existence of Marriage of Decedent and Ward. Each party agrees that notwithstanding
~ Y SEIT.t.EMJ.:N'J' AGREEMENT· Pa~ 14
~\Gibbs\PSA 8'\5'08-linPI
515 i
.·.
to avoid further charge of interest or penalties on any owed taxes.
C. DiyjsiQP ofPersona1 Eropertv of Decedent's Estate. All of Decedent's household
:furniture and furnishings, books, pictures, objects of art~ silverware, jewelry,
clothing and other such personal effects (save and except for automobiles),
Decedent may have owned at the time of Decedent's death, are to be owned by the
child and/or spouse currently in possession of the same.
D. Division ofPersonal Prol}erty of Ward's Estate .. Upon the death ofKathryn all of
her personal items and effects shall be distributed equally to the four Gibbs
Children in accordance with the terms of this provision. The Executor and/or
Trustee shall work with the four Gibbs Children to come to an agreement about the
remaining personal items and effects that each Gibbs Child receives, save and
except for the following specific items of personal property. which are to be
distributed to the person designated:
Description o{Jtem Name Pi Child
"Candy's Hope Chest" (presently in the· Candy
possession of Kathryn H. Gibbs)
Grandmother Gtbbs Bedroom Suite (not in Ken
the possession of Kathryn H. Gibbs, Kip Gibbs,
and/or Sandy Gibbs)
If the Executor/Trustee and the four Gibbs Children cannot reach an agreement
with regard to the remaining items, the personal items and effects shall be divided
pursuant to the following procedure:
Division Procedure. After twenty days (20) notice, by certified mail, to the Four
Gibbs Children, at their last known address, regarding the place and time of this
division of this property, there shall be a drawing held to determine the order each
of the four Gibbs Children shall choose apersonal item or effect. The order will
apply to the "first round'' of choosing personal items. The order shall be reversed
with the fourth child in the first round, picking first in the second round. The
"third round" will again be reversed back to the order of the "first round." This
a.ltemating order shall be continued '.lD.til all of the personal items and effects are
divvied up among the four Gibbs Children. The four Gibbs Children hereby
specifically agree that this procedure is fair and shall be implemented in the event
no agreement cau be reached and the division shall stand and be binding upon all
of the four Gibbs Children, regardless of the items or value of the items that eat:h
Gibbs Child may ultimately receive. Each of the four Gibbs Children expl\citly
agree that all complaint~ objection or cause of action in relation to this procedure
or its ultimate result is hereby waived and forever released and that no cause of
action shall exist for any discrepancy in the value or items actually received by any
of the four Gibbs Children, respectively. The items each ;fecei.ves, per this
procedure, shall be theirs for all time, outright, free of any encumbrance or claim
~y SETTLEMENT AGRIEMENT ·Pap !!I
"':!:7'.'/3ibbsWSA 8'151>8-finll
s2o · Ku, e~IJ.)
' '
,·. ~ ·.,
of any other Party.
If there i's any personal item or effect that are not picked by one of the Four Gibbs
Children than that item or effect shall be abandoned by the Executor.
E. Time for Distribution of Decedent's Estate. The Parties agree that the Executor of
Decedent's Estate shall use diligence in the administration of Bert's Estate and that
he shall, make distributions as soon as possible in accordance with thii agreement,
that he shall make all distributions equally and at the same time; to all
beneficiaries when applicable and that he shall do the following:
1. Distribute to the Kathryn H. Gibbs 867 Management Trust the sum of
$1,000,000.00 within 30 days of entry of th,e Final Order in Cause No.
2004-11103-16, styled "J-W Operating Company v. K.atb.tyn. G. Gibbs, et
al.," filed in the 16111 Judicial District Court of Denton County, Texas, or
within 10 days of creation of the 867 MaDagem.c:nt Trust; ·
2. Distribute to the Kathryn H. Gibbs 867 Management Trust the undivided
one-fourth 114 interest in the surface estate only of the Gibb,s Homeplace
(as described in Exhibit "B") within 30 days from the date this FSA is
approved by a Statutory Probate Court, by Special Warranty Deed or
within 10 days from the date the 867 Management Trust is created;
3. In exchange for an agreement of indemnification of the Executor of
Decedent's Estate for any claims, the Parties authorize and agree that the
Executor is authorized and obligated to make partial distributions to the
parties in the shares and prQportions agreed to abpve of the existing cash
assets only of the estate (save and except for a minimum cash reserve of
$200,000 to be retained and maintained by the Executor to be used if
necessary for any ongoing administrative expenses pending :fin8.1
distribution of the estate).
4. Additionally, the Executor is authorized to distribute any mineral interests
to the parties upon resolving any known or anticipated issues with third
parties concerning the same.
5. It is the desire and agreement of the Parties that the Executor of the Estate
is authorized to liquidate and sell all real property assets. save and except
for any mineral interests in such properties, with the Parties agreeing that
all mineral interests are to be reserved and retained unless otherwise agreed
to in writing by all the Parties.
6. Unless otherwise agreed to by all Parties, the final distribution of Bert's
Estate shall be within 60 days of the Executor's completion of (1) the full
and complete liquidation of all surf~ce real property estate assets; and (2)
either the receipt of the Estate Tax Closing Letter from the Internal
Revenue Service, or the numing of the limitations period for any additional
---------- ·---·----·
........
tax assessments.
7. When the Executor makes either a partial and/or final distribution. the
Parties agree to execute an instrwnent entitled Receipt. which is to be
executed and returned by each party in exchange for the distribution. to
them of their share of the estate as established by this agreement.
8. Further, all Parties agree that so long as any asset of the Estate remains in
the possession and control oftbe Executor, that the Estate and the Executor
shall hold such property in trust and for the benefit of each party to the
extent of their interests therein. Each trust created hereunder is a
spendthrift trust. Accordingly, no party/beneficiary shall have the power to
anticipate, encumber, or transfer his interest in any trust estate in any
manner, save and except for any transfers and/or assignments entered into
by the various Parties with their respective attorneys as of the effective date
of this FSA. No part of any trust estate shall be liable for or charged with
any debts, contracts, ·liabilities, or torts of a beneficia:cy or subject to seiz~e
or other process by any creditor of a beneficiary. Each Party has willingly
and voluntarily waived any such rights and have agreed to this spendthrift
provision.
F. Time fQr Distri'b,u.tion of Ward's state. The Parties ·agree that the Executor of
Ward's Estate shalt use diligence in the administration of Ward's Estate and that
he shall:
1. Distribute all of Ward's Estate pursuant to this FSA after approval of the
Inventory., Appraisement and List of Claims has been entered, the Notice to
Creditors filed, paytnent of debts, and any other administration necessary
to close all of the trusts, any filing of tax returns, and if applicable, receipt
of the closing letter from the 1RS,
2. Nothing in this FSA shall preclude tho Executor of Ward's Estate from
making partial distributions from the Ward's Estate.
3. When the Executor makes either a partial andlot final distribution, the
Parties agree to execute an instrument entitled Receipt, which is to be
executed and returned by eaah party in exchange for the distribution to
them of their share of the estate as established by this agreement.
4. Further, all Parties agree that so long as any asset of the Estate remains in
the possession and control of the Executor, that the Estate and the Executor
shall hold such property in trust and for the benefit of each party to the
extent of their interests therein. Each trust created hereunder is a
spendthrift trust. Accordingly1 no party/beneficiary shall have the power to
anticipate, encumber, or transfer his interest in any trust estate in any
manner, save and except for any transfers and/or assignments entered into
~y Sl't'tl.EMEJI!T AGREEMENT· l'lll6 21
~\,GibbJ\FSA I'UViHIIIll
522 ~u' Page
by the various Parties with their respective attorneys as of the effective date
of this FSA. No part of any trust estate shall be liable for or charged with
any debts, contracts, liabilities, or torts of a beneficiary or subject to seizure
or other process by any creditor of a beneficiary. Each :Party bas· willingly
and voluntarily waived any such rights and have agreed to this spendthrift
provision.
3.15 AttQrn~y's Fm Affecting Distributions.
A. Attorney's fees of Ken, Candy and Howard Kirk. Parties acknowledge and
agree that Ken. Candy and Howard have incurred with their attorneys, attomers
fees and expenses based upon a contingency fee contract of SO% of the amounts
recovered and distributed to them as beneficiaries of the Estates of the Decedent
and the Ward. The Parties agree that all attorneys' fees paid or owed by Ken,
Cen.dy and Howard Kirk snall be bome by and shall be the. sole obligation of Ken,
Candy and Howard Kirk and shall be paid solely by them, and Kip shall never be
obligated to pay said attorneys' fees and expenses in any way. These Attorneys
fees will only be paid out of the percentage share allocated to Ken, Candy and
Howard at the time of actual distribution to them. All partie$ 5tipulate and agree
tbat such attorney's fees have been essential to the proper settlement of the Estates.
Further, the amotmt of the Attorney Fees payable to the Attorneys representing
Ken, Candy, and Howard Kirk, will proportionately reduce each of their fractional
shares, when calculating each of their shares of Bert's and Kathryn's Estates for
purposes of both the calculation of Estate and Inheritance Taxes, and for the
calculation of partial and final distributions to each of them.
The Executor (as hereinafter provided) may at his election, (1) add the amount of
the Attorney Fees paid to the Attorneys for Ken, Candy, and Howard Kirk, as a
part of the 11 Attorney Fees" to be deducted on Schedule 1, l'art B, Line 2-Attomey
Fees,· when filing an Estate Tax Return, for the reason that the services provided
by the attorneys have benefitted the general estate in reaching a fair and correct
distribution of the Estate assets, or (2) use such fees as an income tax deduction.
Further all parties acknowledge that had this settlement agreement not been
entered into by all parties, the Counsel for Ken, Candy, and Howard Kirk were
prepared to defend the Will of the Decedent previously adlllitted to probate. would
have had to and were prepared to pursue the Proceedings and claims on behalf of
the Estate against other persons or etltities for the recovery of property and would
have been entitled under the Texas Probate Code to recover attorney fees :from the
Estate, if the Court was to determine that the Will was offered and defended iD
good faith or that the claims were properly and correctly pursued.
B. At.Wrneys Fees of Kip, The Parties acknowledge and agree that Kip, has both
individually and in his capacity as Temporary Guardian, and Permanent Guardian
Page
incurred attorney's fees and expenses. These fees and expenses are now based
upon a contingency fee arrangement of a percentage of the amounts re~overed and
distributed to him as a benefi.ciacy of the Estates of the Decedent and the Ward.
The Parties agree that all attorneys' fees paid and owed by Kip individually and in
his capacity as Tempotary Guardian, and Permanent Guardian, shall be bome by
and shall be the sole obligation of Kip, and shall be paid solely by him out of his
share when his share is distributed to him, and Ken, Candy attd Howard Kirk shall
never be. obligated to pay said attorneys' fees and expenses in any way. All parties
stipulate and agree that such attorney's fees have been essential to the proper
settlement of the Estates.
Further, Kip agrees to be solely responsible for and will indemnifY the Estates fo:r
any attorney's fees and expenses that may be claimed to be due, unpaid, and
outstanding by David Bousehor, Kevin Spencer, and Ieff Springer as a part of the
Guardianship and appellate proceedings. Ftuther, David Bouschor, Kevin
Spencer, and Jeff Springer~ acknowledge and agree by their approval of this FSA,
that they Will look solely to Kip's distributive share of the Estates to satisfY any
such claims for attorney's fees.
Further, the amount of the Attorney Fees payable to the Attorneys representing
Kip will proportionately reduce his fractional share, when calculating his share of
Bert's and Kathryn's Estates for purposes of both the calculation of Estate and
Inheritance Taxes, and for the calculation of partial and final distributions to him.
Unless otherwise previously taken as an income tax deduction, the Executor (as
hereinafter provided) may add the amount of the Attorney Fees previously paid to
the Attorneys for Kip, Sandy, Kathryn and/or the T111sts, as a part of the "Attorney
rees 11 to be deducted on Schedule J, Part B, Line Z~Attomey Fees, if necessary, or
use such amounts as well as any contingency attorney's fees paid by Kip out of his
distributive shan~ if necessary when dealing with any Estate Tax and/or Income
Tax Return. issues for Bert's Estate, for the reason that the services provided by the
attorneys have benefitted the general estate of Bert in reaching a fair and correct
distribution of the Estate assots.
Further all parties acknowledge that had this Family Settlement Agreement not
been entered into by all parties, the Counsel for Kip were prepared to offer and
defend the Will of the Ward, would have had to and were prepared to pursue the
Proceediltgs and claims on behalf of the Estate against other persons or entities for
the recovery of property and would have been entitled under the Texas Probate
Code to recover attorney fees from the Estate, if the Court was to determine that
the Will was offered and defended in good faith or that the claims were properly
and correctly pursued.
C. Apportionment of Estate & Inheritance. TaJ.es. Any Federal Estate Tax or State
./..,"!f!,,LY SE'I'l1.EMEJ'l'r AGREEMiN'f- Pa&e 23
~~\Gibln'IFSA B'l S'OB-Iinal
·--·-· ···--------------
.. •.
of Texas Inheritance Tax due as the result of the death of either the Decedent or
the Ward, will be paid out of the net estate to be distributed to the children-
beneficiaries, unless otherwise provided for herein. Each of the Children's share of
the Net Estate will be responsible on a proportionate basis for their respective
share of Federal Estate Tax, and State of Texas Inheritance Tax. As a result, each
Beneficiary/Child's share to be distributed upon the completion of the
Adn.'tinistration of the Estates, will be further reduced by the applicable amount of
taxes attributable to their share of the net estate.
3.16 A2reemeat 'litb Respect t9 !Juardiansbip.
A. Access to Kathryn. The Parties acknowledge that each of them would like to
maintain and/or rekindle a relationship with their mother, Kathryn Gibbs. but each
hereby agree that the decision to allow visitation or access to Kathryn Gibbs shall
be subject to the decision of and made only by Kathryn Gibbs iu the event that she
should be detennined to be competent to make such dt!lcisions.
Each Gibbs Child hereby agrees that he or she will respect and follow Kathryn's
desire and decision to maintain or rekindle any relationship with any of the Gibbs
Children and that she shall not be subjected to any sort of harassment, via phone,
e~mail, letter writing or any other type of contact, once her expressed desire
denying or against such relationship or contact has been commUllicated by her to
them, either verbally or in writing. The Parties also agree that once Kathryn has
conununicated her desire of no further contact or communication, and thereafter
fwther contact or communication continues, whether or not it is to the point of
hara.smnent, that Kathryn may seek protection from such contact, communication
or harassment from a court of law. The cost of any such action, including
attorney's fees and expenses, shall be borne and paid for by the party making
co11tact and against whom the action for protection is filed, if protection is granted.
B. Guardians of Kathryn's Person. In the event that the psychiatric evaluation of
Kathryn concludes that there is a need for a Guardian of her Person, th6l:l., in that
event, the Parties agree to make a. joint application to appoint a third party licenced
Professional Guardian in the Nueces County, Texas area with this third party being
picked by Kathryn's primary care Physician, BB the Guardian of her Person. In the
event the first third party cannot or wil1110t serve or continue to setve, then, in that
event,- Kathryn's then primary care Physician shall designate the alternate or
successor Guardian of 1he Person. No Guardian of the Person of Kathryn will
interfere with the reasonable visitation of any Party with Kathryn.
C. Guardian of Kathryn's Estate. The Parties agree that any temporary
guardianship proceedings ended on December 6, 2004 with the signing of the
Order Approving Inventory and Accounting of Temporary Guardianship.
..1-'-Mn..Y SETrLEMENT AGREEMENT- Pasm 24
'-...!::J""un\r:Jw.,.,~Sf. 8'1S'08-6n•l
525 K~t
The Parties agree that if the psychiatric evaluatio:n of Kathryn determines that she
is competent to manage both her person and her financial affairs, then, at this time
there is no necessity for a court with proper jurisdiction to appoint either a Limited
or Permanent Guardianship of the Estate of Kathryn.
In the event that it is determined by the psychiatric evaluation that Kat.hryn is not
competent to manage her Estate, thelit in that event, the Parties agree that they will
file a joint application to appoint Jimmy Walker as Guardian of Kathryn's Estate,
as previously set forth herein. Additionally the Parties will also seek such
appointment if it is later determined that there is a necessity for a Guardianship of
th~ Ward's Estate, with the specific authority to transfer any assets of Kathryn's
guardianship estate to the 867 Management Trust, which has been created hercin.
D. FiDal Accounting of Temporary Co-Guardians of Kathryn's Estate. All
Parties ratifY and approve of the Denton County Probate Court's Inventory and
Accounting of Temporary Co-Guardianship, Order Approving Inventory and
Accounting of Temporary Co-Guardianship, and discharge and release frolXl
liability of Kip and Sandy as Temporary Co-Guardians aud as Permanent Co"
Guardians. The Parties acknowledge that there has been monthly distributions
directly to or directly for Kathryn's care or for Kathryn's monthly living
expenditures, from the Houseworth Trust and the Kathryn Gibbs 'Trwt. Kip and
Sandy Gibbs will not have to account for the actual expenditures made by or for
Katlu'yn from these Trusts. The Parties agree that no further tees will be paid to
the Temporary Co-Guardians for their services.
E. Existing Bond. All parties agree that the bond presently existing in the Probate
Court of Denton County, Texas, pursuant to the Order Converting Temporary
Guardianship of the Estate to Permanent Guardianship of the Estate, signed on
April 27t 2004, posted by Kip and Sandy Gibbs in the amount of One Hundred
Thousand and no/100 Dollars ($100,000.00) shall be released and that Kip and
Sandy Gibbs, and their attorneys, employees of their attorneys, and/or other of
their representatives, are released and discharged from any fiuther or additional
accounting or repayment of any then ordered fees or expenses. All parties agree to
execute whatever documents are necessary to obtain whatever documents the Bond
Company requires in order to get Kip and Sandy Gibbs and Western Surety
Company released and discharged from all liability under said Bond #15498959.
3.17 Agreement with Respect to the Mary L. Houseworth Revocable. Trust and tbe
Kathryn Houseworth Gibbs Irrevocable Trust.
A. Accountings. The Trustees of the Houseworth Trust and the Katbryn Gibbs Trust
shall prepare and distribute/disclose to Kathryn and each of the four Gibbs
Children an accounting complying with the statutory fonnat for the periods
January 1. 1998 through the present. If previous accountings have been prepared
J,."!!fL.._Y SETTLEMENT ...GREEMENT. Pase 25
~ibbiiFSA e'1S'O$·titl~1
526 ts estate and
list of claims. During the administration of the Decedent's or Ward's Estate, the Executor
shall have, in extension and not in limitation of the powers given by law or the tenns of
this Family Settlement Agreement, all of the administrative powers and powers of sale
granted to a trustee under the Texas Trust Act (or its successor statute governing the
powers and respons1bilities of n'Ustees), such powers to be exercised without court
supervision or control.
528 Page
.....
The executor shall have full power and authority to make any and all estate) inheritance
and income tax elections available to the oxecutor including specifically (i) the date and
option, alternative or method which should be selected for the valuation of property in the
Decedent's or Ward's gross estate for federal and state estate and inheritance tax purposes
and the payment of all such taxes, (ii) whether a deduction shall be taken as an income tax
deduction or an estate tax deduction, and (iii) the election to extend the time for the
payment. of federal and state estate and inheritance taxes and the election to pay any such
W: in installments. The executor shall incur no liability to . any belleficiary of the
Decedent's or Ward's estate on account of making any such electio~ regardless of the fact
that any federal or state estate, inheritance or income tax imposed on the Decedent's or
Ward's estate is thereby increased or that there is a change in the proportion in which any
beneficiary shares in the Decedent's or Ward's estate. The executor's decisions with
respect to such matters shall be binding and conclusive upon all eoncerned. No
compensating adjustments between income or principal or in the amount of any bequest or
devise hereunder shall be made as a result of any such decision.
The Parties authorize the executor to distribute the Decedent's and Ward's Estate,
respectively, in whole or in part at such time or times as it deems advisable, but in
accordance with the terms of this FSA and the Executor is authorized to make such
distribution in cash, or in kind. or partly in cash and partly in kind. The Executor is
further authorized to distribute the Decedent's or Ward'& estate subject to any and all
indebtedness incurred by the Decedent or Ward. or by the Executor, which in the opinion
of the Executor need not first be paid, and subject to any or all mortgages, deeds of trust
or other liens created by the Decedent and/or the Ward or by the Executor, except as
otherwise provided by this Agreement.
If any ~orporate executor should, before or after qualification, change its n1m1e) be
reorganized, merged or consolidatod with another corporation. or assign its trust functions
to another coq>oration, the resulting corporation which succeeds to its fiduciary business
shall become an executor here\Ulder or be eligible for appointment as executor, as the case
maybe.
Personal Representative Fees. For their services as executor hereunder, the executor of
either the Decedenfs or Ward's estate shall be entitled to reasonable fees cotnmensurate
with its duties and responsibilities, taking into account the value and nature of the
Decedent•s and the Ward's estates and the time and work involved. The Personal
Representative Fees shall be deterntined by application of the statutory fee guidelines for
Executors in Section 241. The Parties agree that an hourly fee of $75.00 per holll' will be
substituted in all instances where either statute calls for a commission of 5%., and shall
never exceed 2% of the va.tue of the gross estate, regardless of the statutory guidelines.
Certain Fiduciary Arrangements with Scott Pelley and/or Rickey J. Brantley. All
parties agree that their relationship with Scott Pelley and/or Rickey J. Brantley, as the
Attorneys for the Estate are contractual in nature only, and is to be governed and bound
~r;~ SE'M'L.EMENT AGREEJ'ol£Nl'- Pagt 28
,~VJtr.bi'Jl'SA 8'15'0i-flnol
s29 K~' Page
by the terms and provisions of this Agieement only. Further such parties expressly state
that any fiduciary relationship with Scott Pelley and/or Rickey J. Brantley, which would
ordinarily arise out of their assumption of the role of Attorneys for the Estate, is hereby
expressly waived for all purposes, with each party, acknowledging and contractually
agreeing that no fiduciary relationship will be claimed to exist, or in the alternative any
fidnciary relationship which is created by the assumption by Scott Pelley and/or Rickey
J. Brantley of the role of Attorney of the Estate is hereby expressly waive~ with Scott
Pelley and/or Rickey J. Brantley being fully released from such fiduciary obligations to
any Parties in that capacity and for that purpose.
Additionally~ all parties expressly understand that Scott Pelley andlor Rickey J. Brantley
will continue to represent the interests of Ken, Candy, and Howard Kirk only, in these
probate proceedings, in the event that a necessity for such continued representation
should later arise, and each party, after having been advised of such continued
representation of Scott Pelley aad/or Rickey J. Brantley as attorney for Ken, Candy, and
Howard Kirk) expressly waives any right to claim that such rontinued representation
constitutes a conflict of interest, which would prevent Scott Pelley and/or Rickey J.
.B1·antley from their continued representation of Ken, Cmtdy, and Howard Kirk, should
the need arise, in these proceedings. All Parties acknowledge and agree that Scott Pelley
and/or Rickey J. Brantley have in the past and will continue to have a fiduciary
relationship in the futul'e with Ken, Candy, and Howard, based upon their continued
representation of them.
Further, the Parties agree that the consideration for waiving any conflict of interest and
for renunciating any potential claim of a fiduciary relationship, is the agreement of Scott
Pelley and/or Rickey J. Brantley to fulfill the role of Attorney of the Estate, for the
purpose of completing the administration of the Estate pursuant to the contractual tenns
ofthis agreement.
The Parties expressly state and ·agree that their only remedy against Scott Pelley and/or
Rickey J. Brantley, as attorney for the Estate, in that capacity and tbr that purpose would
be limited to remedies arising out of a breach of the terms of this contractual agreement.
The Parties hexflby waive any other types of claims which might ordinarily be available,
including, but not limited to claims for breach of what would ordinarily be a fiduciary
duty in that capacity and for that purpose.
Certain Fjduclary :Relations with David S. Bouscbgr. II. Kevig Spencer and/or Jeff
Sprinter. All parties agree t):w their relationship with David S. Bousch6r, Kevin Spencer and/or
Jeff Springer, as the Attorneys for the Estates, Trustees and/or Guardian is contractual in nature
only, and is to be governed and bound by the torms and provisions of this Agreement only.
Further such parties expressly state that any fiduciary relationship with David S. Bouschor, Kevin
Spencer and/or Jeff Springer~ which would ordinarily arise out of their assumption of tho role of
Attorneys for the Estate, Trustee and/or Guardian is hex-eby expressly waived for all purposes,
JI'AMILY SEITLEMENT h.GU£M£NT ·Page 29
. ~'f.iibb1liSA 8'iS'Ol-fiftal
530 ~ .... - N - -.,._,,,__, ...... , ~-·~ .... '•••
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. . . . . , _ _ ,. _ _ _ . . _ . , , ,
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Page .J ij
with each party, acknowledging and contractually agreeing that no fiduciary relationship will be
claimed to exist, or in the alternative any fiduciary relationship which is created by the
assumption by David S. Bouschor, Kevin Spencer and/or Jeff Springer of the role of Attorney of
the Estate is hereby expressly waived, with David S. Bouschor, Kevin Spencer and/or Jeff
Springer being fully released from such fiduciary obligations to any Parties in those capacities
and for those purposes.
Additionally, all parties expressly understand that DavidS. Bouschor, Kevin Spencer and/or Jeff
Springer will continue to represent the interests of Kip only, in these probate proceedings, in ~e
event that a necessity for such continued representation should later arise, and each party, after
having been advised 'of such continued representation of David S. Bouschor. Kevin Spencer
and/or Jeff Springer as attorney for Kip, eXpressly waives any right to claim that such continued
representation constitutes a conflict of interest. which would prevent David S. Bouschor, Kevin
Spencer and/or Jeff Springer from their continued representation of Kip, should the need arise, in
these proceedings.. All Parties aclmowledge and agree that David S. Bouschor, Kevin Spencer
and/or Jeff Springer have in the past and will continue to have a fiduciary relationship in the
future with Kip based upon their continued representation of him .
.FUl'tber, the Parties agree that the consideration for waiving any conflict of interest and for
renunciating any potential claim of a fiduciary relationship, is the agreement of David S.
Bouschor, Kevin Spencer and/or Jeff Springer to fulfill the role of Attomey of the Estate,
Trustee or Guardian for the purpose of completing. the administration of the Estate, Trust
and Guardianship pursuant to the contractual terms of this agreement.
The Parties expressly state and agree that their only remedy against David S. Bouschor,
Kevin Spencer and/or Jeff Springer, aS attorney for the Estate, in that capacity and for. that
pUl'pose would be limited to remedies arising out of a breach of the terms of this
contractual agreement. ·
The Parties hereby waive any other types of claims which might ordinarily be available,
including. but not limited to claims for breach of what would ordinarily be a fiduciary
duty in th1t capacity and for that puxpose.
3.19 Conveyance Documents. In order to effectuate the conveyance of all of Decedent's
and/or Ward's interests in the property passing pursuant to the terms of this Agreement
the Parties shall deliver to any other Parties all such requisite executed docwnent.ation,
deeds, bill of sales and stock transfers as may be necessary to complete the division of the
Decedent's and Ward's Estates in compliance with this Agreement. AU the Parties shall
also cooperate with each other al'ld any personal representatives and/01: trustees to
facilitate the delivery of any assets to any other Party under the tenns of this Agreement.
3.20 Release. Each Party, for themselves and their lineal heirs, beneficiaries, assigns
representative, agents and descendants, hereby forever release and discharge each other
Party, individually, and in all capacities, and their respective heirs, personal
""n, Y S~.RMENT AGREEMENT· Pa&e 30
~YJI'W~S,_ 8'15'08-fin.l
--:/
l(~~ }Vj
531
----- Page 30' of
representatives, e~ecutors, affiliates, officers, directors, partners, adJ:ninistrators,
successors, agents, attorneys, and assigns of and from any and all liabilities, claims, and
causes of action including, but not limited to, tortious interference with inheritance rights,
tortious interference with contracts, tortious interl'erence with busi.ness relations, physical,
mental, or emotional distress, a11y gifts made by Decedent and/or Ward, will contests,
claims of conflict of interest, claims against attorneys, accountants, fiduciaries or agents,
unjust enrichment, the administration of the Estate or the Guardianship of the Decedent
and/or Ward, all claims which were or could have been made in any of the Proceedings or
currently pending litigation, fraudule11t concealment, rights of reimbursement, exempt
property, fraud, fraud on the community, theft. undue influences, misappropriation, breach
of fiduciary duty, and any other statutory rights and demands and causes of action of any
kind and/or character, whether known or: wiknown, fixed or contingent. liquidated or
unliquidated, whether or not asserted, arising out of or in any way connected with any act,
omission or eve11t related to any Party and/or the Decedent's and/or Ward's Estate, the
Guardianship of the Ward, and the Revocable and Irrevocable Trusts, save and ex.c:ept for
the representations! warranties, and obligations w1dor this Agreement.
3.21 Release of Temporary Co-Guardians and Permanent CG-Guardians. The Parties
acknowledge that they have entered into this Agreement to resolve all pending issues
regarding each of the Parties interest in both the Deoedent's and the Ward's Estates and
the assets taken, and/or received by certain Parties but not others. The Parties hereby
forever release Kip and Sandra as Temporary Co-Guardians of the Estate of Kathryn
Gibbs, and as Pennanent Co-Guardians of the Estate of Kathryn Gibbs, their attorneys,
predecessors, agents, successors, and assigns, including but not limited to Kip and/or
Sandy acting as nex.t-friend of Kathryn or as her attomey-inwfa.ct or .as her fiduciary in
any way and their attorneys, employees of their attorneys, and/or other of their
representatives. for any and all claims and/or causes of action that any of them had, have
or may have in the future relating to their care of Kathryn and/or actions related to any
Guardianship proceedings of the Estate of Kathryn H. Gibbs! including, but not limited
to any acco\mtings and actions described in said accountings. The Release in the
Paragraph immediately above shall apply to all Parties and serve as the full release
contemplated by this provision as it relates to Kip and Sandra, individually, and as
Temporary Co-Guardians of the Estate of l(athryn Gibbs and Permanent Co-Guardians
of the Estate of Ka.t:hryn Gibbs, save and except for the representations, warranties, and
obligations under this Agreement.
3.22 Release of Executor and Kathryn's Personal Representatives. The Parties
acknowledge that they have entered into this Agreement to resolve all pending issues
regarding each of the Parties interest in both the Decedent's and the Ward's Estates and
the assets. take~ and/or received by certain Parties but not others. The Executor and his
successors, if any, and Kathryn's Personal Representative shall rely on this Agreement in
settling Decedent's and Ward's Estates and distributing Decedent's and Ward's assets as
provided herein and shall be obligated to enforce its tenns. The Parties further release
and discharge the Personal Representative from a11y claims relating to its compliance
~!:!'f!LY SETTLEMENT AGR££M£N'f- Page 31
~U!l1tilbbs\l'lil'l ~·1~'011-llnll
kO&
532 Page
-----·--·--- ·----·-·. _... ___ ,.
with this Agreement, save and except enforcing its terms~ but including but not limited to
ceasing collection efforts against any Party to this Agreement regarding property that
may be due the Decedenfs and/or Ward's Estates, the determination of the assets in any
Party's possession or control, and the distribution va1uos determined for Estate assets as
same will be detennined by the tenns of this FSA, save and except for tbe
representations, warranties, and obligations under this Agreement.
3.23 Dismissal of All Claims. Upon Court approval and ratification of this FSA or if it
cannot be obtained as soon as practicable after completion of the distributions
coQtemplated by this FSA, all Parties agree to and shall dismiss with prejudice and with
the effect of res judicata as to all claims, legal actions and/or lawsuits presently pending
in this or any other jurisdiction. but particularly those. filed in the Proceedings or any
otb.or action cuxrently pending in any Court between the Parties relating to any claims or
potential claims between the Parties or any subject matter referenced in tlus Agreement
or any other matter, which could have been or arguably could have been brought/filed in
any of these actions or at the time of this Agreement, including any will contest to the
Will of Kathxyn, following her death, save and except for the representations, warranties,
and obligations under this Agreement
3.24. Parties' Attorney's Fees and Expenses. With regard to each Parties' legal fees and
expenses:
(a) Except as otherwise provid~d in this Agreement, each Party agrees to be
responsible for any and all of his/her attorney's fees, costs, and expenses
necessary and/or incurred in the effectuation of this Agreement and hereby.
waives any right to seek further reimbursement from Decedent's and/or Ward1 s
Estates, Personal Representatives, or any other Party.
