ACCEPTED
14-15-00917-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
10/28/2015 4:42:22 PM
CHRISTOPHER PRINE
CLERK
NO. _________________
FILED IN
IN THE _____ COURT OF APPEALS 14th COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS
10/28/2015 4:42:22 PM
__________________________________________________________________
CHRISTOPHER A. PRINE
Clerk
IN RE SHELBY LONGORIA
Original Proceeding from the
Probate Court Number One, Harris County,
Texas, Cause No. 414270
__________________________________________________________________
PETITION FOR WRIT OF MANDAMUS – RECORD VOL 1, PART 2
__________________________________________________________________
Johnny W. Carter Robert S. MacIntyre Jr.
State Bar No. 00796312 State Bar No. 12760700
jcarter@susmangodfrey.com macintyre@mmlawtexas.com
Richard W. Hess MACINTYRE MCCULLOCH
State Bar No. 24046070 STANFIELD YOUNG
rhess@susmangodfrey.com 2900 Weslayan, Suite 150
Kristen Schlemmer Houston, Texas 77027
State Bar No. 24075029 Telephone: (713) 547-5400
kschlemmer@susmangodfrey.com
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366
Fax: (713) 654-6666
Attorneys for Shelby Longoria
NUMBER 414270
ESTATE OF IN PROBATE COURT NO ONE
DOROTHY LOUISE LONGORIA
DECEASED OF HARRIS COUNTY TEXAS
INVENTORY APPRAISEMENT AND LIST OF CLAIMS
TO THE HONORABLE JUDGE OF THIS COURT
AND TO ALL INTERESTED PARTIES
COMES NOW James Thomas Dorsey as Independent Executor of the Estate of
Dorothy Louise Longoria Deceased and submits for filing this Inventory Appraisement
and List of Claims in compliance with Section 250 of the Texas Probate Code
Date of Death April 2012
Date of Qualification October 2012
The following is full true and complete Inventory and Appraisement of all personal
property and all real property situated in the State of Texas together with list of claims due
and owing to this Estate as of the date of death which have come into the possession or
knowledge of the undersigned
REAL PROPERTY
To the knowledge of the Independent Executor the Decedent owned no real property
on the date of her death
The Decedent may have owned community property interest in real property
owned by Eduardo Longoria on the date of his death An investigation is being conducted
to determine whether Eduardo Longoria owned any real property on the date of his death
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00716
PERSONAL PROPERTY
To the knowledge of the Independent Executor the Decedent owned the following
personal property on the date of her death
Cash and Bank Accounts
Texas Community Bank Account Number 4988
Texas Community Bank Account Number 27538
Texas Community Bank Account Number 7680
Texas Community Bank Certificate Number 72918
Total Cash and Bank Accounts2 113124
Stocks Bonds and Other Securities
Direct of or right to constructive trust imposed on undivided one-half interest in
ownership
50 shares of Series stock in Vertice Empressarial S.A deC.V
shares of Series stock in Vertice Empressarial S.A de C.V
8934
49000 shares of Series stock in Inmuebles Terrenos S.A de C.V and
4375350 shares of Series stock in Inmuebles Terrenos S.A de C.V
49011050
Total Stocks Bonds and Other Securities3 49011050
Other Personal Property
Jewelry
Choker gold necklace 400
The Decedent have owned accounts is believed
may additional Shelby Longoria
to be in possession of information regarding such accounts if any but to date he has refused
to provide it
The Decedent may have owned additional stocks bonds or other securities Shelby
believed be such bonds and
Longoria is to in possession of information regarding stocks
other securities if any but to date he has refused to provide it
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00717
Small diamond necklace 1000
Silver and small diamond ring 500
Small hoop gold and diamond earrings 1500
Peridot earrings 250
Calsidney earrings
250
Coral and diamond earrings 1000
Coral ring 500
Elizabeth Showers earrings 600
Watch 2000
150
Gump Peridot necklace
Diamond ring 1500
Pearl necklace 2000
Pearl and diamond earrings 1000
Short strand of black pearls 1000
Pearl and smoky topaz bracelet 350
Necklace from India with topaz peridot and amethyst beads 250
long string of pale beads and matching earrings 180
Thirty-inch green
Two small gold chains 120
of silver diamond 100
Set loops and hanging blue stone
Four silver rings 120
Gold chain with small diamond 120
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00718
Five slides for loops 260
Small faux diamond necklace 250
Set of turquoise earrings with small diamond 2500
Gold chain with pink coral 200
aa Aqua ring and earring 350
bb Faux emerald earrings with briolette 250
cc Ring with cocktail diamonds 5000
dd Ring with faux diamonds 250
ee Six strands of pearls yellowed 300
ff Set of ioop earrings with hanging briolette 4000
gg Miscellaneous costume jewelry and accessories numerous pieces 500
Total Jewelry 28750
Electric Wheelchair 1500
Clothing 5000
Miscellaneous Personal Effects 1000
Total of Other Personal Property 36250
TOTAL PERSONAL PROPERTY KNOWN TO EXECUTOR 49160424
TOTAL ESTATE KNOWN TO EXECUTOR
NOT INCLUDING CLAIMS LISTED BELOW 49.160424
The Decedent was predeceased by her husband and she never remarried so no one
owned community-property interest in any property listed above
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00719
LIST OF CLAIMS
To the knowledge of the Independent Executor the Decedent owned the following
claims on the date of her death
Claim against Adriana Longoria based on promissory note
dated August 12011 in the principal amount of $70000 70478
Claim Sylvia Dorsey for amounts loaned to her 75000
against
Claim against Shelby Longoria based on August 92011 agreement 200000
Claim against Shelby Longoria for breach of fiduciary duty 25000000
Claim against Shelby Longoria for exemplary damages 10000000
TOTAL CLAIMS4 35345478
RESERVATION OF RIGHT TO AMEND
The Independent Executor expressly reserves the right to amend this Inventory
Appraisement and List of Claims
There may be additional claims against Shelby Longoria He has withheld
information that has formally been requested in this proceeding Accordingly this inventory
may be amended when such information is obtained
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00720
James Thomas Executor of the Estate of Dorothy Louise
Dorsey Independent
Longoria Deceased do solemnly swear that the above two pages shown as the Inventory
and List of Claims are true correct full and complete statement of the
Appraisement
property and claims of the Estate that have come to my knowledge
Respectfully submitted
Si nature of Independent Executor
Is fain es Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
FIsHER WELCH
Professional Corporation
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Telecopier 214.661.9404
ATTORNEY FOR JAMES THOMAS
DORSEY INDEPENDENT EXECUTOR
OF THE ESTATE OF DOROTHY
LOUISE LONGORIA DECEASED
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00721
STATE OF TEXAS
COUNTY OF DALLAS
Sworn to and subscribed before me on August 27 2013 by James Thomas Dorsey as
Independent Executor of the Estate of Dorothy Louise Longoria Deceased
otary Public in akdior the ate of Texas
IYY\
Printed Name of Notary Public
My Commission Expires
7-Y\4tl19
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00722
CERTIFICATE OF SERVICE
hereby certify that on August 27 2013 true and correct copy of this document was
served on the Defendant through his attorneys of record named below in the manner
indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schiemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
BY EMAIL TO jcartersusrnangodfrey.corn rhess@susmangodfrey.com and
ksch1ernrnersusrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO macintyre@rnmlawtexas.com
is/James Austin Fisher
James Austin Fisher
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00723
CASE NUMBER4I427O
IN THE ESTATE OF IN PROBATE ft6U1MUQNE
DOROTHY LOUISE LONGORIA
DECEASED
r.lXAS
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF THE ESTATE OF
DOROTHY LOUISE LONGORIA DECEASED TO
SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL
TO THE HONORABLE JUDGE OF THIS COURT
COMES NOW James Thomas Dorsey in his capacity as Independent Executor of the
Estate of Dorothy Louise Longoria Deceased as Counter-Plaintiff and pleads the following
counterclaims in
response to Shelby Longorias Amended Contest of 2010 Will stating the
following causes of action against Shelby Longoria as Counter-Defendant
Discovery Level
Pursuant to TEX Civ 190 Counter-Plaintiff states that discovery in this
case is intended to be conducted under Level of that Rule
Overview
These counterclaims are brought by citizen of Texas against another citizen
of Texas Counter-Plaintiff is the personal representative of an estate pending in this Court
and adjudication of these counterclaims is essential to administration of that estate The
Decedent lived in Texas for the last 25 years of her life These counterclaims are based
entirely on Texas law None of them is based on any law of the United Mexican States
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page
00724
The Parties
Counter-Plaintiff James Thomas Dorsey is an individual who is these
bringing
counterclaims in his capacity as the duly appointed Independent Executor of the Estate of
Dorothy Louise Longoria Deceased
Counter-Defendant Shelby Longoria is an individual who resides in Hidalgo
County Texas Counter-Defendant commenced this action and has appeared through
counsel in this action so this pleading may be served on him through his attorneys of record
Jurisdiction
Pursuant to Sections 4A 4B and 4F of the Texas Probate Code the Court has
jurisdiction over the subject matter of this civil action The Estate of Dorothy Louise
Longoria is pending in this Court and this Court is
statutory probate court As explained
more fully below this action is brought by personal representative on behalf of that estate
and this action is related to that estate In addition the exercise of pendent or ancillary
jurisdiction over this action is to and economy
necessary promote judicial efficiency
The Court has in personam jurisdiction over Counter-Defendant Shelby
Longoria by virtue of his filing of Shelby Longorias Amended Contest of 2010 Will in
response to which these counterclaims are pleaded In addition general personal jurisdiction
exists because the Counter-Defendant has had continuous and systematic contacts with the
State of Texas and specific personal jurisdiction exists because this action arises out of
contacts by the Counter-Defendant with the State of Texas as explained below
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WELL Page
00725
Venue
Pursuant to Section 6A of the Texas Probate Code the venue of this action
is
proper because the Estate of Dorothy Louise Longoria Deceased is pending in this Court
and this action is related to that estate as explained more fully below
Conditions Precedent
All conditions precedent Counter-Plaintiffs plead and to prosecute
to rights to
these counterclaims and to recover the relief requested herein have occurred or been
fulfilled
Facts Applicable to All Causes of Action
On July 1942 Eduardo Longoria Eduardo and Dorothy Louise Kowaiski
Dorothy were married in the City of Laredo in Webb County Texas
10 When they were married Dorothy was citizen of the United States of
America and Eduardo was citizen of the United Mexican States Mexico but he had
been living in the United States and after the wedding the couple initially settled in
McAlIen Texas
11 The marriage of Eduardo and Dorothy was subject to the laws of the State of
Texas including the law of community property
This petition does not recite fact on which the Counter-Plaintiffs claims
every are
based It is intended only to be short statement of the cause of action sufficient to give fair
notice of the claim involved as required by TEx Ctv 47
ORiGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page
00726
12 Eduardo and Dorothy had four children all of whom are living Their names
are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo
Longoria Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All
of them reside in Texas
13 Eduardo and Dorothy amassed considerable wealth through variety of
business activities and investments
14 Over time Shelby took control over the business and investments owned by
Eduardo and Dorothy
15 Shelby managed property and accounts owned by Dorothy and represented to
her that he was doing so for her benefit
16 in addition Shelby expressly agreed to hold in trust for the benefit of Dorothy
property that Shelby obtained from Eduardo In letter to Dorothy dated August 1983 for
example Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us
as long as you live we will hold them as if they were yours and will make the fruits
available to you for your direction as to their use These promises were made by Shelby
while he was residing in Texas and they were set forth in letter that was sent to Dorothy
from an address in Texas Shelby breached these promises to Dorothy by failing to account
for the property that was given to Shelby by Eduardo by concealing from Dorothy material
facts about that including nature extent value and profitability
property its by failing to
hold and maintain that property as if it
belonged to Dorothy by paying himself income
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL
Page
00727
generated by the property by failing to disclose to Dorothy that he had done so and by
failing generally to make the fruit of that property available to her for her use
17 Likewise in letter dated October 2007 which Shelby sent to Dorothy at
her residence in Houston Texas Shelby made specific promises with respect to large sum
of money that Eduardo wished for Dorothy to have upon his death Admitting that he held
such funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate
to her daughters Shelby promised that within thirty days after Dorothy died he would pay
$100000 to Sylvia and $100000 to Adriana Upon Dorothys death Shelby repudiated and
breached this promise to Dorothy While he did tender check for $100000 to Sylvia and
check for $100000 to Adriana he printed on the checks language that if the checks were
negotiated would have resulted in release of their rights in Dorothys estate and rights
against Shelby self-serving conditions which Shelby had no right to impose The fact that
Shelby arbitrarily demanded such releases for his benefit as conditions on his performance
of an unconditional duty to pay $100000 to Sylvia and $100000 to Adriana proves that
Shelby knew that Dorothy owned valuable claims against him Shelby knew that Dorothy
intended to leave her entire estate to Sylvia and Adriana and Shelby knew that Sylvia and
Adriana themselves had valuable claims against him all of which he now dishonestly
denies
18 Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as
trustee of an express trust for the benefit of Dorothy and in addition or in the alternative
pursuant to an informal fiduciary relationship with Dorothy
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page
00728
19 in contravention of his fiduciary duty to Dorothy under Texas law Shelby
failed to advise Dorothy fully and fairly regarding the nature and extent of her property and
his actions with respect to her property and the property he was holding in trust supposedly
for her benefit
20 In fact Shelby managed for his own benefit Dorothys property as well as
property he was holding in trust supposedly for her benefit He caused income from the
property to be paid to him or to others for his benefit and failed to disclose to Dorothy that
he had done so
21 Eduardo died on January 26 2005 at the age of 91 He was born on October
25 1913
22 When Eduardo died all of the property in his estate was community property
of which one-half was owned by Dorothy under Texas law
23 Eduardo died in Webb County Texas where he and Dorothy had lived for
many years
24 After the death of Eduardo Shelby continued to
manage Dorothys property
and continued to represent to her that he was managing her property for her benefit but he
intentionally concealed from Dorothy the nature extent and value of her property what he
had done with her property over the years and how much money he had been paid or
otherwise derived from the property
25 In fact Shelby managed the property for his own benefit and engaged in self-
dealing transactions that he failed to disclose to Dorothy
ORiGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page
00729
26 Dorothy died in Harris County Texas on April 62012 at the age of 92 She
was born on May 1919
27 By order dated October 92012 this Court admitted to probate Dorothys Last
Will and Testament dated January 21 2010 and appointed James Thomas Dorsey
Independent Executor of the Estate of Dorothy
28 Letters Testamentary were issued to James Thomas Dorsey on the same day
and such Letters Testamentary are currently in full force and effect so he is fully authorized
to bring this action
29 Whenever it is alleged herein that Shelby acted or communicated in
any
fashion then such allegation should be taken to mean
That the Shelby himseiftook such action or made such communication
or in the alternative
That duly authorized agent of Shelby took such action or made such
communication on behalf of Shelby and in the course and scope of the agency or in the
alternative
That such action or communication was by one having apparent
authority to do so on behalf of Shelby or in the alternative
That Shelby ratified and adopted such action or communication as its
own and thereby became legally responsible for it
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page
00730
First Cause of Action
Demand for Accounting
30 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
31 Pursuant to Section 489B of the Texas Probate Code Section 113.151 of the
Texas Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled
to and hereby requests that Shelby provide full accounting of all of his activities as an
agent for Dorothy all transactions done or caused by him involving property owned in
whole or in part by Dorothy and all transactions involving property held by him in trust
for Dorothy
32 Anticipating that Shelby will plead the defense of limitations in
response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page
00731
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
33 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Section 113.151 of the Texas Trust Code
and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an
award of attorney fees including litigation expenses reasonably and necessarily incurred in
connection with this action
Second Cause of Action
Breaches of Fiduciary Duty
34 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If
any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
35 Under Texas law Shelby breached his fiduciary duty to Dorothy by failing
to disclose to her fully and fairly all information that might affect her interests in
property
managed by him including both her community property and property held by Shelby in trust
for her failing to act with utmost good faith and fair dealing in the management of her
property and property held in trust for her and in his other activities affecting her interests
failing to act with undivided loyalty to Dorothy in the management of her property and
property held by him in trust for her and in his other activities affecting her interests and
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUiSE LONOORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page
00732
engaging in self-dealing transactions that were detrimental to her and in addition or in the
alternative improperly benefited him
36 The breaches of fiduciary duty by Shelby proximately caused compensable
harm to Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby
requests entry ofjudgment against Shelby for actual damages in an amount to be determined
by the trier of fact in accordance with Texas law
37 The breaches of fiduciary duty by Shelby constituted fraud gross
negligence and malice as those terms are defined in Chapter 41 of the Texas Civil
Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose to
Dorothy all facts that might affect her interests Shelby intentionally or in the alternative
with reckless disregard for Dorothys rights concealed from Dorothy the nature extent and
value of her property what he had done with her property over the years and how much
money he had been paid or otherwise derived from the property Under Texas law Counter-
Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for exemplary
damages in an amount to be determined by the trier of fact in accordance with Texas law
38 Shelby derived profits by means of the breaches of his fiduciary duty to
Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of
judgment decreeing that Shelby disgorge all profits received by him as result of the
breaches of his fiduciary duty to Dorothy
39 Shelby acquired property by means of the breaches of his fiduciary duty to
Dorothy Under Texas law Counter-Plaintiff to and hereby requests entry of
is entitled
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 10
00733
judgment imposing constructive trust on all property acquired by Shelby by means of the
breaches of his fiduciary duty to Dorothy
40 Anticipating that Shelby will plead the defense of limitations in response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
Counter-Plaintiff under Texas law the discovery rule and fraudulent
addition pleads
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
much money he had been from the
years and how
over the paid or otherwise derived
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
41 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Section 114.064 of the Texas Trust Code
and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an
award of attorney fees including litigation expenses reasonably and necessarily incurred in
connection with this action
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 11
00734
Third Cause of Action
Breach of Promise To Hold Property for Dorothys Benefit
42 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
43 Shelby promised Dorothy that he would hold in trust for Dorothy all of the
assets that Eduardo gave to Shelby and Wayo and that he would make the income from such
property available to her for her direction as to their use These promises were made by
Shelby while he was residing in Texas Shelby breached these promises to Dorothy by
failing to account for the property that was given to Shelby and Wayo by Eduardo by
concealing from Dorothy material facts about that property including its nature extent
value and profitability by failing to hold and maintain that property as if it
belonged to
Dorothy by paying himself income generated by the property by failing to disclose to
Dorothy that he had done so and by failing generally to make the fruit of that property
available to her for her use
44 These breaches by Shelby proximately caused compensable harm to Dorothy
and her estate Based on the doctrines of breach-of-contract promissory estoppel and
money-had-and-received under Texas law Counter-Plaintiff is entitled to and hereby
requests entry ofjudgment against Shelby for actual damages in an amount to be determined
by the trier of fact in accordance with Texas law
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 12
00735
45 Anticipating that Shelby will plead the defense of limitations in
response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
he breached his fiduciary duty of liii disclosure of all facts that might affect Dorothys
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
46 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice
and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and
hereby requests an award of attorney fees including litigation expenses reasonably and
necessarily incurred in connection with this action
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 13
00736
Fourth Cause of Action
Breach of Promise To Pay $100009 to Adriana and $100000 to Sylvia
47 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
48 Shelby promised Dorothy that within thirty days of her death he would pay
$100000 to Adriana and $100000 to Sylvia These promises were made by Shelby while
he was residing in Texas and they were directed to Dorothy at her residence in Houston
Texas Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia
checks that they could not negotiate without waiving their rights in Dorothys estate and their
rights against Shelby self-serving conditions which Shelby had no right to impose
49 Based on the doctrines of breach-of-contract promissory estoppel and money-
had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests
entry ofjudgment against Shelby for $200000 in accordance with Texas law
50 Anticipating that Shelby will plead the defense of limitations in
response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duly of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the years and how much money he had been paid or otherwise derived from the
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 14
00737
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
interests The Dorothy and her are objectively verifiable because
injuries to estate money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
51 It was both reasonable and necessary for Counter-Plaintiff to retain
attorneys
to
prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice
and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and
hereby requests an award of attorney fees including litigation expenses reasonably and
necessarily incurred in connection with this action
Prayer for Relief
WHEREFORE PREMISES CONSIDERED Counter-Plaintiff James Thomas
Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased prays
that upon due notice and trial by jury or upon hearing on motion for entry of default
judgment or motion for summaryjudgment the Court renderjudgment for Counter-Plaintiff
and against Counter-Defendant Shelby Longoria awarding the following relief under Texas
law
decree commanding Counter-Defendant Shelby Longoria to render an
accounting of all property that was owned in whole or in part by Dorothy Louise Longoria
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2OO WILL Page 15
00738
and that was within his possession custody or control and all transactions affecting her
property and an accounting of all actions taken by him as her agent or trustee
an award of actual damages from and against Counter-Defendant Shelby
Longoria in amounts to be determined by the trier of fact in accordance with Texas law but
the maximum amount of actual damages currently sought by Counter-Plaintiff while
reserving his right under Texas law to amend this pleading to request greater or lesser
amount as more evidence is uncovered and the whole truth comes to light is $25200000
an award of exemplary damages from and against Counter-Defendant Shelby
Longoria in amounts to be determined by the trier of fact in accordance with Texas law but
the maximum amount of exemplary damages currently sought by Counter-Plaintiff while
reserving his right
under Texas law to amend this pleading to
request greater or lesser
amount as more evidence is uncovered and the whole truth comes to light is $10000000
an award of attorney fees including litigation expenses reasonably and
necessarily incurred by Counter-Plaintiff in connection with each of his causes of actions
under Texas law
decree commanding Counter-Defendant Shelby Longoria to disgorge all
profits received by him or by others for his benefit as result of breach by him of his
fiduciary duty to Dorothy Louise Longoria
decree imposing constructive trust on all property acquired by Counter-
Defendant Shelby Longoria or by others for his benefit by means of breach of fiduciary
duty owed to Dorothy Louise Longoria
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 16
00739
an award of prejudgment interest on all actual damages at the highest rate
authorized by law to the date ofjudgment
an award of all costs incurred by Counter-Plaintiff in the course of preparing
and prosecuting this civil action
an award of postjudgment interest on relief at the highest rate
all monetary
authorized by law from the date of judgment until paid
10 all writs and processes necessary to collect the judgment and
11 all other relief to which Counter-Plaintiff is entitled or which the Court may
deem appropriate under the circumstances and the applicable law
Any inconsistent allegations or prayers for relief are pleaded in the alternative as
expressly authorized by TEX Civ P.47 and 48
Reservation of Rights To Amend and To Supplement This Pleading
Because Counter-Plaintiff presently does not know all of Counter-Defendants acts
and omissions that caused harm to Dorothy Louise Longoria or her estate or all of the
relevant circumstances surrounding such acts and omissions Counter-Plaintiff anticipates
that it may be necessary to plead additional causes of action after discovery is conducted
Accordingly Counter-Plaintiff hereby reserves the rights to amend and to supplement this
pleading
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 17
00740
DATED September 26 2013
Respectfi.illy submitted
Is/James Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
Shannon L.K Welch
State Bar of Texas Number 90001699
FIsHER WELCH
Professional Corporation
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Telecopier 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
THE HOLMES LAW FIRM
10000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9267
ATTORNEYS FOR COUNTER-PLAINTIFF
JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF
THE ESTATE OF DOROTHY
LOUISE LONGORIA DECEASED
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 18
00741
CERTIFICATE OF SERVICE
hereby certify that on September 26.2013 true and correct copy of this document
was served on Shelby Longoria through his
attorneys of record named below in the manner
indicated and in compliance with Texas law
Joimny Carter Richard Hess and Kristen Schiemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
BY EMAIL To jcarter.susrnangodfrey corn rhesssusrnangodfrey corn and
kschlemrnersusrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO macintyrernmlawtexas.corn
Is James Austin Fisher
James Austin Fisher
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 19
00742
CASE NUMBER 414270
IN THE ESTATE OF IN PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS
TO THE HONORABLE JUDGE OF THIS COURT
COME NOW Counter-Plaintiff James Thomas Dorsey in his capacity as Independent
Executor of the Estate of Dorothy Louise Longoria Deceased the Executor and Third-
Party Defendant Sylvia Dorsey and respectfully submit this response to Counter-Defendant
Shelby Longorias Motion To Dismiss Counterclaims for Forum Non Conveniens or
Alternatively To Abate Pending Resolution of Will Contest and Mexican Litigation the
Motion For the following reasons the Motion should be denied
PARTIES RESIDING IN TEXAS PARTIES RESIDING IN MEXICO
Shelby Longoria
James Thomas Dorsey Executor NONE
Sylvia Dorsey
Adriana Longoria
The Motion seeks dismissal of counterclaims involving four parties All of them
including the Movant Shelby Longoria live in Texas yet his motion brief and affidavit
all manage to avoid revealing the fact that he lives here an obviously crucial fact in aforum
non conveniens inquiry This lack of candor permeates Movants argument
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page
00743
Movant cites no case in which every party was an individual residing in the forum
state but which nevertheless was dismissed for forum non conven lens The Motion is wholly
unsupported by apposite precedent
But the precedential poverty of the Motion is even more profound Movant seeks
dismissal of claims pleaded in probate court by the executor of an estate in that
pending
court There is strong public interest in protecting the jurisdiction of probate courts over
matters related to estates of deceased residents of the forum Movant cites no case in which
probate court dismissed for forum non conveniens claim of the personal representative
of an estate in that court The Motion is wholly unsupported in second essential respect
But it gets worse still The Motion seeks dismissal of counterclaims and not
counterclaims unrelated to the subject matter of the plaintiffs claim but counterclaims
closely related to that subject matter the estate planning of the Decedent Dorothy Longoria
and the disposition of her estate Shelby Longoria the Counter-Defendant who both lives
in this state and invoked the jurisdiction of this Court to contest the Decedents will now
insists that this forum is so oppressively inconvenient that the counterclaims him
against
must be dismissed But he cites no case in which court has ever applied forum non
conveniens to dismiss counterclaims that are directly related to the plaintiffs claims The
Motion is then wholly unsupported in third essential respect
As it relates to Movants request for dismissal this response has two parts First we
show that the Motion depends on grossly inaccurate statement of the law Second we
show the the Motion depends on grossly inaccurate statement of the facts especially the
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page
00744
nature and substance of the counterclaims pleaded by the Executor The counterclaims are
based entirely on acts and omissions of Movant while he lived in Texas The counterclaims
are based entirely on Texas law The gravamen of the counterclaims is that Movant breached
his fiduciary duty to his mother Dorothy Longoria the Decedent in this probate proceeding
The fiduciary duty arose both out of documented private-trust relationship and an informal
fiduciary relationship Both causes of action are recognized in Texas but not in Mexico
so Mexico is not an adequate alternative forum The Decedent lived in Texas for the last 25
years of her life and Movant has lived here longer than that so application of Texas law is
no stretch it is plainly appropriate The Executor is not asking this Court to apply
Mexican law or to set aside the judgment of Mexican court Movants argument
mischaracterizes the Executors counterclaims can Movant make
Only by doing so
colorable argument for dismissal
In the alternative Movant requests abatement of the Executors counterclaims until
Movants will contest is concluded and certain proceedings in Mexico are concluded The
request makes no sense The counterclaims will be pursued regardless of the outcome of the
will contest even if the order admitting the will is set there will be
aside personal
representative who will be responsible to assert claims of the estate Likewise the Mexican