(b) The Personal Representatives and/or Trustees shall be entitled to reimbursement
of his/her/its reasonable and necessary legal fees and expenses from the
respective Decedent's and/or Ward's Estate, and/or any Trust being adxninistered
pursuant to the terms of this Agree1nent, but waives any rjght to seek
reimbursement from any other Party.
(c) . The Parties further agree that if it becomes necessary to assert any claim to
tnforce or defend the provisions of this Agreement, the prevailing Party shall be
entitled to recover reasonable attorney's fees and other related litigation
expenses from the non-prevailing Party. ·In the event of a dispute, each party is
obligated to notify the alleged defaulting party in writing of a claimed default or
breach oftbis settlement agreement as a condition precedent to seeking legal fees
and expenses for breach of contract. The notice shall be by certified mail, and
shall grant the alleged defaulting party 20 days to cure the alleged default prior
to bringing any action for breach.
,Jf,.U..V SETrL~MENT. A.GREEJ'd:ENT • PIZl! 32
~\GibbsiFSA 8'1 ~··linal
Elthiblt
. ~Ub
.I 533 Page 3) of
-----
3.25 Representations. The Parties to tbis Agreement mitlce the following representations to
such other Parties:
(a) The representing Party is legally competent to execute this Agreement and that
this Agreement is valid, binding and enforceable as against himself or herself,
any s.uch Partyls Successors and Affiliates.
(b) The representing Party believes that neither the Decedent nor the Ward have
properly executed any right of survivorship or pay on death agreements or other
agreements relating to the creation of non-probate assets and that, if any such
agreements exist each respective Party hereby revokes said agreement and
returns it to its original title and that any such agreements or contracts are void
and of no effect and that any non-probate assets are an asset of either the
Decedent's and/or Ward's estate and pass pw:suant to the tenns of this.
Agreement.
(c) The representing Party owns the claims released herein and has not assigned,
released, waived. relinquished, pledged or in any mwmer what5oever, sold or
transferred, his or her interest, right, and/or claims to or against the Decedent,
Decedent's Estate, Ward: Ward's Estate, except as to his or her attorneys, and or
the following persons who will also join in the execution of this Agreement.
Ken, Candy, and Howard Kirk represent that they have assigned an interest to Al
Barcro~ who approves and ratifi~ all o£ the tenns and provisions of this
Agreement as represented by his execution of this Agreement. The Parties agree
that the interest of Kathryn and the interest of Kip, respectively, is not and shall
never be affected or reduced in any way because of any assignment of any
interest made by Ken, Howard Kirk or Candy to AI Barcroft or any other person
alld that any such assignment shall only affect or reduce the interest of Ken,
Howard Kirk and/or Candy in any Property covered by this FSA.
Further, the Parties agree 1hat the enforcement of the assignment by any Party to
a:ny attomey or third party may be secured at the request of such attorney or third
party by the filing of an appropriate Security Agr~ment/Deed of Trust, reflecting
the existence of the assignment obligation and the enforcement of the same by the
\ attorneys and/or third party who will be treated as Secured Parties.
(d) Eaeh Party confirms nnd agrees that such Party (i) has relied on his or her
own judgment and has not been induced to sign or execute this Agreement by
promises, agreements or representations not expressly stated herein, (it) has
freely and willingly executed this Agreement and hereby expressly disclaims
reliance on any fact, promise, undertnking or representation made by any
other Party or Personal Representative, save and except for the express
agreements and representations contained in this Agreement, (iii) walves any
right to additional information regarding tbe matters·gonrned and effected
I I
534
by this Agreement, save and except for those matters whicb each Party has
an express affirmative obligation to disclose, (iv) was not in a significantly
disparate bargaining position with the other party and is not under any form
of legal disability or incapacity at the time be or she executes this Agreement,
(v) has been represented by competent legal counsel of his or her choosing in
connection witb the execution and delivery of this Agreement and in any and
all matters relating thereto, or has volunta.rUy waived such right, (vi) has not
gjven consent to this agreement, nor was the same procured , obtained or
induced by improper conduct, undue influence, or duress, and (vii) either (1} .
bas knowledge of all relevant and material information and facts and has
been fully Informed, including by advice of counsel, concerning the existence
of potential ClaiJnS or any other Party, including other additional affirmative
or defensive claims arisin& from aU matters known to hlm or her aud arising
during the period of negotiations leading to and culminating in the execution
by him or ber of this Agreementt ln order for him or ber to make an
informed and considered deeislon to enter Into this Agreement, and/or ('l}
specifically iUJd after advice of counsel is waiving (a) any right to obtain or
demand sucb lnformatlon, and (b) any obligation of any other Party.
(e) Each Party con:fums and agrees tha.t Scott Pelley and the law finn ofNall~ Pelley
& Wynne; Virginia Hammerle and the law firm of Hammerle Finley; Rickey
Brantley and the law firm of Jose, Henry, Brantley, Maclean & Alvarado; and Jay
Henderson of the law finn of Cruse, Scott, Henderson & Allen, solely represent
Ken, Candy, and Howard Kirk, and d.o not and have never represented any other
Party and have not provided any other Party legal advice or services, or made any
representation to any other party.
(f) Each Party confinns and agrees that DavidS. Bouschor, ll of the Law Office of
DavidS. Bouschor, IT, P.C.; Jeff Springer of the Springer & Lyle, L.L.P. law finn
and Kevin Spencer of the law firm of Spencer & Waterbury, solely represent Kip
and Sandra, and do not and have never represented any other Party and have not
provided any other Party legal advice or services, or made any representation to
any other party, save and except for any possible past representations by David S.
Bouschor, IT ofKathryn, at anytime.
(g) Each Party confirms and agrees that S. Camille Milner solely represents Kathryn
Housewol'th Gibbs, as Attorney Ad Litem and does not and has never represented
any other Party and has not provided any other Party legal advice or services, or
made any representation to any other party. Each Party confirms and agrees that
Jimmy Walker solely represents Kathryn Houseworth Gibbs, as Guardian Ad
Litem and does not and has never represented any other Party and has not
provided any other Party legal advice or services, or made any representation to
any other party.
)'~YSETI1..Ji:f\oJtNT AGREEMENT- Page 34
~1bbs~SA 8'15'08·fina1
535 ~uG
- - · . -· ····· ···----·· --- ....
(h) Each of the Parties acknowledge and understand that none of the Personal
Representatives represent his or her interest in matters relating to the Decedent's
and/or Ward's Estates, bas not provided to them legal advice and has not made
any representations to him or her. Each Party further acknowledges that (i) the
Personal Representatives and/or Trustees have suggested that he or she retain
counsel if they have any questions regarding the tenn.s or effect of this
Agreement, and (ii) each Party is relying on his or her own judgment in entering
into this Agreement.
(i) Each Party understands and agrees that each other Party has relied upon these
representations and warranties in entering into this Agreement. ·
3.26 Futllre Disputes.
(a) If there is any dispute or controversy among the Parties and/or the Personal
Represent!ltives and/or Trustees, or any of them, involving any aspect of this
Settlement Agreement and the administration of the Estates of the Decedent and
the Ward, the parties to the dispute may agree on the manner of resolution.
(b) The interest of each Party/beneficiary in either the Estates of the Decedent and
Ward, or in any Trust involved in this Family Settlement Agreement, is
conditioned on the beneficiary agreeing to and complying with the foregoing
provision. If a beneficiary refuses to participate in AD'Rt altd if there is a finding
by a Court having jurisdiction, that a beneficiary failed to participate in good
faith, the beneficiary's interest in the Estates of the Decedent and Ward, as well
as in the Trusts, shall be forfeited and the beneficiary, if an individual, shall be
treated as having predeceased the Decedent and the Ward with no surviving issue.
If for any reason it is determined by the court having jurisdiction over this Family
Settlement Agre,ement that the foregoing provision for forfeiture is not effective,
the Parties to this Family Settlement Agreement authorize the court having
jurisdiction over this Family Settlement Agreement and the Estates of the
Decedent and the Ward and the Trusts, to award costs and attorney's fees from
the beneficiary's share or from other amounts payable to the beneficiary.
(c) · The provisions of subparagraph (b) above shall not apply to the beneficial
interests of:
(1) The Ward, and spouse of the Decedent, to the extent that her interest
would otherwise qualify for an estate o:r gift tax marital deduction;
(2) any beneficiary, to the extent that the beneficial interest would otherwise
qualify for an income, gift, or estate tax deduction fo:r charitable purposes
unless and until all such charitable beneficial interests have expired.
If, however, the WaJ:d or any such beneficiary to whom the above forfeiture
~Y. SETTLEMENT AGREEMENT· Pll!lc 3S
p-ys'Oibb&'*S'- e'IS~-m.-1
Exhibit · ,_.A.
~()'
536 Page 3 5 of_l...~!f+
-----------·--···--··-·--.. -·-·-·
provisions do not apply nevertheless fails to participate in good faith in
alternative dispute resolution as provided in this article, the court having
jurisdiction over this Settlement Agreement and the Estates of the Decedent and
the Ward and the Trusts, is authorized to award costs and attorneys fees from
that person's beneficial share.
(d) The acceptance of the Trust or Trusts established by this Family Settlement
Agreement by any trustee or co-trustee constitutes the trustee's or co-trustee's
agreement to comply with subparagraph (a) above. If a trustee or co-trustee fails
to comply, it s)l.all be deemed that the trustee has resigned, and the Parties
authorize tl1e court having jurisdiction over this Trust to surcharge the trostee for
costs and attorney's fees. [The personal representative's consent to act constitutes
his, her, or its agreement to comply with subparagraph (a) above. If a personal
representative fails to comply, it shall be deemed that the personal representative
has resigned, and the Parties authorize the court having jurisdiction over this
Family Settlement Agreement and the Estates of the Decedent and the Ward and
the Trusts, to surcharge the personal representative for costs and attorney's fees.)
(e) All parties waive his or her right to seek a jury trial on any is11ues relating to the
Family Settlement Agreement.
3.27 Entire Agreement. The provisions of this Agreement constitute the entire Agreement
betWeen the Parties, and supersede all previous negotiations and documents. No oral
modification shall be binding upon either Party. The terms hereof are contractual in
nature and are not mere recitals, and shall be binding upon the heirs, spouses,
descendants, executors, administrators, successors, representatives, and assigns of tbe
Parties hereto, upon complete execution by the Parties. ·
3.28 Consideration for this Agreement. The consideration for this Agreement is, at a
minimum, the mutual promise of each party to do and act as stated in this Agreement, in
addition to the other specific money or piopet.ty exchanged or promises COlltained in this
Agreement. Any services that either Party may provide to the other or for the benefit of
the o~er are fully compensated by this Agreement Neitber Party shall acquire any right
of reimbursement from the other party or any interest in or claim to the present or future
property of the other party by virtue of any services or contributions by one party to or
for the benefit of the other Party.
3.29 Modification of Agreement. This Agreement may not be modified except by
$ubsequent agreement, in writing, signed and acknowledged by all Parties. No
amendment or modification of this Agreement shall be effective, unless executed, in
writing, by all Parties hereto.
3.30 Severability. If any provision of this Agreement is deemed to be invalld or
unenforceable, it shall be deemed severed from the remainder of the Agreement. The
JJJI/LY SE'ITL"tM£NT AGREEr.'IENT- PA&e 36
/~\Gibbs\FSII. 8'15'08-final ·
Exhibit A
__ 537___________
..;;.....:::;_.:... ···--·---------··- Page 3~ of
remainder of the Agreement will continue in full force and effect without being impaired
or invalidated in any way and shall :remain binding upon all Parties hereto.
3.31 Document Execution. The Parties agree to execute all documents and take all further
acts necessary to consummate the agreement contained herein, including the releases and
necessary pleadings, if any, dismissing the Proceedings within 30 days of the effective
date of this FSA.
3.32 Construction. All Parties acknowledge and agree that aU the Parties have participated in
the drafting of this Agreement and no one Party or the Personal Representatives shall be
considered the drafter of this Agreement and, therefore, no presumptions shall be made
for or against any other Party on the basis that any one Party was the drafter of this
Agreement.
3.33 Multiple Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original for all purposes.
3.34 Choice or Laws and .Venue. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Texas, and appropriate and exclusive venue for
any suit arising out of this Agreement is agreed by the Parties to be in the Statutory
Probate Court of Denton County, so long as the matter is not presided.over by Judge Don
Windle. In the event that the matter will be heard by Judge Don Windle, then, in that
event, the parties agree that venue shall be in the Probate Court No. 2 in and for Tarrant
County, Texas.
3.35 Assignment. This Agreement and the rights and obligatioDS of the Parties hereto shall
not be assigned or delegated by any Party hereto without the prior written consent of the
other Parties hereof.
3.36 Incorj)oraiion. All Exhibits attached hereto are hereby incorporated by reference in this
Agreement for the purposes set forth above.
3. 37 Headings. The paragraph headings and sub-headings used herein are for descriptive ·
purposes only. The headings have no substantive meaning and the tenns of this
Agreement shall not be affected by such headings.
EXECUTED on the dates herein after written.
II
.d,sm-YS&ITLEMENT AG:U£MINT • PlP 37
~~e~\G!bb<:SA 8'15'08-fmnl
~bb.
538
···--·....·-·· ---------
READ, UNDERSTOOD, APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
Kenneth Vern Gibbs, individually, as Independent
Executor of and as an heir and/or beneficiary of the Estate
of Bert H. Gibbs, Deceased, and as a potential heir and/or
beneficiary of the Estate of Kathryn H. Gibbs, both
Individually and/ or as an Incapacitated Person, and as a
contingent beneficiary of the Mary L. Houseworth
Revocable Trust (..Houseworth Trost") and· the Kathryn
Houseworth Gibbs 'Inevocable Trust ("Kathryn Gibbs
Trust'~, and as the virtual representative and next friend of
his children, and their successors, plus those minor, unborn,
unascertained, and contingent beneficiaries of the Estates
of either Bert H. Gibbs, Deceased, and/or the Estate of
Kathryn H. Gibbs. Individually and/or as an Incapacitated
Person.
STATE OF TEXAS §
§
COUNTY OF TARRANT · §
This instrument was signed and acknowledged before me on the ~ .6 day of
~.f2\t'tY\be./ , 2008, by KENNETH VERN GmBs, in the above stated ca cities, known to
me or whose identity was verified.
My Commission expires on: f.- tl-2011
. ~y SETI1..~MEJIIT AGREEMENT- P~gc 38
~ull;.lbb'eSA 8'1~'08-t!n~l
Exhibtt
539 k'lJ' Page 1~ of
READ, UNDERSTOOD, APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
Candace Gibbs Walton, individually, as an heir and/or
beneficiary of the Estate of Bert H. Gibbs, Deceased, and
as a potential heir and/or beneficiary of the Estate of
Kathryn H. Gibbs, Individually and/or as an Incapacitated
Person, and as a contingent beneficiary of the Mary L.
Houseworth Revocable Trust (''Houseworth Trust") and the
Kathryn Houseworth Gibbs Irrevocable Trust ("Kathryn
Gibbs Trust"), and as the virtual representative and next
friend of her children, and their successors, plus those
minor, unborn, unascertained, and contingent beneficiaries
of the Estates of either Bert H. Gibbs. Deceased, and/or the
Estate of K.a.tbryn H. Gibbs, Individually and/or as an
Incapacitated Person.
STATEOFTEXAS §
§
COUNTYOFTARRANT §
This instrument was signed and acknowledged before me on the 5 day of
..S'ep±r~.L , 2008, by CANDACE Gmas WALTON, in the above stated capacities,
koown to me or wlwse identity was v e r i / : : ? . / ..
~~
My couucission expires on: 9""' '-1- '2.t:'XI
IAMU.Y SE'ITLEMENT AGREEMErn'- Pa&e 39
~ns\Gibbs\FSA 8'1S'08-fimll
540 -·------··----- '"' '
f)age ]q of
READ, UNDERSTOOD, APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
STATE OF TEXAS §
§
COUNTYOF~ _ §
This instrument was signed and acknowledged before me on the ,:;.~ day of
~ , 2008, by KIP HUGHES GmBS, in the above stated capacities, known to
me or whose identity was verified
~.
and
Notaiy Public in for the State of Texas
My Commission expires on:....-1_0_-_t,_. . .B'-!f.__
. __
54l_____ ...... . ·······-·-. ··--..·~- . ---~--------.
Page-
READ, UNDERSTOOD, .APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
Ho ard Kirk Gibbs, individually, as an heir and/or
beneficiary of the Estate of Bert H. Gibbs, Deceased, and
as a potential heir and/or beneficiary of the Estate of
Kathryn H. Gibbs, Individually and/or as an Incapacitated
Person, and as the former Independent Executor of the
Estate of Bert H. Gibbs, Deceased, and as a contingent
bencficiazy of the Mary L. Houseworth Revocable Trust
C'Houseworth Trust'~ and the Kathryn HousewQrth Gibbs
Irrevocable Trust (''Kathryn Gibbs Tn.tst"), and as tlle
virtual repres~tative and nex.t friend of his children, and
their successors, plus those minor, unborn, unascertained,
and contingent beneficiaries of the Estates of either Bert H.
Gibbs, Deceased, and/or the Estate of Kathryn H. Gibbs,
Individually and/or as an Incapacitated Person.
STATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was ..5.,
signed and acknowledged before me on the .....___ day of
-Se~(k.tO..._._~f2£:.->ootJC.____,...._._). 2008, by HowARD KIRK Gmas, in the above stated capacities,
known to me or whose identity was verified.
~~ CATHIE L SMITH
Notary Public. State of TG~~et
MV Commllllon &xplres
Sepfembtf 04, 2011
My Commission expires on:f- ~ 20//
-
542
·.
READ, UNDERSTOOD~ APPROVED AND
AGREED AS TO FORM~ CONTENT
AND SUBSTANCE:
Kathryn Houseworth Gibbs, individually, as an heir and/or
beneficiary of the Estate of Bert H. Gibbs, Deceased, and
as the primary beneficiary of the Mary L. Houseworth
Revocable Trust ("Houseworth Trust'') and the Kathryn
Houseworth Gibbs Irrevocable Trust ("Kathryn Gibbs
Trust'')~ and as the Ward of the Temporary Guardianship
Estate of Kathryn H. Gibs, an Incapacitated Person.
STATE OF TEXAS §
§
COUNTY OF _________ §
This instrument was signed and acknowledged before me on the day of
- - - - - - - - · 2008, by KATHRYN HousEWORTH GmBs, in the above stated
capacities, known to me ot· whose identity was verified
Notary Public in and for the State of Texas
My Commission expires on:._ _ _ _ _ __
/1
·~!~m.Y SETILEMENT /I.CREEMli:NT ·Page 4l
;"'~Clibbs...SA &'15'08-"u~l
543 Page
READ~ UNDERSTOOD, APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
~:t. AJJ?
Sandra Faye GibbS:TJtvidually, and as the Temporary
Co-Guardian o! the Estate of Kathryn H. Gibbs, an
Incapacitated Person.
STATE OF TEXAS §
§
COUNTYOF ~ §
This instrument was signed and acknowledged before me on the 02 '1~ day of
rl.c."aY.d , 2008, by SANDRA FAYE Gress, in the above stated capacities, known
to me or whose identity was verified
N6tary Public in and for the .State of Texas
· My Commission expires on: J0 . . {# ...{) 1
544 Page Y3 of
READ, UNDERSTOOD, APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
STATE.OFTEXAS §
§
COUNTY OF TARRANT §
This instrument was signed and acknowledged before me on the ~ day of
5e~ m\Oe'Y" ' 2008, by AL BAR€ROFt, in the above stated
known to me or whose identity was verified
My Commission expires on: fl:if 20//
PAMILY SE'I"TLEMENT AGREEMENT -l>asc 44
~'l..i1bb111-SA ~·J~'\JI!-tn131
545
KLJt. ·w;
READ, UNDERSTOOD, APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
Camille Milner-Attorney Ad Litem for the Ward,
Kathryn H. Gibbs
STATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was signed and acknowledged before me on the -~
day of
~------.._...,• 2008, by CAMILLE MILNER, in the above stated capacities, kn.own to
me or whose identity was verified
Notary Public in and for the State of Texas
· My Commission expires on:._ _ _ _ _ __
546
THE STATE OF TEXAS §
§ GWB Family and Friends Trust
COUNTY OF TARRANT §
TRUST DECLARATION
This declaration of trust is made &is _ day of November, 2008, between Kenneth
Vern Gibbs, a resident ofTmant_b,urrty, Texas; Cmd•ce Gibbs Walton, a resident of
Parker County, Texas; and Howfhi Kirk Gibbs, a resident of Denton Count)r, Texas,
collectively the "Settlor" of this ifust agreement, regarding, and intended to distribute, the
division of the gross net proceeds due these parties from the Estate of Bert Hughes
Gibbs.
ARTICLE I~ Tim TRUST PURPOSE
1.1 PrQ;gertY. in Trust: The beneficiaries of this trust are beneficial owners of rea)
property. including, but not limited to, land, oil and gas royalties, and working interest in
oil Ellld gas wells that was passed to them from the Estate of Bert Hughes Globs, who is
now deceased, under the terms and conditions of his Last Will and Testament.
1.2 Pur;pose of Trust: The overriding purpose of this trust. is to collect and hold all
property left to, or accumulm:ed by, the beneficiaries, or any individual beneficiary,
hereto, to account for and pay all liabilities pertaining to such property~ inclu
To: ;
Sent: Thursday, September 25,2014 5:19PM
Attach: Signed Response to Motion for Partial Summary Judgment (Gibbs).PDF
Subject: Response to Motion for Partial Summary Judgment
Hello,
Attached is Ken Gibbs and Candace Walton's Response to Plaintiff's and Intervenor's Motion for Partial
Summary Judgment, which we are filing in the matter of Pentex Foundation vs. Gibbs, et al.
Please let me know if you have any questions.
Thanks.
Laura
LAW OFFICES OF CHRISTY LEE, P.C.
Laura Hogins, Paralegal
225 East Fireweed Lane, Suite 200
Anchorage, AK 99503
(907) 339-9931 Office
(800) 437-7901 Fax
lhogins@christvleelaw.com
• PLAINTIFFS
ij EXHIBIT
i A
I 10--29-14
564 9/27/2014
LAW OFFICES OF CHRISTY LEE #0255 P.OB4/0B4
~9/25/2014 18:18 9073399980
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Page 52
EXCERPT MOTION HEARING - July 31, 2014
1 mean, I don't know the underlying facts, but it's hard
2 to see how he, individually, could be, you know-- I'm
3 not going to go into that now.
4 I'm going to give you another
5 opportunity
6 MR. SMITH: Okay. I didn't get started.
7 She went first --
8 THE COURT: I know, I know.
9 MR. SMITH: I think you hit the nail right
10 on the head when you those assets have already been
11 distributed.
12 If you look -- and what SWEPI teaches us,
13 is you look at pleadings. If you look at their
14 pleadings, there's not a hint that the estate is
15 involved in this. It is involved a GWB Trust, which was
16 an entity created
17 THE COURT: To receive from the estate.
18 MR. SMITH: and so it had absolutely
19 nothing to do with the estate. And that's what SWEPI
20 had -- what happened in SWEPI. On page five of that
21 case, I know I didn't give you a copy, but the Court
22 THE COURT: I read SWEPI, I just don't
23 remember the -- I mean, everybody -- it's referred to a
24 lot, that and Huie v. DeShazo, SWEPI, there's a bunch of
25 them, there's a number of them. Exhlbi f3
CRC for Wells Reporting
631 817-524-6644
Page 53
EXCERPT MOTION HEARING - July 31, 2014
1 MR. SMITH: It was a mandamus case out of
2 the Supreme Court. And what they found was the interest
3 had passed to the decedents. And they said the fact no
4 partnership property or partnership interests are
s currently held by the estate also distinguishes it from
6 prior authority. Here's the case, your Honor.
7 So the first question is, does this, in a
8 jurisdictional analysis, looking at their pleading,
9 which they conceded doesn't involve the estate, is the
10 controlling issue settlement petitioner distribution of
11 an estate? No, it's not, because that's already
12 happened.
13 And so if that is the case, this Court does
14 not have exclusive jurisdiction. That's the teaching of
15 SWEPI. And SWEPI was cited a little bit later, but I
16 don't know if I can pronounce it right, Puig, is the
17 Court familiar with this case?
18 THE COURT: It doesn't ring a bell, right
19 this minute.
20 MR. SMITH: Okay. And there's another
21 Supreme Court case a couple of years back and they cited
22 SWEPI. And what they said was, what you then do, if you
23 don't have exclusive jurisdiction, you do the dominant
24 jurisdiction analysis. And that's where we believe
25
CRC for Wells Reporting
632 817-524-6644
Page 54
EXCERPT MOTION HEARING • July 31, 2014
1 has now got dominant jurisdiction over the proceedings.
2 And even though the issues are different,
3 the guide for this Court is whether parties could be
4 joined and, if feasible, under the compulsory
5 counterclaim.
6 In other words, if you could add the
7 parties and make it a complete proceeding, then the
8 first filed suit is the one that's dominant.
9 And I don't know mean to insult the Court,
10 but I got a Fort Worth case out of 1995 Dallas Fire
11 Insurance versus Davis, and what it tells -- what its
12 holding is, is that when the principle of dominant
13 jurisdiction applies, the trial court in the second
14 action has no discretion to refuse to abate, and the
15 first court has no discretion to abate the suit to the
16 second court.
17 So it sounds mandatory, to me, that if this
18 Court doesn't have exclusive jurisdiction, if it•s got
19 concurrent jurisdiction, and that's arguably what
20 they're saying by virtue of 34.001, we then lead to our
21 dominant jurisdiction analysis. And under the cases
22 we've given you, you have to abate this case, in its
23 entirety, to the Fannin county proceedings.
24 That's the position of Pentex Foundation.
25 And I can go into some of the facts, but
CRC for Wells Reporting
633 817-524-6644 \
e2Bbd4ed-9dff-4753-b322-14a0a6eel79~ •.
Page 55
EXCERPT MOTION HEARING ~ July 31, 2014
1 read the pleading, which you're supposed to do, that's
2 all you do. You don't get into evidence. You just look
3 at pleadings, what they pertain to, if it's exclusive,
4 if not, if there's dominant jurisdiction in another
5 Court. Here, there is. It goes to Fannin county.
6 THE COURT: Your motion, your final word?
7 MS. LEE: Well, your Honor, the cases that
8 he cites we definitely are arguing two different
9 things. The one -- the last one he spoke about,
10 the Puig, it talks about comparing county courts of law
11 with probate courts. And it's not concerning
12 transferring the case with the authority to go into the
13 estate of Bert Gibbs or transferring a case for probate
14 proceedings into another -- into the probate court.
15 The other case, SWEPI, again, they're
16 talking -- it's not --
17 THE COURT: It just seems like SWEPI fits,
18 though.
19 MS. LEE: I don't -- it doesn't
20 have -- this has to do with oil and gas rights. Here's
21 the big difference, there is still $8.1 million that our
22 clients are going to be fighting over --
23 THE COURT: Wouldn't the executor
24 distribute it according to the --
25 MS. LEE: Oh, no, your Honor,
CRC for Wells Reporting
634 817-524-6644
Page 56
EXCERPT MOTION HEARING - July 31, 2014
1 that's the issue. What happened when 2000
2 THE COURT: Well, maybe he'd have to come
3 to court to get a declaratory judgment on how he's to
4 distribute the fees, maybe, but I mean, all this
5 happened after the property was distributed.
6 I mean, that's the way I read it -- I
7 understand -- your pleading --
8 MS. LEE: I understand
9 THE COURT: -- they got together and did
10 this GWB especially to receive this property --
11 MS. LEE: GWB doesn't have anything to do
12 with this case in Fannin county. It's about a contract
13 for sale. It's a contract --
14 THE COURT: But the estate is not party in
15 Fannin county.
16 MS. LEE: But again
17 THE COURT: I just don't see how in the
18 world I can drag a case all the way down from Fannin
19 county when the estate is not a named party.
20 MS. LEE: They should have been. They were
21 not sued in a legal capacity. I mean, you've already
22 stated, your Honor, that my clients, individually, had
23 no authority to determine attorney fees.
24 Again, they're running -- this is judicial
25 economy to have it all heard in one court.
CRC for Wells Reporting
635 817-524-6644 ~~~i
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Page 57
EXCERPT MOTION HEARING · July 31, 2014
1 THE COURT: That's one of the cornerstones
2 of the creation of statutory probate courts in
3 metropolitan areas and the specific drafting of what I
4 call 5A and 5B, more particularly 5B, which has been
5 superceded with a new number that I haven't memorized
6 yet, was, indeed, so that there would be -- and it stems
7 from a famous Texas case, Sarita Kenedy East, and she
8 was a wealthy south Texas woman.
9 And her -- her, I think she died in
10 50-something and I don't think her estate was settled
11 until '69, '70, '72, because there were so many
12 different -- it was in litigation 20-something years,
13 because it went back and forth between county courts
14 that did not have jurisdiction, to district courts that
15 did, and then each issue was appealed to appellate
16 courts, all the way through the appellate courts to the
17 Texas Supreme Court.
18 And it went on and on for years and in
19 1979, I believe it was, in response to that case, in
20 particular, and by the way, it was a name like Trejo
21 (phonetic) or something, they came up with the idea that
22 we judges here in metropolitan area have a law degree,
23 why should we be any different than a district court
24 judge in terms of hearing matters that district court
Page 58
EXCERPT MOTION HEARING - July 31, 2014
1 So there is rhyme and reason between why
2 there are statutory probate courts in metropolitan
3 counties. And to continue my lecture, I think thing
4 there are 18 of us now, in Texas.
5 But be that as it may, judicial economy is
6 one of the -- a driving force, but it's not the
7 only-- it's not the only consideration.
8 So I'm going to make a ruling that I'm
9 going to deny the transfer of anything, without
10 prejudice, at this point in time.
11 As far as your motion your show authority,
12 I think you've been put on notice, you ever come back to
13 this Court, you're going to need to comply or going to
14 need show in more detail why you don't need to comply
15 with more detail and strict predicate to your -- to your
16 hiring. So
17 MR. SMITH: Your Honor, I intend to
18 continue to with comply your request.
19 (End of excerpt)
20
21
22
23
24
25
CRC for Wells Reporting
637 817-524-6644
Page 166
MOTION HEARING - August 20, 2014
1 THE STATE OF TEXAS)
2 COUNTY OF TARRANT)
3 I, Ashlee Wells, Official Court Reporter in and for
4 the Probate Court No. 2 of Tarrant County, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record, in the
10 above-styled and -numbered cause, all of which occurred
11 in open court or in chambers and were reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14 exhibits, if any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is$ I~llo~s
,.\t
and
17 was paid/will be paid by Christy Lee
lS WITNESS MY OFFICIAL HAND this the 15th day of
19 September, 2014.
20 -L'\~t L~~~ f--, '-~C.J- L./.;;r--
/s/ Ashlee R. Wells
21 ASHLEE WELLS, Texas CSR 8684
Expiration Date: 12/31/15
22 Official Court Reporter,
Probate Court Number 2
23 Tarrant County, Texas
Fort Worth, Texas
24
25
CRC for Wells Reporting
638
817-524-6644
93528a42-9517-4327-8286-4abdbefabbbe
SCOTT SMITH
A TIORNEY AND COUNSELOR AT LAW
E-MAIL: smithlaw@airmail.net 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 Comihouse
100 W. Weatherford, Room 220A
Fort Worth, Texas 76196
RE: Candace Walton, et a!. 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.