case referenced by Movant cannot possibly obviate the litigation of the Executors
counterclaims Abatement would accomplish nothing except delay and duplication of
discovery as discovery needed for the counterclaims overlaps with discovery needed for
the will contest Abatement of the counterclaims is bad idea
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page
00745
RESPONSE TO MOTION TO DISMISS FOR FORUM NON CONVENIENS
Movant Fails To Identify Let Alone Apply the Correct Legal Standard
To Be Entitled To Dismissal Movant Must Bear Heavy Burden To
Clearly Show Facts That Strongly Favor an Available and Adequate
Alternative Forum While Giving Great Deference To This Forum
Remarkably Movant cites neither the most recent case in which the Supreme Court
of Texas made aforum non conveniens determination nor the most recent case in which the
United States Supreme Court did so Though ignored by Movant both cases are instructive
See Sinochem Intl Co Malaysia Intl Shipping Corp 549 U.S 422 2007 Quixtar Inc
Signature Mngmt Team LLC 315 S.W.3d 28 Tex 2010
In both cases it was held that defendant seeking dismissal forforum non conveniens
ordinarily bears heavy burden in opposing the plaintiffs chosen forum Quixtar 315
S.W.3d 28 31 Tex 2010 quoting Sinochem 549 U.S at 430 emphasis added.2 In
Movants Brief however Movant never recognizes the heavy burden imposed on him by
common law Instead Movant jumps ahead to address the adequacy and availability of
Mexican forum and various fators of private and public interest By considering those
See COUNTER-D EFENDANT SHELBY LONGORIA SB RIEF IN SUPPORT OF HIS MOTION
COUNTERCLAIMS FOR FORUM NON C0NvENIENS OR ALTERNATIVELY TO ABATE
TO DISMISS
PENDING RESOLUTION OF WILL CONTEST AND MEXICAN LITIGATION Aug.7 2013
Movants Brief
In making forum non conveniens determinations the Texas Court has
Supreme
the standards enunciated by the United Court
routinely applied States Supreme Quixtar 315
S.W.3d at 32 we regularly consider United States Supreme Court precedent in both our
common law and statutory forum non conveni ens cases Movant admits that Texas takes
its common-law forum non conveniens doctrine from the equivalent federal doctrine
Motion at 13 Yet Movant largely ignores the federal case law
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page
00746
criteria without reference to the controlling legal standard Movants argument wanders
aimlessly and never finds the truth
In direct contradiction of Movants argument3 both the U.S Supreme Court and the
Supreme Court of Texas in their most recent decisions declared that substantially greater
deference must be paid to plaintiffs choice of forum whereas here the plaintiff lives
within the forum Sinochem 549 U.S at 430 Quixtar 315 S.W.3d at 31 citing In rePirelli
Tire L.L.C 247 S.W.3d 670 675 Tex.2007 plurality opinion This requirement of
greater deference to the claimants choice of forum is deeply rooted in the common law of
forum non conveniens dating at least to Koster American Lumbermens Mutual Casualty
Co 330 U.S 518 1947 in which the Court wrote
Where there are only two parties to dispute there is good
reason why it should be tried in the plaintiffs home forum if that
has been his choice He should not be of the presumed
deprived
advantages of his home jurisdiction except upon clear showing
of facts which either establish such oppressiveness and
vexation to defendant as to be out of all to
proportion
plaintiffs convenience which may be shown to be slight or
nonexistent or make trial in the chosen forum inappropriate
because of considerations affecting the courts own
administrative and legal problems
330 U.S at 524 The Supreme Court has repeatedly confirmed the continuing validity of this
standard Sinochem 549 U.S at 429 American Dredging Co Miller 510 U.S 443
447448 1994 PiperAircraft Co Reyno 454 U.S 235 241 1981 yet Movant never
mentions it
See Movants Brief at 13-14
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page
00747
Even where the plaintiff does not reside in the forum defendant seeking dismissal
for forum non conveniens must make showing that the relevant public and private
interests strongly favor specific adequate and available alternative forum DiFederico
Marriot Intl Inc 714 F.3d 796 802 7th Cir 2013 quoting Jiali Tang Synutra Intl
Inc 656 F.3d 242 246 4th Cir.2011 emphasis in original.4 But when the plaintiff
chooses his home forum the plaintiffs choice of forum is entitled to even greater
deference DiFederico 714 F.3d at 802-03 citing PiperAircraft 454 U.S at 255-56 The
forum in which the plaintiff is citizen is presumptively convenient PiperAircraft 454
U.S at 256 and should be overridden only when the defendant establish such
oppressiveness and vexation to defendant as to be out of all proportion to plaintiffs
convenience which may be shown to be slight or nonexistent Koster 330 U.S at 524 As
long as there is real showing of convenience by plaintiff who has sued in his home
forum will normally outweigh the inconvenience the defendant may have shown Id
Overwhelming authority stands for the proposition that courts must give
substantially greater deference to the claimants choice of forum when the claimant is
citizen of the forum DiFederico 714 F.3d at 803 citing Duha Agrium Inc 448 F.3d
867 873 6th Cir 2006 See also SME Racks Inc Sistemas Mecanicos Para Electronica
S.A 382 F.3d 1097 1101 11th Cir 2004 explaining that the presumption in favor of the
The Fourteenth District Court of Appeals in Houston agrees Unless the balance
weighs heavily in favor of the defendant court should rarely disturb the choice
plaintiffs
of forum In re Old Rep Nat Title Ins Co.No 141001219CV 2011 WL 345676 at
Tex App Houston Dist Feb 2011 orig proceeding citing In re ENSCO
Offshore Intern Co 311 S.W.3d 921 92829 Tex 2010
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLATMS Page
00748
plaintiffs initial forum choice .. is at its strongest when the plaintiffs are citizens residents
or corporations of this country Guidi InterContinentalHotels Corp 224 F.3d 142 146
2d Cir 2000 reversing because the district court did not recognize that the plaintiff is
entitled to greater deference when choosing her home forum ReidWalen Hansen 933
F.2d 1390 1395 8th Cir 1991 should rarely be denied access to courts of the
United States Founding Church of Scientology of Washington D.C Verlag 536 F.2d
429 435 D.C Cir 1976 should require positive evidence of unusually extreme
circumstances and should be thoroughly convinced that material injustice is manifest before
exercising any such discretion to deny citizen access to the courts of this country
In sum the Supreme Court has admonished that unless the balance is strongly in
favor of the defendant the of forum
plaintiffs choice should rarely be disturbed Guf Oil
Corp Gilbert 330 U.S 501 508 1947 emphasis added and that jurisdiction is to be
declined only in exceptional circumstances Id at 504 Forum non conveniens is an
exceptional tool to be applied sparingly not doctrine that compels plaintiffs to choose the
optimal forum for their claim Boston Telecommcns Group Inc Wood 588 F.3d 1201
1206 9th Cir 2009 quoting Dole Food Co Watts 303 F.3d 1104 1118 9thCir.2002
None of these black-letter principles are acknowledged or applied in the Motion
yet they constitute the standard by which the private-interest factors and public-interest
factors are to be judged Because Movant considers those factors without reference to the
overarching standard Movants analysis is meaningless
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page
00749
Movant Relies on Cases Decided Under an Inapplicable Statute Under
the Common Law the Standard for Dismissal Is Much More Stringent
The argument presented by Movant contains another material error it fails to
distinguish cases governed by the common law from cases governed by the Texasforum non
conveniens statute TEX CIV PRAC REM CODE ANN 71.051 West 2005 The statute
is applicable only to actions for personal injury or wrongful death TEx CIV PRAC REM
CODE ANN 71.051i West 2005 so it has no bearing here Forum non conveniens cases
under the common law are clearly distinguishable from cases under the statute Liberty
Mutual Ins Co Transit Mix Concrete and Materials Co.No 06-12-00 17-CV 2013 WL
3329026 at Tex App Texarkana June 28 2013 no pet h. Movant cites several
cases that were governed by the statute not by the common law but Movant fails to mention
the statute or advise the Court of this important distinction.5
Movant had powerful incentive to gloss over the distinction between and
statutory
common-lawforum non conveniens analysis as the Supreme Court of Texas has observed
in cases decided under the common law the private-interest factors and public-interest
factors must strongly favor the movant in order for dismissal to be warranted but under
the statute mere tipping of the balance in favor of the movant is all that is required In re
Ensco Offshore International Co 311 S.W.3d 921 928-29 Tex 2010
See Motion at 14 citing In re Ensco Offshore International Co 311 S.W.3d 921
927-28 Tex 2010 In re BPZ Resources Inc 359 S.W.3d 866 869-70 Tex App
Houston Dist 2012 16 citing In rePirelli Tire L.L.C 247 S.W.3d 670 677-78
Tex 2007 Gomez de Hernandez Bridgestone/Firestone North American Tire L.L
204 S.W.3d 473 483 Tex App Corpus Christi 2006 pet denied
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page
00750
II When the Correct Standard Is Applied to the Relevant Facts
Dismissal Is Wholly Unwarranted
The Motion Must Be Denied Because Mexico Is Not
an Adequate and Available Forum for this Case
In order to prevail on motion to dismiss for forum non conven lens the movant must
first demonstrate that there is specific adequate and available alternative forum
DiFederico 714 F.3d at 802 quoting Jiali Tang 656 F.3d at 246 Movant fails to identify
the specific forum advocated by him he asserts only that the Executor should his
pursue
claims in Mexico But Mexico has federal system in which states enact and enforce their
own laws and laws vary from one Mexican state to another Neither the Motion nor
Movants Brief says where exactly Movant contends that the Executor should have asserted
his claims Movants expert witness however refers to the laws of the Mexican State of
Tamaulipas so we presume that Tamaulipas is the alternative forum proposed by Movant
For three reasons Tamaulipas is not an available and adequate forum for litigation of
the Executors claims first the courts of Tamaulipas would not have jurisdiction over the
Executors claims against Movant or over Movants third-party claims against Sylvia Dorsey
and Adriana Longoria second the legal theories underlying the Executors claims are
not recognized in or anywhere
simply Tamaulipas in Mexico so no remedy is available
there third the Executors claims would be barred by one-year statute of limitations
Each of these three points is by itself fatal to the Motion
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page
00751
The Courts of Tamaulipas Would Not Have Jurisdiction over the
Executors Claims Against Movant or His Third-Party Claims
Exhibit to this response is the Declaration of han Rosenberg highly qualified
expert in Mexican law Mr Rosenberg testifies unequivocally that if the Executor were to
file in Tamaulipas the claims that he has pleaded as counterclaims here the court in
Tamaulipas would almost certainly dismiss those claims sua sponte for lack ofjurisdiction
Rosenberg Decl at 9-10 1JI 8-34 The Executor would face insurmountable problems of
both subj ect-matter jurisdiction and personal jurisdiction whether or not Movant purports
to submit to the jurisdiction of court in Tamaulipas Id at 10 1JJ 28-37 Consequently
the alternative forum proposed by Movant is unavailable and the Motion must be denied
should be noted same
It also that the jurisdictional problems attend the third-party
claims of Movant against Sylvia Dorsey and Adriana Longoria Neither of the Third-Party
Defendants will voluntarily submit to the jurisdiction of the courts of Tamaulipas so there
can be no argument that the third-party claims could be tried there to Movants
Contrary
assertions the amparo proceeding filed by Sylvia Dorsey and Adriana Longoria in federal
court in Mexico does not subject them to the jurisdiction of any Mexican court in any other
proceeding Rosenberg DecI at 12-14 IJIJ 43-52 Movants third-party claims against
Sylvia and Adriana cannot be tried in Mexico
The Supreme Court has held that the inability to implead potential third-party
defendants has bearing on aforum non conveniens determination PiperAircraft 454 U.S
at 259 In that case the putative third-party defendants were citizens of the alternative
forum so their citizenship militated in favor of dismissal Id Here on the other hand
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 10
00752
Movant has pleaded third-party claims against two residents of Houston Texas.6 Neither of
them is amenable to service of process in Tamaulipas or subject to the jurisdiction of the
courts of that State Rosenberg Decl at 9-10
But it
might be argued Movant third-party claims against his sisters may be pursued
in Houston after litigation of the Executors claims is concluded in Tamaulipas Even if that
is true the inconvenience associated with factor to be
having multiple proceedings is
weighed in the forum non conveniens analysis
It is true of course that if defendants were found liable
after trial in the United States they could institute an action for
indemnity or contribution against these parties in Scotland It
would be far more convenient however to resolve all claims in
one trial
Id see also Boston Telecommcns 588 F.3d at 1211 the inability to implead potential
third-party defendants can be factor So the existence of Movants third-party claims
cuts against his motion to dismiss
Tamaulipas Is Not an Adequate Alternative Forum Because
It Provides No Remedy for the Executors Causes of Action
The Executors causes of action for breach of fiduciary duty do not exist in Mexican
law generally or the law of Tamaulipas in particular Rosenberg Decl at 11 JJ 9-40
Unlike Texas Mexico does not recognize or enforce fiduciary duties based on informal
fiduciary relationships or private trusts Id In fact Mexican law does not recognize the
existence of private trusts at all Id Mexican law only recognizes trusts created through
See Counter-Defendant Shelby Longorias Third-Party Petition Aug 30 2013 at
2-3
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 11
00753
federally-licensed financial institutions subject to regulatory directive and oversight Id at
11 11 Mexico would provide no recourse or remedy so as matter of law no court in
Mexico would be an adequate forum for litigation of the Executors counterclaims.7
Tamaulipas Is Not an Available Alternative Forum Because
the Claims Would Be Barred by Limitations There
The testimony of Ilan Rosenberg also establishes that if the counterclaims were
pleaded in Tamaulipas they would be barred by one-year statute of limitations Rosenberg
Decl at 11-12 JJ 41-42 This too dooms the Motion As matter of law no adequate
alternative forum is available if the statute of limitations has expired in the proposed
alternative forum See e.g Bank of Credit and Commerce Intl OVERSEAS Ltd State
Bank ofPakistan 273 F.3d 241 246 2d Cir 2001 Mercier Sheraton Intl Inc 935 F.2d
419423-24 1St Cir 1991 Kontoulas A.H Robins Co Inc 745 F.2d 312316 4th Cir
1984 Vicknair PhelpsDodge Indus Inc 767 N.W.2d 171 177-78 N.D 2009 Delfosse
C.A.C.I Inc.-Federal 267 Cal Rptr 224 227-29 1990 SanwaBank Ltd Kato 734
So.2d 557 561 Fla Dist Ct App 1999 Jones Prince Georges County 378 Md 98
835 A.2d 632 646 2003 Kennecott Holdings Corp Liberty Mut Ins Co 578 N.W.2d
358 361-62 Minn 1998 Shewbrooks A.C andS Inc 529 So.2d 557 561-62 Miss
1988 Varo Owens-Illinois Inc 948 A.2d 673 680-8 N.J Super 2008 Marchman
The expert testimony proffered by Movant on this point is unavailing Carlos
Gabuardi testified to the general propositions that Mexico allows claims for money
damages and Mexico allows party to seek contractual or extra-contractual damages
Affidavit of Dr Carlos Gabuardi at JJ 29-30 He did not however state that Mexico
recognizes cause of action for breach of fiduciary duty arising out of an informal fiduciary
relationship or private trust His testimony is too general to be of consequence
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 12
00754
NCNB Texas Nat Bank 898 P.2d 709 724 N.M 1995 Binder Shepard Inc 133
P.3d 276 278-80 Okia 2006 Jessop ACE Indus LLC 859 A.2d 801 803 Pa.Super
2004 Kedy A.W Chesterton Co 946 A.2d 1171 1183-84 R.I 2008
Thus for three independent reasons Tamaulipas is not an available and adequate
forum for litigation of the Executors claims against Movant
The Motion Must Be Denied Because the Private-Interest Factors and
Public-Interest Factors Do Not Favor Litigation of This Case in Mexico
The Motion also must be denied because the relevant private-interest factors and
public-interest factors do not clearly show facts which either establish such
oppressiveness and vexation to defendant as to be out of all proportion to plaintiffs
convenience which may be shown to be slight or nonexistent or make trial in the chosen
forum inappropriate because of considerations affecting the courts own administrative and
legal problems Koster 330 U.S at 524
In Quixtar the Supreme Court of Texas identified the relevant factors after noting
that the central focus of the forum non conveniens inquiry is convenience 315 5.W.3d at
33 quoting Reyno 454 U.S at 249 The well-known Gulf Oil factors direct courts to
consider both public and private interest considerations in forum non conveniens dismissals
315 S.W.3d at 33 citing Gulf Oil 330 U.s at 50809 Private considerations include
the relative ease of access to sources of proof the availability of compulsory process
for attendance of unwilling and the cost of obtaining attendance of willing witnesses
the possibility of view of premises if view would be appropriate to the action the
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 13
00755
enforceability ofajudgment once obtained and all otherpractical problems thatmake
trial of case easy expeditious and inexpensive Id quoting Guif Oil 330 U.S at 508
Public considerations include difficulties for courts when
litigation is piled up in congested centers instead of being handled at its origin the
burden of jury duty. that ought not to be imposed upon the people of community which
has no relation to the litigation local interest in having localized controversies decided
at home and avoiding conflicts of law issues Quixtar 315 S.W.3d at 33-34 quoting
Guf Oil 330 U.S at 50809
None of these factors militates in favor of the alternative forum proposed by Movant
All of the Private-Interest Factors
Point to This Forum or Are Neutral
Access to Relevant Evidence Is Far Greater in This Forum
The Executor lives in Houston Texas and derives his authority from an order of this
Court Movant lives in McAllen Texas The Third-Party Defendants impleaded by
Movant live in Houston Texas Thus three of the four parties to the litigation that is the
subject of the Motion live in Houston Texas and all of them live in Texas.8
And many other key witnesses live in Texas as well These include
Eduardo Longoria Jr also known as Wayo Longoria who is Dorothys
other child the brother of Shelby Sylvia and Adriana and who lives in
Austin Texas
Adrian Hernandez who served as the personal accountant ofboth Dorothy and
Movant and whose office is in Houston Texas
In addition to Exhibits and attached hereto evidence supporting the facutal
assertions in this response will be offered at the hearing on the Motion
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 14
00756
Pepe Treviflo lawyer who provided estate-planning services to Dorothy and
her husband and whose office in Texas
is Laredo
Movants wife Tita Longoria who lives in McAllen Texas and who has
knowledge of Dorothys relationship with Movant and transactions affecting
the property of Dorothy
Carolyn Beckett lawyer in Austin Texas who has represented Movant in
various matters related to his parents estates including dispute with Adriana
Longoria over Movants performance of the Private Agreement in 2010
Attorneys accountants and appraisers involved in 2007 transaction
negotiated and consummated in Texas between Movant and his brother
Wayo Longoria in which Wayo was paid about $24000000 for his forty
percent interest in trust containing stock formerly held in the names of
Dorothy and her husband
Dorothys friends physicians and caregivers with whom she spoke about her
property and about Movant and her other children during the last seven years
of her life when she lived in Houston9
Against this array of witnesses Movant claims that the following witnesses live in Mexico
the witnesses to execution of will by Eduardo Longoria Sr Dorothys husband the
witnesses execution of
to trust agreement by Eduardo Longoria Sr and Eduardo
Longoria Sr.s legal advisors all of the Banca Afirme employees who managed the trust
and all of the employees of the Mexican Trusts Mexican businesses Movants Brief at 20
The supposed need for the testimony of these witnesses is contrived
The Executors counterclaims do not contest the will signed by Eduardo Sr
Longoria
so no testimony from those who witnessed the signing of that will is required Likewise
These witnesses will be specifically identified at the hearing on the Motion
10
See ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONG0RIA DECEASED TO SHELBY
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 15
00757
the counterclaims do not dispute that Eduardo Longoria Sr signed the trust agreement
referenced in Movants Brief so the testimony of the witnesses to that signing is
unnecessary Movant does not explain why the testimony of unnamed legal advisors of
Eduardo Longoria Sr or unnamed employees of Banco Afirme or unnamed employees
of the Mexican Trusts Mexican businesses would be necessary Of course since Movant
controls those Mexican businesses he easily can obtain from them whatever information
might be needed Thus all of the witnesses who have been specifically identified to date
and whose testimony will be relevant to the counterclaims pleaded by the Executor reside
in Texas and most of them reside in the vicinity of Houston Texas To state the obvious
the location of this Court is far more convenient for such witnesses than the location of any
court in Nuevo Laredo Tamaulipas which is about 300 miles away
But distance is not the only obstacle or even the most daunting obstacle to
obtaining in Tamaulipas the testimony of witnesses residing in Texas The United States
Department of State has issued Travel Warning about the security situation in Mexico
It was issued on July 12 2013 and copy is attached as Exhibit It provides chilling
view of travel in the border region which of course includes Tamaulipas
Gun battles between rival TCOs Criminal
Organizations or with Mexican authorities have taken place in
towns and cities in many parts of Mexico especially in the
border region Gun battles have occurred in broad daylight on
streets and in other public venues such as restaurants and clubs
LONGORIAS AMENDED CONTEST OF 2010 WILL Sept 26 2013
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 16
00758
The number of kidnappings and disappearances throughout
Mexico is of particular concern Both local and expatriate
communities have been victimized In addition local police
have been implicated in some of these incidents
Carjacking and highway robbery are serious problems in many
parts of the border region and U.S citizens have been
murdered in such incidents Incidents have occurred during
the day and at night and carjackers have used variety of
techniques including bumping/moving vehicles to force them
to stop and running vehicles off the road at high speeds
Exhibit at 1-2 emphasis added The situation in Tamaulipas is so bad in fact that
employees of the United States Government have been directed to defer non-essential travel
to the state of Tamaulipas and are prohibited from personal travel on Tamaulipas highways
outside of Matamoros and Nuevo Laredo due to the tenuous security situation Ex at
When travel for official
purposes is essential it is conducted with extensive security
precautions Id at emphasis added While the general public is not forbidden from
visiting places categories under defer non-essential travel USG personnel will not be able
to respond quickly to an emergency situation in those areas due to security precautions that
must be taken by USG personnel to travel to those areas Id
Movant himself admits that violence street shoot-outs kidnapping and
extortion have been persistent threats along the Mexican border to this very day
Movants Brief at For Movant to claim that Tamaulipas is convenient venue in the
face of these harsh realities betrays again his lack of candor toward the Court
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 17
00759
In light of the indisputable danger of travel in Tamaulipas it is established beyond
peradventure that for the litigants themselves and for
many other witnesses whose testimony
is definitely needed Houston Texas is far more convenient forum than Tamaulipas
Compulsory Process for Attendance of Unwilling Witnesses Is
Available in This Forum But Not in Mexico and the Cost of
Obtaining Attendance of Willing Witnesses Is Much Less Here
All of the witnesses who live in Texas can be compelled by this Court to testify either
in person or by deposition See TEX CIV 176 205 None of them can be compelled
to give testimony in Mexican proceeding For those witnesses who despite the grave
danger described above might be willing to travel voluntarily to Tamaulipas the expense
of security precautions is prohibitive As Movant has identified no Mexican witnesses whose
testimony is relevant to the Executors counterclaims this factor cuts dismissal
against
No View of Any Premises Will Be Needed
There is no need for the trier of fact to view any premises as Movant admits
Movants Brief at 24
Judgment of This Court Would Be Fully Enforceable as to
All Parties Judgment of Mexican Court Would Not
Movant ignores this factor and the reason is obvious it undercuts his argument
Movant lives in Texas and he filed in this Court the will contest which commenced this case
The Executor pleaded his counterclaims in response to Movants will contest Thus if the
counterclaims are allowed to proceed in this Court the judgment of this Court will be fully
enforceable against Movant and of course the Execitor
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 18
00760
In addition judgment entered by this Court on Movants third-party claims against
Sylvia Dorsey and Adriana Longoria would be fully enforceable As both of them live in
Houston the Court unquestionably may exercise personal jurisdiction over them
If on the other hand the counterclaims are dismissed as requested by Movant he will
not be able to pursue his third-party action as no court in Tamaulipas as jurisdiction over the
Third-party Defendants Rosenberg Decl at 9-10 The litigation will then become
fragmented Duplicative proceedings and multiple judgments will be required
The Practical Problems and Expense of
Proceeding in Mexico Are Far Greater
Movant has not identified any specific problem that will arise from litigation of the
Executors counterclaims in this Court but will not arise if the Executor pursues his claims
in court in Tamaulipas We on the other hand have identified significant problems with
litigation in Tamaulipas We have proven and Movant has admitted that Tamaulipas is an
exceedingly dangerous place so anyone traveling there must incur unreasonable risk and
incur substantial expense for security Ex at Movants Brief at This factor therefore
points away from Tamaulipas
Movant argues that this case should be dismissed because documentary evidence
regarding the Mexican businesses in which Dorothy had owned interests is kept in Mexico
Movants Brief at 19 similar situation was faced in Boston Telecommunications Group
Inc Wood Although it was foreseeable that documents located in Mexico would have to
be obtained the court noted that there are established legal processes such as the HAGUE
CONVENTION ON TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERs 23
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 19
00761
U.S.T 2555 1968 by which this can be done and need to invoke those processes does
not compel dismissal for forum non conveniens Any court.. will necessarily face some
difficulty in securing evidence from abroad but these complications do not necessarily
justify dismissal 588 F.3d at 1288 quoting Tuazon R.J Reynolds Tobacco Co 433 F.3d
1163 1181 9th Cir 2006
More importantly Movants position is disingenuous because he controls the entities
that own the documents and he lives in Texas Cf Boston Telecommc ns 588 F.3d at 1208
finding it was reasonable to assume that documents which the movant represented to
belong to foreign entities were in the possession of the chief executive officer who resided
in California and effectively managed the companies from there Movant has presented no
facts on which the Court could base conclusion that production of the documents would be
unduly inconvenient or expensive The concern about access to documentary evidence is
red herring
All of the Public-Interest Factors Point to This Forum
The Dispute Originated Here and There Are No Greater
Administrative Difficulties Here Than in Tamaulipas
This dispute arose in Texas Movant has lived in Texas since the 1970s While
living here his fiduciary duty to Dorothy arose under Texas law and the Executor contends
Movant breached his duty under Texas law Dorothy Longoria lived in Texas for her last 25
years and lived in Houston for her last seven years The alleged acts and omissions of
Movant therefore harmed longstanding citizen of this forum Dorothys will was admitted
to probate in this Court and her estate is pending in this Court Movant himself commenced
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 20
00762
this legal proceeding by filing his will contest in this Court This litigation originated in
Texas and must be decided under Texas law
Movant has not asserted let alone proven that this Courts docket is more congested
than that of the courts of Tamaulipas The Court has issued Docket Control Order
already
setting the case for trial on May 19 2014 In this Court the Executors counterclaims will
be adjudicated promptly There is no evidence that Tamaulipas court would address the
merits of the case more quickly than this Court or that litigation in Tamaulipas would be
administratively easier Indeed there is every reason to believe that the opposite is true
This Community Has the Strongest Relationship to the
Litigation So the Burden of Jury Duty Belongs Here
Both Movant the alleged wrongdoer and Dorothy the alleged victim resided
in this forum for the last 25 years of Dorothys life so this forum has the strongest
relationship to the litigation Dorothy died in Houston her will was probated here and her
estate is being administered here all in accordance with Texas law Imposing the burden of
jury duty here is justified Doing so in Mexico is not
The Dispute Arose in Texas Between Texans so This Forum
Has the Stronger Interest in Deciding the Controversy
Because Dorothy lived and died in Texas her estate is being administered in Texas
and her estate has claims based on fiduciary duty owed to Dorothy by another resident of
Texas this State has an interest in the claims an interest
deciding far greater than any that
could be articulated for the State of Tamaulipas The Legislature of this State has enacted
an array of statutes designed to ensure that courts exercise
probate may jurisdiction over all
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 21
00763
matters related to estates pending in those courts See e.g TEx PROB CODE ANN 4A
providing that courts exercising original probate jurisdiction also have over all
jurisdiction
matters related to probate proceedings 4B defining matter related to probate proceeding
to include any claim by personal representative on behalf of an estate 4F conferring on
statutory probate courts exclusive jurisdiction over all probate proceedings SB authorizing
statutory probate courts to transfer to themselves actions pending in district or county courts
if they are related to an estate pending in the probate court or if the personal representative
of such an estate is party Underlying these statutes is strong public policy in favor of
consolidation in the probate courts of all matters related to the estates administered in those
courts The same public policy also stands in opposition to dismissal for forum non
conveniens of an executors claims pleaded on behalf of an estate in the probate court in
which the estate is pending
Movant cites one case supposedly in the probate context Gallego Garcia No
07-CV-1185 2010 WL2354585 S.D Cal June9 2010 Motion at 17-18 While itis true
that in Gal/ego the plaintiffs were personal representatives of an estate it is not true that
they brought their claims in the probate court presiding over the estate Rather they brought
their claims in federal district court with jurisdiction based solely on of
diversity
citizenship Moreover the facts in Gal/ego are easily distinguished the defendants were
Mexican corporation and citizens of Mexico Gal/ego has no precedential value here
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLATMS Page 22
00764
Maintaining the Litigation Here Avoids
an Issue of Conflicts of Law
The Executors pleading states explicitly that it is founded entirely on Texas law
Movant asserts that Mexican law might supply the rule of decision but in typical fashion
Movant fails to explain why that is so We repeat the Executor is not in this proceeding
contesting will signed by Eduardo Longoria Sr the Executor is not in this proceeding
contesting trust agreement signed by Eduardo Longoria Sr the Executor is not in this
proceeding asserting cause of action under Mexican law the Executor is not in this
proceeding seeking relief from any individual residing in Mexico or any Mexican business
entity There simply is no basis for Movants assertion that the Executors counterclaims are
governed by Mexican law
The counterclaims are based on fiduciary duty undertaken and breached byMovant
while he was resident of Texas The counterclaims also are based in part but not entirely
on the Decedents community-property rights under Texas law Dorothy and Eduardo
Longoria were married in Texas which establishes that their marital estate was community
estate They were living together in Texas when Eduardo died The marriage began and