TSS/bhs
cc: Christy L. Lee, Esq.; Howard Kirk Gibbs, ProSe.
639
MINUTES OF THE BOARD OF DIRECTORS'
1\'IEETING OFPENTEX FOUI\'DATION
A meeting ofthe Foundation Council ofPENTEX FOUNDATION, orgnni7.ed according to the
laws of the Republic of Panama mld registered to microjacket twenty nine thousnnd five hundred
ll!ld thirty six (29536), document one million three hundred fifty four thousand eight hundred
ninety three (1354893) of the Mercnntilc Section of the Public Registry, it was celebrated in the
city ofPanmna, Republic ofPnnamn on the fourth day (4tA) of August ofthc year two thousand
and fourteen (2014) at 10 o'clock in the rooming (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 Ch11irman was Mrs. ANGELLI MARTIIA POLANCO CARRASCO, and the Secretary
Mr. CARLOS ALBERTO RIVADENETRA ESCUDERO, both as holders of said positions.
The quomm ha\•ing been confirmed, the Chairman opened the meeting slating that a question has
emerged as to the authority ofMario Guilermo Hurtarte Arrivillaga, the Managing Director,
Legal Affairs 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 PENTEXFOUNDATION in Fannin
County, Texas, U.S.A.
Upon motion presented, dul}• seconded, the following resolution was unanimously approved:
IT IS HEREBY RESOLVED:
That the Board ofPENTEX FOUNDATfON verifies that Mario Guilermo Hur!arte Atrivillaga is
authorized to hire legal counsel on beh11lf of PENTEX FOUNDATION to litigate any necessary
legal matters that might arise in the United States. Further, it is resolved that Mario Guilermo
HurtartcArrivillaga, as Managing 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, Texas, U.S.A. Further, by this resolution,
PENTEX FOUNDATION confirms Scott Smith, Texas State Bnr Number 18688900, as its
attorney in Cnuse Number CV-14-41665 in Fannin County, Texas, U.S.A.; and, th11t Scott Smith
has represented PENTEXI10UNDATION in Cause NumberCV-14-41665 in Frumin County,
Texas, U.S.A., since May 5, 2014.
B)• this resolution, it is further resolved that Mario Ouilenno HurtarteArrivillaga, the Managing
Director, LegalAOairs ofPENTEX FOUNDATION, is authorized until fitrtber notice to make
To: "Albert Barcroft"
Cc: "Scott Smith" ; "Joshua Ba"
Sent: Thursday, October 02, 2014 2:23PM
Attach: Computation of Damages. pdf
Subject: Re: Order
Scott and AI:
Each accounting is done on an annual basis. The computation of damages (see
attached) summarizes all of the distributions from 2009 through 2013. In the upper 1/4 of the
2nd page under the heading of Total Distribution 2008 through 2013, It list the Total
distributions from each year showing a combined total through 2013 of $4,993,111.
If this doesn't work let me know.
Danny
-----Original Message-----
From: "Albert Barcroft"
Sent: Thursday, October 2, 2014 1:16pm
To: "Scott Smith" , "Danny Runger" ,
"Joshua Ba"
Subject: Re: Order
I believe we should file the attached motion to reconsider
immediately with a view towards mandamus. We need to
attach a copy of the GWB accounting (Danny will send you,
and a copy of the case. I think she might reverse on her own
if she fears mandamus, because I think mandamus would lie.
On Thu, Oct 2, 2014 at 11:37 AM, Scott Smith wrote:
She didn't make any express findings. I don't think we need the actual order if we are just
planning to file a motion to reconsider.
----- Original Message -----
From: dannyrunger@reaqan.com
To: Scott Smith ; Albert Barcroft
Sent: Thursday, October 02, 2014 11:51 AM
Subject: Re: Order
Scott:
Methinks that a copy of the order is necessary to find the grounds upon which this cause
was transferred. Did it relate to the Defendants residing iri Tartant'County or did it relate to
not being able to have a fair trial in Fannin County? Or did she just find that the 'major
transaction' provision enforcing 'mandatory venue' was not required?
Danny
680
p···.
_FfLEO FOR RECORD ~;·
SCOTT SMITH : .J\M~N COUNTY TEXAS
ATTORNEY AND COUNSELOR AT LAW ?O
L IGOCT -9 AHIO: II
E-MAIL: smithlaw@airmail.net .IMNGVI~ ~mTT STREET
FACSIMILE: (903) 870-1446 . iiSTRICTt.l . Box 354
TELEPHONE: (903) 868-8686 SHF;RMAN, n 5o~o354
IY I
4 ·.
1 OEPUT'1-·V
October 8, 2014
Hon. Laurine Blake
Judge, 336th Judicial District Court
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 Judge Blake:
On October 3, 2014, we filed a Motion to Reconsider Order to Transfer
Venue. The last page was not meant to be part of the motion. It is a confidential
document, and its disclosure was inadvertent and accidental. I have so advised
counsel. I ask that the last page be disregarded.
A copy of this letter and the enclosed is being forward to Ms. Lee and Mr.
Gibbs. I thank you for your attention to this matter.
truly,
TSS/bhs
681
1
P.
'W' ~
Communi cat ion Result Report ( Oct. 8. 2014 8:28AM) *
1)
2)
Date/Time: Oct. 8. 2014 8:27AM
Fi l e Page
No. Mode Destination Pg (s) Result Not Sent
7276 Memory TX 918004377901 P. 2 OK
Reason for P.r"ror
E. 1) Hang up o r 1 i ne fa i 1 E. 2) Busy
E. 3) No answer E. 4) No facsimile connect ion
E. 5) Exceeded max. E-mail siz:e
SCOITSM.ITH
ATIORNEY &COUNSELORATLAW
120 South Crockett Street
P.O.Box3S4
Sloman, Tex., 75091-0354
e-mail: smithlaw@aitmail.net
Facsimile (903) 870-1446
Telephone (90::1) 868-8686
FACSIMILE COYER SHEET
TO: CHRISTY LEE 800-437-7901
FROM: SCOTI SMITH
DATE: OctoberS, 2014
NUMBER OF PAGES (Including this oover page): 2
IF 1HBRB IS DIFFICULTY WITH TillS TRANSMISSION, PLEASE
CONfACf O[NAAT (903) 868-8686 IMMEDIA'lliLY.
MESSAGE:
CClNfiJQf!fAUlY NOTJCE
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682
Page 1 of 1
Scott Smith
From: "Scott Smith"
To: "Christy Lee" ; "Howard Gibbs"
Sent: Wednesday, October 08, 2014 8:27AM
Attach: 14-10-8 Judge Blake Letter.pdf
Subject: Pentex Foundation v. Gibbs
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
683
Page 1 of 1
Scott Smith
From: "Scott Smith"
To: "Christy Lee" ; "Howard Gibbs"
Sent: Friday, October 10, 201411:35AM
Subject: Pentex v. Gibbs, et al.; Cause Number CV~1~
The Court called and advised my office that the previously filed Motion to Reconsider Order to Transfer Venue
has been set for hearing on October 20, 2014, at 8:30 a.m.
cc: Christy Lee by facsimile at 800-437-7901
Scott Smith
Attorney and Counselor At Law
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75091-0354
Facsimile 903.870.1446
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Co mm uni cat i on Res u1t Rep or t ( Oct. 10. 2014 11:50AM)
* * * 1)
* * *
2)
Date/Time: Oct. 10. 2014 11:39AM
F i 1e Page
No. Mode Destination pg (s) Result Not Sent
7285 Memory TX 9180043779C 1 P. OK
Reas.on for error
E. 1) Hang up o r 1 i n e fa i 1 E. 2) BusY
E.3)Noanswer E.4) No facsim1le connection
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Pagel of I
SoottSmllh
From;: "Scoo.smteh"'~nel>
To: "Ch; "Howotd GibbS' ~•~t~~ma~corn>
Sent Frida)', Oclober10, 201411;35AM
c.....
8ubjlls Irrevocahle Trust"
:hi' ag~.:er:~e:1! bct\•:ccn .·\i:Cert t:,n.n FLrcrr:·:. her.::i:1;:i:-::~ "Barcroft'·. ,mLi Kcnr:eti~
Vem GJbs, Candace Gibbs wa·.ton, and Howard Kirk Gtbbs, hereinaf:er cr.llect:vely
al5c ''Gibbs", is a contract for sale of rbirty percent 30°/., of all land, mineral rights,
royaltie.s. and any other monies or assets which Gibbs, or any of the three :ndividuals
referred 10 collectively as ''G1bbs'' m t":1is agreement, ~eceiv·~s, cr lS due, fro:r. tb.~s date
tJrcc::L·ds. or any other ?rcpcrry assets ~ccei\·ec frc.m any t~ust(s) ('f :rans!e.;s :Torr. Bert
r-tc:ghes Gibbs, Mary L ; [n:sewcrth. ru:d'o; K:.~:i·~~:J G. Gibbs at any r;me, !)ast, p~r.:snt,
Of f.:tu;e, i;;c!udmg. bU! l\Ol !iJ'(;ited tO. cr;c: :"i1l!c\>. ing;
al All proceeds from he Estate oi3en Hc;ghe~ l)ihb~. a1:d:or,
agreement, are beneficiar:i~ anl2. ~~r~
c) Ail ir.her:rance of a!1y ki:1d an(l in any tom: by Gib~s. or any of the :r.dividua~s
ref::rred :.o coliecti\"l~:y as "C:ib:JS" i:1 this agree:nent ar.d/or:
d) All proceeds frorr ..!ny Ia•.\ SUit -.v~ici> ct.::--C!1~ly exists, or :r.s.y ar:s~. because of, 0~
Gi~bs, K.ip Hugh::s Ci1bbs. Sand~a faye G:obs, ''The \1J.ry L Hc'.!scwortn
lrrevocabie Trust''. ··The Katl-.r>'" Houseworth Gibbs Irrevocable Trust'', and anv
ot~cr ~:,~st(s) to ~'~ich G1bbs a~e be!1eficiary(ic.:;} or t:-LlStee(s) ~n a.r.y fonn; a.."":d/or.
e) •\!I property and.·c·: assets wh:ch may have been previously passed to t:1e-:l~ bv
l:krt hughes Cii'::lb:. Kc.:bryT: Ci. G:':":hs. ··-:-~e :.12.r:: L. :-louseworth !r.ev.x:~l->le
T~:.:st'', and:or "The Kiltbyn Hc''lsewor:i: Gibbs he"Clc~bie Trc:s:"'; ar.d ~:·_ -:..-~· .
. .:·.··
f) Xl othe~ propcr:y ~.!1d ·c:· assets passed tv Gibbs. 0~ :my o:' t!1e Hldividu::ds rcfe:-reJ
-.
ro coiiectwely :.~s ·'(i~bbs" in this agreem~nt, trorr. any source ;nvo\nng Ber~ ~ '.: .e:::..~·-:~:.:.. ;; .·
·:-:'·:::~---
'y" • < ... ·
Hughes G1bbs, Kathr:--n (i. Gibbs, "The Kathryn .Houseworth Gibbs lrrevocab!e \;;~~:~~y . .-··
Contract iOr Sll~ of L2r..:i, M.neral R:£!"-t~.
R.(.yalt:c-5 and Ot~zr A~~et~ anC!or r,1vntc5 ! ~~,~~~~~~ d:;?-lf}t {'Jfd .ii
---------------------- ~·-----·-·
693
·.ruslfs) or busine~s G~garnzation(s) cf any :.-i::d, whid: mig::t ';:;e :.;r.co-. ered or
discovereJ ir, the t'i.1ture; and/ar,
g) A\l property and'or ot!tcr assets i~1 any trust o: fom1er trust; ar.d, any property cr
ot::e~ assets m a::y corpor;nior., limited )iai::i~Jty compa::y. partnershw(sl, sole
tJTl';Jfletorship(>l, o; any oth<~I !.H:si:-:ess ()rganiza:iu:~ o~' <:cny kird !n whi;::l". cne 0"
:11o;e of tlw Gibbs are }'.v!le~s. :r.t;tee(s) cr he:1eftciary(tes).
h.) S;Jecifically exempted 5-o~< thjs agreement are any propemes an(i'or other assets
which are cuncntly under the :'ull ;:o:1'rol of Gibbs, cr ar.)- of the individuals
referred to collectively as "Gibh;" ir: tb!s agreemen!; provided, however, :hat if
an; legal work is r:::yuired :o c.id i:--. :!':<: cuLeciar. o! said assets, or the sc.k o:-
property and/or asse:s ;ts:ed above, :11~d ~hai: !':ave :-:o ;:;xcmpuon to t~t· terms ant!
constderations of t!1is agreemen·.. Also excrnptetl [rCllT. this agreeme:u are any
:1ersor:J.\ itc!i>S :~at we:c passeci :o Gi~bs from :heir fatht:r, which were not
This sale uf 30% of all land, property und other assets described herein above shall
be governed by the following terms. conditions, anJ 1:onsiclerations:
G1hcs, or any of ~he ir.chiduals refwed tc co!lec:ively as "Gibbs'' i:-: :his agreet:~et~t
s'tatl gin:. 'ncirlhis!her :\:11 coop~:ation to ail e:•orts by Bc<.rcrcft to co!lect anv oi the
funcis rtil.:rrcJ. ~o in thts ag,r:·em~nt SJid C~)-::Jpe~a:;or. sha~l _;dude. iJui not ~e l:mited to,
providing :-1ecessary mfom1J~lOl: bs or a11y iTJdiV:(:'Jal Gibbs, :o protecltheirhis'~er
:n(h1d~1al i:Hcrests. L.i that cve!'lt. Jt IS ag:-eed by ail parties he.reto :hat the
attorney hired by Barcroft v.:d: :represent oniy Barcroft i~ all future action(sl.
Furthe~.ore, it is specif:.::tll) 2.gr~ed :~at smd a:torney hired cy Barcroft \\tli
represent or.ly Barcroft si;Jt.:!d a chsc•ute i!:"'.Se he:-v:een ttc pa~ttes ht:ret~): and,
Gibbs. :) :f T~ar:roft vo:u:narily 2.~:ndon; :f;c efton :o coLe:~: tf:e funds 5·or;1 the sources •.-.:::-.:--< ~-
.·:....
s~ated herein: r.oweve, :n th;s ·:v.:n:. Barcroft sr,al' retain ai: anou:1:s J.l~ead ~ '-..... "'-,
recctved. and '.VI!! cor.!m'le w rec::iv::: ar.; i'JtL:~C pro~ecds froM any oi the
propcny or ot~er assets, and will r::tair~ his owners~1ip interest 111 any :->ropen:y ·;::~,~;;:;: ·
Co~""'!r;;:.ct
~oya1r1<~s
!·or S;.!.je ,Jf Land 1 V.tner3l R1gLrs,
<::-td Otht"r Assets and tor ~-1omes ~~:·~::~.~:- -4}:f./I h elifJ .Jt_
695
Gihos, or is ~a;.1:1g knefits of a:1y {.:r.c at the time o:Barc:-oft's aba.'1Jonme:1t; or.
which is brought mto the con:rol of Gibbs, or start pa,yir.g bc:1efits at a later date,
provided that said cont:ol or paymems is a result of actio:-~s prior to Ba;c:-oft' s
ah.andonmcn~.
5. lf Barcroft dies or oecorres inca':)acit::ttc:::, the contract will remain in force, and the
assets whlch have been accessed and are paying at the tllne of Barcroffs death. or wbch
are later accessed as a result ofBa:-croft's ,;::fforts, wili go to his heirs and assigns.
6 :1 IS hcrcbv agre:.:d that thcr:: shall be 3 bLtsi:K"ss orpr!i:tation. the :.:xact ty~::.· to he
recc:\ed fro:n a:1y of rJ:c pro~erty ~~nd,or assets covered hcreir. shall be dcpositet.! :r.to ~
bank account in that entity's name, a!1d that ali expenses necessar; to the continuation of
rc.venuc being paid to the panies hereto 11.e. property taxes ore the royalties or property
covered herei71. and anv :1ece3sary ex pen:;cs ~.~1c n as well U!J:..:ecp, etc.:~ shall be deduc::::d
have a 50% vote in the opcra\lon of said busmcss organizati,Jr:; and, the on:y funct1,::J:1 o[
sail.! business organi~:ation shall be to fac:l~tate the agreement 2\1 parties before a r.otary puShc.
13. Aibert L;n:-1 Barcrof:., Kenneth Ve:-:~ Gibbs, Ca:1dace Gtbbs Walton, and Howard
Kirk Gibbs, the principal parties hereto, kreby agree to this contrac: in its entirety
without reservatior.~ CL'1d, eac:, pleJge :1e\·e~ :o challenge the te:crs, co:1d:tions. ir:tentior.s,
2.:1rfo: C;J;:s:dera:Ions :.Hider t!-L:s C\x:::r,!Ct w;::: 1::cn res;:-ec::v~· sign:ng hereunder
. kl, v~ ~-IL
h~T'c:.elh \e ..• u,bb:o
_f_rM«l(i·~ MJ~ !Jalb-
Canrlace Gibbs \\'alton
Cli11 K>rk Gibb_s_____
Cc:~~~ccl for S3ic c: L.:-!::~.1 ...,Lrlcri'.! R1ght!-i, 5 l~::J:J~s cf
Rcya1~:~s :v·.d Q[:-'.er ;\~se~~ a...,c·Jr \l~.I'IIC5 ;.:..:; P.J:-:Je.5
697
.\ Cf\:...'\ 0 WLE DG E\ lF.:\T
STATE OF TEXAS
Subscribl~d, Sworn. and Sealed
COl.'NTY OF COLLI~
On th:s 11F day of iv1ay in the ·,·co.r 2Cii:05, .\!bert Lvnn Barcroft, known ~o :-;;e. d:d
personally appear befo:-c me; and after taki:1s the oath. depose;: and says tha.: he JS tile manwho
executed the forego11;g instn11:Je:1t; ar.::l, fiJnher stated t:1a.t he executed the same as hls free anc
in:om1ed a•:t and deed :(,,the purposes stacd thcrem. and wit~. J f:;l\ uders:anding of O~c s::Jpe oi
:he p~o\'isions Ct':l:a;r.ed therein; m;j, that he~:de 'iy all sa:d prnv;s:ons
.
=-6?~
L~-:1n
,A.lbert
~--~·
~- Barc:roft
Subscribed, Sworn. aud Sealed
COli~·ry OF COLLIN
Or. th;s 1;_::·, dav cf 'k'-Y t:: the year 2·~~(JS, Kenneth Vern Gibbs, know:1 to me. d1d
personally appear before me; a:1d, H)rn. and Sealed
COt::'i1Y OF COUJ:\
On this uf day of :V1ay Hl the yea; 2((,5. Candace Gi•bbs Walton, Kr!O\Vl1 to :T:C, did
persunally app<;!ar :1efore me: and, c.;\:~ t2~:ir1g the oath, deposes and says that she Is the worr:an who
cxec'J.ted the foregomg instru:11ent and, fur:h~r stated that she executed the same as her free and
in(ormed act and deed for the ;)Urposes stated :her,~in, and with a ::Ullw1derstanding of!hc scope of
the p:-ovis10r.s contained therein: and, that she agrees to abide by al1 said provisior.s.
Subscribed a!1d swom to before me ~his ;c'" da~.. ot:V1ay :n the year 2005.
\
/~'
. ' " r;)~(~
. I·.
\J,~_--;- - ~-i ,~ ~.
-.-
\Q";l:-y ;:1 ann tor •ne State of·'!. xc.~
.; --
Sub;;cribed, Sworn. and Sealed
COVNTY OF COLLJN
On this 1ot:; day of \i:1y in the y::::tr 21}05, Howard Kirk Gibbs, known ;o rr.c. did
personally appear before me; .md, atier taki:-~g the oath, deposes anc says that he rs t~e man who
e:·:ec'.!:ed t:-te foregoing inStrument: 3.~d, furthe stated :hat he cxec'.lted the sane as his !Tee and
mfom1ed ac: and deed t~;r the Ct!I~'oses ;1arec thcre!:1. c.nd v.-itr. a fullur.derstanding of ihe scGp:: o"
the provisio:1s cor.taincd ti1creir: an~. th11 he a;re~3 :c: .1b1de by a:l sa!d p~ov1sions
-l~~; -------~----- ---
He· ard Ki:-k Gibbs
.· .-:·-~-=_;.-·7·~~ :;:>~~
·--~-' /-----~· -_~\7
..... _ .../.
.o
/ -~. -~~~ ; -~-
Co.,!~<1c: fc; Sa!e of La:-:d. ~..,1q:er~: R~gh~s.
R...~:'a::~-..:~ -~·:d J:r.e . ~sscrs a;.d ·o~ ~1orL::
----------------------- - - -·
699
CAUSE Ko. CV-14-41665
PE.'t'TEX FDlJNDJ\ TION ) IN THE DISTRICT Cot."R.T
PLAINTIFF, )
)
vs. ) 336Tit JUDICIAL DIS rR!CT
)
KENNETH VERN GIUBS; Al-.U )
CANDACE GIDBS WALTON; AND )
HOWARD K.rR.K Gums, )
DEFENL)ANTS. ) FAN"NTN CDI..:NTY, TEX:\:l
AFFIDAVIT OF CANDACE WALTON
1, Candace Walton, having been tirst duly sworn, state me following:
I. I am over rhe age of eighteen ( 18) years. I am Defendant in this Matter before
:he Cow.. I confirm that aJJ of the fullowing facts arc troe, correct a.nd undisputed.
2. l have k.no\\'D Albert Barcroft since the end of 2004. Alb....--rt has slated that he
meet Howard l{jrk Gibbs sometim~ in the summer of 2004, about another problem that Howard
Kirk was having. Then Albert offered ltJ help settle the csmtc of our f11thcr, Bert Hughes Gibbs
(..the Estate''). Albert stated that be wanted to help my brothers and myself achieve resolution
concerning the F.stal~:. Albert assured us that he had attended law school. could provide advice
about the Estate, and was able to draft legal contracts and agreements. AJbcrt presented himself
as having my b.::!st interests at heart and even told my father that he would do everything he
could do to save at least some of my father's estate for his kids.
3. Albl..'1'!. was and is not licensed to practice law.
4. Albert drafted the Contract lor Sale of LaBd ("the CSL") without assishu1cc.
5. Alben provided legal nd\-icc to Ken and myself conc-.cruing the C..'SL. He
encouraged us to sign the CSL and said that it would be to our benefit to do so.
6. I did not have an al1orncy to assist me at the signing of the CSL.
7. Alber!' paid Ken, HQward Kirk, and myself a lotal of twenty-one (21) silver
coins, so seven (7) coins a piece.
~- The tw\lnty-onc (21) silver coins were ju.o;t ordinary silver coins. and certainly
well circulated. Alhert never pretended that these coim; had o.ny kind of special value to them. In
fact, Albert even st.1tcd these coins were taken out of hi~ "junk" silver. He stated that he ncedcti.
to provide us with something. because it would mak~ the contmct valid.
ExhibitJi
Page_/Of
700
---·-······-·-·----- ------------------
?. Ken und 1 have questioned the legality oftlJc CSL for some lime and ccnainly it
was in dispute prior to the onset of tllis litigation.
Further the Affiant saith not.
1
1 a1~__iu!!i_&~---
&dacc Walton
SUBSCRIBED AND SWORN TO before ml! e Walton on this 8 tJf,.. day
by
of~ovember,2014, to uttcst win1css my band ands~a
office.
701
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~-----------------------------~-------------------------------------------_.
Date 3/06/2013 T:me 10:03PM 10:03PM :Jurat:on 0.00 !hours' Code
SubJect Re: FW: GWB Family and Friends Trust ATTN: Sheraz Staff Christy llee
Cl:ent Walton, Candace l. Matt2rRef Taxation on Settlement Proceeds- IJ MatterNo
From albertbarcroft@gmail.com
To Christy Lee
::c To
sec-.:.
•days befcFE:• Folio,·. N Don€:: N r--.;ct:fy N Ci:ae N T;:gger N Pr1vate N Status
Custom1 Custom3
Custom2 Custom4
Hello Christy.
I am sending this e-mail to answer a couple of your questions. I will also give you a call in the next
couple of days to discuss any matter you '<'.ish "N:th you fully ll:ve :n Guatemala so I will call you. Is
there a better time for you?
First. I am neither an attorney nor a CPA. and I have nothing to do with the account:ng for GWB Family
and Friends Trust. Jack Rankin is the CPt\ for the trust. and Danny Unger [who I believe you have
already spoken to] helps to prepare the numbers to send to Rankin. I suppose you would call me a
facilitator.
To give you a little background. I caiT'e in contact with Howard Kirk in the Summer of 2004 because of
another problem he had. As we got to know each other. he told me one of the most incredible stories I
had ever heard. At first. I truly did not believe :t. Howard told me that Denton County had killed his
father [although his Dad did not die for another 5 months]. and that a JUdge named Don Windle had
sided with one of his brothers and stolen his father's entire estate. As I got more involved. I found all of
his wild stories were true. I promise Bert Gibbs. on his death bed. that I would do everything I could to
save at lest some of his estate for hi~. kids. I kept that promise.
The worst part of the whole story is that a final judgment was in place for well over the 30 days
required for finalization which gave virtually the entire estate to Kip. the other brother: and. in which
each Candy. Howard and Ken had a :~.1 million dollar final judgment against them It too was final.
and there was talk and action towards tak:ng their assets from them. I found the entire scenario to be
totally unfair and unJust
I have a close friend who is an attorney. I took it to him. I also :nvolved Danny Unger. who was a good
friend and is an excellent researcher. Together. we looked for a way to break the final judgment. After
about a month of research, we came up with something we thought had a chance to work- a bill of
review. We realized it would take a 'ong time. a lot of research and hard work, and money that we
really didn't have to expend. Enter Pentex Foundation.
Pentex Foundation is a private not for profit foundation in Panama with whom I had extensive
dealings. I knew they had some money to invest. and I went to them with a proposition·· finance our
battle and get a share of what we win. They agreed. and put up S250.000 for expenses. There were
many times I thought we would not \Jet that money back.
The deal I took back to Candy. Ken <:,nd Howard was simple [they did not know the foundation was
involved at that time]. I would get tre money for expenses and do the work for 30% of whatever we
recovered. The 30% would include me. John Skolnik [the attorney]. and Danny Unger. The Gibbs
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agreed, we did a contract. and we went to work. The next 5 years of my life was totally devoted to this
case.
After we were rejected in our first attempt to the Court of Appea:s in Ft. Worth. it became clear that this
matter had gone political: and. that if we were going to prevail we needed someone with clout in that
court. I started looking. but I found the same thing the Gibbs had found before I came along-- no
lawyers wanted to touch this case. After al:. it was over. settled: and. a final judgment was in place.
We were close to admitting defeat when Danny told his brother-in-law. Jay Henderson about the
case. Jay practices law in Kerrville and Houston. He and I talked a number of times. One day he
said, I'm in. Let's see who else we can get. Enter Rickey Brantley. Scott Pelley and Virginia Hammerly.
all class mates of Jay's at Baylor. We met several times. Finally. they agreed to take the case. The
cost would be 10% for each one of thHrn. and 10% for expenses. total 50%. I took the deal to Candy,
Ken and Howard. They all agreed that there was no other chance. everything was already lost. We
signed the deal with these guys
The Ft. Worth Court of Appeals. obviously totally void of conscience or ethics, were putty in the hands of
Rickey Brantley. Rickey used the exact same petition that we had filed 7 months earlier [and which
was dismissed without hearing in 3 days]: and, the court granted everything we asked for. Although
we were still a long way from the finish line, the tide had turned. I think In still have the copy we wrote if
you would be interested in reading it. All Rickey did was change the signature page.
So. that's why the Gibbs' portion was so small. It carne up as each one [Candy. Ken. Howard] started
being 2.1 million dollars in debt. erased the judgments on eactl. and gave them what they now have.
When I carne in. no lawyer would even talk to them about takin£J their case. and it was over. Now they
have something.
As for the voting shares of which 50% are held by Pentex Royalty Trust. that was a condition placed by
Pentex Foundation BEFORE the first dollar was spent. and as part of the original conditions. What we
were looking at was a family that hac already cut each other's throats more than once. In the short
time I had known them. I had seen them band together to fight a common foe. and then be willing to
plow another sibling under. It would take an idiot to go into a situation where there was a lot of money
at stake where they could band together a•d vote to hurt or limit another party. We are actually seeing
the wisdom of that decision now. because two of the three [Ken and Candy] have decided they do not
want to honor the Family Settlement Agreement that everyone agreed to that ended this mess. That
agreement calls for the immediate sale of the land; however. it has been well over 4 years, and the
main part is not sold [it was not even listed until last summer]. Ken [the Executor of the Estate] has
stated publicly that he will never sell the home place. which constitutes about 2/3 of the total land
value.
Pentex Royalty Trust has never usecl its voting powers to force any issue: however. it would use those
powers to keep the Gibbs from total·y changing the deal.
Since Pentex Foundation is. in fact. a foundation. there is no beneficiary. I was compensated out of
their share for my services. as was John Skotnik and Danny Unger.
As for your concerns about the K-1':s. I share your view. PentE•x Royalty Trust. whose sole beneficiary is
Pentex Foundation. files a tax return every year. and makes monthly tax deposits on the income it
receives. The Estate itself is holding everything up. I have been complaining for the last two weeks.
Pentex Royalty Trust was also forced to file an extension it did not want to file. GWB Family and
Friends Trust had to file an extension for the same reason. While it is my opinion that Rickey Brantley
is one of the best attorneys I have ever seen. especially in that court in Ft. Worth. I am not pleased with;,~~~iii ;.
the way he and Ken are handling the Estate. Rickey Brantley is the attorney for the Estate. Scott _-Q~•. ; •• "····~, "q~\
7.03__ -------~---------~- --- ---- -------- .-· --·-- ------------------ . ------- ------------------ Exhi: :~,~- \~;:::
2 ~i /tt7i/
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Pelley, Sherman, Texas. is the tax attorney. GWB Family and Friends Trust has no attorney.
This is by no means the entire story. That would take a rather large book. But this may give you a
place to start. and I will supply you with all pertinent information you request when we talk on the
phone.
Best regards.
AI Barcroft
-704----------------------------- 3
Beverly Miller
From: ropingal ropingal [ropingal@gmail.com]
Sent: Monday, September 24, 2012 6:19PM
To: Candy Walton
Subject: Gibbs Family
Candy,
I have been holdiJl9 back for a lon.g time .... now, no morel!! I HAVE HAD mill!
Over 8 years ago, Howard came in to At• s office, and I have regretted it ever
since. Our WHOLE life changed from that day till now. All AI ever wanted to
do was help you guys. It started with one small problem and escalated into the
biggest NIGHTMARE. For YEARS, your family squabbles have interrupted our
life. Our family BIRTHDAY's, THANKSGIVINGS, Christmas•, and other
holidays were not even SACRED t(l you. You KNEW when you called MA~
times, that AI was leaving family 9et-togethers, at my DEEP, HEART-FELT
dissatisfaction, to meet at Denton restaurants or McKinney locals, to HELP you
guys with •things that could not wait one more minute!!'. You brother Kip HAD,
IN FACT, successfully BEATEN and STOLEN everything, ruined your fathers
health and ultimately killed him, and even, including your dignity was stomped on
at that time. AI invested OUR ENTIRE retirement savings and annual income in
your MESS, while I worked and scraped without his help to keep our life and
money affairs in order. FIVE YEARS, he invested time and money and
what EVER it took. SOLELY TO A.ND FOR YOU .... FIVE YEARS .... to get you a
WIN IN COURT. And NOW, after FOUR MORE years ... month after
month ... year after year ... YOU JVST KEEP STIRRING UP SHIT ... accusing AL
and everybody and their uncle of cheating you and disrespecting you and the
ICING ON THE CAKE ... is to say that he took advantage of YOU when your son
died. AL, for DAMN sure, tried to get you to wait to sign till you were not
under stress. SIGNING WAS the RIGHT THING TO DO ... but he wanted you
to wait. YOU INSISTED on ending all the trials and tribulations and even said
TO ME and countless others ... that you should have been spending more time
worrying about raising your kids and family matters than being angry and bitter
over the contracts. WELL, YOU ARE RIGHT BACK THERE AGAIN. Why don•t
you get on some damn medication for OCD. EVERYBODY Knows you need
it ... and everybody INCLUDING nte, has tried to be tactful and helpful to get
YOU to a better place and understanding of your life ... for you AND FOR USIIIII
TWO YEARS ago, I wrote you and told you were raising Al•s blood pressure with
705
1
-.
all this shit ... and you said you wer•e sorry ond eased up. BUT IT DIDN'T
LAST. You have pushed him TOO for now .... he HAS to give up on you, before
it kills him. TRY TO REMEMBER, HE IS NOT THE ENEMY ... HE IS THE ONLY
REASON YOU HAVE WHAT YOU HAVE (whether you are enjoying it or not).