ended in Texas Under Texas law all of their property at the time of Eduardos death is
presumed to have been community property If Shelby Longoria contends that it was not
community property then it is his burden to prove so And if he thinks that he can carry his
burden by offering contract supposedly made in Mexico then he is free to try But the
issue remains one of Texas law
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 23
00765
But even if it
may happen that Mexican law comes into play the need to apply
foreign law is not in itself reason to apply the doctrine offorum non conveniens Schexnider
McDermott Intl 817 F.2d 1159 116364 5th Cir rehg denied 824 F.2d 972 5th
Cir 1987 cert.Juled Oct 13 1987 Accord Manu Intl Avon Prod 641 F.2d 62 68 2d
Cir 1981 must guard against an excessive reluctance to undertake the task of deciding
foreign law
In sum no factor militates in favor of Movants position and every factor militates
strongly against it with one exception and the exception is factor that points in neither
direction Movant has failed miserably to carry his heavy burden to show that this is one
of the exceptional cases in which forum non conveniens should be applied to deprive
resident of this forum of his right to bring claims in this forum
RESPONSE TO MOTION FOR ABATEMENT
After 27 of fervent for dismissal of Executors
pages argument outright the
counterclaims Movant makes half-hearted request in the alternative for abatement of
them Motion at 27-29 Movant asks the Court to abate the counterclaims until two things
happen Movants will contest is fully adjudicated and certain proceeding in
Mexico is fully adjudicated Neither the will contest nor the Mexican case provides any
justification for abating the counterclaims
According to Movant there are two reasons why the Court should allow his will
contest to proceed to trial while the Executors counterclaims are abated First Movant
claims that the Executor James Thomas Dorsey has conflict of interest which renders
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS 24
Page
00766
him incapable of performing his fiduciary duties Motion at 28 The supposed conflict of
interest is based on Movants wholly unsupported assertions that Mr Dorseys wife
Sylvia Dorsey misappropriated funds belonging to Dorothy during her lifetime and
Movants wholly unsupported assertion that Mr Dorseys son Wayo Dorsey stole from
Movant electronic files relating to Mexican businesses and Mexican trust Motion at 28
Sylvia and Wayo Dorsey categorically deny these accusations but even if one assumes for
the sake of argument that they are true they provide no basis for abatement of the Executors
counterclaims against Movant
Movant is not beneficiary of the Estate of Dorothy Louise Longoria The Decedent
left nothing to him in her will which this Court admitted to probate Movant therefore has
no standing to complain about the Executors supposed failure to investigate alleged torts by
Sylvia against her mother As for the alleged theft of computer files by Wayo Dorsey
Movant offers no reason why the Executor would be responsible either to investigate that or
to redress it And even if Mr Dorsey were removed as Executor based on these supposed
conflicts of interest the Court certainly would appoint successor who would be equally
responsible to pursue the estates counterclaims against Movant So there is no logical
connection between the facts creating the supposed conflicts of interest and abating the
counterclaims until the will contest is concluded Movants argument makes no sense
The second reason why according to Movant the counterclaims should be abated
until the conclusion of his will contest is that the will contest is successful Tommy may
lose his capacity to pursue claim against Motion at 29 Once again the
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 25
00767
conclusion does not follow from the premises Even if the will contest is successful there
will be personal representative of the Estate of Dorothy Louise Longoria and that personal
representative will have the same duty and legal capacity to marshal the assets of the estate
The most valuable assets are the claims against Movant Shelby Longoria The will contest
cannot obviate the need to litigate any of counterclaims Movants Brief at
While abatement would serve no salutary it would have undesirable
purpose certainly
consequences To state the obvious the requested abatement would cause lengthy delay
in the disposition of the counterclaims Abatement also would cause an enormous waste of
the resources of the Court and the litigants because discovery needed for the will contest
overlaps with discovery needed for the counterclaims
substantially as comparison of the
pleadings demonstrates Both the will contest and the counterclaims require discovery of
the estate planning of the Decedent the property owned by her at various times in her adult
life her evolving relationships with her children representations made to her by Movant
payments made to her by Movant information withheld from her by Movant her physical
and mental condition at various times and many other topics If the counterclaims are
abated many of the witnesses who are deposed in the will contest will have to be deposed
again And of course second trial will have to be conducted Abatement would do no
good and much harm
Compare SHELBY LONGORIAs AMENDED CONTEST OF 2010 WILL Aug 302013
and ORIG1NAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF
THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY L0NG0RIA AMENDED
CONTEST OF 2010 WILL Sept 26 2013
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 26
00768
Movant cites Develo-Cepts Inc City of Galveston 668 S.W.2d 790793 Tex App
Houston Dist 1984 no writ for the proposition that case may be abated pending
determination of plaintiffs standing or capacity to sue Motion at 29 Here the Court
has already made that determination By order dated October 2012 the Court admitted to
probate the Decedents will dated January 21 2010 and appointed James Thomas Dorsey
to serve as Independent Executor of the Decedents estate Both the and the
standing
capacity of the Executor to bring the counterclaims are judicially established.2
Finally Movant asserts that the counterclaims should be abated until proceeding in
Mexico is concluded That proceeding involves the estate of Eduardo Longoria Sr who
was the husband of Dorothy Louise Longoria and who died in 2005 The proceeding was
initiated by petition for juicio de amaparo in federal court of Mexico The petition is
based on the fact that Shelby Longoria failed to provide the legally notice of
required
proceeding in state court of Tamaulipas in which will of Eduardo Longoria Sr was
probated Movant presents no intelligible argument why litigation of the Executors
counterclaims in this Court should be deferred until the
amparo proceeding is completed
Movant asserts that the Mexican case is logically antecedent to this matter Movants Brief
at 29 but offers no explanation whatsoever of why that is so Movants Brief does not even
state what relief is requested in the amparo lawsuit Having failed to do so Movant fails to
12
Movant presents no colorable argument that the Executor lacks standing to pursue
the counterclaims against Movant And Movant has failed to plead lack of capacity in the
prescribed way which is verified plea in abatement See Develo-Cepts 668 S.W.2d at 793
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 27
00769
show any reason why the Executors counterclaims in this Court should be abated in
deference to the amparo case in Mexico The argument for abatement is meritless
CONCLUSION
Neither dismissal nor abatement is warranted The Motion should be denied in its
entirety proposed order is attached to this
response
DATED September 30 2013
Respectfully submitted
/s/James Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
Shannon L.K Welch
State Bar of Texas Number 90001699
FISHER WELCH
Professional Corporation
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Telecopier 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
THE HOLMES LAW FIRM
10000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9267
ATTORNEYS FOR COUNTER-PLAINTIFF
JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF
THE ESTATE OF DOROTHY
LOUISE LONGORIA DECEASED
AND THIRD-PARTY DEFENDANT
SYLVIA DORSEY
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 28
00770
CERTIFICATE OF SERVICE
hereby certify that on September 30 2013 true and correct copy of this document
was served on Shelby Longoria through his attorneys of record named below in the manner
indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schlemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
BY EMAIL TO jcarter@susmangodfrey.com rhess@susrnangodfrey.com and
kschlernrn er@susrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO macintyre@rnrnlawtexas.com
/s/James Austin Fisher
James Austin Fisher
RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 29
00771
AFFIDAVIT OF ILAN ROSENBERG
han Rosenberg hereby declare arid state as follows
PERSONAL BACKGROUND
am over the age of 21 and competent to make this affidavit have drafted this
and having reviewed
affidavit based on my personal knowledge unless otherwise stated it can
attest that it is true and colTect
hold Bachelor of Laws J.D equivalent awarded by the Escuela Libre
degree
de Derecho in Mexico City Mexico as well as Master of Laws LL.M and Master of
Comparative Laws LL.C.M degrees from the University of Pennsylvania Law School
am an attorney licensed to practice law in every jurisdiction in Mexico as well
as in the Commonwealth of Pennsylvania am also licensed to practice before the Supreme
United States Courts of Appeals for the Third and Federal
Court of the United States the
as well as the United States District Courts for the Eastern and Middle Districts of
Circuits
Northern District of Illinois and the Eastern District of Wisconsin copy of my
Pennsylvania
Curriculum Vitae is attached as Exhibit to this affidavit
in the United States of America have actively and
In addition to my practice
continuously practiced before Mexican state and federal courts for more than fifteen years
am Partner of the law firm of Gordon Rees in Philadelphia Pennsylvania
am also Lecturer at Law at the University of Pennsylvania Law School
Thomas Executor of the
have been retained by James Dorsey Independent
affidavit
Estate of Dorothy Louise Longoria Deceased the Estate and asked to prepare this
as an expert in the field of Mexican law
EX-llBlT
00772
QUESTIONS PRESENTED
The Estate has asked me to opine on the following questions under Mexican law
How does the Mexican state of Tamaulipas regulate service of process on
individual defendants
Would Tamaulipas court have jurisdiction over an action filed by the
Estate against Shelby Longoria
Does the law of Tamaulipas provide remedy for breach of fiduciary
duty or recognize private trusts and informal fiduciary relationships
Does the filing of an Amparo lawsuit result in general waiver of
jurisdictional defenses in Mexico
MATERIALS REVIEWED
In formulating the opinions below have relied on my review of Shelby
Longoria Amended Contest of 2010 Will the Counterclaims thereto asserted by the Estate
Shelby Longoria Motion to Dismiss Counterclaims for Forum Non Conveniens and its
supporting Brief the Affidavit of Dr Carlos Gabuardi an August 1983 letter signed by
Kowalski de Longoria as well
Eduardo Longoria Jr and Shelby Luis Longoria to Dorothy as
and research of Mexican
my professional knowledge experience and my independent statutory
and case law
OPINIONS
on Mexican Determinations
Pre1hnbary Statement Jurisdictional
10 Mexico like the United States is federal republic comprised of individual states
state executive and judiciary
that have autonomous governments including legislative
branches
11 Thus Mexico has separate state and federal bodies of laws
-2-
00773
12 Pursuant to Article 104 Section II of the Mexican Constitution Constitucion
Politica de los Estados Unidos Mexicanos and Article 53 Section of the Mexican Federal
Judiciary Organization Law Ley Organica del Poder Judicial de Ia Federacion in civil cases
Mexican federal courts have subject matter jurisdiction oniy over claims that are governed by
federal laws or international treaties to which Mexico is party These provisions state in
pertinent part as follows
Article 104.- The Federal Courts shall adjudicate
II All civil or commercial controversies that arise concerning
compliance with or application of federal laws or
international treaties executed by Mexico The plaintiff
may choose when the interests at issue only affect private
parties that these disputes be heard by the judges and
tribunals of the states
Article 53.- Federal district court judges shall adjudicate
Those civil controversies that arise concerning compliance
with or application of federal laws or international treaties
executed by Mexico When those controversies only affect
of the
private interests they may be heard at the option
of the and the
by the judges and tribunals states
plaintiff
Federal District
concerns Article 13 of the
13 Insofar as it civil disputes among private parties
Mexican Federal Civil Code Codigo Civil Federal or CC sets forth whether they are to be
resolved under Mexican federal or state civil law and thus determines whether there is Mexican
federal subject matter jurisdiction over particular dispute
14 Article 13 Section IV of the CC sets forth choice of law rules relating to the
of legal rights Section IV provides that
formalities for the creation Specifically
the laws of the place where they are created
formalities of legal acts will be governed by
forth in Code when the act is to have
may be this
However they subject to the formalities set
effects in the Federal District or throughout the Republic on federal matters .J
-3-
00774
15 Furthermore Article 13 Section of the CC supplies the choice of law rules to
determine the law that governs the legal effects of acts and contracts Section provides that
to the provisions of the foregoing sections the legal effects of acts and contracts are to
be governed by the laws of the place where they are to be performed unless the parties have
validly designated the application of different laws
16 Pursuant to Mexican choice of law rules there is no Mexican federal interest at
issue with respect to the disputes between the Estate and Shelby Longoria Thus this analysis is
laws of the State of Tamaulipas where
premised on the substantive and procedural Shelby
Longoria argues certain relevant facts took place
II Pursuant to the Laws of the Mexican State of Tamaulipas Service of Process Must
Be Effected Personally Upon an Individual Defendant at His Home
17 The Mexican State of Tarnaulipas where Shelby Longoria claims to have
business interests and contends is the more convenient venue for this action has its own Civil
Code the Codigo Civil para el Estado de Tamaulipas or CCT as well as its own Code of
Civil Procedure the Codigo de Procedimientos Civiles para el Estado de Tamaulipas or
CPCT
18 Tamaulipas law charges the courts and not the litigants with the obligation to
effect service of process Specifically Articles 29 and 30 of the CPCT provide that only court
serve defendant with original process
personnel may
19 Article 67 in Sections and III of the CPCT provides the rules for effecting
service of process on individuals by the courts of Tamaulipas Those sections provide as
original
follows
ARTICLE 67.- Original service of process must be effected in
accordance with the following rules
II If an individual service of process
defendant is
must be made directly to that person unless the individual
lacks procedural capacity as then it must be effected upon his/her
legal guardian Original service of process upon an agent is only
-4-
00775
authorized when the agent resides within the seat of the court and
the person intended to be served lives outside that place or is of
unknown whereabouts or if the agent lives outside the jurisdiction
but within the Republic and the person to be served lives abroad
and has no known residence or the persons whereabouts are
unknown In this case the agent is required to have general or
special power of attorney with sufficient authority to answer the
complaint and defend the action being served pursuant to the
provisions of Article 52 with the need to appoint duly
licensed attorneys The agent can only refuse to intervene if
he/she that he/she did not accept or has renounced the
proves
power of attorney
HI
IV Original service of process must be effected in the place
designated by the partyrequesting and must be precisely
so the
home of the party to be served with original process if an
individual and if corporation in its corporate domicile its
principal offices or principal commercial establishment except
when dealing with branches with an individual agent authorized to
appear in the action when dealing with business transacted by the
branches or in which the branches have intervened The serving
officer must verify that all of this information is contained the
complaint and may be specially authorized to serve process on
the individual defendant or agent at their place of regular
may be found within the
employment or wherever they
jurisdiction but in this case may be effected only to the
specific individual at issue and the server must note specifically
the
during the process the means used to identify the individual
verification of authority of an agent power of attorney
and set forth all relevant information
Emphasis supplied
20 The Mexican Federal Courts of Appeal have ruled in binding precedent that in
order for original service of process to be effective the court official must verify that the location
where the defendant is served is in fact the defendants home Precedent No 162858
ORIGINAL SERVICE OF PROCESS UPON INDIVIDUALS
IFTHE COURT OFFICIAL SETS FORTH ONLY THAT
THE ADDRESS OF THE DEFENDANT IS CORRECT
BASED ON THE NAME OF THE STREETS NUMBER
NEIGHBORHOOD AND CITY HE FAILS TO SATISFY
THE ESSENTIAL PROCEDURAL FORMALITIES WHICH
VIOLATES THE RULES THAT GOVERN IT
LEGISLATION OF THE STATE OF TAMAULIPAS
-5-
00776
Articule 67 section III of the Code of Civil Procedure for the
State orders that original service of process on individuals
must be
effected at the address by the party so requesting
designated
which must coincide with the place where the defendant lives
therefore the official when effecting service of process
must verify that these circumstances are all met and include
steps taken to so verify in the respective certification Therefore
if the official does not set forth in the certification that the location
where the official appeared to serve original is the
process
defendants home and only states that he verified that the
instead
address was correct based on his observation of the correct street
names number neighborhood and city such certification falls to
satisfy the essential procedural formalities because that
information does not provide certainty that the address is where the
defendant lives Accordingly that irregularity is violation of the
rules that govern the procedures for said action
9th Session Circuit Courts of Appeal Federal Judiciary Reporter
and its Gazette Volume XXXIII February of 2011 2044
Emphasis added
21 Thus the laws of Tamaulipas specifically require that original service of process
upon an individual be made directly upon the defendant and at the defendants home Otherwise
original service of process will be ineffective
22 Article 97 of the CPCT also provides that when official court action is to take
place outside of the Mexico the court will follow the procedures set forth in the international
treaties to which Mexico is party In this respect Mexico is party to the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
and the Inter-American Convention on Letters Rogatory Therefore in order to effect valid
service of original process on an individual residing outside of Mexico in an action filed in
Tamaulipas service must be effected directly upon the individual at their home following the
set forth in the Hague or Inter-American Conventions
procedures
23 Dr Carlos Gabuardi proffered by Shelby Longoria as an expert in Mexican law
admits at 16 that the CPCT requires that original service of process be effected at the
defendants home or the place where they live Dr Gabuardi opines however that the
true and correct of the precedent in its original Spanish is attached as Exhibit
copy
-6-
00777
provisions of the CPCT are irrelevant based on Mexican Supreme Court opinion finding that
service of process may be effected on defendant at his home his place of business or
wherever he may be found without regard to any particular order What Dr Gabuardi fails to
point out is that the Supreme Court opinion at issue does not deal with Tamaulipas procedure at
all but rather with the provisions of the Codes of Civil Procedure of the Mexican states of
Jalisco Puebla Chiapas as well as the Federal District Mexico City whose rules for service of
original process are markedly different from those of Tamaulipas Jalisco Puebla Chiapas and
the Federal District all provide that original service of process may be effected at defendants
domicile which their respective civil codes define as including not only the home but also the
place where defendant transacts business or where the defendant may be located The non
binding Seventh Circuit precedent referenced by Dr Gabuardi at 18 focuses on the Code of
Civil Procedure of Veracruz which also provides in Article 82 that original service of process
must take place at the defendants domicile Tamaulipas in stark contrast to these other
Mexican jurisdictions refers specifically to the place where the individual defendant has his or
her home Therefore while the precedent referenced by Dr Gabuardi at 16-17 may be
binding on all courts applying provisions similar to those in Jalisco Puebla Chiapas and the
Federal District it is inapposite in the case of Tamaulipas Similarly the non-binding precedent
from the Seventh Circuit at 18 is of no import as Veracruzs requirements for effecting
original service of process track those of Jalisco Puebla Chiapas and the Federal District but
not their sister state of Tamaulipas
III Jurisdiction of Tamaulipas Courts
24 Pursuant to Article 172 of the CPCT complaint must be filed before
competent judge.2
Under Mexican law competence is functionally synonymous with the United States
of jurisdiction in Mexico jurisdiction is generally used to refer to the geographic area
concept
where governmental actors have authority Those terms are therefore used interchangeably
herein
___________________________________________________________________________
00778
25 Under Mexican law competence functional synonym of the United States
concept ofjurisdiction is determined by statute In Tamaulipas the CPCT provides in Article
the of the bourts of this code.3
20 Section III that jurisdiction is governed by the provisions
26 Article 173 of the CPCT specifically provides that competence or jurisdiction will
be determined by the amount the subject matter the appellate level and by the territory.4
27 Notwithstanding Dr Gabuardis opinion at 13 that Shelby Longoria
maintains sufficient contacts with .. Tamaulipas personal or territorial jurisdiction in Mexico
is not determined by contacts but rather by specifically defined
express statutory provisions
Contacts with specific jurisdiction standing alone are of no import with respect to whether
Mexican bourt has jurisdiction Indeed Dr Gabuardi himself has recognized as much in the
article he references at 11 In that article Dr Gabuardi states that in Mexico the bases for
asserting jurisdiction are limited to those established by law See Gabuardi Carlos Entre la
el Forum Non Conveniens Boletin Mexicano de Derecho
Jurisdiccin Ia Competencia
Compcirado nueva serie aflo XLI nim 121 enero-abril de 2008 at 89 Thus Dr Gabuardi
law on competence establishes detailed rules determine what of cases
explains Mexican to types
can be heard by particular court Id In Dr Gabuardis own words competence sets forth the
rules which must be strictly observed from an operational standpoint to assign
specific
controversies as between the different courts of country Id Translation is ours According
to Dr Gabuardis own analysis contacts are not basis for asserting jurisdiction in Mexico
Id at 48 pointing out that the only bases to assert jurisdiction are those expressly listed in the
operative Codes of Civil Procedure which do not include contacts
Notably Article of the CPCT provides that the rules of procedure are of public order
and cannot be waived by stipulation of private parties
or is akin to personal jurisdiction in the United States
Territorial jurisdiction competence
-8-
00779
IV Tamaulipas Courts Do Not Have Original Jurisdiction Over Shelby Longoria
Adriana Longoria or Sylvia Dorsey
28 The CPCT provides in Article 195 Section IV that the
competent judge is the
one located in the domicile of the defendant in actions involving movable property or in
personain or civil status actions unless provided otherwise law.5
29 Pursuant to Article 24 of the CCT an individuals domicile is the place wher he
or she lives If the individuals home address is unknown but only then the law will repute as
domicile the place where the individual principally conducts his or her business and if this
location is also unknown then an individuals domicile is wherever he or she can be found In
other words the Civil Code of Tamaulipas reference to an individuals primary place of
business or their actual location is intended to provide alternative domiciles only in
physical
those cases where an individuals actual of residence is unknown.6
place
30 As explained in the foregoing sections plaintiff filing suit in Tamaulipas must
the home address of the defendant in order to achieve valid service of process
identi original
31 According to Article 175 of the CPCT tribunal may refuse to entertain
case unless it determines it lacks jurisdiction In such cases it must set forth in the order the
legal bases supporting its conclusion Emphasis supplied
As Dr Gabuardi the claims asserted by the Estate are in personam claims
recognizes
In addition to to provisions that do not apply in Tamaulipas the opinions cited
referring
Dr Gabuardi in 16-18 are of no import to the question of domicile for purposes of
by
asserting jurisdiction Indeed in the cases to which Dr Gabuardi refers the Mexican federal
construction of the term
courts including the Supreme Court explained that their liberal
of service
domicile was for purposes of service of process only because the primary purpose
of process is to defendant on notice of an action The court opinions however made clear
put
of service of process of no implication substantive
that the ruling on domicile for purposes is to
associated with domicile including the of the courts to exercise
considerations ability
in Texas
jurisdiction over particular case By way of analogy consider that original process
Mexican domiciled in Mexico The only of
action can be served on individual implication
is that the foreign citizen is on notice of the action It does not mean the Texas court has
service
jurisdiction over that individual
-9-
00780
32 Thus in Tamaulipas trial courts must review the complaint when filed and make
sua sponte determination as to whether they have jurisdiction
33 There is no dispute that Shelby Longoria lives in Texas Indeed his Amended
Contest of 2010 Will at avers that Shelby Longoria Shelby is an individual domiciled in
Hidalgo County Texas
34 Therefore court lacks statutory jurisdiction over tort case against
Tamaulipas
defendant and will almost certainly dismiss any action filed against
Shelby Longoria foreign
him sua The same conclusion follows with respect to Adriana Longoria and Sylvia
sponte.7
Dorsey as both of them live in Houston Texas
35 dismiss the complaint for lack of subject matter
Moreover court may
jurisdiction
36 court would have to recognize this Courts jurisdiction over the
Tamaulipas
Estates counterclaim particularly where the counterclaim would predate any Tamaulipas
Article 189 of the CPCT provides that the court before which the principal
action.8 Indeed
has exclusive matter jurisdiction over related counterclaims
cause of action is pending subject
the
37 Pursuant to Article 177 of the CPCT court that expressly recognizes
of another cannot assert jurisdiction
jurisdiction
Not Provide Breach Duties
Tamaulipas Law Does Remedy for of Fiduciary
38 Article 1388 of the CCT provides as follows
When an act causes damages and losses to person and the law
the perpetrator of that act or on someone else the
imposes upon
damages and there is civil
obligation to repair those losses
liability
do so even the plaintiff that the defendant has waived
Tamaulipas court may if pleads
challenge to the courts territorial jurisdiction
understand Shelby Longoria does not challenge this Courts jurisdiction
-10-
00781
39 Mexican law generally and Tamaulipas law specifically do not impose or
recognize fiduciary duty9 on the part of an adult child to manage business affairs of or for the
benefit of parent.1
40 Mexican law also does not recognize informal fiduciary relationships or
specifically private trusts11 so the August 1983 letter signed by Eduardo Longoria Jr and
to Kowalski de Longoria whereby they agree to hold maintain
Shelby Luis Longoria Dorothy
and certain assets for the Decedents benefit does not create fiduciary duty Rather
manage
the letter creates only moral obligation or duty which is unenforceable under Tamaulipas
law CCT Articles 1028 and 1370
41 Even assuming for the sake of argument only that there were basis to recover
statute
any such claim
in tort for breach of fiduciary duty is barred under Tamaulipas one-year
of limitations pursuant to Article 1510 Section III of the CCT
42 Because more than has elapsed since the death of Dorothy Longoria any
year
claim sounding in tort under Tamaulipas law is barred as matter of law
cause of action for breach of fiduciary duty regardless of its nature would be
Indeed
law which to
impossible to plead and prove under Tamaulipas requires plaintiffs provide
facts and attach or the items of evidence that support cause of
detailed description of all list all
action from the outset Articles 247 to 249 of the CPCT Amendments to pleadings are not
allowed Moreover Article 330 of the CPCT precludes party from inspecting an opponents
general accounting
We note that the only duty flowing from children to their parents is statutory obligation
Articles 277 and 282 of the CCT to provide support for food clothing housing and
under
medical care when necessary
law only recognizes created through federally-licensed financial
Mexican trusts
institutions subject to regulatory directive and The Mexican Supreme Court
oversight
explained that United States-style trusts were adopted partially by the Mexican
structured an institution
our system even speaking it
according to though strictly
legislature
than the trust and established it as an exclusive banking operation due to the
wholly different
solvency of banks and the governments oversight oyer them See Precedent No 246296
TRUSTS NATURE OF 7th Session Auxiliary Chamber Supreme Court Federal Judiciary
39
Reporter Volume 21 Seventh Section
.11
00782
VI The Mexican Amparo Proceedings Do Not Imply Wholesale Submission to the
Jurisdiction of Mexican Courts
43 The United States concepts of minimum contacts general jurisdiction or
specific jurisdiction do not exist under Mexican law Mexican courts authority to hear
particular case is determined on case-by-case basis as defined by statute i.e the codes of
civil Therefore the fact that has invoked the jurisdiction of Mexican court
procedure party
in case does not mean that it will be subject to that saire Mexican cburts jurisdiction
particular
every future action
in any and
Mexico whether
44 Thus the pursuit of an Amparo action in is inconsequential to
for that in
Mexican court can assert jurisdiction over Amparo claimants or anyone else matter
Mexicans courts to exercise will have to be assessed
future civil actions ability jurisdiction
after the filing of every complaint
45 More importantly the filing of an Amparo action in Mexico cannot be described
of the adequacy and better
as Dr Gabuardi does at pp 6-8 as an acknowledgement reliability
for the of adjudicating the private
convenience of the Mexican judicial system purposes party
matters pending before this Court
of an Amparo action none of what
46 In order to understand why the filing implies
Dr Gabuardi suggests we must explain the nature of the Juicio de Amparo
47 An Amparo action which arises under Articles 103 and 107 of the Mexican
or can challenge
Constitution is proceeding by which any private person individual corporate
of or federal government actor of whether
the constitutionality of the actions state regardless
member of the or judiciary branch In other words the only
that actor is executive legislative
possible defendants in Amparo actions are Mexican government actors in their official
12
capacities
12
Insofar as the Amparo actions referenced by Dr Gabuardi the only defendant is
Tamaulipas court
-12-
00783
48 The Mexican Court has interpreted the constitutional guarantee of due
Supreme
broadly to include the misapplication of any law whether state or federal within the
process
Court rulings are included in the definitiQn of official
scope of Amparo protection
courts
governmental acts and therefore state
any court judgment including judgments by
state laws is reviewable by federal courts acting under their Amparo jurisdiction
interpreting
of of federal or state law is deemed to be violation
because an erroneous application principle
of Constitutional due process
49 When private person is aggrieved by the adjudication of his/her/its rights by
Mexican court without due process of law Amparo proceedings provide the only means to seek
redress for that constitutional violation
50 Ainparo proceedings are far more circumscribed than federal proceeding by
the plaintiff seeks the protection of the federal justice system upon an argument that there
which
has been infringement of the strict application of the Mexican Constitution statutory law due
process
of law or other fundamental rights Gabuardi Affidavit at 26 Amparo proceedings
for constitutional violations on the
provide the only remedy available to private party plaintiffs
of the Mexican government defendants including the Mexican courts Amparo proceedings
part
are not available to challenge actions on the part of private actors
51 The Mexican federal judiciary is the only court system with jurisdiction to hear
of an official Mexican
Amparo eases and ultimately adjudicate the Mexican constitutionality