TRY TO REMEMBER THAT KIP DID NOT BEAT YOU OUT OF EVERYTHING.
THAT THERE IS NO 'NEGOTIATING' ANYTHING NOW ... the agreements YOU
AND YOUR BROTHERS MADE, were made YEARS ago and ordered by a court
and judge IN YOUR FAVOR. And at the time .... you were DELIRIOUSLY HAPPY
with the deal that was made. NOW. . . . FOLLOW THE DAMN ORDERS, GET US
OUR RETIREMENT BACK ... AND l.ET US MOVE ONIIIII Will it take ANOTHER
tragedy to OPEN your EYES and your HEART???? DOES the TRAGEDY need to
be my HUSBANDS life???? HOW DARE YOU accuse him of deceiving you,
disrespecting you, cheating you, .... after ALL he has done for you. He has tried
to help put you and your brotf1ers together ... and YOU and YOU alone, stir it all
back upllll You are like a bad soap opera .... DARK SHADOWS ... what hateful
gloom lingers around the next email or phone call. .. ??? If AI had not taken you
guys on ... my life would still be normal. YOUR FAMILY Is responsible TOTAU.Y
for the mess I am in now .... AND YOlJ REMEMBER ONE THING, if you
remember NOTHING ELSE .... if something happens to MY HUSBAND .... you
have to deal with me .... AND l..ADY ... YOU BEUEVE ME WHEN I TELL
YOU ... YOU WON'T LIKE IT. I USED TO BE A NICE PERSON, BUT NOW, I
AM ONE ANGRY, HATEFUL, SPmFUL,DEPRESSED, VINDICTIVE BITCH after
the last 8 years of PURE shit, having to keep my mouth shut. Watching you
manipulate EVERY DAMN STEP of this mess into something PERSONAL ABOUT
YOUII!II SCREW EVERYBODY ELSE ... JUST LOOK AND LISTEN TO
'CANDY'. Poor CANDY didn't get 'balls' .... well GROW A BRAINIII! Go look in
the mirror .... see if you like knowing how you misuse the tenacity and intelligence
God gave you. YOU PUSH everybody away from you .... and will be one lonely,
miserable old lady someday if you don't START TODAY, thinking about other
people instead of only thinking about YOUIIII
I know you are gonna come right back at me .... but you have no ammunition for
me. YOU have thr:mked me over and over and over ... for allowing the time taken
out of my life for your family ... for 'sharing' my husbands time for ya 'lis
problems. GO AHEAD, tell me just WHERE THE HELL I am wrong in even
JUST one line of this. And one more tf1ing ... no matter how STUPID you have
behaved ... how low you have stooped, how MEAN you have been ... you can't make
my husband turn on you. He is done helping you ... but he still won't do anything
2
706
· that hurts you. I am NOT THAT WAY. I am BmER and feel like I have
nothing to loose. And if I feel justified in taking a path that helps me ... even if
it is bad for you .... I will. AL is not that way. So BE CAREFUL, lady. YOU
STILL NEED HIM .... He has been sick all day after what you sent him this
morning. YOU FIX THIS SHIT ... get KEN to do his fucking job ... stop ruining
EVERYTHING GOOD that can come out of my husbands intelligence, time,
money, LOYALTY, and health. I don't know if you are just this crazy
MEAN .... or unGODLY greedy with your insatiable need for power .... AND .... I
DON'T GIVE A RATS ASS which it is .... JlJST FIX ITIIII
It's not the breaths you take, but the moments that take your breath away .... -B-
Exhibit (if
707 Pagefr2qf·
L-\1\ O~'VICES(W
Cii RIS'IY L. LEE
Attomcy
225 E. FIREII'EJ<:O LAf\1<:. STJ<:. 200
Af\CIIORAGJ<:, AlASKA 99503
M~ll\: 907.339.9931
FAX: 800.437.7901
777 M.~lf\ ST.. Sm. 600
FOR'I' WOR'I'II. Th:XAS 761 02
PHOI\J<:: 817.504.6075
FAX: 800.437.7901
November 3, 2014
rlee@christyleelaw.com
www.christyleelaw.rom
Clerk ofthe Court
101 E Sam Rayburn Drive, Suite 200
Bonham, TX 75418
Re: Cause No. CV-14-41665
Pentex Foundation vs. Kenneth Vern Gibbs, eta!.
To Whom It May Concern:
Concerning Cause No. CV-14-41665, enclosed is Kenneth Gibbs and Candace Walton's
Response to Motion to Reconsider Order to Transfer Venue, and Motion for Sanctions,
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.
Laura Hogins, Paralegal
Enclosures
1 l
NO. CV-14-41665
PENTEX FOUNDATION, §
Plaintiff §
§
~ §
§
KENNETH VERN GIBBS, CANDACE §
GIBBS WALTON and HOWARD §
KIRK GIBBS, Defendants § 3361h JUDICIAL DISTRICT
REPLY TO RESPONSE TO MOTION TO RECONSIDER
ORDER 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 Reply to the Response to the Motion to Reconsider the
Order Granting the Defendants' Motion to Transfer Venue, and in support of the
order shows:
MOVANTS MET AND EXCEEDED THE REQUIREMENT
OF PRIMA FACIE PROOF OF MANDATORY VENUE
1. A party must establish mandatory venue by prima facie proof. TEX.
R. CIV. P. 87(3). All parties have made reference to the Contract and its
$5,000,000 liquidated damages provision. Further, the uncontroverted venue facts
establish that this is a lawsuit involving in excess of $1,000,000. Movants have
established mandatory venue by prima facie proof. Spin Doctor Golf Inc. v.
REPLY TO RESPONSE TO MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE I
709
Paymentech, L.P., 296 S.W.3d 354, 357, 359, teaches that this is sufficient:
The agreement attached to the motion to transfer venue lists annual
sales of over $1 ,000,000.00. Thus, on its face, it constitutes prima
facie evidence of a major transaction within the meaning of section
15.020(a).
2. The $5,000,000 liquidated damages clause is to be given no less
effect. "The term 'liquidated damages' ordinarily refers to an unacceptable
measure of damages that the parties stipulate in advance will be assessed in the
event of a contract breach." Flores v. Millennium Interests, Ltd., 185 S.W.3d 427,
431 (Tex. 2005). It allows contracting parties to protect themselves against the
difficulty, uncertainty, and expenses involved when trying to ascertain actual
damages. 1 "Given this desirable goal, it is well established that parties may
stipulate at the time of contracting to a set damages amount for a breach of that
contract, as long as the liquidated damages provision is not a penalty."
3. In addition to the stated liquidated damages of$5,000,000, the facts
underlying this case reflect that it was clearly a major transaction. Attached hereto
as Plaintiffs Exhibit 1 is a copy of a distribution check into the GWB Family and
Gator Apple, LLC v. Apple Texas Restaurants, Inc., 2014 Tex. App. LEXIS 2539
(Tex. App.- Dallas, Mar. 5, 2014), citing to Carrothers Canst. Co, L.L.C. v. City ofS.
Hutchinson, 288 Kan. 743, 207 P.3d 231 (Kan. 2009)
REPLY TO RESPONSE TO MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 2
710
Friends Trust for $2,037,803.50. 2 Attached hereto as Plaintiffs Exhibit 2 is the
Affidavit of Fact of Howard Gibbs, who states that he has personally "received in
excess of$1,000,000 as consideration from the [Contract]." Attached hereto as
Plaintiffs Exhibit 3 is the Unsworn Statement Given Under Penalty of Perjury by
Albert Barcroft, wherein he relates in paragraph 14, the same, that each of the
Defendants have received well in excess of a million dollars. 3 Finally, the size of
this matter is not really in dispute, as opposing counsel has represented as much in
proceedings in Tarrant County:
There is currently a $6.1 million offer on a piece of property, to pay in
full, or a $8.5 million installment agreement over the next five years,
that will come to the estate of Bert Gibbs. . . . There is a lot of
money out there. My clients - my two clients own 25% of the estate.
So if they own 25 percent, they are potentially going to get $2
million. Al Barcroft owns a percentage and Howard Kirk Gibbs also
owns- he owns 12.5 pecent. ... So we have a lot of assets for the
estate of Bert Gibbs. 4
2
The GWB Family and Friends Trust was the business entity created pursuant to
paragraph 6 of the Contract to received and distribute funds pursuant to the Contract terms.
3
Submitted pursuant to TEx. CJv. PRAC. & REM. CODE§ 132.001.
4
An excerpt of this transcript is submitted as Plaintiff's Exhibit 5.
REPLY TO RESPONSE TO MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 3
711
DEFENDANTS' CONCEDE THAT THIS SUIT
INVOLVES A MAJOR TRANSACTION,
BY ATTEMPTING TO ASSERT AN EXCEPTION
4. Sensing the validity of the above, the Defendants seek to assert an
exception to mandatory venue by attempting to assert that the Contract was
unconscionable. It should be noted that- despite raising other affirmative
defenses - avoidance of the contract on the basis of unenforceability has not been
alleged as an affirmative defense, as would be required by Rule 94. 5 Nowhere
does it appear in the Defendant's lengthy motion and answer on file with this
5. With respect to this alleged claim in avoidance of the Contract, they
first claim that the Contract was one-sided. This is non-sense. Defendants' own
responsive evidence, attached as Exhibit "C" to their Response, is an email from
Albert Barcroft. Mr. Barcroft was Movants' predecessor in interest in the
Contract. He relates in Defendant's Exhibit "C" that at the time of the Contract's
inception, the three Gibbs siblings had already lost everything from their parents'
estates. A final judgment was in place granting almost the entirety of the estate to
5
"In pleading to a preceding pleading, a party shall set forth affirmatively ... any
other matter constituting an avoidance or affirmative defense." TEX. R. CIV. P. 94.
6
See, the Motion to Show Authority, Motion for Change ofVenue, Original
Answer, Affirmative Defenses, Original Counterclaim, and Rule 13 Motion for Sanctions of
Kenneth Vern Gibbs and Candace Walton Gibbs, filed on or about Aprill8, 2014.
REPLY TO RESPONSE TO MOTION TO RECONSIDER ORDER TO TRANSFER VENUE ... PAGE 4
712
Kip, a fourth Gibbs sibling, and granting a judgment against Candy, Howard and
Ken in excess of$1,000,000. 7 The essence of the Contract was to try to recoup the
lost estate. The goal was successful after five years of tedious work. The
Defendants now receive funds from their parents' estates that they would have
otherwise never seen. This Contract was imminently fair, given that it converted
the proverbial sow's ear of an adverse judgment into the silk purse of recovery.
6. Next, the Defendants assert that Mr. Barcroft practiced law without a
license, and after all these years the Contract is now not enforceable. This too is a
fallacy. Again, referring to the Defendant's Exhibit C, Mr. Barcroft expressly
denies being an attorney. The Contract itself states, in paragraph 3, subpart c, that
"Barcroft, at his expense, will provide legal counsel by acquiring a licensed
attorney .... " Mr. Barcroft specifically denies ever holding himself out as an
attorney in Plaintiffs Exhibit 3, at paragraph 5. Importantly, Howard Gibbs
reaffirms this:
Al never stated that he was an attorney, and never offered to represent
any of us. . . . I was at every meeting in which Candy and Ken met
with Al, and Al never said he was an attorney or could represent us in
any way. . . . There was no mention of Al' s education in anof the
meetings or conversations leading to the execution of the [Contract].
7
A copy of this judgment is attached as Exhibit B to Plaintiffs Exhibit 2, the
Affidavit of Fact of Howard Kirk Gibbs.
REPLY TO RESPONSE TO MOTION TO RECONSrDER ORDER TO TRANSFER VENUE ... PAGE 5
713
JOSE,BENRY, BRANTL'-': THE FROST NA~AL ElANK 09374 ''
FORT WORTH, TX
MACLEAN Cf.ALViRADO, L.L.P. 30-9/1140
TRUST ACCOUNT
675 N. HENDERSON ST.
FORT WORTH, TX 76107 12/3/2008
(817) 877-3303
~~ @J,ag ~ tlw
I'.~.~.;
C{f;w r{ GWB Family and Friends Trust I$ **2,037,8o3.so
~ Two Million Thirty-Seven· Thousand Eight Hundred Three and 50/100********U*"'******************'*********•••••u@offllaJ [Q wg.
·.:::.
GWB Family and Friends Trust JOSE, HENRY, BRANTLEY, MACLEAN & ALVARADO, LLP ,
Devon Disbursement
u•oo g 3? t.n• a: n.~;oooo g 3•: !;000 1.8 5 20n•
JOSE, HENRY, BRANTLEY, I MACLEAN & ALVARADO, L.L.P./ TRUST ACCOUNT 09374
GWB Family and Friends Trust 12/3/2008
3030 · Client Trust Liability 2,037,803.50
Gibbs, Bert Devon Disbursement 2,037,803.50
JOSE, HENRY, BRANTLEY,/ MACLEAN & ALVARADO, L.L.P./ TRUST ACCOUNT
09374
GWB Family and Friends Trust 12/3/2008
3030 · Client Trust Liability 2,037,803.50
$ :·.· PLAINTIFFS .
~ EXHIBIT
I 1
Gibbs, Bert Devon Disbursement
AFFIDAVIT OF FACT
STATE OF TEXAS §
§ Subscribed, Sworn, and Sealed
COUNTY OF TARRANT §
I, Howard Kirk Gibbs ("Affiant"), being a defendant in a lawsuit in the 3361h District
Court of Fannin County, Texas, case number CV-14-41665; and being of sound mind, over age
of majority, competent to testify, and having a first hand knowledge of the facts contained
herein, hereby certify and declare that the following facts are true, correct and complete as stated,
and are so stated under the penalty of perjury.
1. I metAl Barcroft ("AI") through a mutual acquaintance in October of2004. I had a legal
problem with a criminal charge of simulated legal process against me in Denton County. I was
having trouble getting an attorney to represent me because of the situation, and because I had no
money. Al immediately told me about John Skotnik ("John"), who he said was an attorney, and
a personal friend of his. AI said that he would try to get John to talk to me. He did arrange a
meeting, and John represented me in the County Court of Denton County, and was able to get the
sentence already against me greatly reduced. He did not charge me for what he did because I
had no money. I have always believed that AI paid John because he thought I had been unfairly
convicted, but I don't know that for sure.
2. AI never said he was an attorney, and never offered to represent any of us. He never
charged us or asked for payment for any of the things he did other than his share of the contract
signed on May 10, 2005 by my brother Ken, my sister Candy Walton, myself, and AI, said
document entitled ''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"'
("CSL") (See Exhibit "A"). After we signed the CSL, we were all in it together, and AI treated
us all like the partners we were. We all discussed and got a vote on everything we did. AI never
overrode any of us on any issue from the very beginning, even though he had the votes to do it.
3. At first mention of something I was charged with in court, he told me about John. I was
at every meeting in which Candy and Ken met with Al, and Al never said he was an attorney or
could represent us in any way. After the CSL was signed, we all worked together and discussed
every issue as a team. Candy and I had as much input as Al did.
4. There was no mention of Al's education in any of the meetings or conversations leading
up to the signing of the CSL. I would remember if he had said he was an attorney or had gone to
law school while we were negotiating a contract. He did not.
I
715 I
5. AI talked with us, and we explained about how our inheritance had been stolen from us.
At first, he did not believe what we told him. He stated that he would not get involved in the
whole mess, but that he would try to get John to help me on the criminal issue. But when he saw
how my criminal case was handled, he said he would talk to John to see if John would represent
us in the civil case if he got involved.
6. AI would meet with us and take notes, usually at a fast food restaurant. Then he would
say that he would talk to John. A few days later, he would meet with us again. After a number
of these meetings, he said something to the effect of: "I must be crazy, but if you want to sell me
a share of whatever we can get back, I'll put up the money for John's legal fees and for the legal
research needed". We agreed and sold him 30% of everything that could be saved from our
inheritance. This is the title and first paragraph of the CSL that reflects the 30% payment:
Coatract for Sale of Land. Mineral Rigbu and Royalties.
and all otber As5eh ur :'\tobiH Received from tbe Estate of lhn HugbH Gibbs.
Kathryn G. Gibbs. aodlor the Mary 1.. HotJcsewortb Trust(s• or "The Katbrvn
lluusewurtb Gibbs lrrnobbs.
'
1
!
€
'i
• ~
I.
,"!
~Number. ZOOU1~
As
Miso Gener11l Fee 0oo
Partift: GISU KENfET'H VERN BUtabt* P•g•~ t
To Number of Pag..~ 9
Mm ~,..Col;: 30.00
TOIII "-C'.
.··,$})/'·······<,0,:;; ..
720
© ,,. . ;/
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'<~~<;;fi···:~·::·.~;~~~·
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'-"' """"
Tmst", and/or ''The Kathryn Houseworth Gibbs Irrevocable TrustH; or, any other
trust(s) or business orgamzation(s) of any kind, which might be uncovered or
discovered in the future~ andlor,
g) AH property and/or other assets in any trust or former trust; and, any property or
other assets in any corporation, limited liability company, partnership(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 beneficiary(Ies).
h.) Specifically exempted from this agreement are any properties andlor other assets
which are currently under the full control of Gibbs. or any of the individuals
referred to collectively as "Gibbs" in tlns agreement; pwvidcd, however. that if
any legal work is required to aid in the collectlon of said assets, or the sale or
control of said property, then said property or other assets shall be subject to the
terms. conditions, and considerations set forth within this agreement as part of the
property and/or assets listed above, and shall have no exemption to the terms and
considerations of this agreement. Also exempted from this agreement are any
personal items that were passed to Gibbs from their father, which were not
included m the divorce dtstribution between their mother and father.
This sale of 30% of all land, property and other assets described herein above shalt
be governed by tbe following terms, conditions, and considerations:
l. Gibbs, or any of the individuals referred to collectively as "Gibbs" in this agreement,
shall give their/his/her full cooperation to all efforts by Barcroft to collect any of the
funds referred to in thts agreement. Said coopen1tton shall include, but not be lnnited to,
providing necessary mfonnation and documentauon, being available to gwe testimony,
and givmg full support to the overall eJfort of collecting funds and assets from the
sources stated herein.
2. Any party hereto shall have the right to order a complete inventory of all property and
other assets described herein at any time, and aU panics agree to provide full cooperation
to such an effort. Any costs shall be born by the party requesting the inventory.
Contract for Sale of Land, Mmeral R1ghrs. 2 ll'ntlafs of IJ.j.
~~l1e• ;md Other AS!Sets and/or M()ntes all parttcs .JJ,f_.
3. As full considcratio~arcroft agrees to provide, or has pr~ded, the following:
a) Barcroft has paid to Gibbs a total of twenty~one (21) silver dollars minted by the
United States Mmt, photocopy of said coins attached hereto as Exhibit "A", and
mcorporatcd herein for all purposes as real consideration under this agreement,
and Gibbs hereby acknowledges receipt of same with this signing; and,
b) Barcroft will provide his servicest knowledge and best efforts in the pursuit of all
av~itable funds, property, and/or other assets from the sources stated herein; and,
c) Barcroft" at hts expense; will provtdc legal counsel by acquiring a licensed
attorney for any reasonable and prudent actions necessary to the collecting of the
funds from the sources stated herein~ however. should Gibbs, or any of the
indtviduat Gibbs, feel that their/his/her interests are not properly served by the
attorney Barcroft provides, that party wt\1 be responsible for the legal fees of any
other attomey(s) hired by Gibbs, or any individual Gibbs, to protect their/his/her
individual interests. In that event, it ts agreed by all parties hereto that the
attorney hired by Barcroft wtH represent only Barcroft in all future action(s).
Furthermore. it is specifically agreed that smd attorney hired by Barcroft will
represent only Barcroft should a dtspute arise between the parties hereto; and,
Gibbs, individually and coll~tively, agree not to claim conflict of interest should
said attorney represent Barcroft in a conflict between the parties hereto; and,
Gibbs. collectively and 1ndividua11y, hereby waive their/hislhcr right to claim
conflict of interest with regards to said attorney m such instance.
4. It is understood and agreed that Gibbs may caned or nullify this contract Qn!y under
the following conditions:
a) lf Gibbs pays over to Barcroft the sum of five million dollars ($5,000,000.00 US)
in full, in addition to any money received prior to said one time payment, as
liquidated damages and full settlement of all consideration on Gibbs part.
b.) If Barcroft voluntarily abandons tbe effort to collect the funds from the sources
stated herein; however. in this event, Barcroft shall retain all antoLmts already
receJved, and w1H continue to receive any future proceeds from any of the
property or other assets, and will retain his ownership interest in any property
Con traer for Sale of Land, Mmcral Rights,
R7~~ and Other Asset~; andior Momes
3 lnmals of ~,4 V.'
all partl!.l-'i ~
A'
l:'f!..._
'-' .....,
which is covered by this agreement and has been brought into the control of
Gibbs, or is paying benefits of any kind at the time of Barcroft's abandonment; or,
which is brought mto the control of Gibbs~ or start paying benefits at a later date,
provided that said control or payments is a result of actions prior to Barcroft's
abandonment.
5. If Barcrotl dies or becomes incapacitated, the contract will remain in force. and the
assets whtch have been accessed and are paying at the t1me of Barcroft's death. or which
are later accessed as a result of Barcroft's etTorts, \Vill go to his heirs and assigns.
6. It is hereby agreed that there shall be a business organization, the exact type to be
agreed upon at a later date1 created by the parties hereto; and~ that aU 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 \veil upkeep, etc.) shall be deducted
.and paid as required before the 70/30 d1Vision agreed to in this contract. Barcroft shaH
have a 50% vote in the operation of said busmess organization; and, the only function of
said business organization shall be to factlitate the agreement in this contract. Any
monies paid out of said business organizationj other than the agreed upon split between
the panies, shall be agreed upon by aH parties hereto. The division shall be divided on a
basis of 30% to Barcroft. 23.34% to Kcnnelp Vern Gibbs, 23.33% to Candace Walton
Gtbbs, and 23.33% to Howard Kirk Gibbs, at each instance of dispersal to the parties.
Any part;r may demand a split of the assets of said business organization at any time.
7. If either party should break the tenns of this agreement in any fashion, or attempt to
render the contract invalid, in any way which would require legal action to correct or
enforce, the party found at fault, or the party failing to prevail, shall pay aU legal
expenses of any type for h1mselflberself, and for the prevaHing party.
8, Thts contract is written to comply with the laws of the State of Texas; and, any
provision found by a court of competent ju:risdiction to be in non-compliance shaH be
Contract for Sale or Lan$els <~ndlor Momes
4 lrnttal~vf
all parttes
.a //Of.
~ ~ ..:::="c;Jr;.;!ll~
723
automattcally 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 shaH any such findings
on one provision affect any other provision wtthm the contract
9. Notwithstanding any other provisiOn under the la\'11, it is expressly at,1feed that this
contract shall be performable only in Fannin County. Texas~ and. any dispute(s) will he
resolved tn the courts ofFannin County, Texas. The signing hereto of this contract by all
part1es completes the sale of 30% of all property and assets of Gibbs to Barcron.
I0. Thts agreement shall be binding on at1 heirs and assigns ofthe parties hereto.
l L No lien(s) may be placed upon any of the property covered herein unless such lien(s)
is/are agreed to by all parties hereto, reduced to writing, and signed by aU parties hereto
before a notary public.
12. All agreements between the parties hereto are contained in \vriting in this contract,
and no verbal agreements shalt be deemed valid unless contained in writing herein. All
amendments hereto must be in writing. and signed by aU parties before a notary pubhc.
13. Albert Lynn Barcroft~ Kenneth Vem Gibbs. Candace G1bbs Walton, and Howard
Kirk Gibbs, the principal parties hereto. hereby agree h.) this contract 1n its entirety
without reservation; and, each pledge never ro challenge the tenns; conditions, intentions,
andJor constderations under this contract with their respective si~rning hereunder.
till ., .___,_.,__.
~Gibbs
Contract fl)r Sale of Land, Mtneral Rtghts, 5
R£1yalnes and Other A!:-si."IS and/or Monn:s
724
ACKNOWLEDGEMENT
STATE OF TEXAS
Subscribed, Sworn, and Sealed
COUNTY OF COLLIN
On Uus 1011> day of May in the year 2005, Albert Lynn Barcroft~ known to me, d1d
personally appear before me; and, after taking the oath, deposes and says that he 1s the man who
executed the foregomg instrument; and, further stated that he executed the same as hts free and
infonned act and deed for the purposes stated therem. and with a full understanding of the scope of
the provisions contained therein; nnd, that he a to a ide by all said provisions.
---·-~---- ...
Subscribed and sworn 10 before me tf1is 10111 day of May in the year 2005.
'
No&fu~~~--
Subscribed, Sworn, and Sealed
COUNTY OF COLLJN
On this 10111 day of May in the year 2005> Kenneth 'Vern Gibbs, known to me. did
personally appear before me; and, after taking the oath, deposes and says that he is the man who
executed the foregoing instrument; and, further stated that he executed the same as his free and
informed act and deed for the purposes stated therein. and wHh a full understanding of the scope or
the provisions contained therein; and, that he agrees to abide by an said provisions.
~11~-~
Kenneth Vern Gibbs
Subscribed and sworn to before me this lOth day of May in the year 2005.
'
Cont1x1 for Sale .,r Land, Mmrnl R1ghts,
l--.-
Notary in and for the Stal
T ru f
' - - ·
Contract Cor Sale of Land, Mineral R1gbts, 7
Royalt•es and Olher Assets and/or Momes
726
/IJ· .IS 1ft ,e. c/t., F 7
~..p. 0- hx t?P
Tf<_. ll vt -ft> "~. T:e X 4. .s
7 s-tjfc> {_,.t.i'J)
&_t,,J,;.I F~.;r·/ ~ tiJt t~ WJ
727
MAR-29-2005 01:57PM P.01
ABSTRACT OF JUDGMENT
CAUSE NO. GA-:lOOl·lH-02
A11'0RNEY FOR PLAINTIFF
COLLIST£lt, LAWRENCE C.
P.o. Box 918
Dencon, Tx. 76202
TIIESTATEOFTEXAS t
COUNTY 0, '>E1'170N I
I, Cynthia Mitchell, CLeRK of the County Courtl of Denton COunty, Te"u, do hereby certify that in the Probate
Court or Denton County, Toxas, in I certain suit heu(i In said caurt, wherein:
.
Kip H. Gibbs, AS NEXT FRIEND FOR Kathryn Hotlfeworth Clbb-,'PI•Intltf(t)
VI,
Candace Gibbs Walton, E'r. AL. Dcfondent(s)
Plalntlffrecoveredjud&mcnt against the~ following Defendant(a):
Canwe Gibbs Welton DRIVER'S LICENSE: LTNKNOWN
t 13 South Melanie Street BIRTH DATE.: UNKNOWN
!Ule. Tx $.S,# UNXNOWN
kenneth Olbbs DRJV:BR'S LICENSE: UNKNOWN
1200 Whitley Road BIRTH DATE: UNKNOWN
Kollet, Tx 76248 s.s.s UNLNOWN
Howard Kirk Olbbs DRIVER'S LICENSE: UNKNOWN
P.o. Box222 BIRTH DATE: UNKNOWN
HtUlet, TX 760~2 S.S.#: U'NNNOWN
Bert Hughes Gibbs DRIVER'S LICENSe: UNKNOWN
P.O. Box444 BIR.ntDATE: UNKNOWN
Hulet, TX 760~2 $.5,#: UNKNOWN
On lOth day of January, 2005, for:
Jolatty a11d Severally
$ 911.252.87; as the ptlncipal amount due;
Pro-judgment int~rest Oh that sum at the rate ofS%, in th~ sum of$ 149, S46.34 [1,198 days (date of tiling until
date judgment was signed) at $ 124.83 por day]
Post-Judgment interest in the total sum at the annual rate of five and !4 percent: and
$ 66.25; as costs of court; and
Said Judgment Is of ~ord in the Probate C011tt, Donton County. Texas. satd judgment is entitled to the following credits to-
wit: NONE
GIVEN UNDER MY HAND AND SEAL OF OFfiCE, at Dc:Dton, Texas. Wednesday, March 09
THE STATE 01 TEXAS
COUNTY OF~~----~
I, , Couacy Clerk of Co11nty, do hereby certify tbatthlt Abitnct oi.J"d1meat wu
nw tor record In ID)' oflkc tfle day of 200_, at _o'clock --- .M'I llld Wd lmmedlattl)'
rtcorded the ~- day of 200__. at _o'cloctc _ .M., In the Judpent Rteords of said Couty hi Volume
_____, Pace _ , aftd wtl al10 at th1 Sllllll tlmo eatered 11pon the lndeit to lild Judcmeat Reconb, sbowlnl tbt Ramee of QCh
Plalndflb) iad ncb .beftndint(a) fn aald JlldJmeat, •~td the aumben oftht paa11 ofrllt Book upo11 wbleh uld abstract Ia recorded.
WITNI'.SSU MV HANJ) AND SEAL OF OFFICI., tllll _ _ day or _ _-~100_.
----------~County
l!!!r.:" _ _ _ _ _ _ _ _ _ _ couaty, Ca.rtc
Tuu
Si1 __________.n.puty cterk
01/25/2005 15:05 GIBBS R_E__R ,~ PAGE 01
COPY CAUSE NO. GA~2001-196
IN THE MATIER OF § IN THE PROBA1'J\:fCOURT''II
. . .... .. .._..,;
\.,
THE GUARDIANSIDP §
§
KATHRYN HOUSEWORTH GIBBS, §
AS INCAPACITATED PERSON §
CAUSE NO. GA-lOOl-196-02
KIP H. GIBBS, AS NEXT FRIEND FOR § IN THE PROBATE COURT
KATHRYN HOUSEWORTH GmBS §
§
§ OF
vs. §
§
CANDACE GIBBS WALTON, ET AL. § DENTON COUNTY, TEXAS
FINAL JUDGMENT
On September 13, 2004, this case was called for trial. Plaintiff, Kip H. Gibbs, in his
capacities as next friend for Kathryn Houseworth Gibbs and co~guardian of the estate of Kathryn
Houseworth Gibbs, appeared in person and through his attorney and announced ready for trial.
Defendants, Candace Gibbs Walton, Howard Kirk Gibbs, KeMeth Vem Gibbs, and Bert Hughes
~-
Gibbs, though duly notified, failed to appear.
All matters, legal and factual, were submitted to the court for its detennination. The court
heard the evidence and argument of counsel and announced its decision for plaintiff.
The court orally rendered judgment for plaintiff on September 13, 2004. This written
judgment memorializes that rendition.
The court finds that:
1. All defendants are properly within the jurisdiction of the court;
Paget of9 • FINAL JUDGMENT
(Gibbs. Kat/Final Judgment)[lcc;O 11905]
7
01/26/2005 15:05 GIBBS R_E __R ~ PAGE 02
2. The court has appropriate jurisdiction under the Texas Trust Code, Texas Probate
Code, and the Texas Govenunent Code;
3. All necessary citations have been issued;
4. Defendants each had notice of the setting for trial but did not attend;
5. Plaintiff provided evidence proving liability, causation, and damages for all causes
of actions pleaded;
6. Bert Hughes Gibbs (''Bert") was the husband of Kathryn Houseworth Gibbs
("Kathryn''), and Candace Gibbs Walton (''Candy"), Kenneth Vern Gibbs ("Kenneth"), and
Howard Kirk Gibbs ("Howard Kirk") were her children;
7. On July 17, 1990, Kathryn's mother, Mary L. Houseworth ("MaryH), created both
the Mary L. Houseworth Revocable Trust ("Houseworth Trust") and the Kathryn Houseworth
Gibbs Irrevocable Trust ("Gibbs Trust");
8. On February 7, 1991, Mary signed the First Amendment to the Mary L.
Houseworth Revocable Trust which added Candy as a co-trustee with Mary, required joint action
between Mary and Candy, and prohibited unilateral action by Candy as co-trustee; ....
9. Upon the death of Mary, the Houseworth Trust, by its own terms, converted to an
irrevocable trust and the assets of the Houseworth Trust became assets of the Gibbs Trust and
Kathryn was to receive a mandatory :monthly distribution of not less than $2,000.00 nor more
than $3,000.00; further, the overall purpose of the trusts were so that Kathryn shall be able to live
in a manner consistent with her 1990 standard of living;
10. Compliance with the purpose and intent of the trusts would be defeated by
maintaining the cun-ent level of monthly distributions to Kathryn;
Page: 2 of9 • FINALJUDGM~I'll'
(Oibbs.Kat/Fina1Judgment)(lce;01190S]
730
01/25/2005 15:05 21444'-''38 GIBBS R_E __ R ..._t PAGE 03
11. The Houseworth Trust provides that all benefits of the trust are held for Kathryn
and that her children, Candy, KeMeth, Howard Kirk, and Kip Hughes Gibbs ("Kip'') are the
beneficiaries after Kathryn's death;
12. The Gibbs Trust designated Mary, Kathryn, Candy, Kenneth, Howard Kirk, and
Kip as beneficiaries and that~til income was payable to the Houseworth Trust during Mary's
lifetime, provided that distributions could be made to any beneficiary for health emergencies, and
stated that Kathryn and any three of the four children could direct income or principal to be
distributed directly to Kathryn;
13. Mary died testate in 1991 ;
14. Kathryn is incapable of protecting her own interests and from the importuning of
her husband and children and will sign ahnost anything for anyone who asks her to do so;
15. On and after August 1998, after being terrorized about impending Y2K disasters
and the importuning of the defendants, Kathryn signed blanket authorizations, later signed by
Candy, Kenneth, and Howard Kirk, withdrawing $1,015,000.00 from the Gibbs Trust ("Removed
Funds"); ~ •'
16. Kathryn was told by defendants that the Removed Funds were to provide for
staples for the family during the impending crisis;
17. The Removed Funds were controlled and/or spent by the defendants;
18. $701,021.00 of gold coins and junk metal were purchased with the Removed
Funds. The balance of the Removed Funds were either !>pent by or distributed to the defendants;
19. Plaintiff received $36,200.00 from the Removed Funds which was subsequently
spent for Kathryn's benefit or deposited with the court;
FINAL JUDQ~EN'f
(Gibbs.K.at1Final1udgment)[lcc;otl90S]
7~
01/26/2005 15:05 21444'-'98 GIBBS R_E __R \wl PAGE 04
.'
20. Plaintiff did not participate wi.th the defendants in the withdrawal ofthe Removed
Funds;
21. Plaintiff did not consent to the withdrawal of the Removed Funds;
22. Plaintiff affmnatively demonstrated to defendants of his disagreement with the
withdrawal of the Removed Funds;
23. Plaintiff demanded that the Removed Funds be accounted for and returned to the
Gibbs Trust after it was evident that Y2K did not pose any society ending problems;
24. Defendants openly and steadfastly refused to comply with plaintiff's demand;
25. Each defendant was in a fiduciary relationship with Kathryn Houseworth Gibbs
("Kathryn'1), or, alternatively, a relationship of special trust and confidence giving rise to
fiduciary duties;
26. Each defendant is fully accountable to Kathryn for the Removed Funds;
27. Each defendant breached their respective fiduciary obligation to Kathryn;
28. The defendants' decision to purchase the gold coins and junk metal was an
inadvisable, imprudent and improper investment and did not meet any standard of wise or ....
prudent fiduciary management;
29. Plaintiff recovered from defendants (i) all of the gold coins and junk metal
purchased with the Removed Funds, and (ii) the amount of $225,873.03.
30. Plaintiff was unable to account for $88,141.97 of the Removed Funds;
31. Plaintiff, under court order, sold the gold coins and junk metal for $387,419.03;
the sale :resulted in a net loss of $313,601.97 to the Gibbs Trust;
01/26/2005 15:05 21444.._,:38 GIBBS R_E__ R ·~ PAGE 05
32. The method of resale of the gold coins, approved by court order. was reasonably
calculated, and diligently pursued, to obtain the highest possible resale cost in value on the gold
coins and other precious metals;
33. Defendants, primarily Howard Kirk Gibbs, negligently or intention~lly failed to
comply with federal tax law which resulted in the penalties and interest being incw-red by the
Houseworth Trust and the Gibbs Trust;
34. The wrongful withdrawal of the Removed Funds directly caused federal income
tax penalties and interest to be incurred in the amount of $143,843.81 which was subsequently
paid by the Houseworth Trust and the Gibbs Trust;
35. The attorney fees in the amount of $115,665.12 incurred by plaintiff in his
capacity as next friend of Kathryn Gibbs and as co-guardian of the estate of Kathryn Houseworth
Gibbs in an effort to recover the Removed Funds and to recover damages incurred by the
Houseworth Trust and the Gibbs Trust as a result of defendants' actions were reasonable and
necessary;
36. The plainti:ffh&incurred actual damages in the amount of$661,252.87; ;.,.
37. Five percent is the COITect prejudgment interest rate applicable under the Texas
Finance Code;
38. The conduct of one, some, or all, of the defendants at various stages of this
litigation has been recalcitrant, obstreperous, abusive, vexatious, dilatory, and engaged in with
intentional malice, or alternatively, with a reckless disregard for the rights of the trust
beneficiary, Kathryn; has been engaged in for no good-faith purpose; has been engaged in bad
faith during the course of this Htigation; and has included the hiring and firing of four separate
attorneys and multiple dilatory motions;
PageS of9 • FIN"L .JUDGMENT
(Gibbs.Kat!Final Judgment)[lcc;Ot 1905]
7®
01/25/2005 15:05 GIBBS R_E __ R -...., PAGE 05
39. The punitive damage award of $250,000.00 is based on the underlying withdrawal
of $1,015,000.00, the loss of use of the Removed Funds, and the actual damages and bears a
direct and rational relationship to actual damages incurred in this case and is reasonably
calculated to accomplish the legitimate pwposes of exemplary dantlges that is act as a deterrent
to the same or similar conduct by others in the future and to punish wrongdoers;
40. The majority of the activity by defendants in this case cannot be excused as
nonnal defensive tactics or advocacy or litigation proce~s but an abuse of the system;
41. Defendants refused continuously and throughout the course of the litigation to
disclose any meaningful financial infonnation, documents, papers, exhibits, or other matters,
even though proper request for the same was made;
42. There is no way in which any one defendant can be excused or set aside or: limited
or exculpated from the conduct of the other defendants;
43. Defendants conduct is so inextricably intertwined that the court is unable to
segregate any element of damages, and hence, makes all damages, including those that are
exemplary, joint and several; o>.
44. The purposes and intentions expressed by Mary in the creation of both the
Houseworth Trust and the Gibbs Trust have been frustrated through the conduct of defendants,
and that because of the defendants • conduct of defendants, three of whom are contingent trust
beneficiaries, that the court must modifY the trusts to exclude any possibility of control by them
with respect to the trusts or their administration or any ability to cause the withdrawal of funds;
45. The conduct of defendants commencing with the withdrawal of the funds from the
trusts and continuing throughout the coun;e of this litigation was undertaken with the specific
malicious intent to either defraud or harm or permanently deprive the primary trust beneficiary,
Page 6 of9- FINALJUDOMEI'IT
~ibbo.KoUF;"' '"''"'""')[!~'" l90S)
73~
01/26/2005 15:05 GIBBS R_E__R .._,. PAGE 07
Kathryn, of property rightfully belonging to her and entitlements to income rightfully belonging
to her and that there was no intention at any time to make restitution of such property to the
primary trust beneficiary, Kathryn, and that said conduct was also committed with a reckless
disregard for the rights and well·being of Kathryn;
46. The actions of defendants operate as a forfeiture of their interest in both the
Houseworth Trust and the Gibbs Trust as contingent beneficiaries, or alternatively, if this finding
is later determined to not be consistent with law in that the defendants conduct does not justify a
forfeiture, the court finds that such actions by defendants was of such reckless disregard and with
such malicious intent and caused such harm and damage to plaintiff, that the court orders a
surcharge against the interest of those contingent beneficiaries equal to their pro rata share of the
judgment.
The court therefore renders judgment in favor of plaintiff and against defendants and
ORDERS that:
l. The plaintiff recover from defendants, Candace Gibbs Walton, Kenneth Vern
Gibbs, Howard Kirk Gibbs, and Bert Hughes Gibbs, the sum of $911,252.87, prejudgment ••
interest on that sum at the annual rate of five percent, in the sum of $149,546.34 [1.198 days
(date of filing until date judgment was signed) at $124.83 per day], post-judgment interest in the
total ~urn at the annual rate offive and 1/4 percent, and court costs;
2. This judgment is joint and several;
3. The Houseworth Trust and the Gibbs Trust are each modified to:
a. specifically eliminate, terminate, cancel, and forever hold for
naught any right. power, or authority previously vested in Candace Gibbs Walton,
Kenneth Vern Gibbs, or Howard Kirk Gibbs, or, to the extent any ever existed or
01/25/2005 15:05 GIBBS R_E__R ..._, PAGE 08
derivatively could exist, Bert Hughes Gibbs, with regard to any withdrawal of
funds;
b. specifically eliminate, terminate, cancel, and forever hold for
naught any right, power, or authority previously vested in Candace Gibbs Walton,
Kenneth Vern Gibbs, or Howard Kirk Gibbs, or, to the extent any ever existed or
derivatively could exist, Bert Hughes Gibbs, over the trust assets or the duly
appointed and acting trustee or successor trustee;
c. remove Candace Gibbs Walton, Kenneth Vern Gibbs, and Howard
Kirk Gibbs as contingent beneficiaries;
d. specifically eliminate the requirement that a majority of the
beneficiaries could change the trustee and plaintiff is solely allow to determine
when and if a trustee should be removed and who should be appointed successor
trustee;
e. eliminate distributions to any contingent beneficiaries during the
lifetime of Kathryn Houseworth Gibbs;
f. eliminate the requirement that Candace Gibbs Walton can be
named as successor trustee; and
g. to allow monthly expenditures to Kathryn Houseworth Gibbs to
exceed the maximum guideline of $3,000.00 if by doing so meets the general
overall purposes of the trusts.
4. Texas Bank is appointed trustee of the Houseworth Trust and the Gibbs Trust.
5. Any escheated funds property belonging to either the Houseworth Trust or the
Gibbs Trust can be recovered by any trustee or successor trustee.
Page 8 of 9 - FINAL JtJDGMIENT
~ (Glbbo.Koi/Fl"t ludgma,.Xl";Ot 190ll
73~
01/26/2005 15:05 GIBBS R_E __ R ....._, PAGE 0'3
All other relief not granted is denied.
This judgment is fmal, disposes of all claims and all parties, and is appealable.
The court orders execution to issue for this judgment.
Signed on Januar;~os.
·'
.....,_... fJW_
/ '
By: . . ......_
.
Honorable Don • Windle,
Probate Judge~
Probate Court of Denton County, Te:xas
"
Page 9 of9 • FINAL JUDGMENT
(Gibbs.l(at/Final Judgment)[lec;OI190'J
7
UNSWORN STATEMENT GIVEN UNDER PENALTY OF PERJURY
I, Albert Lynn Barcroft, Affiant, being of sound mind, over age of majority, competent to testify, and
having a firsthand knowledge of the facts contained herein, hereby certify and declare that the following
facts are true, correct and complete as stated, and are so stated under the penalty of perjury:
1. 1 signed a Contract ("CSL") with Kenneth Vern Gibbs, Candace Gibbs Walton and Howard
Kirk Gibbs, herein collectively "Gibbs", on May lO, 2005.
2. Through the CSL, I purchased 30% of everything that could be recovered from the estates of
the Gibbs' parents, Bert Hughes Gibbs and Kathryn Houseworth Gibbs.
3. At the point when the CSL was signed, the Gibbs had lost everything, final judgments against
them were almost a year old, there was an Abstract of Judgment against each of them for over
a million dollars, they had no money, no attorney would even talk to them, and they had no
hope that they could ever recover.
4. As a direct result of the CSL, the judgments against them were removed, they regained a full
share of their parents' estate, and their lives were returned to normal. Save for the CSL, none
of this would have happened.
5. I did not claim to be an attorney, I did not claim I had attended law school, and I did not tell the
Gibbs I could represent them in any manner. I did not ever ask for, expect or receive
compensation for anything from the Gibbs other than as consideration under the CSL. I did not
try to induce the Gibbs in any way other than to say I would put up money, hire an attorney,
and work hard to get some of their inheritance back. I have many e-mails from Candace
Walton, the last one coming just after Ms. Lee was hired, thanking me for saving their
inheritance. Ms. Lee was able to change all ofthat, and replace it with charges of wrongdoing.
6. I did not draft the CSL without assistance. Contrary to her statement under oath, Candace
Walton had no way to know who drafted the CSL, although she swore to that fact.
7. Defendants Candace Walton and Kenneth Gibbs stated as fact that "John Skotnik drafted the
CSL" in their original answer in the 336th District Court of Fannin County, Texas, case number
cv-14-41665 ("lawsuit") when they were attempting to disqualify John Skotnik.
8. Defendants Candace Walton and Kenneth Gibbs stated as fact that "it is an established fact
that Albert drafted the CSL" in their Response to Motion for Summary Judgment in the
same lawsuit when the wanted to say Albert Barcroft practiced law without a license.
9. There was no discovery from either John Skotnik or Albert Barcroft between the two
"statements of fact" that could have resulted in any fact as to who drafted the CSL being
established.
10. Candace Walton and Kenneth Gibbs have shown a strong propensity throughout these
proceedings and those in a related case in Tarrant County Probate Court #2, case number 2005-
0000126-2-D, to state as fact that which is not; and, to change their stated facts to me~et
their
instant needs.
' PLAINTIFF'S
~ EXHIBIT "V '1~~~.~~~!!.t'.,,
~ \]t.~ ,~ ~~,v~,
738 ~ J . :0,.':; i \=~\
------------------·-------·-·--- .. f --------------------~~
{~i r:,_s;
<,?).\ ~l
\~~:}>· ',. v J / r,J;\ .
. tfJ~icC" /
11. Everything I did leading up to the signing of the CSL was in business negotiations on my own
behalf. I did not give legal advice, I did not represent anybody other than myself or say I
could, I did not claim to have attended law school, I did not expect, ask for or receive any
compensation from the Gibbs other than later as consideration under the CSL, and I did not tell
the Gibbs not to get legal advice before they signed the CSL. None of these charges were
made until over 8 years after the fact when Christy Lee became attorney for Candace Walton
and Kenneth Gibbs, and started creating baseless allegations and lies to support those
allegations. There is absolutely no evidence that any such charges were ever levied in the pre-
Lee era, because said allegations were absolutely contrived after Ms. Lee took over, and are
false, and the Gibbs did not used to be liars.
12. After the signing of the CSL, I immediately hired John Skotnik as attorney to represent the
Gibbs' interest. John Skotnik had already represented Howard Gibbs in a criminal matter,
showing that I did not hold myself out as an attorney or as someone who could represent
another party.
13. The false allegation that the CSL was unconscionable because I was practicing Jaw without a
license in order to induce the Gibbs into signing the CSL, and because of the consideration
given the Gibbs under the CSL is a recent invention of Ms. Lee. The allegation was not made
in the Gibbs Original Answer, Counterclaim or Affinnative Defense, nor in any amendments to
that answer. Neither was the allegation made in the Original Gibbs Tarrant County lawsuit
filed in the Probate Court Number 2 of Tarrant County, case number 2005-0000 126-2-D,
which addresses virtually the same issues as the case in Fannin County. After almost a decade
and numerous filings in the Fannin County and Tarrant County courts, the Gibbs have
apparently just discovered that they were deceived by me while "practicing law without a
license" into signing an unconscionable contract. That revelation comes strangely at a time
when all their other false allegations appear to be falling short.
14. As a direct result of the CSL, each of the Gibbs has received well in excess of a million dollars,
each has had a final judgment against them of over a million dollars retired, and each stands to
receive several more million dollars as was pointed out by Ms. Lee in a hearing in the Tarrant
County lawsuit when Ms. Lee stated, "· • · Your Honor, you have to keep in mind, even
though it does look like these are assets that have been transferred out of the estate, there are
assets that aren't transferred out of the estate.··There currently is a $6.1 million offer on a
piece of property, to pay in full, or a $8.5 million installment agreement over the next five
years, that will come to the estate of Bert Gibbs· · ·There is a lot of money out there. My
clients •• my two clients own 25 percent of the estate. So if they own 25 percent, they are
potentially going to get $2 million. AI Barcroft owns a percentage and Howard Kirk Gibbs
also owns - he owns 12.5 percent...So we have a lot of assets for the estate of Bert Gibbs."
Every single asset that Ms. Lee refers to in this statement would not belong to the Gibbs save
for the CSL and the work and money that I invested into the CSL as consideration.
739
15. Save for Ms. Lee's false allegations and attempts to get her "share of the pie", it is my firm
belief that there would be no lawsuit.
FURTHER, AFFIANT SAYETH NOT.
VERIFICATION
My name is Albert Lynn Barcroft, my date of birth is August 20, 1946, and my address is Rancho
Las Brisas, San Marcos, Livingston, lzabal, Guatemala, Central America; and, I declare under
Penalty of Perjury that the foregoing statements are true and correct, and not intended to mislead.
Executed at San Marcos, Livingston, Izabal, Guatemala on the 4th day of November, 2014.
740
·--··· .
CAUSE No. GA 2001-00196
IN RE GUARDIANSHIP OF ) INTHEPROBATECOURT
ESTATE OF KATHRYN H. GIBBS, ) OF
AN INCAPACITATED PERSON ) DENTON COUNTY, TEXAS
AND
CAUSE No. 05-126-2
IN RE: THE ESTATE OF § INTHEPROBATECOURT
§
BERT HUGHES GIBBS, § NO. TWO OF
§
DECEASED § TARRANT COUNTY, TEXAS
FAMILY SETTLEMENT AGREEMENT
TillS FAMILY SETTLEMENT AGREEMENT (this "Agreement" or ~'FSA") is
mad~:: and entered into by and among the following persons, both .individually and in the
· fiduciary capacities described below:
. .
I. Kenneth Vern Gibbs ("Ken"), Individually and as Independent Executor of the
Estate of Bert Gibbs, Deceased and in all capacities listed under his signature line
below;
2. Candace Gibbs Walton ("Candy"), Individually and in all capacities listed under
her signature line below;
3. · Kip Hughes Gibbs ("Kip") , Individually and in all capacities listed under his
signature line below;
PLAINTIFFS 4. Howard Kirk Gibbs ("Howard Kirk"), Individually and in all capacities listed ',
'II EXHIBIT
~
5.
under his signature line below;
Kathryn Houseworth Gibbs ("Kathryn") , Individually and in all capacities listed
under her signature line below;
6. Sandra Faye Gibbs ("Sandra'') , Individually and in all capacities listed under her
signature line below;
flu/
k" FAMILY SE'ITLEMENT AGREEMENT- Page 1
.d:'ulases\Gilibs'>J;SA 8'25'08-linal {\ b
/ _!;::./ KVG CGW
L-··· ---···-·-·· • -·---··- -·- •····· ------·- ---····------~·~·- - - ·
•
· 3.25 Representations. The Partie~ to this Agreement make t}J.e following representations to
such other Parties:
(a) The representing Party is legally competent to execute this Agreement and that
this Agreement is valid, binding and enforceable as against himself or herself,
any s~tch Party's Successors and Affiliates.
d
(b) The representing Party believes that neither the Decedent nor the Ward have
I properly executed any right of survivorship or pay on death agreements or other
agreenients relating to the creation of non-probate assets and that, if any such
agreements exist each respective Party hereby revokes said agreement and
returns it to its original title and that any such agreements or contracts are void
and of no effect and .that any non-probate assets are an asset of either the
Decedent's and/or Ward's estate and pass pursuant to the terms of this.
Agreement.
(c) The representing Party owns the claims released herein and has not assigned,
released, waived, relinquished, pledged or in any mru.mer whatsoever, sold or
transferred, his or her interest, right, and/or claims to or against the Decedent,
Decedent's Estate, Ward, Ward's Estate, except as to his or her attorneys, and or
the following persons who will also join in the execution of this Agreement.
Ken, Candy, and Howard Kirk represent that they have assigned an interest to A1
Barcroft, who approves and ratifies all of the terms and provisions of this
Agreement as represented by his execution ofthis_Agreement. The Parties agree
that the interest of Kathryn and the interest of Kip, respectively, is not and shall
never be affected or reduced in any way because of any assignment of any
interest made by Ken, Howard Kirk or Candy to AI Barcroft or any other person
and that any such assignment shall only affect or reduce the interest of Ken,
Howard Kirk and/or Candy in any Property covered by this FSA.
Further, the Parties agree that the enforcement of the assignment by any Party to
any attorney or third party niay be secured at the request of such attorney or third
pru.iy by the filing of an appropriate Security Agreement/Deed of Trust, reflecting
the existence of the assignment obligation and the enforcement of the same by the
\ attorneys and/or third party who will be treated as Secured Parties.
(d) Each Party confirms and agrees that such Party (i) has relied on his or her
own judgment and has not been induced to sign or execute this Agreement by
promises, agreements or representations not expressly stated herein, (ii) has
freely and willingly executed this Agreement and hereby expressly disclaims
reliance on any fact, promise, undertaking or representation made by any
other Party or Personal Representative, save and except for the express
agreements and representations contained in this Agreement, (iii) waives any
right to aqditional information regarding the matters·governed and effected
,!J.-r:hiLY SETTLEMENT AGREEMENT- Page 33
~\Gibbs\FSA 8'15'08-final
/"'"
!<.Ub
742
~- . ..
READ, UNDERSTOOD, APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
Candace Gibbs Walton, individually, as an heir and/or
beneficiary of the Estate of Bert H. Gibbs, Deceased, and
as a potential heir and/or beneficiary of the Estate of
Katlrryn H. Gibbs, Individually and/or as an Incapacitated
Person, and as a contingent beneficiary of the Mary L.
Houseworth Revocable Trust ("Houseworth Trust") and the
Kathryn Houseworth Gibbs Irrevocable Trust ("Kathryn
Gibbs Trust"), and as the virtual representative and next
friena of her children, and their successors, plus those
minor, m1bom, tmascertained, and contingent beneficiaries
of the Estates of either Bert H. Gibbs, Deceased, and/or the
Estate oJ Kathryn H. Gibbs, Individually and/or as an
Incapacitated Person.
STATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was signed and acknowledged before me on the .5 day of
--~.-sezyp+c~-L-L-'-L.Jnt"-"!P~L='--_J' 2008, by CANDACE GIBBS WALTON, in the above stated capacities,
known to me or whose identity was verified.
·;,u•v ''"
,.,,~~·
~fh~ CATHIE l SMITH
;~~··
: r.~'!.
:i Notary Public, State of Texas My Commission expires on: 9'- tf- 26f/
~,t:t •.•. ~~q My Commission Expires
..,..,f,fJ,W:•' September 04, 2011
FAMILY SETTLEMENT AGREEMENT- Page 39
~ses\Gibbs\FSA 8'15'08-final
.
READ, UNDERSTOOD, APPROVED AND
AGREED AS TO FORM, CONTENT
AND SUBSTANCE:
AlB
STATE OF TEXAS §
§
COUNTY OF TARRANT §
Tins instrument was signed and acknowledged before me on the 5~ day of
-=5=e-4'_(J'et.:=.Jn'l~\t1e!:....:=.!y'-------' 2008, by AL BARG:ROFT, in the above stated
known to me or whose identity was verified
CATHIE L SMITH
Notary Public, State of Texas
My Commission Expires
September 04, 2011
My Commission expires on: 9.-tf-. 201/
~p;t ~A~j t~"o
FAMILY SETI'LEMENT AGREEMENT- Page 44
~\Gibbs\FSA 8'15'08-finol
'W)
-r---------~----------..,.._:______________w__l.l~/L___ _ _.,;,/<: t,Y.: . ~ " "· \
\
744
EXCERPT MOTION HEARING - July 31, 2014
REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
TRIAL COURT CAUSE NO. 2005-0000126-2-D
)
IN RE: ESTATE OF BERT ) IN THE PROBATE COURT
HUGHES GIBBS, DECEASED; )
)
CANDACE WALTON AND )
KENNETH GIBBS, )
)
Plaintiffs, )
)
vs. ) COURT NO. 2
)
BEVERLY MILLER, )
INDIVIDUALLY, AND AS )
TRUSTEE OF THE GWB )
FRIENDS AND FAMILY TRUST, )
ALBERT BARCROFT, )
INDIVIDUALLY AND AS 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
*****
***EXCERPT***
***MOTION HEARING***
*****
On the 31st day of July, 2014, the following
proceedings came on to be heard in the above-entitled
and numbered cause before the Honorable
Patrick Ferchill, Judge presiding, held in Fort Worth,
Tarrant County, Texas;
Proceedings reported by machine shorthand.
CRC for Wells Reporting
817-524-6644
745
' • 4t
-
Page 39
EXCERPT MOTION HEARING - July 31, 2014
1 personal representative of the estate pending in this
2 Court is a party. And you can consolidate these cases.
3 THE COURT: True.
4 MS. LEE: Well. Okay. What happened is
5 when this lawsuit was filed, it was filed specifically
6 stating that it was for Pentex Foundation not getting
7 attorney fees that it was entitled to from -- from --
8 from the estate of Bert Gibbs.
9 Your Honor, you have to keep in mind, even
10 though it does look like these are assets that have been
11 transferred out of the estate, there are assets that
12 aren't transferred out of the estate. There currently
13 is a $6.1 million offer on a piece of property, to pay
14 in full, or a $8.5 million installment agreement over
15 the next five years, that will come to the estate of
16 Bert Gibbs.
17 There is a lot of money out there. My
18 clients -- my two clients own 25 percent of the estate.
19 So if they own 25 percent, they are potentially going to
20 get $2 million. Al Barcroft owns a percentage and
21 Howard Kirk Gibbs also owns --he owns 12.5 percent. So
22 we have a lot of assets for the estate of Bert Gibbs.
23 And we filed an amended answer in the
24 Fannin county case, because what they
25 allege -- and what they allege is exactly what
CRC for Wells Reporting
817-524-6644
746 e28bd4ed-9dff-4753-b322-
3H.n PAGE 01
FEDEX OFFICE
76B--77'3-0321
~11/17/2et4
€18:€16
NO. CV~14-41665
PENTEX FOUNDATION\ l
Plttiutiff §
§
v. §
§ FANNIN COUNTY, TEXAS
KENNETH VERN GIBBS, CANDACE §
GffiBS WALTON and HOWARD §
1<1RK GIBBS. D,ifentlcmts § 336111 JUDICIAL DISTRICT
On November 12, 2014, the parties appeared and the following oxders were
entered with t·espect to the scheduling of this case.
1. Januaty 29,2015, 1:00 p.m.~· Hearing on matters contained within the
following documents:
A. Motion to Show Authority, Motion fo1· Change ofVenue, Motion to
Stl'ike Intervention, Motion to Dismiss With Pl'l.~judice, and Rule 13
Motion fot' Sancti'ons nfea· l)y Kennetn Gi()os and' Canoace Wafton,
D~fendants (filed 4-23-13)
B. Plaintiffs Motion to Compel (filed 7-18-14)
C. Plaintiff and Intervenol''s Motion for Partial Summary Judgment
(filed 8-12-14)
D. Motion to Q~ash or fo1· Pl'oteotive Ordet Relatin~ to. s~~h~.JJA~ w.rJ.
Deposition Notices ( filecl· ,~..4·- N·)·
E. Defendant's Motion for Leave ofComt to File Thh·d-Party Petition
(filed 9-15-14)
F. Motion to Compel Discove1·y fi·om GBU Fl'.iends and Associates T1·ust
(filed 9~25~14)
2. March 12,2015. Mediation must be complete by this date.
SCI-IJlD\.!1~ ... PA08 l
747
PAGE 02
FEDEX OFFICE 3101
11/17/2014 08:06 760--779-0321
J. May 14) 2015 1:00 p.m.- Pretrial Conference. Ail discovety must be
t.~o111pleted by this date.
4. June 1) 2015,2015, 8:30a.m. - Jury tl'ial shall commence.
SIGNED November J.:lzo14.
SCBUQ\lLINQ ORDE& ... PAOR 2
748
PENTEX FOUNDATION, §
Plaintiff §
§ ...-(
v. §
§ FANNIN COUNTY, TEXAS
KENNEm VERN GmBS, CANDACE §
GmBS WALTON and HOWARD §
KIRK GIBBS, Dq'endtmts § 336111 JUDICIAL DISTRICT
OR»ER OF REFERRAL FOR MEDIATION
This case is appropriate for mediation pursuant to TEX. CIV. PRAC. & REM.
CoDE§ 154.0001, et.seq., The Honorable Curt Henderson (curthenderson.com) is
appointed Mediator in the above case and all counsel are directed to contact Mediator
to arrange the logistics of mediation within 30 business days. It is ordered that
m~iation shall be completed within 120 days from Novembel' 12, 2014.
Mediation is a mandatory but non-binding settlement conference, conducted
with the assistance ofthe Mediator. Mediation is private, confidential and privileged
from process and discovery. After mediation, the Court will be advised by the
Mediator, parties and counsel, only that the case did or did not settle. The Mediator
shall not be a witness nor may the Mediator's records be subpoenaed or used as
evidence. No subpoenas, citations, writs, or other process shall be served at or near
the location ofany mediation session, upon any person entering, leaving o1· attending
any mediation session.
Fees fot· the mediation are to be divided and borne equally by the parties unless
agreed otherwise, and shall be paid by the parties dil·ectly to the Mediator, and shall
be taxed as costs.
Named parties shall be present during the entire mediation process and
each corporate party must be represented by an executive office with authority
to negotiate a settlement.
Referral to mediation is not a substitute for trial and the case will be t!'ied if not
settled.
749
SIGNED November _1_7 2014.
LA URINE BLAKE, JUDGE PRESIDING
Chris ·· Lee, Attorney for Defendants
(,y' ~b~"' /' '
~~~/.:~
Howard Gibbs, Pi·o Se ·""1
ORDER OF REFb1tRAL fOR MED!ATION ... PAGE 2
750
Nov.20. 2014 1:07PM No. 7446 P. 3
NO. CV-14-41665
FENTEX FOUNDATION, §
Plnintiff §
§
v. §
§ FANNIN COUNTY, TEXAS
I(ENN.ETH VERN GIBBS, CANDACE §
GIBBS WALTON And HOWARD §
KIRK GIBBSJ Deje11danfs § 3361 ~ JUDICIAL DISTRICT
ORDER ON MOTIQN TO RECONSIDER
. ORDER TO TRANSFER VENI!~
On November 12, 2014, came on to be considered the Motion to ReconsideL'
Order to n·ansfer Venue, filed by Pentex .Foundation, Plaintiff, and Joshua Unger,
Trustee of GBU Fl'lends and Associates TrustJ Intel'venor. The Court, having
considered the motion, is of the Ot)inion that it should be granted and that the
followjng orders should be entered.
It is theJ'efore ORDERED that the Order Appt·oving Kenneth Gibbs and
Candace Walton's Motion to Change Venue, signed on September 30, 2014, is
vacated and withdrawn. ·
It is further ORDERED that the Motion to Change Venue filed by Kenneth
Gibbs and Candace Walton is in aU things denied.
SIGNED Novembe1· '.l.\ , 2014.