in
governmental act The relief available through an Amparo proceeding cannot be pursued any
other court.3
13 Notably in the Amparo the Mexican courts have made clear that they lack
context of an
action by much less invalidate the acts of tribunal
jurisdiction to in any way compel foreign
BY DECLINATION THE
See Precedent No 166416 DECLiNATION OF JURISDICTION
ORDER THAT DECLARES IT BY FINDING THAT FOREIGN COURT HAS
JURISDICTION PUTS AN END TO THE ACTION AND THEREFORE MAY BE
CHALLENGED IN DIRECT AMPARO LEGISLATION OF THE FEDEEAL DISTRICT
-13-
00784
52 Consequently Dr Gabuardis opinion that the filing of an Amparo proceeding is
an acknowledgement of the adequacy reliability and better convenience of the Mexican judicial
system is incorrect
RESERVATION OF RIGHT TO ISSUE SUPPLEMENTAL OPINIONS
53 understand this matter is in its early stages and additional facts may develop
have been advised that the Estate may therefore require further opinions on Mexianlaw
Accordingly reserve the right to amend and/or supplement the opinions expressed herein
whether in writing or live testimony as called upon to do so
pursuant to the laws of the Commonwealth
declare under of perjury of
penalty
Pennsylvania that the foregoing statements are true and correct
Executed in Philadelphia Pennsylvania this 30th day of Septem
By
IlaRoenberg
Market Street
WOO
Philadelphia PA 19103
215 665-4621
SWORN and SUBSCRIBED before me in Philadelphia Pennsylvania on this 30th day of
September 2013
Lorraine Costro
Notary Public
My commission expires
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
LORRAINE COSTRO Notary Pubic
City of Philadetphia Phila County
My Commission Expires April 22 2016
9th Session 1St Chamber Supreme Court Federal Judiciary Reporter and its Gazette Volume
XXX September 2009 120
-14-
00785
ILAN ROSENBERG
1123 Coventry Avenue
Cheltenham PA 19012
Phone 215-635-2005 Fax 215-701-2021
Email janeandilan@comcast.net
PROFESSIONAL EXPERIENCE
Gordon Rees Philadelphia PA June 2013-Present
Partner Concentrating practice in complex insurance coverage and commercial litigation and international
commercial matters and dispute resolution with an emphasis on matters relating to Mexico and Latin America
outside legal advisor to the Mexican Ministry of Foreign Relations
Cozen OConnor Philadelphia PA September 2002-June 2013
Member Concentrated practice in complex domestic and international insurance coverage commercial and civil
matters Co-Chair of Latin American Subrogation Practice Group
Chevez Ruiz Zamarripa Cia S.C Mexico City Mexico September 1999-June 2001
Associate Concentrated practice in tax planning and tax and civil
rights litigation Handled trial and appellate
matters before Mexican state and federal courts as well as the Mexican Federal Supreme Court
Mexican Federal Ministry of Finance Mexico City Mexico January 1998-June 1999
Supervisor of the Legal Consulting Department Advised various branches of the Mexican government
concerning public finance and tax law and developed federal tax rules and regulations
EDUCATION
University of Pennsylvania Law School Philadelphia PA
Master of Comparative Law LL.C.M September 2009-May 2011
Master of Laws LL.M recipient of merit-based scholarship July 2001-May 2002
Escuela Libre de Derecho Mexico City Mexico August 1993-July 1998
Bachelor of Laws LD Equivalent
LEADERSHIP POSITIONS
America-Israel Chamber of Commerce Advisory Board Member
BIAS and Council Migration Service of Philadelphia Board Vice President Chair Policy Committee
HONORS/AWARDS
Pennsylvania Super Lawyer Rising Star 2007 2008 and 2013
Recipient of the National Law Journal Pro Bono Award in 2008
BAR AD1\ITSSIONS
Mexico all jurisdictions
Pennsylvania
United States District Courts Eastern and Middle Districts of Peimsylvania Eastern District of
Wisconsin Northern District of Illinois
United States Courts of Appeals Third and Federal Circuits
United States Supreme Court
EXHIBIT
00786
TEACHING/LECTURING EXPERIENCE
University of Pennsylvania Law School Philadelphia PA October 2012-Present
Lecturer in Law Comparative law course entitled Common Law Contracts for Civil Lawyers
Escuela Libre de Derecho Law School Mexico City September 1999-August 2000
Adjunct Professor Tax Law and Administrative Procedure
00787
Page of2
Tesis
Semanario Judicial de la Novena
XIX lo 162 858
Federacin su Gaceta Epoca
Tribunales
Jurisprudencia
Colegiados S.J.F su Gaceta PÆg 2044
Civil
de Circuito
Registro No 162 858
9a Epoca T.C.C SJ.F su Gaceta Tomo XXXIII Febrero
de 2011 PÆg 2044
EMPLAZAMIENTO PERSONAS FiSICAS SI EN LA
RAZON DEL ACTUARIO SOLO SEALA QUE EL
DOMICILIO DEL DEMANDADO ES CORRECTO POR
ADVERTIRLO DE LAS NOMIENCLATURAS DE LAS
CALLES NUMERO COLONIA CIUIDAD ELLO NO
COLMA LAS FORMALIDADES ESENCIALES DEL
PROCEDIMIENTO LO QUE CONSTITUYE UNA
VIOLACION LAS REGLAS QUE LO RIGEN
LEGISLACION DEL ESTADO DE TAMAULIPAS
El artIculo 67 fraccin ifi del Cdigo de Procedimientos Civiles
para el Estado ordena que el emplazamiento las personas fisicas
se realice en el domicilio seflalado por la parte
que lo pide el cual
debe corresponder con el lugar en donde habita el demandado por
tanto el actuario al realizarlo debe cerciorarse de que queden
satisfechas esas circunstancias asentarlo en el acta relativa En
esas condiciones si en la razn del actuario no se seflala que en el
domicilio en el que se constituy para practicar el emplazamiento
habita el demandado en cambio solo refiere que se cerciorO de
que era correcto por asI advertirlo de las nomenclaturas de las
calles niimero colonia ciudad correspondientes con estas
expresiones no se colman las formahdades esenciales del
procedimiento dado que esa informacin no brinda la seguridad
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00788
Page2of2
de que ese domicilio sea el lugar donde habita el demandado
COnsecuentemente esa irregularidad constituye una violacin
las reglas que rigen el procedimiento de dicha diligencia
PRIMER TRIBUNAL COLEGIADO DEL DECIMO
NOVENO CIRCUITO
Amparo en revision 235/2008 15 de octubre
de 2008 Unanimidad de votos Ponente Miguel
Mendoza Montes Secretaria Piedad del Carmen
HernÆndez Avila Amparo en revision 37/2010
Guadalupe Luis de Leon Zamora 25 de marzo de
2010 Unanimidad de votos Ponente Lucio Antonio
Castillo Gonzalez Secretaria Gina Estela Cecopieri
Gmez Amparo en revision 127/2010 JosØ Portilla
Guerra 29 de abril de 2010 Unanimidad de votos
Ponente Hector GÆlvez TÆnchez Secretaria Julia
Soto Valdez Amparo en revision 192/2010 Pedro
Hugo Salinas Bravo de julio de 2010 Unanimidad
de votos Ponente Lucio Antonio Castillo Gonzalez
Secretaria BelØn Alarcn CortØs Amparo en revision
281/2010 Juan Francisco JimØnez Chapa 28 de
octubre de 2010 Unanimidad de votos Ponente Lucio
Antonio Castillo Gonzalez Secretario Faustino
GutiØrrez Perez
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00789
Mexico Page of 10
Travel Warning
U.S DEPARTMENT OF STATE
Bureau of Consular Affairs
Mexico
July 12 2013
The Department of State has issued this Travel Warning to inform U.S citizens about the security
situation in Mexico General information on the overall security situation is provided immediately
below For information on security conditions in
specific regions of Mexico which can vary
travelers should reference the state-by-state assessments further below
This Travel Warning supersedes the Travel Warning for Mexico dated November 20 2012 to
consolidate and update information about the security situation and to advise the public of
additional restrictions on the travel of U.S government USG personnel
General Conditions
Millions of U.S citizens safely visit Mexico each year for study tourism and business including
more than 150000 who cross the border every day More than 20 million U.S citizens visited
Mexico in 2012 The Mexican government makes considerable effort to protect U.S citizens and
other visitors to major tourist destinations and there is no evidence that Transnational Criminal
Organizations TCO5 have targeted U.S visitors and residents based on their nationality Resort
areas and tourist destinations in Mexico generally do not see the levels of drug-related violence
and crime that is reported in the border region and in areas along major trafficking routes
Nevertheless U.S travelers should be aware that the Mexican government has been engaged in
an extensive effort to counter TCOs which engage in narcotics trafficking and other unlawful
activities throughout Mexico The TCOs themselves are engaged in violent struggle to control
drug trafficking routes and other criminal activity Crime and violence are serious problems and
can occur anywhere U.S citizens have fallen victim to criminal activity including homicide gun
battles kidnapping carjacking and highway robbery While most of those killed in narcotics-
related violence have been members of TCOs innocent persons have also been killed The number
of U.S citizens reported to the Department of State as murdered in Mexico was 113 in 2011 and
71 in 2012
Gun battles between rival TCOs or with Mexican authorities have taken place in towns and cities in
many parts of Mexico especially in the border region Gun battles have occurred in broad daylight
on streets and in other public venues such as restaurants and clubs During some of these
incidents U.S citizens have been trapped and temporarily prevented from leaving the area TCOs
have used stolen cars buses and trucks to create roadblocks on major thoroughfares preventing
the military and police from responding to criminal activity The location and timing of future
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00790
Mexico Page2oflO
armed engagements is unpredictable We recommend that you defer travel to the areas indicated
in this Travel Warning and exercise extreme caution when traveling throughout the northern
border region
The number of kidnappings and disappeaances throughout Mexico is of particular concern Both
local and expatriate communities have been victimized In addition local police have been
implicated in some of these incidents We strongly advise you to lower your profile and avoid
displaying any evidence of wealth that might draw attention
Carjacking and highway robbery are serious problems in
many parts of the border region and
U.S citizens have been murdered in such incidents Most victims who complied with carjackers at
these checkpoints have reported that they were not physically harmed Carjackers have shot at
vehicles that fail to stop at checkpoints Incidents have occurred during the day and at night and
carjackers have used variety of techniques including bumping/moving vehicles to force them to
stop and running vehicles off the road at high speeds There are some indications that criminals
have targeted newer and dark-colored SUVs
particularly larger vehicles especially However
victims driving variety of vehicles from late model SUVs to old sedans have also been targeted
While violent incidents have occurred at all hours of the day and night on both modern tell
highways cuotas and on secondary roads they have occurred most frequently at night and on
isolated roads To reduce risk if absolutely necessary to travel by road we strongly to
urge you
travel between cities throughout Mexico only during daylight hours to avoid isolated roads and to
use toll roads whenever possible The Mexican government has deployed federal police and
military personnel throughout the country as part of its efforts to combat the TCOs U.S citizens
traveling on Mexican roads and highways may encounter government checkpoints which are often
staffed by military personnel or law enforcement personnel TCOs have erected their own
unauthorized checkpoints at times wearing police and military uniforms and killed or abducted
motorists who have failed to stop at them You should cooperate at all checkpoints
The U.S Mission in Mexico imposes restrictions on U.S government employees U.S citizens
working at the Embassy and the nine consulates throughout Mexico travel that have been in
place since July 15 2010 USG employees and their families are not permitted to drive for
personal reasons from the U.S.-Mexico border to or from the interior of Mexico or Central America
Personal travel by vehicle is permitted between Hermosillo and Nogales but is restricted to
daylight hours and the Highway 15 toll road cuota
USG personnel and their families are prohibited from personal travel to all areas to which it is
advised todefer non-essential travel When travel for official essential
purposes is it is
conducted with extensive security precautions USG personnel and their families are allowed to
travel for personal reasons to the areas where no advisory is in effect or where the advisory is to
exercise caution While the general public is not forbidden from visiting places categorized under
defer non-essential travel USG personnel will not be able to respond quickly to an emergency
situation in those areas due to security precautions that must be taken by USG personnel to travel
to those areas
For more information on road safety and crime along Mexicos roadways see the Department of
States Country Specific Information
State-by-State Assessment
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Mexico Page of 10
Below is state-by-state assessment of security conditions throughout Mexico The accompanying
map will help in identifying individual locations Travelers should be mindful that even if no
advisories are in effect for given state crime and violence can occur anywhere For general
information about travel and other conditions in Mexico see our Country Specific Information
Aguascalientes You should exercise caution when traveling to the areas of the state that border
the state of Zacatecas as TCO activity in that region continues There is no advisory in effect for
daytime travel to the areas of the state that do not border Zacatecas however intercity travel at
night is not recommended
Baja California north Tijuana nsenada and Mexicali are major cities/travel
destinations in the state of Baja California see map to identify their exact locations You
should exercise caution in the northern state of Baja California particularly at night There were
278 homicides in Tijuana from January to June 2013 Mexicalis murder rate has climbed from
14.3 per 100000 in 2011 to 15.8 per 100000 in 2012 In the majority of these cases the killings
appeared to be targeted TCO assassinations Turf battles between criminal groups resulted in
some assassinations in areas of Tijuana and Mexicali frequented by U.S citizens Shooting
incidents in which innocent bystanders have been injured have occurred during daylight hours
Baja California South Cabo San Lucas and La Paz are major cities/travel destinations
in the state of Southern Baja California see map to identify its exact location No advisory is
in effect
Campeche No advisory is in effect
Chiapas San Cristobal de las Casas is major city/travel destination in Chiapas see
map to identify its exact location No advisory is in effect
Chihuahua Ciudad Juarez Chihuahua City and Copper Canyon are major cities/travel
destinations in Chihuahua see map to identify their exact locations You should defer non
essential travel to the state of Chihuahu In Ciudad Juarez personal travel by USG employees
outside the northeast portion of the city the area near the Consulate General is restricted
Although homicides have decreased markedlyfrom high of 3100 homicides in 3010 to 749 in
2012Ciudad Juarez still has one of the highest homicide rates in Mexico Crime and violence
remain serious problems throughout the state of Chihuahua particularly in the southern portion of
the state and in the Sierra Mountains including Copper Canyon U.S citizens do not however
appear to be targeted based on their nationality
Coahuila You should defer non-essential travel to the state of Coahuila The State of Coahuila
continues to experience high rates of violent crimes and narcotics-related murders TCOs continue
to compete for territory and coveted border crossings to the United States The cities of Torren
Saltillo Piedras Negras and Ciudad Acuha have seen an increase of violent crimes within the last
six months including murder kidnapping and armed carjacking Of particular safety concern are
casinos sportsbooks or other gambling establishments and adult entertainment establishments
which USG personnel are not permitted to frequent
Colima Manzanillo is major city/travel destination in Colima see map to identify its
exact location You should defer non-essential travel to the areas of the state of Colima that
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Mexico Page of 10
border the state of MichoacÆn including the city of Tecoman You should also exercise caution
when travelling to other parts of the state including Colima City and Manzanhllo The security
situation along the Michoacan border continues to be the most unstable in the state with gun
battles occurring between rival criminal groups and with Mexican authorities Homicides
throughout the state rose sharply from 113 in 2011 to 179 in 2012 according to official Mexican
government sources
Durango You should defer non-essential travel to the state of Durango except the city of
Durango where you should exercise caution Cartel violence and highway lawlessness are
continuing security concern Several areas in the state continue to experience high rates of
violence and remain volatile and unpredictable The Mexican government deployed troops in March