LA URINE J. BLAKB, JUOOB PRESIDING
751
Nov. 20. 2014 1:08PM No. 7446 P. 4
AS TO FORM ONLY:
Chrlsty Lee, Attorney fot· Defendants
~~
Howard Gibbs, Pro Se
OROl!R ON MOJ!OM TQGfANOIPif:Nll.ll ... l'AOB 2
752
•
225 E. 200
FII~E\\EIW [Al\E, STE.
Al\CIIOI<~Gt:. AlAS!\' 99503
M•\11\: 907.339.9931
FAX: 800.437.7901
777 M.~ll\ ST.. STK 600
FOR"I" \Vul• l
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r""'IJ!'TVI J.,_!·:·
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J ( .,
C~~RLA REAMY Xi! I~ r_ ~- .-
certined Shorthand Reporter Dfv 8 Prl 3. ~- 4
33tfh Judicial District _IijAN~-~
Y UUNG
101 E Sam Rayburn Drive r:Jrc
u~-.J
TRI·• 't. [R"'
· \11
Bonham, Texas 75418 P'( C..::......___ OEPOTY
Phone (903) 583-2863
December 8, 2014
Mr. Howard Kirk G'
4360 We Center Blvd, #205
Ft. 'h Texas 76137
RE: Pentex Foundation vs. Kenneth Vern Gibbs, et al.
Cause Number CV-14-41665 ·
Mr. Gibbs,
Ms. Christy Lee has requested that I transcribe the November 12,
2014, hearing on the Motion to Reconsider Order to Transfer Venue.
Should you like a copy of the transcript, please forward $55. 00 to me
at the address above and I will mail a copy to you.
Should you have any questions, please don't hesitate to contact me.
Sincerely,
cparta Reamy, CSR, TCRR
V
Cc: Fannin County District Clerk
755
SCOTT SMITH
ATTORNEY AND COUNSELOR AT LAW
E-MAIL: smithlaw@airmail.net
FACSIMILE: (903) 870-1446
TELEPHONE: (903) 868-8686
December 15, 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 3361h Judicial District Court ofFannin County,
Texas.
Dear Ms. Young:
Enclosed please find an original and one copy of the following: Motion
to Reconsider Order to Transfer Venue. Please have the Fiat presented to the
Court and returned to my office in the enclosed self-addressed envelope.
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:
March 16-17, 2015
April 22-28, 2015
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.
756
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Scott Smith N TEXAS
~Lt.AS7SO
I
Attorney and Counselor at Law
1:,5 :£lEC 'i4 ~
t:o
PM 1.1. I. ~
P.O. Box 354
Sherman, Texas 75091-0354
§
FOREVER
Nancy Young, District Clerk
Fannin County Col!rthouse
10 I East Sam Rayburn Dr., Ste. 201
Bonham, Texas 75418
IJ,,,J,I,I,IJ,,,J,J,,JJ,,,,J,J,J,J,,IJ,,,,JJ,,J,J,,J
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['-....
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['-....
Cheryl Dane
From: Cheryl Dane [cmdane@fanninco.ne]
Sent: Thursday, December 18, 2014 9:54AM
To: 'smithlaw@airmail.net'
Subject: FW: cv-1.4-41665
Attachments: Letter.tif
I typed that in incorrectly. We did not receive them. Sorry.
From: Cheryl Dane [m9i1to:cmQane@fan_ninco,_OS\]
Sent: Thursday, December 18, 2014 9:53AM
To: 'smithlaw@airmail.net'
Subject: cv-14-41665
Hello, your letter states that the Motion to Reconsider Order and Fiat were enclosed but we did receive them.
Please see a copy of your letter and the envelope.
Thank you,
Cheryl Dane
Deputy Clerk
District Clerks Office
Fannin County
903-583-7459
http://www.co.fannin.tx.us/
758
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
2 TRIAL COURT CAUSE NO. CV-14-41665
3
PENTEX FOUNDATION, ) IN THE DISTRICT COURT
4 )
)
5 Plaintiffs, )
)
6 )
VS. ) 336TH JUDICIAL DISTRICT
7 )
)
8 KENNETH VERN GIBBS and )
CANDACE GIBBS WALTON and )
9 HOWARD KIRK GIBBS, )
)
10 )
Defendants. ) FANNIN COUNTY, TEXAS
11
12
13
14 ------------------------------
15 HEARING BEFORE THE COURT
16 ------------------------------
17
18
19
20 On the 30th day of September, 2014, the following
21 proceedings came on to be heard in the above-entitled and
22 numbered cause before the Honorable Laurine Blake, Judge
23 presiding, held in Bonham, Fannin County, Texas;
24 Proceedings reported by machine shorthand.
25
Gale H. Fiasco, CSR
(903) 640-6696
2
1 A P P E A R A N C E S
2
FOR THE PLAINTIFF:
3
MR. SCOTT SMITH
4 Attorney at Law
120 South Crockett Street
5 P.O. Box 354
Sherman, Texas 75091
6 (903) 868-8686
Fax: (903) 870-1446
7 SBOT NO. 18688900
8
FOR THE DEFENDANTS:
9
MS. CHRISTY L. LEE
10 Attorney at Law
777 Main Street
11 Suite 600
Ft. Worth, Texas 76102
12 (817) 504-6075
Fax: (800) 437-7901
13 SBOT NO. 24052302
14
PRO SE DEFENDANT:
15
MR. HOWARD KIRK GIBBS
16 4360 Western Center Blvd.
Suite 205
17 Ft. Worth, Texas 76137
(817) 233-4423
18
19
20
21
22
23
24
25
Gale H. Fiasco, CSR
(903) 640-6696
3
1 I N D E X
2 (September 30, 2014)
3 Page
4 Announcements...................................... 04
5
PLAINTIFF'S WITNESSES
6 Direct Cross
CHRISTY LEE 10
7
8 Court Reporter's Certificate....................... 41
9
EXHIBIT INDEX
10
PLAINTIFF'S EXHIBITS
11
NO. DESCRIPTION OFFERED ADMITTED
12 16 Series of e-mails 11 12
13 17 August 21, 2014 e-mail 14 15
14
DEFENDANT'S EXHIBITS
15
NO. DESCRIPTION OFFERED ADMITTED
16 A Rule 11 Agreement for 10 10
Method of Service
17
18
19
20
21
22
23
24
25
Gale H. Fiasco, CSR
(903) 640-6696
4
1 THE COURT: Pentex Foundation versus Gibbs, and
2 others, CV-14-41665. We'll have the attorneys take a seat at
3 counsel table. If there are any parties that are here, we'll
4 have them take a seat, as well. Okay. Before we get started,
5 let's go ahead and have each of the attorneys state their names
6 for the court reporter so she has the benefit of that and spell
7 your name where necessary.
8 MR. SMITH: Your Honor, I'm Scott Smith. I'm
9 here representing Pentex Foundation. The representative who's
10 here for Pentex is Danny Unger, who's in the back. I'm also
11 representing Joshua Unger, trustee to the GBU Family and
12 Friends Trust. He's present in the courtroom, as well.
13 MS. LEE: My name is Christy Lee. I'm here
14 representing two of the defendants, Candace Walton and Kenneth
15 Gibbs.
16 MR. SMITH: And we have a pro se.
17 MR. GIBBS: I'm Howard Gibbs. I am pro se.
18 THE COURT: Okay. And, Mr. Gibbs, are you
19 affiliated with one of the sides or the other?
20 MR. GIBBS: Yes, ma'am, I'm a defendant. Is
21 that what you mean, Your Honor?
22 THE COURT: Well, you're sitting at plaintiff's
23 table. So, my question is, are you sort of affiliated with
24 them or is that just where the other chair was?
25 MS. LEE: No, I requested for him to sit over at
Gale H. Fiasco, CSR
(903) 640-6696
5
1 my table and he wanted to sit over there by them. You'll find
2 out --
3 THE COURT: That's fine. At some point there
4 will be a division of time, it will be based on the side that
5 you're affiliated with to some degree.
6 MR. SMITH: I think it's fair to say he's
7 aligned with my clients in the majority of the relief
8 requested.
9 THE COURT: Okay. We have a variety of motions
10 that were filed and we had some filed here at the end that -- I
11 guess, the Court's practice has been a little bit -- well, for
12 lack of a better word -- informal in that the Court's
13 coordinator nor the Court were setting some of the motions or
14 signing the motions for the hearing today. Though, I'm left
15 with the impression some of the parties may be of the opinion
16 that they were actually being included in today's hearing, and
17 I need to know what the position of the parties are on that
18 issue so we can sort this out.
19 MR. SMITH: Judge, if it may help things, I
20 wrote down a summary of what I think is pending based on the
21 order in which they were filed.
22 THE COURT: And to the point that I was asking,
23 though, is it your impression that those are live to be
24 addressed, as well, today?
25 MR. SMITH: This is my impression. There's some
Gale H. Fiasco, CSR
(903) 640-6696
6
1 other things that have been filed --
2 MS. LEE: No.
3 MR. SMITH: Let me finish, please. Other things
4 that have been filed that are not set. This is what I believe
5 is set for today.
6 MS. LEE: Okay. I disagree, Your Honor.
7 THE COURT: Okay.
8 MS. LEE: For his list, first -- well, the
9 motion to quash which concerns -- yes, September 30th. Also,
10 the October 13th subpoenas that were filed, that is also in his
11 motion to quash which he doesn't have here on his list. The
12 motion to issue authority, yes; motion to transfer venue; first
13 supplement to motion to show authority, yes; motion to strike
14 intervention that was filed -- that's actually on our notice to
15 -- for the hearing when we first set the hearing. So, motion
16 to strike intervention is not on his list. I have the notice
17 for hearing for that, Your Honor. Motion for leave to file
18 third-party petition, yes.
19 The thing that's mostly up for dispute is the --
20 well, besides on his list -- we have a motion to strike
21 intervention which should be on this list. And then the motion
22 for partial summary judgment, I never received notice of, an
23 e-mail. We have a Rule 11 agreement, Your Honor, which is
24 where we -- for judicial economy and just because of where
25 everybody lives, we had been sending things through e-mail.
Gale H. Fiasco, CSR
(903) 640-6696
7
1 And the Rule 11 agreement provides that if the party does not
2 respond back stating "I have received the document," that it
3 needs -- that alternate service needs to be made, meaning it
4 needs to be faxed or mailed. And I was never faxed nor mailed
5 the -- his notice -- his fiat saying that this motion for
6 partial summary judgment would be heard today.
7 And there seems to be -- I mean, I truly did not
8 receive notice on that to be heard. And we have enough motions
9 to be heard anyway. And I did respond to it only when I was
10 responding -- there was other motions that were filed on the
11 same day I filed my response to motion for partial summary
12 judgment. I also filed a motion to compel discovery, but
13 that's not being heard today.
14 And I do have -- for the motion to strike, I
15 believe I do have the notice of hearing which was filed with
16 the Court. It was -- the one -- the original hearing to be
17 heard was the motion to show authority, the motion to transfer
18 venue, and, I believe, the motion to strike. And I -- let me
19 check in my folder to see if I happen to have that.
20 MR. SMITH: Judge, I do have a serious problem
21 with the motion for summary judgment, the contention of Counsel
22 that she did not get notice of that. She asked me yesterday to
23 send her the notice. I did. She's claiming not to have
24 received it, but I have very high confidence that she did
25 receive it based upon subsequent correspondence. And this is a
Gale H. Fiasco, CSR
(903) 640-6696
8
1 critical motion. I think how you decide on the motion for
2 summary judgment will make a lot of this stuff resolve itself.
3 That's why it's such a critical motion for us to solve.
4 THE COURT: Which would mean it would be very
5 important to make sure she actually had adequate notice --
6 MS. LEE: Right.
7 THE COURT: -- if it's that significant.
8 MR. SMITH: I've got proof of it.
9 MS. LEE: No, Your Honor, I --
10 THE COURT: I guess my point is this: How much
11 time does she need?
12 MR. SMITH: It's been on file for six weeks.
13 THE COURT: Okay. How much time does she need
14 for notice?
15 MR. SMITH: She needs 21 days. I gave her April
16 -- August 21st.
17 MS. LEE: Your Honor, I did not receive that.
18 And what he is conferring --
19 THE COURT: What is it going to hurt to have 21
20 more days?
21 MR. SMITH: What's going to hurt --
22 THE COURT: Or, over whatever -- or whatever the
23 amount of time.
24 MR. SMITH: I can tell you what it's going to
25 hurt, Your Honor. When she filed this case in Tarrant County,
Gale H. Fiasco, CSR
(903) 640-6696
9
1 she filed a series of lis pendens which has frozen all the
2 assets that my clients receive in order to fund their defense.
3 And so, every month that passes by, we're falling further and
4 further behind and we're looking at risking not being able to
5 fund our defense because of the lis pendens which has been
6 filed.
7 MS. LEE: Your Honor --
8 MR. SMITH: And it's a very simple motion. It's
9 the crux of this case. It's how we see the case versus how
10 they see the case. And I think it's a very simple legal
11 proposition.
12 THE COURT: Okay. Well, and I'm not talking
13 about how simple it is. You're saying it's a dramatic remedy
14 --
15 MS. LEE: Yes.
16 THE COURT: -- it's going to define the case.
17 MS. LEE: Right. I --
18 THE COURT: Ma'am, if I want you to interrupt, I
19 will ask you to interrupt me. I understand you're a zealous
20 advocate, but please hold your tongue. Really?
21 All right. I think that it's important that if
22 it's going to be that critical of a motion, that I want to make
23 sure we have solid information whether somebody was served or
24 not and how much time that's going to take. I'll do everything
25 I can to make sure we get this heard on the 21st day, or
Gale H. Fiasco, CSR
(903) 640-6696
10
1 whatever we need to do, if that's -- if that is a failing in
2 this case. I don't need to have anything overturned on appeal
3 and redo it again. So, let's look and see what it is that you
4 have to demonstrate that there was some notice, if there was in
5 fact.
6 MR. SMITH: I would be happy to do that, Your
7 Honor. Actually, I think it might be important to have Counsel
8 represent to the Court affirmatively --
9 THE COURT: You need to speak up a little bit.
10 MR. SMITH: I'm sorry. My voice doesn't carry.
11 I think I need to call Counsel for the purpose of establishing
12 notice.
13 THE COURT: Okay. All right. Ma'am, if you'll
14 raise your right hand.
15 (Witness sworn by the Court.)
16 THE COURT: You may put your hand down. You may
17 proceed.
18 MR. SMITH: Thank you, Your Honor. Can we do
19 this informally?
20 THE COURT: You may.
21 CHRISTY LEE,
22 having been first duly sworn, testified as follows:
23 DIRECT EXAMINATION
24 BY MR. SMITH:
25 Q. State your name, please.
Gale H. Fiasco, CSR
(903) 640-6696
11
1 A. Christy Lee.
2 Q. Are you representing to the Court that you did not
3 get notice on August the 21st setting this matter for hearing
4 -- setting the motion for partial summary judgment for hearing
5 today?
6 A. Was that the e-mail that you sent me last night?
7 Q. Yes.
8 A. No, I did not receive that e-mail.
9 Q. I'm going to show you a package of exhibits -- and
10 this is a copy for you -- marked as Exhibit 16, Your Honor.
11 And I'll represent this is a series of correspondence between
12 myself and Counsel and ask that it be admitted.
13 MS. LEE: No, I object to these documents. This
14 is -- this is not what I have in my file at all. And I have a
15 very extensive IT and I had my IT individuals -- this is not --
16 I can assure you this is not a reply to your e-mail. I replied
17 to this letter.
18 MR. SMITH: I'm just asking to offer the
19 exhibits, Your Honor.
20 MS. LEE: No, I object to the exhibit, Your
21 Honor. I can assure you this is not a response in which I
22 replied on Page 2. Oh, wait -- I apologize. I don't believe
23 this was a reply, but I do believe that this is associated with
24 the August 22nd e-mail, which is what I had responded to. The
25 August 22nd e-mail is concerning his letter. So, I do not --
Gale H. Fiasco, CSR
(903) 640-6696
12
1 can I ask you some questions about the exhibit just to ensure
2 that I'm understanding what you're trying to do?
3 THE COURT: Have you asked the questions that
4 you need of this witness?
5 MR. SMITH: Not yet. I wanted to get the
6 document admitted so I can ask follow-up questions. There
7 won't be many.
8 MS. LEE: I still question Number 2. The other
9 documents, I believe --
10 THE COURT: You're saying Page 2?
11 MS. LEE: Yes, ma'am. I believe the rest are
12 accurate.
13 THE COURT: Okay. The exhibit will be admitted
14 -- Plaintiff's 16.
15 MR. SMITH: Thank you.
16 Q. (By Mr. Smith) Do you see on the first page of
17 Exhibit 16 the reference in green to a 30-day extension
18 request?
19 A. In green?
20 Q. Yeah, it should be highlighted in green on
21 Exhibit 16.
22 A. Yes.
23 Q. If you look at the last -- Page 7, you responded to
24 that, didn't you?
25 A. No, that was from your Rule 11 agreement that you had
Gale H. Fiasco, CSR
(903) 640-6696
13
1 -- I had my staff -- I did not respond to this e-mail. I
2 responded to the fax that your staff sent me concerning the
3 Rule 11 agreement.
4 Q. Okay. You can see on the first page of Exhibit 16 it
5 references the attachment "Rule 11 agreement." You see that on
6 the attachment line?
7 A. I'm sorry, I don't know where you're at.
8 Q. Here on the first page.
9 A. Okay.
10 Q. "Attachments," it says, "Clerk reappearance, Rule 11
11 agreement, motion for partial summary judgment." You see
12 those?
13 A. Yes.
14 Q. Okay. And in the other letters that are contained
15 within Exhibit 16, there's no other reference to this 30-day
16 extension except in your response on Page 7, is there?
17 A. Your Rule 11 agreement -- which you did not put here
18 -- which was faxed to my office did have the 30-day agreement.
19 MR. SMITH: That's all I have of this witness,
20 Your Honor.
21 THE COURT: Okay. Counsel, do you have any
22 testimony or information you would like to present to the Court
23 on this point?
24 MS. LEE: Yes, Your Honor. I did not receive
25 the e-mail on the 21st. When I received this letter, Your
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1 Honor, which is attached to Number 3 -- on Page 3, it says,
2 "Finally, will you be sending me the Rule 11 agreement I sent
3 you yesterday?" -- which is at the bottom. I had my staff call
4 his office to inquire about what Rule 11 agreement. They faxed
5 me a Rule 11 agreement and that is what was referred to.
6 Unfortunately, my fax is in my Alaska office and my staff is
7 not -- I only have one in Alaska. And she's not available to
8 retrieve the information from the fax because she is seriously
9 ill right now, so -- and I only found out about this yesterday.
10 I can assure Your Honor I'm prepared for everything else. I
11 looked in my spam folder. I do have a spam that holds e-mails.
12 If I knew this was going to be heard -- even though we have all
13 of these other motions to be heard -- I would have been
14 prepared for it.
15 THE COURT: Okay.
16 MR. SMITH: I have another exhibit, Your Honor.
17 Mr. Gibbs -- I asked him, he's the pro se -- I asked him to
18 print up the e-mails that he got. He can affirm this if you'd
19 like. But I have Exhibit 17, which is what he gave me that he
20 had printed up, which is the e-mail that he received. And I'll
21 offer that at this time if I may.
22 THE COURT: On 17?
23 MR. SMITH: Yes, ma'am.
24 THE COURT: I'm waiting for her response. I've
25 heard nothing.
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1 MS. LEE: It purports to be the same e-mail that
2 he's saying that he sent to me on Exhibit -- Page 1.
3 THE COURT: Okay. Exhibit 17 is admitted
4 appearing no objection.
5 MR. SMITH: And, finally, I would offer that I
6 do not believe that we were asked to fax any Rule 11 agreement.
7 Most everything we do -- at least from our side of the case --
8 is done via e-mail, and that's why I gave you the entire e-mail
9 traffic during this period of time. I do believe notice was
10 validly served and we're asking to proceed on the motion for
11 partial summary judgment.
12 THE COURT: Okay. Your response.
13 MS. LEE: I actually have the Rule 11 agreement
14 that was signed by all parties, and it specifically states that
15 "The parties agree to e-mail service of all documents
16 pertaining to the matter and to acknowledge the receipt of the
17 service within one business day by e-mail or fax. If no
18 acknowledgement of the service is forthcoming from the
19 receiving party within one business day, the service shall be
20 effected in an alternate manner pursuant to Rule 21 of the
21 Texas Rule of Civil Procedures."
22 I did not reply to him, Your Honor. And he can
23 confirm that I do write back saying, "Received it," "Got it,"
24 "Thank you." And I did not reply. The only reply that he has
25 is three days later on August 23rd -- or, no, I -- on the next
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1 day in which, when I reply, I'm replying to the attached letter
2 for Number 3 on the very next day that says -- where I say,
3 "I've not been in my office all day yesterday and I'm getting
4 the e-mails now, so I'll be responding hopefully by the end of
5 the day."
6 We have filed this Rule 11 agreement, Your
7 Honor, but I have a copy for you if you would like it.
8 THE COURT: You're welcome to mark it if you
9 desire to offer it at this part of the hearing.
10 MS. LEE: Exhibit A, Your Honor. May I please
11 approach?
12 THE COURT: Opposing counsel?
13 MR. SMITH: I have no objection.
14 THE COURT: Admitted. All right. Ms. Lee, what
15 is the configuration of your office? How do you run your
16 business?
17 MS. LEE: I have two offices, Your Honor. I
18 have one in Alaska and one in Texas. The one in Alaska is my
19 main office with my server. Anyone who works for me logs into
20 that server. That's where my faxes come in to. I have
21 currently one staff in Alaska, two staff in Texas, but they
22 remote in. So, everything is done out of my main Alaska
23 office. When I file documents, we file them through Federal
24 Express overnight from Alaska.
25 THE COURT: So, where do you reside?
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1 MS. LEE: My permanent residence is in Alaska,
2 Your Honor.
3 THE COURT: But you live down here?
4 MS. LEE: I do have a place here, Your Honor,
5 yes. And my office in Fort Worth is more of a satellite
6 office. I do not have staff there.
7 THE COURT: But you have two people associated
8 with the Texas office?
9 MS. LEE: Yes, Your Honor. One of them is
10 located in India and one of them -- she's just there for the
11 military. She's an attorney -- and the other one is in College
12 Station.
13 THE COURT: So, how do you get your
14 correspondence?
15 MS. LEE: If it comes to my Texas office, they
16 scan it in and they send it to me. All e-mails, obviously,
17 will come to my e-mail address that I can access anywhere in
18 the world. I can log into my server. I also have it on my
19 iPhone. So, if Mr. Smith serves me with anything, it goes to
20 my Texas office. They scan it in and send it to my Alaska
21 office, and then when I'm in town I will take the originals.
22 Or, if I need them to ship to me, I'll have them ship it.
23 THE COURT: Do you have anyone else that handles
24 your e-mails for you or you handle them directly yourself?
25 MS. LEE: I handle them myself, Your Honor.
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1 THE COURT: Okay. And what is the notice
2 regarding the family medical leave -- how does that play into
3 where you're spending your time or what you're doing for work
4 right now?
5 MS. LEE: I spend a lot of time in Texas because
6 my father is very ill right now. Opposing Counsel is aware of
7 that.
8 THE COURT: All right. Now, anything further on
9 this point, Mr. Smith?
10 MR. SMITH: No, Your Honor. No. I'm sorry.
11 THE COURT: Anything further, Ms. Lee?
12 MS. LEE: Concerning the motion for partial
13 summary judgment, Your Honor?
14 THE COURT: Yes.
15 MS. LEE: No. Well, no, Your Honor -- if we're
16 just talking about me receiving notice, then, no.
17 THE COURT: Correct. That's all I'm talking
18 about. We haven't argued any motions.
19 All right. So, when are you saying that you
20 actually received notice of this service?
21 MS. LEE: Yesterday. I received the document,
22 Your Honor, when he provided it to me in August. I did not
23 receive notice of the hearing until yesterday. And the only
24 way -- the reason I received notice was because the very
25 beginning of his response to my -- or his objections to my
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1 response, it stated that I did not file it and it's supposed to
2 be heard today. And that was the first time I became aware of
3 it, through his filing.
4 THE COURT: Okay. What we're going to do is,
5 we're going to take up the summary judgment motion at another
6 time. We need to pick that time. I don't have the benefit of
7 having the Court's coordinator at this location. Let me make
8 that contact because this issue needs to be firmed up.
9 (A break was taken.)
10 MR. SMITH: I was going to try to get your
11 attention before you get off the phone. Counsel is actually
12 supposed to be in the State for depositions the 13th, 14th, and
13 15th. She's indicated she is willing to waive the 21-day
14 requirement if you want to do it during that period of time.
15 I'm okay with that.
16 THE COURT: I have a capital murder case
17 starting that day.
18 MR. SMITH: That seems to take precedence.
19 THE COURT: It will probably take us all day to
20 pick on Monday. We're doing questionnaires. Unless the
21 parties want to come in on Tuesday at 8 a.m. And then I need
22 to know how long you expect to argue your motion for summary
23 judgment. I can accommodate you if you can be here at 8. I
24 would expect you be done within an hour's time.
25 MR. SMITH: I can certainly be done in an hour's
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1 time. There will be objections, no doubt. And that will take
2 more time than the actual motion. But I think an hour would be
3 more than enough time.
4 THE COURT: Is that sufficient time for both
5 sides to finish up their case?
6 MS. LEE: If he's willing to do it in an hour,
7 then we'll do it in an hour.
8 THE COURT: Okay. Then we'll do it October 14th
9 at 8 a.m.
10 MR. GIBBS: Your Honor, I have a previous work
11 engagement. I wanted to come up here for the hearing but I do
12 have a previous engagement. May I have leave of the Court,
13 please?
14 THE COURT: Yes.
15 MR. GIBBS: Thank you.
16 THE COURT: For the purposes of the summary
17 judgment motion, sir, you can appear by phone if you want.
18 Otherwise, we'll expect you also to have had notice of the
19 setting based on the fact that I'm setting it in court.
20 MR. GIBBS: Yes, ma'am.
21 THE COURT: So, you won't receive anything else
22 in writing as far as the Court is concerned. But October 14th
23 at 8 a.m. we'll have the motion for summary judgment.
24 MR. GIBBS: Does that mean I need to be here,
25 Your Honor?
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1 THE COURT: Only if you want to be heard.
2 You're also welcome to appear by phone.
3 MR. GIBBS: Yes, ma'am.
4 THE COURT: You'll need to make those
5 arrangements. Thank you.
6 All right. Let's step through the other motions
7 that we have. We have the motion to show authority, motion for
8 change of venue.
9 MS. LEE: Yes, Your Honor.
10 THE COURT: Do the parties think those are
11 appropriate to take up initially?
12 MS. LEE: Yes, Your Honor. Also, I've conferred
13 with opposing Counsel, and the motion to strike was
14 inadvertently left off. That should be on the list, as well.
15 Motion to strike intervention.
16 MR. SMITH: I believe it should have been set,
17 yes, Your Honor.
18 THE COURT: Okay.
19 MR. SMITH: I tried to be inclusive. It was set
20 for original filing, which included the motion to show
21 authority as I recall. The intervention was filed later.
22 MS. LEE: June 23rd.
23 MR. SMITH: Yeah, it's properly set.
24 MS. LEE: And if, Your Honor, we're going by
25 dates, I think that would be Number 2. So, that would be after
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1 the motion to show authority, motion to change venue.
2 THE COURT: Okay. I'm looking at the document
3 filed on April 25th, motion to show authority, motion for a
4 change of venue, others. Is that one of the documents you all
5 are talking about or have you had amended pleadings since then
6 on that?
7 MS. LEE: Yes, Your Honor. I believe there's
8 also a first supplement to the motion to show authority, as
9 well.
10 THE COURT: Okay. I have first supplement to
11 motion to show authority filed on September 29th, 2014. Is
12 that the document you're referring to?
13 MS. LEE: The 29th?
14 THE COURT: September 29th, today's date, at
15 9:28 a.m.
16 MS. LEE: That would have been yesterday, Your
17 Honor?
18 THE COURT: I'm sorry. Yesterday, yes.
19 MS. LEE: I guess that's the document. We
20 shipped it out on -- prior to that. Should have received it
21 Friday. But, yes, Your Honor, that would be the document.
22 THE COURT: Okay. Are you expecting that this
23 is supposed to replace the other or is it actually serving to
24 supplement?
25 MS. LEE: Just a supplement, Your Honor.
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1 THE COURT: Okay. Then I'm looking at the
2 June 18th filing of the original petition and intervention.
3 And I am assuming that that's the petition or motion that's
4 being objected to or challenged.
5 MS. LEE: Yes, Your Honor.
6 MR. SMITH: No.
7 THE COURT: You're saying, no, you have a
8 supplemental one?
9 MR. SMITH: No, I think the motion to show
10 authority was dealing with the original petition that was filed
11 by Pentex Foundation.
12 MS. LEE: I believe she's -- what she's
13 referring to is my -- Your Honor, you're referring to my motion
14 to strike?
15 THE COURT: Yes.
16 MS. LEE: Yes.
17 MR. SMITH: It would be that petition and
18 intervention, yes, Your Honor.
19 THE COURT: Okay. I just want to make sure I
20 have my hands on the documents we're talking about. All right.
21 I'll receive some input on the motions that y'all want to
22 address first.
23 MS. LEE: Your Honor, I think the motion to show
24 authority should be first. Potentially some housekeeping
25 concerning some subpoenas to -- that I sent out -- which
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1 documents have not been provided to me. That could be very
2 brief before the motion to show authority.
3 THE COURT: All right.
4 MR. SMITH: Your Honor, it's my position that
5 the motion to show authority is not properly before the Court.
6 You probably don't see a whole lot of these. I don't know if
7 you're familiar with the Rule but I brought a copy for you.
8 THE COURT: Thank you.
9 MR. SMITH: I have a copy for Counsel, as well.
10 It does require that the motion be sworn. And this motion --
11 until the first supplement on the 25th, there's not even a hint
12 of an affidavit. And the affidavit that we got does not -- is
13 not sufficient for what is required. And I've got a case law
14 to show you, Your Honor. It's the Townsend case out of
15 Beaumont last year. It says -- and this is coming right from
16 Rule 12 -- "requires a sworn statement that the movant believes
17 the suit is being defended without authority." I've got a copy
18 of the affidavit that Counsel submitted to tender to the Court,
19 and all it does is authenticate certain documents. It doesn't
20 trigger the motion to show authority because Counsel has not
21 stated under oath that the suit is being prosecuted or defended
22 without authority. Without that, it's not properly before the
23 Court.
24 THE COURT: Okay. Your response.
25 MS. LEE: It's throughout the entire document,
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1 Your Honor. It's throughout all the documents that this is --
2 they do not have authority. That this case has been filed --
3 that is not only in my motion to show authority, but it is in
4 every single document that we have filed with this Court --
5 almost every single document that we have filed. That he --
6 that Scott Smith is pursuing this case without the authority of
7 Pentex Foundation -- without the board of Pentex Foundation.
8 It's throughout -- and so, the affidavit is certifying the
9 authenticity of the documents that are provided to show that
10 the authority was not appropriately obtained by Mr. Smith nor
11 by Mr. Skotnik when they were hired. And I do have both of my
12 defendants here who have filed multiple affidavits with this
13 Court and could also profess that this is being filed without
14 authority.
15 THE COURT: Okay. But do you have a sworn
16 motion is his point. The Rule --
17 MS. LEE: All you have -- it's my understanding,
18 Your Honor, that we have to provide an affidavit and I did
19 provide an affidavit.
20 THE COURT: Okay. Well, have you looked at what
21 he's saying the Rule says and what's been printed out?
22 MS. LEE: Well, the Rule provides that a sworn
23 written motion, and that was supplemented in my first
24 supplement, Your Honor.
25 THE COURT: So, you're saying you filed the
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1 affidavit?
2 MS. LEE: Yes, Your Honor. It's the affidavit
3 that he had provided to you, Your Honor. But, again, I have my
4 clients here. We are swearing that he has -- he is prosecuting
5 this case without authority. And I can assure you that the
6 evidence will show that.
7 THE COURT: Well, I'm not ready to hear that
8 part. We've got to get over this hurdle. So, show me --
9 MR. SMITH: Additionally, Your Honor -- I'm
10 sorry. I don't mean to interrupt. It does require ten days
11 before the hearing. And we got this -- I got it on the 25th,
12 you got it today or yesterday. So, that's not even timely even
13 if it was sufficient. So, there's a twofold problem here.
14 MS. LEE: I don't believe that it does provide
15 it has to be -- you have to have notice of the hearing ten days
16 before the hearing. The notice was given out in, I believe,
17 June. This has been on the docket since June.
18 THE COURT: Okay. It says, "The notice of the
19 motion shall be served upon the challenged attorney at least
20 ten days before the hearing on the motion but the motion must
21 be sworn to." So, was it sworn to? It sort of presupposes the
22 swearing to the motion will have happened first and then we've
23 got ten days' notice for the hearing. Are you saying it
24 happened in that order?
25 MS. LEE: No, Your Honor. The motion was
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1 originally --
2 THE COURT: I mean, we wanted to make sure we
3 gave you the time --
4 MS. LEE: Absolutely.
5 THE COURT: -- on the motion for partial summary
6 judgment, so, in all fairness, don't you think that Mr. Smith
7 should have time --
8 MS. LEE: Yes, Your Honor.
9 THE COURT: -- I mean, consistent with the
10 Rules? I mean, if we're going to play by the rules on one
11 side, we need to play by the rules on the other, don't you
12 think?
13 MS. LEE: That's why I'm not really arguing it,
14 Your Honor.
15 THE COURT: Okay. All right. So, then it would
16 seem that the parties need to address this motion at a time
17 when you have sufficient notice, or are you trying to use it
18 now as a defensive measure to say it shouldn't get to be raised
19 at all?
20 MR. SMITH: Absolutely, Your Honor. It's here,
21 it's set. And if it's not set properly, it should be
22 dismissed.
23 MS. LEE: Your Honor, I have a lot of case law
24 that -- and even in -- I think Mr. Smith can also inform you
25 that he was able -- in another court hearing concerning a
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1 motion to show authority, that he was able to get an extension
2 to provide additional information. And even though I could
3 have argued the exact same thing -- the motion was prime and
4 ready to be heard -- that it should not be heard and should be
5 dismissed with prejudice, but that's not what -- and I know
6 that court's ruling is not precedence on your court. I'm just
7 letting you know if we're all going to play fair, he was able
8 to get an extension for that court hearing to provide
9 additional information. I'll be more than happy to supplement
10 those again, get it to this Court tomorrow, next day, and we
11 can have it set on the 13th or another day that is mutually
12 appropriate.
13 MR. SMITH: And this is the problem, Your Honor.
14 This is a side show. We can't get to the meat of the matter if
15 we're playing games with side shows. We did have a hearing in
16 Tarrant County in July. And we produced all the information
17 requested in July and August. We produced about 500 pages of
18 documents, a lot of which supports --
19 THE COURT: So, are you ready to go forward on
20 the motion now, Mr. Smith?
21 MR. SMITH: I'm not prepared to go forward
22 because it's not properly before the Court.
23 THE COURT: Okay. Well, we can't have it both
24 ways. I can't give you everything when it's just the ruling
25 that you want. I mean, if you want to have me rule on it, she
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1 wants to move forward. If you want to have the time you need,
2 then I'll give you the time you need. You said you already
3 presented to one, it would seem you would be prepared.
4 However, if you're not prepared because you did not have
5 notice, I'm happy to give her the time that she needs. Which
6 way do you want it?
7 MR. SMITH: I would prefer to have it properly
8 set with the supporting affidavit.
9 THE COURT: Okay. Well, let's do that, then.
10 Okay. So, what -- when do y'all want to hear it? I cannot
11 stack multiple hearings on the 14th. I will be distracted with
12 another matter. Okay. I can't have this many hours put into
13 this hearing at that time. I want to give you the time that
14 you need. We can set this before that hearing because that one
15 was set for 21 days out.
16 MS. LEE: Your Honor, did you say that -- when
17 you had spoken to the clerk -- that you had time on the 20th,
18 or what days were you looking at?
19 THE COURT: I was asking about the 20th. It
20 would be another 8 a.m. start. The jury trial, we expect that
21 mini-cap to run through the next week. There's a chance that
22 it would not. But I would need to start at 8 a.m. on that
23 Monday, the 20th.
24 MR. SMITH: I can do it then, Your Honor, but I
25 am set for a jury trial in the 15th District Court. My guess
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1 is that's not going to be reached but I'd like everybody to
2 know that when you set this.
3 THE COURT: Okay. Well -- but if we start this
4 case -- if we start this at 8 a.m., we wouldn't actually have
5 priority but we would do everything we could to get you out of
6 here.
7 MR. SMITH: I'm already set. I can't make it.
8 That's a jury trial setting.
9 THE COURT: Right. But having this at 8 a.m.
10 would be earlier than the 8:30 or 9:00.
11 MR. SMITH: It's virtually impossible to
12 complete this in an hour. She subpoenaed several witnesses for
13 this.
14 THE COURT: Okay. Then when -- what works for
15 you? You don't want it put off.
16 MR. SMITH: I'm just saying I can't double-set
17 it if I can't be able to call and tell the Court I'm going to
18 be in a jury trial.
19 THE COURT: Right. I mean, I don't think that's
20 a good use of anybody's time. You're telling me that your
21 clients want this heard now. If you want to put it off, I'll
22 be happy to give you a different day. What timeframe -- what
23 timeframe would you like?
24 MR. SMITH: I can do it that Tuesday. I'll know
25 for sure if I'm in the jury trial by Monday, so...
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1 MS. LEE: October 21st?
2 THE COURT: 8 a.m. on the 21st?
3 MR. SMITH: Yes, ma'am.
4 MS. LEE: Yes, Your Honor.
5 THE COURT: All right. We'll see everybody at
6 8:00 a.m. on that one. All right. Okay. I believe there's a
7 motion for change of venue. Are the parties ready on this
8 matter?
9 MS. LEE: Yes, Your Honor, I am.
10 MR. SMITH: Yes, Your Honor.
11 MS. LEE: No objection.
12 THE COURT: All right. Looks like we're going
13 to make some progress. All right. Go ahead and you may make
14 your argument. I believe, Ms. Lee, this is your motion.
15 MS. LEE: Yes, Your Honor. Our -- the basic
16 argument that we have is that obviously the venue is not
17 proper. A contract for sale for land, which is the whole --
18 which is why we're in front of this Court -- was drafted and
19 it's an undisputed fact drafted by an individual, Allen
20 Barcroft, who is not an attorney. He drafted this document --
21 MR. SMITH: Are we making evidence, Your Honor?
22 MS. LEE: I can provide --
23 MR. SMITH: There's no affidavit to support
24 these kinds of allegations and I don't think it would be
25 appropriate to get into those.
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1 THE COURT: Okay. Do you have something to
2 demonstrate what you're arguing?
3 MS. LEE: Well, I have my clients here who can
4 testify to the drafting of the document because they signed it.
5 But it comes to the crux of, they're trying to say that a
6 document that this gentleman drafted --
7 MR. SMITH: Your Honor, I don't mean to
8 interrupt. I need to make an objection. Venue motions are
9 based upon venue facts pleaded and affidavits, not testimony.
10 So, I would object to anything outside the record.
11 THE COURT: What's your response to that, Ms.
12 Lee?
13 MS. LEE: I believe -- I have to look at my
14 documents, but I believe that I have the information in my
15 actual motion, Your Honor.
16 THE COURT: Is it filed in the form of affidavit
17 or something that supports --
18 MS. LEE: No, Your Honor, it's in my motion. I
19 can move on. I have other arguments I can argue.
20 THE COURT: Okay. So, there's no evidence to
21 support that. We'll move on.
22 MS. LEE: Yes, Your Honor. Okay. So, Mr. Smith
23 provides -- so, this is a mandatory venue provision in the
24 contract because the contract -- there's a five-million-dollar
25 potential buyout. And he provides that -- according to Rule
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1 15.020(a) of the Civil Practice and Remedies Code -- that "A
2 major transaction means a transaction by written agreement
3 under which a person pays or receives or is obligated to pay or
4 receive or entitled to receive consideration of more than a
5 million dollars."
6 Well, a five-million-dollar buyout provision is
7 not a provision in which a person has to pay or receive or is
8 obligated to pay or receive. His argument is that because it's
9 a major transaction, that the venue is proper because the
10 document provides that the venue should be in Fannin County,
11 Your Honor. So, our first argument is that it is not a major
12 transaction. If you look at the contract for sale, what was
13 exchanged was 21 gold coins in exchange for 30-percent interest
14 into an estate. Even though I am not -- I'm not certain on
15 what the coins are, they're certainly not worth a million
16 dollars. Then if you also look at Section 15.020(d) of the
17 Civil Practice and Remedies Code, it provides that "Any section
18 in a contract that applies an action that is unconscionable at
19 the time that it was made, then that venue provision is not
20 respected."
21 So, again, we have 21 gold coins for 30 percent
22 of the estate. Which, I believe, a rough estimate, they
23 received maybe several-hundred-thousands of dollars --
24 certainly not a million. And certainly having a
25 five-million-dollar buyout provision, that seems quite
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1 unconscionable to me. I'll give you 21 coins. In order to get
2 out of this contract, you have to give me five-million dollars.
3 So, Section 15.035 states that "A contract in
4 writing" -- "If a person has contracted in writing to perform
5 an obligation in a particular county, expressly naming the
6 county" -- which is exactly what this contract states -- "then
7 the obligation may be brought against him in the county in
8 which he signed the document or in which the client or the
9 individual is domiciled." All of the defendants are in Tarrant
10 County; the notary was in Collin; the contract for sale was
11 recorded in Denton County. But, again, it says "Fannin County"
12 on the document. It is not a major transaction. So, contrary
13 to opposing party, it's not mandatory because it's not a major
14 transaction.
15 Now, it also provides in (b) of that provision
16 exactly what I had stated, that if a person pays money arising
17 out of transactions or services entitled primarily for
18 personal, family, household, or agricultural use, then that's
19 where the lawsuit should be -- which should be in Collin County
20 or Tarrant County.
21 Besides those arguments, Your Honor, John
22 Skotnik who originally filed the document -- he filed the
23 document and he is a municipal court judge. Also, Mr. Skotnik
24 is, I believe, a municipal judge, as well. May not be in this
25 county, may be in Grayson County. My clients are highly
Gale H. Fiasco, CSR
(903) 640-6696
35
1 prejudice by having this in Fannin County. There's no
2 connection to this contract for sale in Fannin County. It was
3 recorded in Denton. The individuals have always lived in
4 Tarrant. It was signed in Collin County. And it's just from
5 the -- from the convenience of the drafter to say it was in
6 Fannin County.
7 So, we respectfully request that this Court --
8 that this hearing be moved to another county. And as Your
9 Honor will no doubt hear multiple times, there is another
10 lawsuit in Tarrant County that's being heard. It's similar to
11 this case. It has almost the same players, but it's concerning
12 the actual money that was into a trust.
13 So, the contract for sale provided that an
14 entity would be created. That entity is allegedly the GWB
15 trust. That lawsuit is in Tarrant County. We would like to
16 consolidate the cases, but of course the cases can't be
17 consolidated once the cases have been transferred. So, my
18 clients would like this to be transferred to Tarrant County,
19 and if not, then as 15.35 -- I'm sorry -- 15.035(b), it should
20 be either in Tarrant County or in Collin County where it was
21 signed. Thank you, Your Honor.
22 MR. SMITH: Well, the reason I wanted to stick
23 to what was filed is because I think what they filed is
24 different from what you just heard, Your Honor. The motion to
25 transfer venue before the Court is Pages 3 and 4 of the initial
Gale H. Fiasco, CSR
(903) 640-6696
36
1 filing they made. And what they did was, they filed a motion
2 to transfer for the convenience of the parties. It's not a
3 mandatory venue election they're making. It's not a permissive
4 venue if they're saying that they can't get a fair trial here,
5 prejudice in this county is so great they cannot get a fair and
6 impartial trial. That's what they're telling this Court is the
7 basis for why they want their venue changed. In response, we
8 did file -- I don't know if you found our response to the
9 motion to transfer venue.
10 THE COURT: I did. Let me lay my hands on it.
11 MR. SMITH: Essentially, we attached the
12 contract that's really the basis of this whole lawsuit and the
13 one in Tarrant County. I have an extra copy if you'd like it.
14 THE COURT: Well, I'll lay hands on it. I have
15 it. The one filed September 4th?
16 MR. SMITH: Yes, Your Honor.
17 THE COURT: Yes, sir.
18 MR. SMITH: What we did is, we have attached the
19 actual contract at issue. And there is a venue provision. It
20 does specify venue in Fannin County, Texas. And I've given you
21 the law that says in the instance where it involves in excess
22 of -- I think it's one-million dollars -- that's considered a
23 major transaction. This contract has a specific buyout of
24 five-million dollars. Therefore, by its very expressed terms,
25 it does involve a major transaction. Under that circumstance,
Gale H. Fiasco, CSR
(903) 640-6696
37
1 the venue provision in the contract prevails and is not only
2 permissive, it is mandatory. I don't think there's any doubt
3 that this Court has venue and should not transfer venue.
4 And just as an aside, the case filed here in
5 Fannin County was the first filed case. The case in Tarrant
6 County was filed second. So, I don't have a player in that
7 suit. I have not participated in those proceedings, but I do
8 know this is the earlier-filed suit.
9 THE COURT: You have a response, Ms. Lee?
10 MS. LEE: I would like to point out that when
11 John Skotnik -- who is the municipal court judge -- when he was
12 the attorney for the defendants, that's when the argument was
13 that there would be a great prejudice in this county, Your
14 Honor. We did not amend that motion. But I would just like to
15 reiterate one more time that the law is very clear, it provides
16 that a major transaction is if a person is obligated to pay or
17 entitled to receive consideration in more than one-million
18 dollars. A buyout provision is not an obligation, it is a
19 buyout. And that's 15.020. So, the venue here is not
20 mandatory. And if you go to -- that's all I want to say, Your
21 Honor.
22 THE COURT: Okay. Does either party have any
23 information about the value of the 21 gold coins filed with
24 anything?
25 MR. SMITH: I don't know. I can represent to
Gale H. Fiasco, CSR
(903) 640-6696
38
1 the Court that the estates are large estates and I would not be
2 surprised if there were over a million dollars easily in those
3 estates that are at issue.
4 MS. LEE: I would disagree, Your Honor.
5 THE COURT: I'm sure there's substantial money
6 involved. The question is regarding the actual transaction
7 that is evidenced by the contract that was signed, not about
8 the estates, necessarily. I understand they might be part of
9 that, but -- I don't see anything that indicates that all of
10 the estates were involved in this contract.
11 MS. LEE: They weren't, Your Honor.
12 THE COURT: The difficulty is I don't have any
13 information indicating the value of the 21 gold coins. I mean,
14 depending on what they were. If they came from a particular
15 shipwreck, they could be worth a million dollars easy.
16 MR. SMITH: There's other consideration
17 expressed in the contract.
18 THE COURT: Okay. Well, based on the other
19 information in the case, the Court is going to grant the motion
20 to transfer venue. I don't like that because I know I can
21 probably resolve this case more quickly than you can get it
22 done over in the neighboring county. So, personally, I think
23 it would be more efficient here but I think it's appropriate
24 given where the defendants reside and that I don't have any
25 evidence that this is a case that involves more than a million
Gale H. Fiasco, CSR
(903) 640-6696
39
1 dollars in a sense that the buyout provision -- I don't think
2 -- rises to that level. If there's something that can be done
3 as a result of the ruling on the motion to transfer venue in
4 the way of an appeal, I'm happy to have somebody correct me.
5 But, otherwise, that's the Court's ruling.
6 MR. SMITH: Where are you transferring it to,
7 Your Honor?
8 THE COURT: To Tarrant County.
9 MS. LEE: Your Honor, I do have an order.
10 THE COURT: And I believe -- you may have
11 Mr. Smith look at it and see if it comports to the Court's
12 ruling. And have the clerk's office be notified of this and
13 for you all to work with them to get it transferred as
14 expeditiously --
15 MS. LEE: Is this acceptable?
16 MR. SMITH: That's fine.
17 MS. LEE: May I approach, Your Honor?
18 THE COURT: Yes.
19 MS. LEE: He approved it, Your Honor.
20 MR. SMITH: Your Honor, I assume that would be
21 to a district court in Tarrant County?
22 THE COURT: Yes. I don't know why there would
23 be another one. I would think it would be a court of the same
24 jurisdiction as this one. I'm assuming they have civil
25 jurisdiction courts, as well as -- I don't think they have that
Gale H. Fiasco, CSR
(903) 640-6696
40
1 many general jurisdiction courts, so I'm going to assume it's
2 going to go to a court with jurisdiction over this matter. If
3 they have a general jurisdiction court -- I don't think that I
4 make the call. I think what happens is it's just a category of
5 courts. As long as they have civil jurisdiction, it will go
6 into that court. It might end up being a general jurisdiction
7 court if Tarrant County has any of those left. And it will
8 otherwise go into one that is strictly civil. The clerk -- I
9 would assume -- would assign that randomly. And then the
10 parties will make their arguments over there if they desire to
11 have those combined and what other court. That would be for a
12 different court to make that decision, not this court. All
13 right. Is there anything else that needs to be addressed?
14 MS. LEE: No, Your Honor.
15 MR. SMITH: I don't think there would be
16 anything else if it's been transferred.
17 THE COURT: All right. Then the other matters
18 will no longer have any setting on the Court's docket and the
19 order has been signed. And we will have this file delivered to
20 the district clerk -- we'll have the bailiff deliver it and
21 that way, if you all will go to the clerk's office you can
22 obtain your copy today.
23 MS. LEE: Your Honor, may I approach?
24 THE COURT: Yes.
25 MS. LEE: I am so sorry about me talking over
Gale H. Fiasco, CSR
(903) 640-6696
41
1 you. That was so inappropriate.
2 THE COURT: The court reporter can write that
3 down.
4 MS. LEE: I don't know when I would come in your
5 courtroom again, but I can assure you I am seriously sincere --
6 THE COURT: I appreciate it. Thank you.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Gale H. Fiasco, CSR
(903) 640-6696
42
1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS )
3 COUNTY OF FANNIN )
4
5 I , Gale H. Fiasco , Official Court Reporter in and for the
6 County Court at Law of Fannin County, State of Texas , do hereby
7 certify that the above and foregoing contains a true and
8 correct transcription of all portions of evidence and other
9 proceedings requested in writing by counsel for the parties to
10 be included in this volume of the Reporter's Record, in the
11 above-styled and numbered cause , all of which occurred in open
12 court or in chambers and were reported by me.
13 I further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits, if any ,
15 admitted , tendered in an offer of proof or offered into
16 evidence .
17
0~_
18
a
· ~ TNESS MY OFFICIAL HAND this the _......,
~--- day of
19 A._-.;_ C'et~
~,
bo1 , 2014 .
20
21 .li().Q.~ .1-A:..,.,,lcu-10
Gale H. Fiasco
22 Texas CSR 6268
Expiration Date : 12 / 31 / 2015
23 210 S. Main Street
Bonham , Texas 75418
24 (903) 583-9258
25
Gale H. Fiasco, CSR
(903) 640-6696
PLAINTIFF'S EXHIBIT 16
Page 1 of 1
Scott Smith
From: "Scott Smith"
To: "Christy Lee"
Cc: "Howard Gibbs"
Sent: Thursday, August 21 , 2014 1:36PM
Attach: 14-5-7 Clerk re appearance.pdf; Rule 11 Agreement.pdf; 14-8-12 Motion for Partial Summary
Judgment. pdf
Subj ect: Pentex Foundation v. Gibbs, et al.; CV-1 4-41665
Christy,
You probably do not recall, but when I entered my appearance I gave notice of my vacation next month. I am
attaching a copy. The discovery you sent requires a response during that time period. That, and given the
volume of discovery, I am requesting a thirty day extension. If this is agreeable, I am attaching a proposed Rule
11 Agreement to that end. If not, let me know and I can so move the Court.
Also 11 am attachin~ the file-marked Plain • and lnteNe.nor's Mo on for Partial Summary Judgment, w
tompreted FIAT. Note that t - _o on s set for hearing on September 30, 2014. at 8:30 a. .
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
• PLAINTIFFS
i EXHIBIT
I 16
I Pentex GBU
\
8/2112014
Page I of I
Scott Smith
From: "Christy Lee"
To: "Scott Smith"
Sent: Friday, August 22, 2014 3:29PM
Subject: RE: Pentex Foundation v. Gibbs
Scott,
I have not been in my office all day yesterday and am getting to emails now, so I will be responding hopefully by
the end of the day. If I can unable to respond to you before the end of the day, you will have a response by the
end of the weekend.
Christy
Christy lee, ll.M., J.D., M.S.
Law Offices of Christy lee, P.C.
225 E. Fireweed lane, Suite 200
Anchorage, Alaska 99503
Phone: (907) 339-9931
Fax: (800) 437-7901
777 Main Street, Ste. 600
Fort Worth, TX 76102
Phone: (817) 504-6075
Fax: (800) 437-7901
EMail: clee@christyleelaw.com
Website: www.christyleelaw.com
From: Scott Smith [mailto:smithlaw@airmail.net]
Sent: 08/ 22/ 2014 12:21 PM
To: Christy Lee
Cc: Howard Gibbs; Earl Hargrave
Subject: Pentex Foundation v. Gibbs
Please see attached letter.
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
9/30/2014
SCOTT SMITH
A TIORNEY 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 22, 2014
VIA EMAIL
Christy Lee, Esq.
Attorney At Law
225 E. Fireweed Lane, Suite 200
Anchorage, Alaska 99503
RE: Family Settlement Agreement.
Dear Christy:
With respect to you demand for alternative dispute resolution, my clients
Pentex Foundation and Joshua Unger, Trustee of the GBU Friends and
Associates Trust will agree to mediation with a mutually agreeable mediator.
I believe this should be conducted with all parties under the caption of both the
Fannin County and Tarrant County cases so we do not have any loose ends
should there actually be a settlement.
I also want to reiterate that we disagree that the Fannin County case
involves the estate or that the Family Settlement Agreement provisions have
been implicated. Even if it was, again page 3, section 3.26(a) of the FSA is
clearly permissive, using the word "may." · Section 3 .26(b) follows and states
certain potential results if a "beneficiary" is determined to have engaged in
certain conduct. I ask again, is it your position that the Pentex Foundation
and/or the GBU Trust are a "beneficiaries?"
Finally, will you be sending the Rule 11 agreement I sent to you
yesterday? I thank you for your attention to this matter.
TSS/bhs
3
cc: Howard Gibbs
Earl Hargrave
Page I of I
Scott Smith
From: "Christy Lee"
To: "Scott Smith"
Sent: Sunday, August 24, 2014 9:12PM
Scott
I have been unable to speak to my client about your proposed rule II agreement. I will try every effort
to get back to you tomorrow. Christy
Sent from my iPhone
9/30/2014
Page 1 of 1
Scott Smith
From: "Christy Lee"
To: "Scott Smith"
Sent: Monday, August 25, 2014 10:41 PM
Attach: Signed Ltr to Scott Smith re ADR and extension for discovery (Walton).PDF
Subj ect: FSA and Discovery Extension
Scott,
Please see the attached letter in response to your Rule 11 agreement to extend the deadline for discovery and
the FSA mediation.
As you are aware, I am on FMLA, but will continue to be responsive to all correspondence.
Christy
Christy lee, ll.M., J.D., M.S.
law Offices of Christy lee, P.C.
225 E. Fireweed lane, Suite 200
Anchorage, Alaska 99503
Phone: (907) 339-9931
Fax: (800) 437-7901
777 Main Street, Ste. 600
Fort Worth, TX 76102
Phone: (817) 504-6075
Fax: (800) 437-7901
EMail: clee@christyleelaw.com
Website: www .christyleelaw .com
9/30/2014
CIIIGl>l'Y L. L.,;.:
.1 I I IJ/'111'.1
225 E. Fireweed Lane, Ste. 200
Anchorage, Alaska 99503
Phone: 907.339.9931
Fax: 800.437.7901
777 Main Street, Ste. 600
Fort Worth, Texas 7 61 02
Phone: 817.504.6075
Fax: 800.437.7901
August 25,2014
clee@christyleelaw .com
www.christyleelaw.com
VIA Fax: 903-870-1446
Email
Scott Smith
120 South Crockett Street
Sherman, TX 75091-0354
Re: Request for Extension for Discovery
ADR for Family Settlement Agreement
Dear Scott:
I received your letters concerning ADR and a request to extend the deadline for discovery from
Pentex Foundation and GBU Friends and Associates Trust.
No doubt your clients want to commingle the Tarrant County case and the Fannin County case,
especially since Judge Ferchill's recent ruling. However, the two (2) cases are separate and
cannot be comingled. The Fannin County case is against the Estate of Bert Hughes Gibbs
because the only person who could determine the attorney fees is Ken as Independent
Administrator of the Estate (the "Estate").
Because the FSA involves the Estate, mediation must occur in Tarrant County. We will set this
as soon as possible, even though I am on family medical leave act ("FMLA"). As I have
previously stated, your client will be responsible for its share of the fees associated with the
ADR. As my client believes that the Fannin County lawsuit is a farce, and since you have done
nothing but assist Howard Kirk Gibbs, Howard Kirk will be invited to participate in this ADR.
If you see any issue with approaching ADR in this manner, please let me know as soon as
possible. You and Howard Kirk can provide me a list of three (3) mediators in Tarrant County,
and I will let you know Ken's choice. That seems fair. If you prefer a different way to choose the
mediator, please let me know.
Regarding the discovery requests from Ken to Pentex and GBU Trust: The respective due dates
of September 10 and 11, 2014, were oversights on my part. I apologize for scheduling the
production during your leave. After much persuasion, under the circumstances, Ken will agree to
an extension. However, a thirty- (30-) day extension is excessive. Would either Pentex or GBU
Trust have agreed to a thirty- (30) day extension for my client? Based on developments thus far,
August 25, 2014
Page2
Ken fully anticipates that your clients will object to all discovery requests, provide him with
nothing, and that a motion to compel will be necessary.
My client feels that a fifteen- (15-) day extension is more than reasonable, especially since your
leave is planned for only a little more than a week in early September. Therefore, Ken will
extend the production deadline for both Pentex and GBU Trust to 5:30p.m., Monday, September
25, 2014, provided that both Pentex and GBU Trust will agree in a Rule 11 Agreement that the
hearing September 30, 2014, is to be postponed until after the mediation (or a mutually agreed
upon date). Ken has no issue with rescheduling the hearings on September 30th as soon as
possible, as we are sure the docket is filling up in Fannin County. We also have other motions
that will be filed very shortly and we would like those to be heard on the same day as well.
Under the circumstances, Ken's new deadline is very generous. As I am sure you realize, Ken
has no reason to trust you and does not, in fact, want to offer you any concessions at all,
especially since it was revealed that you agreed to represent Beverly Miller in Tarrant County.
Even Judge Ferchill was shocked at the disturbing news that you accepted the $50,000 retainer
drawn from a GWB Family and Friends Trust bank account. Of course, we have no verification
that you did return the money. Under the circumstances, Ken will not provide a longer extension
than fifteen (15) days for discovery.
Due to yours and your client's past and very recent actions, Ken has very little faith that your
clients will participate in good faith in the mediation, so we need to schedule a time for
depositions for Joshua Unger, Danny Unger, AI Barcroft, and the mysterious person who signed
the engagement letter. When can I schedule the various parties, including AI, for depositions? If
you want to continue to state that you do not represent AI, please put that in writing, yet again.
Obviously, having these depositions back to back would be preferable and please have AI
Barcroft give all the information he has about Pentex Foundation to Danny Unger, since AI has
always been the legal representative of Pentex Foundation (or as Beverly Miller has testified that
Pentex Foundation is AI) and Danny Unger needs to give Joshua Unger all the information
concerning GBU Trust, as Danny Unger was the initial trustee.
Please forward me a Rule 11 Agreement to the extension of discovery and postponing the
September 30th hearing until after the mediation (or call the court and lets agree to a date).
Please provide me all the dates in which you are not available in September and October, and I
will get the mediation scheduled as soon as possible. I suspect it will take the entire day. If you
believe otherwise, please let me know. Also, please provide me a list of "complaints" that your
client has about Ken's administration of the Estate, and also provide my office with a settlement
offer or solutions prior to one (1) week to mediation.
Very truly yours,
LAW OFFICES OF CHRISTY LEE, P.C.
Christy L. Lee
PLAINTIFF'S EXHIBIT 17
Scott Smith # August 21 , 2014 1:41 PM
To: Christy Lee Hide Details
Cc: Howard Gibbs
Reply-To: Scott Smith
Pentex Foundation v. Gibbs, et al.; CV-14-41665
Christy,
You probably do not recall, but when I entered my appearance I gave notice of my vacation next month. I am attaching a copy.
The discovery you sent requires a response during that time period. That, and given the volume of discovery, I am requesting a
thirty day extension. If this is agreeable, I am attaching a proposed Rule 11 Agreement to that end. If not, let me know and I can
so move the Court.
Also, I am attaching the file-marked Plaintiff's and Intervenor's Motion for Partial Summary Judgment, with a completed FIAT.
Note that this motion is set for hearing on September 30,2014, at 8:30a.m.
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
, ·-
14·5-7 Clerk re 1~ 12 Motion for
appearance.pdf Rule 11 Agreement.pdf Partial Sum .••dgmentpdf
DEFENDANT'S EXHIBIT A
CAUSE No. CV-14-41665
PENTEX FOUNDATION, ) IN THE DISTRICT COURT
PLAINTIFF, )
)
vs. } 336Tif JUDICIAL DISTRICT
)
KENNETH VERN GmBS; AND )
CANDACE GIBDS WALTON: AND )
HOWARD KIRK GIBBS, )
DEFENDANTS. ) FANNIN COUNTY, TEXAS
RULE 11 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 Tt·ust, Intervenor; by and through their respective attorneys and
Howard Kirk Gibbs; and the Parties together hereby submit the following Rule II Agreemcnllo
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 fo•·thcoming from the receiving Party
within one (I) business day, service shall be effected in an allemative manner, pursuant to Rule
21 of the Texas Rules of Civil Procedure. However, service shall be deemed completed at the
time the email is sent, except on holidays or weekends, at which time service shall be deemed
completed on the next business day.
•I \
RULE II AGREEMENT FOR METHOD OF SERVICE CAUSH No. cf"'tlt 41665
Pen/e.'( Foundation ""· Gibbs~~ of. I' / -I-
Respectfully submitted,
LAW OFt ICES OF CHRISTY LEE, I)C.
Ry: GP~-
Christy L. Lee
Texas State Bar No. 24052302
777 Main Street, Ste. 600
Fort Worth, Texas 76102
(Rl7) 504-6075 Office
{800) 437-7901 fax
clee@christ)•lcelaw.com
AITOR.J'IEY FOR KENNETH GIBBS AND
CANDACE WALTON
---: - -r--,
sY:!4~,.--- ...
Sco ·mitt
Texas State Bar No. I 8688900
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75418
(903) 868-8686 Office
(903) 870-1446 Fax
smithlaw@ait1nail.net
Ari'ORNEY FOR PLAINTIFF AND
INTERVENOR
Howard Kirk Gibbs, Pt·o ·se ·
4360 Western Center Boulevard, Suite 205
Fort Wo1th, Texas 76137
(817) 233-4423
hkgibbs@gmai I.com
RULE\\ AGru:a.IENT FOR METUOD OF SERVICE CAliSE No. CV-l4·4166S
Pe11/q:c Fou11dalion vs. Gibbs el ol. -2-
1
1 REPORTER'S RECORD
VOLUME 1
2 TRIAL COURT CAUSE NO. CV-14-41665
3
PENTEX FOUNDATION IN THE DISTRICT COURT
4 Plaintiff,
5
vs. FANNIN COUNTY, TEXAS
6
KENNETH VERN GIBBS and
7 CANDACE GIBBS WALTON and
HOWARD KIRK GIBBS,
8 Defendants. 336TH JUDICIAL DISTRICT
9
10
11
12 ******************
13 HEARING BEFORE THE COURT ON
14 MOTION TO RECONSIDER ORDER TO TRANSFER VENUE
15 ******************
16
17
18
19
20
21 On the 12th day of November, 2014, the following
22 proceedings came on to be heard in the above-entitled
23 and numbered cause before the Honorable Laurine Blake,
24 Judge Presiding, held in Bonham, Fannin County, Texas:
25 Proceedings reported by stenographic method.
2
1 A P P E A R A N C E S
2
Mr. Thomas Scott
3 SBOT 18688900
Attorney and Counselor at Law
4 120 S. Crockett Street
Sherman, Texas 75090
5 (903) 868-8686
6
ATTORNEY FOR THE PETITIONER and INTERVENOR
7
- AND -
8
Ms. Christy Lee
9 SBOT 24052302
Law Offices of Christy Lee
10 777 Main Street
Suite 600
11 Fort Worth, Texas 76102
(817) 504-6075
12
ATTORNEY FOR THE DEFENDANTS
13 KENNETH GIBBS and CANDACE WALTON
14
15
16
17
18
19
20
21
22
23
24
25
3
1 VOLUME 1
2 HEARING BEFORE THE COURT
3 Page Vol.
4 NOVEMBER 12 I 2014
5
6 Plaintiff's Argument by Mr. Smith . . . . . . . . 15 1
Defendant's Argument by Ms. Lee. .19 1
7 Court's Ruling . . . . . . . . . . . . . .27 1
8 Court Reporter's Certificate .. .33 1
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 EXHIBIT INDEX
2 (None.)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
1 P R 0 C E E D I N G S
2 THE COURT: Have the parties come forward
3 in Pentex Foundation versus Kenneth Vern Gibbs and
4 others. This is CV-14-41665.
5 Okay. I ' l l hear from the attorneys.
6 We'll start, Mr. Smith, with your argument. I believe
7 this is your motion.
8 MR. SMITH: It is my motion, Your Honor.
9 And, for the record, I'm here representing Pentex
10 Foundation, the plaintiff, and Joshua Unger, trustee,
11 the intervenor.
12 THE COURT: Yes, ma'am.
13 MS. LEE: Your Honor, I've spoken-- I'm
14 Christy Lee. I represent Candace Walton and Kenneth
15 Gibbs. I have spoken with opposing counsel prior to
16 the hearing about a procedural issue, which I believe
17 that must be addressed prior to listening or hearing
18 the motion to reconsider.
19 THE COURT: Which is what?
20 MS. LEE: It is -- under the Rule of 87,
21 Section five of the Texas Rules of Civil Procedure,
22 this Court does not have the power to hear a motion to
23 reconsider on venue, and I have the law and -- I have
24 case law and statute, Your Honor, if you'd like for me
25 to approach.
6
1 THE COURT: Have you already shared that
2 with Mr. Smith?
3 MS. LEE: No, Your Honor. I just found
4 out about this -- Mr. Smith about half a day prior --
5 half a business day prior to this hearing, he provided
6 me with a 41-page reply which cited to section -- to
7 Texas Rule of Civil Procedure 87. So, I just became
8 aware of this as -- as of this morning, Your Honor.
9 But I do have copies for him, as well as your court if
10 you
11 THE COURT: Okay.
12 MS. LEE: If I may have permission to
13 proceed.
14 THE COURT: Okay.
15 MS. LEE: May I please approach, Your
16 Honor?
17 THE COURT: You may.
18 MS. LEE: The Texas Rule of Civil
19 Procedure 87, Determination of Motion to Transfer,
20 Section five, specifically states that if an action
21 has been transferred to a proper venue, which this
22 Court it has happened on September 28th -- in
23 response to a motion to transfer, then no further
24 motions to transfer shall be considered, unless the
25 motion to transfer is based on two things. One is the
7
1 grounds that an impartial trial cannot be had under
2 Rules 257 and 259, which opposing party has not
3 asserted, or on the ground of mandatory venue, which
4 opposing party did assert in the first motion -- in
5 the first response to motion for transfer. This rule
6 continues to provide that those two exceptions are
7 only allowed provided that such a claim was not
8 available to them at the time.
9 And, Your Honor, I have a copy of their
10 motion their response to the motion to transfer
11 venue, and that is exactly what they argued at the
12 last court hearing was a mandatory -- it was a
13 mandatory venue provision. Then I have case law, Your
14 Honor. There's also Marathon Corporation versus
15 Pitzner, and I've highlighted --your Honor, may I
16 approach?
~7 THE COURT: Yes.
_s MS. LEE: It's at very back of this case.
19 It's footnote number six. It cites Texas Rule of
20 Civil Procedure just as I've cited to you, Your Honor,
21 and then it also states that a motion to reconsider
22 transfer of venue was not proper under the rules, and
23 a hearing should not have even been granted. Then I
24 have other cases, Your Honor. I have Van Es versus
25 Frazier, Dorchester Master Limited Partnership versus
8
1 Anthony, In Re Shell. And they all provide that a tax
2 court has the authority to make I'm sorry. Tax
3 Court, sorry. Trial court has the authority to make
4 only one venue determination.
5 And even a case, In Re Medical Carbon
6 Research, and that says, rule -- venue selection and
7 Rule 87, Section five of the Texas Rules of Civil
8 Procedure does not permit consideration of a motion to
9 transfer venue. A trial court has the authority to
10 make only one venue determination. And this talks
11 about, because any reconsideration of an order denying
12 the motion to transfer would be void, that even today
13 if it's even heard, that it would be voided. And I do
14 have some of these cases available, Your Honor, if you
15 would like to see them.
THE COURT:
17 MS. LEE: Okay. May I approach, Your
18 Honor?
19 THE COURT: Yes. Anything else on this
20 point, Counsel?
21 MS. LEE: No, Your Honor.
22 THE COURT: All right. Your response,
23 Mr. Smith.
24 MR. SMITH: Yes. It certainly would've
25 been nice to know this beforehand; however, I am
9
1 familiar with Rule 87.5, and you've got to read it
2 fairly careful because there's two triggers for this
3 rule to be applied. The first says, If venue has been
4 sustained against a motion to transfer -- that's not
5 us -- or if an action has been transferred to a proper
6 county. That's where we would fall under. That --
7 and the reason there's two different ones is because,
8 until the file is actually transferred, this rule
9 doesn't kick 1n.
10 And this file has not actually been
11 transferred. That's one of the reasons we got our
12 motion for reconsideration in fairly promptly was so
13 that we could have it intercept the actual act of
14 transferring the file. And I can see and would hope
15 the Court would make a judicial notice finding that
16 the Court's file appears to still be here in Fannin
17 County, so it has not actually physically been
18 transferred yet, so ...
19 THE COURT: Okay. I've got my file. I
20 think there would always be a copy here, but I don't
21 see anything indicating the clerk has done any
22 physical transfer of the file.
23 MR. SMITH: So, if, in fact, it has not
24 physically been transferred, this is still a proper
25 motion. And the reason for that is obvious. So we
10
1 can correct any errors if there are -- if, in fact, we
2 can convince the Court there was an error made before
3 we make an effort to make a petition for writ of
4 mandamus. So, we believe the Court does have
5 jurisdiction and that you can proceed forward with a
6 motion.
7 MS. LEE: Your Honor, I I would just
8 like to --
9 MR. SMITH: I'm sorry. One other
10 thought.
11 MS. LEE: Sure.
12 MR. SMITH: In the cases that she's given
13 me, I just looked through them real quick. Every one
14 of these are cases where the motion was denied under
15 that first clause. So, that -- when the motion's
16 denied and the order is entered, that does keep you
17 from filing a motion for reconsideration. And the
18 reason for that is this: Under the old rules where we
19 didn't have the statute granting mandamus relief for
20 mandatory venue, you did not have the right to appeal
21 venue decisions, and so, once the order's entered
22 denying it, you can have your right on appeal and have
23 your remedy later. But when you've got a situation
24 such as we have where a mandamus is available, if we
25 can get to the Court and convince you of the error of
11
1 your ruling, if you agree with us, that saves
2 everybody time, money, and judicial resources.
3 THE COURT: Okay.
4 MS. LEE: Your Honor, there is one other
5 case.
6 THE COURT: Okay.
7 MS. LEE: Besides reiterating that the
8 case that I did provide -- it specifically states that
9 a motion to reconsider is not appropriate and that
10 you're only entitled to one bite at the apple.
11 There's also another case which asserts to some of his
12 other arguments. Can I please approach the bench,
13 Your Honor?
14 THE COURT: Yes.
15 MS. LEE: This one is In Re Chester, and
16 there were so many important parts in this, I did not
17 highlight it. But it specifically provides that after
18 30 days of hearing the motion -- after an order is
19 signed, that the Court lacks plenary power to rule on
20 a motion to reconsider. And it was very clear that
21 after 30 days -- and, in this case, it was a matter
22 of, I think, 32 days when the Court heard a motion to
23 reconsider concerning a change of venue, and it was a
24 mandatory provision in the agreement, and the Court
25 ruled that it did not have authority because of
12
1 judicial economy and they wanted to make it quite
2 quick in order to have it heard in another -- in the
3 appropriate venue.
4 So, that Court asserts (sic) Mr. Smith's
5 arguments that if there's an error -- and so, the
6 Court does have the power if there was an error,
7 which, of course, we don't believe there was an error,
8 within 30 days. And from the research that I did
9 and I will state that it was not extensive due to the
'0 time constraints and because I was not made aware of
1 this until I received the reply from Mr. Scott (sic),
2 which, again, was half a business day prior to this
_3 hearing, that there's no extension to the 30 days.
14 So, this Court only had 30 days if they felt that
15 there was an error. So, it is my client's opinion
16 that the Court does not have the power or the
17 authority to even rule on a motion to reconsider the
18 change of venue.
19 MR. SMITH: Again, looking at this very
20 quickly, this Chester case looks like the motion was
21 -- I'm going to strike that because I haven't read it
22 carefully. I don't want to misrepresent it to the
23 Court.
24 THE COURT: Okay. I have two thoughts on
25 this. I would have liked to have had the hearing
13
1 sooner. I'm uncertain of why it took the time it did.
2 I know in the past there's some difficulty of having
3 the appearance of counsel on certain days, so we had
4 gone through quite amount of pain to make sure we were
5 accommodating people on that. I don't know if that
6 factored into this.
7 MR. SMITH: I believe it did. Ms. Reamy
8 actually set this hearing, I think, when Ms. Kreider
9 was out of town, and Ms. Lee was not available, and I
10 accommodated her schedule is what I recall.
11 MS. LEE: I was available within the 30
12 days, Your Honor, but he had a trial and he had, I
13 think, a CLE.
14 THE COURT: So, you're saying he can
15 accommodate your schedule, but you're not going to
16 accommodate his for purposes of the 30 days?
17 MS. LEE: Oh, my gosh, no, Your Honor.
18 It was set for this day only because he had other --
19 he had other issues. I mean, he had pending cases, as
20 I believe maybe a CLE, or he had a trial. I wasn't
21 sure.
22 THE COURT: Do you think there's a -- do
23 you think there's a timeframe for correcting the
24 Court's ruling by way of mandamus? You think he can't
25 do that after he's filed this motion?
14
1 MS. LEE: Absolutely. He -- he has --
2 there's that avenue. He is able to file a mandamus, I
3 believe.
4 THE COURT: So, if it was outside the 30
5 days and I don't rule on it, the higher court has the
6 ability to mandamus me and make me do it, but you're
7 saying I don't have the ability to hear the case
8 myself and correct a mistake.
9 MS. LEE: No, Your Honor. I please stand
10 corrected. From my understanding from the research I
11 did -- and like I stated, it was not extensive -- if
12 it's outside the 30 days, there is not -- there's not
13 a discretion. That -- that was my understanding.
14 Again, I -- I did not do extensive research on that.
15 If you would like to-- I'd just like that for the
16 record. We can proceed. I believe that we went on
17 the merits of the case.
18 THE COURT: Okay. Well, let's -- let's
19 go ahead and have the hearing. If the higher court
20 wants to do something different, they have the ability
21 to correct anything that I've made a mistake on,
22 because I think it's important to try to get it done
23 right the first time, and that's why I granted the --
24 the hearing opportunity on the motion to reconsider.
25 I'm going to overrule the objection to having the
15
1 hearing based on the fact that this is a -- this is,
2 in my opinion, to reconsider if I have missed
3 something legally that is required. And, therefore, I
4 want to go ahead and proceed with the reconsideration
5 of the motion to of the motion, itself, to transfer
6 the venue. So, you may proceed on your request,
7 Mr. Smith.
8 MR. SMITH: Thank you, Your Honor. And
9 for the clarity of the record for what we just
10 discussed, is it the Court's finding that there has
11 not been a physical transfer of the file?
12 THE COURT: Yes.
13 MR. SMITH: Thank you. And I appreciate
14 you having a hearing on this, Your Honor. After the
15 last hearing, clearly, we disagreed with the Court's
16 ruling on venue. That's what courts are for. We
17 understand that. But we looked at our remedies and we
18 saw that there is a statute that allows mandamus on a
19 mandatory venue ruling. And so, before we went to
20 that effort, we thought it would be prudent to come
21 back to the Court and see if we could re-examine the
22 ruling to see if, in fact, we are correct.
23 Now, what is this? This is not a new
24 motion. We could not even bring another motion for
25 venue. Venue, as you know, is determined as a matter
16
1 of primary it's a primary determination. You
2 determine venue before you move on to other things,
3 and, because of that, the hearing that we had on
4 September 30th was a fixed date for evidence. And I
5 say this because the response which was filed by the
6 defendants brought in a bunch of new evidence, and we,
7 ln turn, felt like we had to respond with that with
8 our reply. I really don't think that's important
9 because the facts that we are going to be arguing
10 about were fixed on September 30th. We're simply
11 asking that you re-examine those facts because I think
12 that's sufficient to make a ruling that we can all
13 live with.
14 So, what was the venue evidence that was
15 before the Court? And I'll take you to Rule 87.3, and
16 it may actually be ln what Counsel handed out. I
17 don't know. But what it says is, All venue facts when
18 properly pleaded shall be taken as true unless
19 specifically denied by the adverse party. And what
20 did we have when we came here on September 30th? We
21 had attached the contract to the petition. It was
22 asserted in the petition that all parties agreed in
23 writing that any dispute would be performable in
24 Fannin County, Texas.
25 In the response to the motion for venue,
17
1 we attached the contract once again and specifically
2 pleaded paragraph four which references the
3 liquidated-damages provision of $5 million, and none
4 of this was ever denied. So, those facts by rule were
5 taken as true.
6 Now, I've got a case here, a copy for
7 Counsel. What I've done is I've excerpted the
8 paragraph of the contract at issue.
9 THE COURT: Thank you.
10 MR. SMITH: And then there's a case
11 called Spin Doctor. That's actually the case name.
12 I'm not making light of the fact that it's called Spin
13 Doctor. And what it says is, you look at the face of
14 the document. You don't look outside the document.
15 You look at the face of the document. And this is
16 what the statute says, too. And, in Spin Doctor, the
17 agreement says, The agreement attached to the motion
18 to transfer venue lists annual sales of over $1
19 million. Thus, on its face, it constitutes prima
20 facie evidence of a major transaction within the
21 statute.
22 And I ' l l be candid with you, Your Honor,
23 there's not a whole lot of cases talking about what a
24 major transaction is. There's very few, and the ones
25 that do, mostly just parrot the statute. But I
18
1 thought this was a pretty compelling one, because it
2 says you look at the four corners of the document, and
3 if it references consideration in excess of a million
4 dollars, the inquiry lS over. Your prima facie case
5 is met.
6 Here, this contract says, the liquidated
7 damages, should you breach, is $5 million, and that
8 says it's in full settlement of all consideration on
9 the Gibbs' claims. Now, why is that important? I've
10 got another handout. I've cited the statute here, and
11 it says, basically, if consideration is at a stated
12 value of excess of one million, that's a major
13 transaction.
14 I said, Well, what is -- what is
15 liquidated damages action doing for us? So, I pulled
16 the supreme court case of Flores, and it says,
17 Liquidated damages refers to an acceptable measure of
18 damages that parties stipulate to in advance that will
19 be assessed in the event of a contract breach.
20 the parties here stipulated to a specified amount --
21 $5 million -- and said this is adequate consideration
22 for this contract in the event of a breach. Thus, on
23 its face, the contract says it's in excess of a
24 million dollars.
25 I also note that these type of clauses
19
1 are favored in the courts. The supreme court has said
2 in 2006 that we encourage these type of clauses
3 because the parties, by gosh, they know what they're
4 doing, they should be able to give effect to their own
5 agreements. And so, the Texas law encourages
6 enforcement of these agreements.
7 So, for all these reason, Your Honor, we
8 believe this is a major transaction; we believe that
9 it's, on its face, in excess of a million dollars; we
10 believe the Texas law encourages enforcement of these.
11 We believe that we came at you pretty fast and furious
12 in the last hearing and maybe that wasn't made very
13 clear, but we feel like you have an opportunity to
14 restore venue to Fannin County, Texas, the county
15 where the parties stipulated and agreed venue should
16 be, and that we can move on down the road with this
17 litigation. Thank you for your time.
18 THE COURT: Thank you.
19 Counsel.
20 MS. LEE: Yes, Your Honor. And I also
21 have some cases, Your Honor. The first one -- may I
22 please approach?
23 THE COURT: Certainly. Thank you.
24 MS. LEE: In Re Togs Energy specifically
25 states, Your Honor -- it states obviously the statute,
20
1 the 15 -- the 15.020. But here's the -- with all due
2 respect to Mr. Scott, I don't think he understands the
3 concept of the consideration. It is very clear that
4 in the contract, it has to have a aggregated stated
5 value, and in the agreement in every case, even the
6 one that he cites -- the Spin Doctors -- Your Honor,
7 it stated that it was a million dollars. There's no
8 case that says that liquidated damages, which is a
9 buy-out provision, is considered an obligation to pay.
10 The actual provision for a major
11 transaction is that a person pays, receives, or
12 obligated -- obligated -- to pay or receive. You are
13 not obligated to pay liquidated damages.
14 Consideration with an aggregated stated value, and as
15 Mr. Smith stated, it has to be in the four corners of
16 the contract. You actually have to have that amount
17 of money for over a million dollars. It has to be
18 stated. It cannot be, how much could that possibly
19 be.
20 Also, ln In Re Togs Energy, it stated
21 that affidavits or anything else is absolutely
22 irrelevant. They're not even going to consider it
23 because it does not -- because it doesn't contain a
24 major transaction in an affidavit. I mean, you only
25 look to what the contract states.
21
1 Now, again, in the Spin Doctors Golf as
2 co-counsel -- opposing counsel has already talked
3 about, Your Honor, they quote the agreement as listed
4 annual sales of over a million dollars, and the Court
5 held, as he said, the prima facie evidence of a
6 transaction. But they leave out extremely important
7 language. The Court in Spin Doctors emphasized that
8 Paymentech, by contrast to the Texas Association of
9 School Boards case, was obligated to pay. They
10 absolutely had to pay the funds to Spin Doctor as it
11 received data from the credit card sales. Paymentech
12 did not assume any risk. No risk. No liquidated
13 damages. Nothing. It was an absolute obligation.
14 The written agreement actually said that the credit
15 card sales was valued at about 5 million. That was
16 the obligation to pay.
17 Once again, our case is very different
18 because Al Barcroft, when he signed -- drafted and
19 signed the contract for sale, he assumed a risk, and
20 the buy-out provision did not create an obligation.
21 Now, Candy, Ken, and Howard Kirk, they didn't have to
22 buy him out. I mean, again, it's a buy-out provision,
23 so he may never have received anything. As do we
24 point out on paragraph six of Howard Kirk Gibbs'
25 affidavit in the opposing parties' reply, Al was
22
1 taking a big risk. That's what he states. He's
2 taking a big risk to help us. So, again, a risk with
3 no obligation that was created for the Gibbs to have
4 to pay him anything. They've not cited to any case,
5 showed any obligation that there's more than $1
6 million that needs to be paid.
7 So, we need to talk about, like, what is
8 consideration, because I think that seems to be an
9 issue here. Consideration is what -- is the something
0 that you receive in return and each side promises to
11 pay. So, in the contract for sale, Al Barcroft
12 promised to give his silver coins, 21; his services,
13 which included providing legal services; and acquire
14 legal counsel at his own expense. This was not
15 valued, Your Honor. There was no value in the
16 contract. Those three things were his consideration.
17 That is what has -- those have to be valued. And then
18 the 30 percent of absolutely everything that my client
19 -- and I will go through that in a minute. But the 30
20 percent of everything that Ken, Candy, and Howard Kirk
21 were possibly going to get from the Gibbs, that was
22 their consideration. And, again, Your Honor, that was
23 not provided for. There was no value on that one.
24 So, on the face of the document, there is
25 no -- I mean, I have the Spin Doctors case. I read it
23
1 extensively. Again, ln that agreement, it stated that
2 the total sales were 5 million. That was in the
3 contract. There is not one case -- and I can say that
4 wholeheartedly because I have read every single case
5 to my knowledge concerning a motion to transfer and
6 major transaction. There's not one case concerning a
7 buy-out provision or liquidated damages that require
8 an obligation to pay, and, therefore, make it a major
9 transaction.
10 Now, Your Honor, in the alternative, if
11 you believe -- if the Court believes that the $5
12 million liquidated damages or the affidavits and the
13 checks and other things that they're alleging to be
14 true -- if you believe that that happens to be a
15 million dollars and, therefore, a major transaction,
16 there is in the alternative, I'd like to argue that
17 there is an exception to the mandatory venue
18 provision. That is Section 15.020(d)
19 MR. SMITH: And, Judge, this is where I
20 was talking earlier about this is getting outside the
21 scope of our hearing because we're not starting a new
22 hearing. We're examining the hearing that we had, and
23 this evidence of brought forward new after the fact.
24 So, we would object to the presentation.
25 MS. LEE: Your Honor, this is exactly
24
1 what I argued in my other hearing. Identical. I've
2 not changed my argument.
3 THE COURT: I'm going to allow for the
4 argument. I won't allow for anything outside of what
5 had been argued the last time. You may proceed.
6 MS. LEE: So, the -- that provision
7 states that a mandatory venue provision does not apply
8 to an action if the agreement is -- was unconscionable
9 at the time it was made. We our two arguments,
10 which we argued before, was, it was grossly one-sided
11 and the unauthorized practice of law. And Al Barcroft
12 drafted the contract for sale for his own accord, and
13 he's the beneficiary. He would receive something as a
14 benefit. The grossly one-sided argument is 21 junk
15 coins which my client has -- which we did discuss at
16 the last hearing 21 junk coins that happen to be of
17 nominal value -- we don't know what the value is, Your
18 Honor, at that time and, in exchange, he would
19 he would receive -- Al Barcroft would receive a whole
20 lieu (sic) of things including inheritances from any
21 form that were received by my clients now and in the
22 future. It's in the contract. It's actually in
23 paragraph one. There's about, I think, seven to nine
24 different things of what he's going to receive in
25 exchange for what he provided.
25
1 So, practicing law without a license is
2 considered a misdemeanor a Class-A misdemeanor
3 and also, in my opinion, considered fraud. The courts
4 are very clear that you can't draft a contract in
5 which you're going to be -- draft a contract as a
6 practicing law without a license and reap a benefit
7 from it.
8 And my clients -- my clients and the
9 defendant live in Tarrant County. Everything is in
10 Tarrant County. Absolutely everything. There is
11 nothing that is here. Even the -- and to my-- I'm
12 not quite well, the defendants, I don't even think
13 they live in Fannin County. And they could. You can
14 correct me if I'm wrong. But everybody is in Tarrant
15 County, and the appropriate venue is Tarrant County.
16 THE COURT: All right. Thank you.
17 Any final rebuttal?
18 MR. SMITH: Your Honor, I really feel
19 like I need to respond to some of that, but I feel
20 like it's outside the record for what we're doing
21 today. I could spend a fair amount of time rebutting
22 what she just said, all of which was contained in her
23 response that she filed after you transferred the case
24 or after you have entered the order, because what they
25 actually filed beforehand was four paragraphs in their
26
1 original answer, none of which talk about what she's
2 talking about. It talked about being inconvenient.
3 It didn't talk about unconscionable contracts.
4 I really hate to get into that because I
5 think it's a red herring, and I think I ' l l stand by
6 what I said; and, that is, you look at the four
7 corners of this contract, it's stating an aggregate
8 value, and the reason that is, is to make sure we have
9 a major transaction, and it states the venue -- the
10 parties' agreement to have venue in Fannin County,
11 Texas, and so, unless you want to hear a response to
12 that reply or a reply to that response, I ' l l lay
13 that with the Court's file.
14 THE COURT: Okay. My focus has been on
15 whether the buy-out provision that the $5 million
16 stated is an obligation or not. Is there any
17 anything else that you would offer there, Mr. Smith,
18 to clarify? An obligation of the contract.
19 MR. SMITH: Yes. I mean, I'm I may be
20 repeating myself, but it says that liquidated damages
21 are created by the parties to ascertain the amount of
22 the contract when it's difficult to come up with an
23 amount of the contract. That's what they did here.
24 The law encourages liquidated damages. It's stated in
25 black and white on the contract, so I believe that's
27
1 an obligation to pay as stated in the 15.020.
2 THE COURT: Okay. Okay. The I I
3 having reconsidered my order, will make the ruling
4 that the venue in this case should not be transferred
5 to Tarrant County. We need to go ahead and get a
6 scheduling order in place and pick some dates certain.
7 There were some motions that were filed and we need to
8 address that.
9 MS. LEE: Your Honor, I will be filing a
10 mandamus.
11 THE COURT: I figured I'd get it one way
12 or the other, so -- both of y'all are very articulate
13 and very good advocates, and I'm happy to have a
14 higher court review this as we might need to go along
15 our way.
16 MS. LEE: So, Your Honor, I respectfully
17 request not to get back on the docket or scheduling so
18 I can get that filed.
19 THE COURT: Well, what I want to do is, I
20 want to go ahead and pick the dates before y'all walk
21 out, and then in the event you file it, which I have
22 no doubt you will -- but when you do, then it will
23 abate our hearings until they actually take the action
24 that they might need to take. And they're very, very
25 quick about these matters, and I would expect, then,
28
1 whatever we had scheduled that got abated would be
2 just reinstituted. So, I'd like y'all to pick dates
3 that are reasonable.
4 MS. LEE: And, Your Honor, just for
5 clarification, did you is it your determination
6 that that buy-out -- the $5 million liquidated damages
7 is -- makes it a mandatory venue?
8 THE COURT: That was the part that I was
9 focusing on last time. When I made the decision to
10 transfer it, I was -- I have reconsidered that, but
11 any provision that allows or provides for the matter
12 based on the limited evidence that was presented to
13 the Court -- I'm trying to make the decision based on
14 the contract that was there, which I think is all I
15 can make it on. Not all of the extraneous evidence
16 that everybody is offering after the last ruling,
17 so ...
18 MR. SMITH: I will prepare an appropriate
19 order and circulate it to Counsel.
20 THE COURT: Okay, what I want y'all to
21 do, then, is go ahead and pick those dates with the
22 Court's coordinator, and then when we get the other
23 motion -- so, if you'll pick them to be reasonable
24 dates that might happen to be outside of about 30 to
25 45 days, which is probably about how long the Court
29
1 will take to make this ruling.
2 MR. SMITH: Are you asking us to pick a
3 trial date and move forward or just dates for the
4 hearings that we had set before?
5 THE COURT: Both. I think we need an end
6 date that the parties can expect. This matter's been
7 a bit protracted for a variety of reasons, the least
8 of which is not -- it is the fact that it's a
9 complicated case, and I understand that. There's a
10 lot at stake and a lot of emotion. I think the
11 parties need to get the thing resolved, and that is
12 one thing that we can accomplish is getting some
13 closure.
14 MR. SMITH: Well, Your Honor, we have
15 discussed -- I know you ordered mediation last time.
16 We've discussed mediation and it hasn't really gotten
17 any traction. It might be helpful if you order us to
18 mediation.
19 THE COURT: Okay. I would also expect
20 you still select the final hearing date, the pretrial
21 date. The Court will order mediation, and I ' l l
22 appoint Judge Curt Henderson. He's a retired judge
23 from the 219th District Court. You can get online and
24 he -- you can electronically set up the date certain
25 that you want to select. He'll meet down in Collin
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1 County, so i t ' l l be in between the two locations to
2 some degree. And he has the most years service as a
3 judge in Collin County's history, so he will be very
4 knowledgeable. I think when he took either when he
5 took the bar exam or the board certification exam, he
6 got the top score in the State of Texas that year. He
7 should prove to be very informed, very helpful, and he
8 is, in my opinion, young. He is, I think, 60 or 61.
9 MR. SMITH: Thank you for finding that,
10 Your Honor.
11 THE COURT: That's young. So, it's not
12 like he's -- you know, he's going to be on it and he's
13 up-to-date with technology issues and things of that
14 nature. So, all of your communication -- he does a
15 lot electronically, and he drafts final mediation
16 agreements, I think. He's very good about letting us
17 know.
18 We need to pick a mediation deadline
19 date, as well. I'd like the parties to have that
20 accomplished within -- 120 days should give the higher
21 court the time they need to rule. Do y'all think
22 that's reasonable, 120 days? Four months out?
23 MR. SMITH: Certainly.
24 MS. LEE: That's fine.
25 MR. SMITH: And I would also like to
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1 state for the record, Mr. Howard Kirk Gibbs, the pro
2 se defendant, is here, as well. So, I think that's
3 all of the parties.
4 THE COURT: Okay. So, I need to make
5 sure all of the parties have all of this information
6 before they go. I want everybody to know. Nobody
7 needs to be in the dark. We need to go ahead and get
8 some resolution for everyone. And so, when you see
9 the Court's coordinator, before anybody leaves,
10 they're going to receive those dates. It will be the
11 final hearing date. If it's a jury, which I'm
12 assuming, we'll go ahead and put it on the jury trial
13 docket. We'll have -- pretrial will be aboui a month
14 preceding that. Pick a timeframe that y'all think is
15 reasonable to accommodate your issues of discovery
16 that you might have, and we will do everything that we
17 can to give your case the highest priority.
18 Every case that's set on the civil docket
19 1s likely they all resolve, so your case is likely
20 to be the one that goes, so don't think it's going to
21 get reset. It will be the one that goes, so pick a
22 real date, a meaningful date for you. Have the
23 mediation about 120 days out, and include in the order
24 that you submit on the scheduling order a separate
25 document appointing Judge Henderson so we can get that
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1 off to him ASAP, and he'll know to expect you all to
2 contact him. But the way you'll contact him is
3 directly yourselves electronically on his website.
4 Ms. Kreider can give you the information on how to
5 contact him.
6 MR. SMITH: May Mr. Gibbs come back with
7 us?
8 THE COURT: Absolutely. All right. I do
9 appreciate y'all's time and patience with the Court.
10 Thank you.
11 (End of proceedings.)
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33
1 THE STATE OF TEXAS
2 COUNTY OF FANNIN
3 I, Charla Reamy, Official Court Reporter in and for
4 the 336th District Court of Fannin County, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested
8 in writing by counsel for the parties to be included
9 in this volume of the Reporter's Record, in the
10 above-styled and numbered cause, all of which occurred
11 in open court or in chambers and were reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14 exhibits, if any, admitted by the respective parties.
15 WITNESS MY OFFICIAL HAND this the 8th day of
16 December , A . D . , 2 0 14 .
17
18
_Qb~R~---
CHARLA REAMY, Texas
-- -----
R 6361
19 Expiration Date: 1 -31-16
Official Court Reporter,
20 336th District Court
Fannin County, Texas
21 Bonham, Texas 75418
(903) 583-2863
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