2013 to quell TCO violence in the La Laguna area which is
comprised of the cities of Gomez
Palaclo and Lerdo in the state of Durango and the city of Torreon in the state of Coahuila Of
particular safety concern are casinos sportsbooks or other gambling establishments and adult
entertainment establishments which USG personnel are not permitted to frequent USG personnel
not travel outside the of Durango and must abide by curfew of a.m to a.m within
may city
secured venue
Estado de Mexico Toluca and Teotihuacan are major travel destinations in Estado de
Mexico see map to identify exact locations You should defer non-essential travel to the
municipalities of Coacalco Ecatepec Nezahualcoyotl La Paz Valle del Chalco Solidaridad Chalco
and Ixtapaluca which are eastern portions of the greater Mexico City metropolitan area located
just to the east of the Federal District of Mexico and Benito Juarez airport unless traveling directly
through the areas on major thoroughfares These areas have seen high rates of crime and
insecurity You should also defer non-essential travel on any roads between Santa Marta in the
southeast portion of the state and Huitzilac in the state of Morelos including the Lagunas de
Zempoala National Park and surrounding areas
Guanajuato San Miguel de Allende and Leon are major cities/travel destinations in
Guanajuato see map to identify their exact locations No advisory is in effect
Guerrero Acapulco Ixtapa Taxco and Zihuatanejo are major cities/travel destinations
in Guerrero see map to identify their exact locations You should defer non-essential travel to
the northwestern and southern portions of the state the area west and south of the town of
Arcelia on the border with Estado de Mexico in the north and the town of Tlapa near the border
with Oaxaca except for the cities of Acapulco Zihuatanejo and Ixtapa In those cities you
should exercise caution and stay within tourist areas You should also exercise caution and travel
only during daylight hours on toll highway cuota 95D between Mexico City and Acapulco and
highway 200 between Acapulco and Zihuatanejo/Ixtapa In Acapulco defer non-essential travel to
areas further than blocks inland of the Costera Miguel Aleman Boulevard which parallels the
popular beach areas Lodging for USG personnel is limited to the Hotel Zone of Acapulco
beginning from the Hotel Avalon Excalibur Acapulco in the north and going south through Puerto
Marquez including the Playa Diamante area Any activity outside the Hotel Zone for USG personnel
is limited to the coastal area from La Quebrada to the beginning of the Hotel Zone and only during
daylight hours In general the popular tourist area of Diamante just south of the city has been
less affected by violence Flying into the coastal cities in southern Guerrero remains the preferred
method of travel You should defer non-essential travel by land between Acapulco and
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Zihuatanejo/Ixtapa travel to Zihuatanejo/Ixtapa only by air and exercise caution while in
Zihuatanejo/Ixtapa If travelling by automobile between Mexico City and Acapulco you should
exercise caution and travel only during daylight hours on toll highway cuota 95D staying on
the toll road towards the Playa Diamante area and avoiding the highway running through the city
of Acapulco You should also exercise caution in the northern region of Guerrero the area north of
the town of Arcelia on the border with Estado de Mexico in the north and the town of Tlapa near
the border with Oaxaca The state of Guerrero has seen an increase in violence among rival
criminal organizations Acapulcos murder rates increased dramatically since 2009 in response in
2011 the Government of Mexico sent additional military and federal police to the state to assist
State security forces in
implementing ongoing operation Guerrero Seguro Secure Guerrero that
focuses on combating organized crime and returning security to the environs of popular tourist
areas Self-defense groups operate independently of the government in the Costa Chica region of
eastern Guerrero Armed members of these groups frequently maintain roadblocks and although
not considered hostile to foreigners or tourists are suspicious of outsiders and should be
considered volatile and unpredictable
Hidalgo No advisory is in effect
Jalisco Guadalajara Puerto Vallarta and Lake Chapala are major cities/travel destinations in
Jalisco see map to identify their exact locations You should defer non-essential travel to areas of
the state that borders the state of Michoacn The security situation along the Michoacn and
Zacatecas borders continues to be unstable and gun battles between criminal groups and
authorities occur Concerns include roadblocks placed by individuals posing as police or military
personnel and recent gun battles between rival TCOs involving automatic weapons You should
exercise caution in rural areas and when using secondary highways particularly along the
northern border of the state Except for the areas of the state that border Michoacan there is no
advisory in effect for datime travel within major population centers or major highways in the
state of Jalisco Intercity travel at night is not recommended There is no recommendation against
travel to Guadalajara and Puerto Vallarta There is also no recommendation against travel on
principal highways in Jalisco between Guadalajara including the portions that cross in to the
southern portions of the state of Nayarit
Mexico City also known as the Federal District No advisory is in effect See also the
discussion in the section on Estado de Mexico for areas within the greater Mexico City metropolitan
area
MichoacÆn Morelia is major city/travel destination in MichoacÆn see map to identify
exact locations You should defer non-essential travel to the state of MichoacÆn except the cities
of Morelia and Uzaro Cardenas where you should exercise caution Flying into Morelia and LÆzaro
Cardenas is the recommended method of travel Attacks on Mexican government officials law
enforcement and military personnel and other incidents of TCO-related violence have occurred
throughout Michoacn In the northwestern portion of the state self-defense groups operate
independently of the government Armed members of the groups frequently maintain roadblocks
and although not considered hostile to foreigners or tourists are suspicious of outsiders and
should be considered volatile and unpredictable Groups in Michoacan are reputed to be linked to
TCO5
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Morelos Cuernavaca is major city/travel destination in Morelos see attached map to
identify their exact locations You should exercise caution in the state of Morelos due to the
unpredictable nature of TCO violence You should also defer non-essential travel on any roads
between Huitzilac in the northwest corner of the state and Santa Marta in the state of Mexico
including the Lagunas de Zempoala National Park and surrounding areas On August 24 2012 two
USG employees were injured after being fired upon by Federal Police officers on an isolated road
north of Tres Marias Morelos Numerous incidents of narcotics-related violence have also occurred
in the city of Cuernavaca
Nayarit You should defer non-essential travel to areas of the state of Nayarit that border the
states of Sinaloa or Durango as well as all rural areas and secondary highways You should
exercise caution when traveling to the cities of Tepic Xalisco or San Bias There is nd
recommendation against travel to the Vallarta-Nayarit area in the southern portion of the state
also known as the Riviera Nayarit or to principal highways in the southern portion of the state
used to travel from Guadalajara to Puerto Vallarta
Nuevo Leon Monterrey is major city/travel destination in Nuevo Leon- see map to
identify its exact location You should defer non-essential travel to the state of Nuevo Leon except
the metropolitan area of Monterrey where you should exercise caution Although the level of lCD
violence and general insecurity in Monterrey has decreased within the last 12 months sporadic
gun battles continue to occur in the greater Monterrey area Adult entertainment establishments
and casinos continue to be targets of TCO activity TCOs have kidnapped and in some cases
murdered American citizens even when ransom demands are met TCOs have been known to
attack local government facilities prisons and police stations and are engaged in public shootouts
with the military and between themselves TCO5 have used vehicle-borne improvised explosive
devices against military and law enforcement units as well as incendiary devices against several
types of businesses Pedestrians and innocent bystanders have been killed in these
incidents Local police and private patrols have limited capacity to deter criminal elements or
respond effectively to security incidents As result of Department of State assessment of the
overall security situation the Consulate General in Monterrey is partially unaccompanied post
with no minor dependents of USG personnel permitted USG personnel serving at the U.S
Consulate General in Monterrey may not frequent casinos sportsbooks or other gambling
establishments USG personnel may not travel outside the San Pedro Garza Garcia municipal
boundaries between am and a.m except for travel to the airport after a.rn
Oaxaca Oaxaca Huatulco and Puerto Escondido are major cities/travel destinations in
Oaxaca see map to identify their exact locations No advisory is in effect
Puebla No advisory is in effect
Queretaro No advisory is in effect
Quintana Roo Cancun Cozumel Playa del Carmen Riviera Maya and Tulum are major
cities/travel destinations in Quintana Roo see attached map to identify their exact
locations No advisory is in effect
San Luis Potosi You should defer non-essential travel to the state of San Luis Potosi except the
of San Luis Potosi where you should exercise caution The entire stretch of highway 57D in
city
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San Luis Potosi and portions of the state east of highway 57D towards Tamaulipas are particularly
dangerous USG employee was killed and another wounded when they were attacked in their
U.S government vehicle on Highway 57 near Santa Maria del Rio in 2011 Cartel violence and
highway lawlessness are continuing security concern USG personnel may not frequent casinos
sportsbooks or other gambling establishments and adult entertainment establishments USG
personnel may not travel outside the City of San Luis Potosi and must abide by curfew of a.m
to am within secured venue
Sinaloa Mazatlanis major city/travel destination in Sinaloa see map to identify its exact
location You should defer non-essential travel to the state of Sinaloa except the city of Mazatlan
where you should exercise caution particularly late at night and in the early morning One of
Mexicos most powerful TCO5 is based in the state of Sinaloa With the exception of Ciudad Juarºz
since 2006 more homicides have occurred in the states capital city of Culiacan than in any other
city in Mexico Travel off the toll roads cuotas in remote areas of Sinaloa is especially
dangerous and should be avoided We recommend that any travel in Mazatlan be limited to Zona
Dorada and the historic town center as well as direct routes to/from these locations and the
airport
Sonora Nogales Puerto Peflasco Hermosillo and San Carlos are major cities/travel
destinations in Sonora see map to identify their exact locations U.S citizens visiting Puerto
Peæasco should exercise caution and use the Lukeville Arizona/Sonoyta Sonora border crossing
in order to limit driving through Mexico You should defer non-essential travel between the city of
Nogales and the cities of Sonoyta and Caborca which area also includes the smaller cities of Saric
Tubutama and Altar defer non-essential travel to the eastern edge of the State of Sonora which
borders the State of Chihuahua all points along that border east of the northern city of Agua
Prieta and the southern town of Ala mos and defer non-essential travel within the city of Ciudad
Obregon and southward with the exception of travel to Alamos traveling only during daylight
hours and using only the Highway 15 toll
road or cuota and Sonora State Road 162 Sonora is
key region in the international drug and human trafficking trades and can be extremely
dangerous for travelers The region west of Nogales east of Sonoyta and from Caborca north
including the towns of Saric Tubutama and Altar and the eastern edge of Sonora bordering
Chihuahua are known centers of illegal activity Travelers throughout Sonora are encouraged to
limit travel to main roads during daylight hours
Tabasco Villahermosa is major city/travel destination in Tabasco -see attached map
to identify its exact location No advisory is in effect
Tamaulipas Matamoros Nuevo Laredo Reynosa and Tampico are major cities/travel
destinations in Tamaulipas see map to identify their exact locations You should defer non
essential travel to the state of Tamaulipas All USG employees are prohibited from personal travel
on Tamaulipas highways outside of Matamoros and Nuevo Laredo due to the tenuous security
situation In Matamoros USG employees are subject to further movement restrictions between
midnight and a.m USG employees may not frequent casinos and adult entertainment
establishments Matamoros Reynosa Nuevo Laredo and Ciudad Victoria have experienced
grenade attacks in the past year as well as numerous reported gun battles Nuevo Laredo has
seen marked increase in the number of murders carjackings and robberies in the past year For
example the numbers of murders are up 92.S% over last year These crimes occur in all parts of
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Mexico Page of 10
the city at all times of the day The kidnapping rate for Tamaulipas the highest for all states in
Mexico more than doubled in the past year In February 2013 four masked and armed individuals
attempted to kidnap USG employee in Matamoros during daylight hours All travelers should be
aware of the risks posed by armed robbery and carjacking on state highways throughout
Tamaulipas particularly on highways and roads outside of urban areas along the northern
border Traveling outside of cities after dark is particularly dangerous While no highway routes
through Tamaulipas are considered safe many of the crimes reported to the U.S Consulate
General in Matamoros have taken place along the Matamoros-Tampico highway
Tiaxcala No advisory is in effect
Veracruz You should exercise caution when traveling in the state of Veracruz The state of
Veracruz continues to experience violence among rival criminal organizations Mexican federal
security forces continue to assist state and local security forces in
providing security and
combating organized crime
Yucatan Merida and Chichen Itza are major cities/travel destinations in Yucatan -see
map to identify its exact location No advisory is in effect
Zacatecas You should defer nonessential travel within the state of Zacatecas to the area
bordering the states of Aguascalientes Coahuila Durango and Jalisco and exercise caution in the
interior of the state including the city of Zacatecas The regions of the state bordering Durango
and Coahuila as well as the cities of Fresnillo and Fresnillo-Sombrete and surrounding area are
particularly dangerous The northwestern portion of the state of Zacatecas has become notably
dangerous and insecure Robberies and carjackings are occurring with increased frequency and
both local authorities and residents have reported surge in observed TCO activity This area is
remote and local authorities are unable to regularly patrol it or quickly respond to incidents that
occur there Gun battles between criminal groups and authorities occur in the area of the state
bordering the state of Jalisco There have also been reports of roadblocks and false checkpoints on
highways between the states of Zacatecas and Jalisco The city of Fresnillo the area extending
northwest from Fresnhllo along Highway 45 Fresnillo-Sombrete between Highways 44 and 49
and highway 49 northwards from Fresnillo through Durango and in to Chihuahua are considered
dangerous Extreme caution should be taken when traveling in the remainder of the state Of
particular safety concern are casinos sportsbooks or other gambling establishments and adult
entertainment establishments which USG personnel may not frequent USG personnel may not
travel outside the City of Zacatecas after dark and must abide by curfew of a.m to a.m
within secured venue
Further Information
For more detailed information on staying safe in Mexico please see the State Departments
Country Specific Information for Mexico
For the latest security information U.S citizens traveling abroad should regularly monitor the
State Departments internet web site where the current Worldwide Caution Travel Warnings and
Travel Alerts can be found Follow us on Twitter and the Bureau of Consular Affairs page on
Facebook as well Up-to-date information on security can also be obtained by calling 1-888-407-
4747 toll free in the United States and Canada or for callers outside the United States and
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00797
Mexico Page of 10
Canada regular toll line at 001-202-501-4444 These numbers are available from 800 a.m to
800 p.m Eastern Time Monday through Friday except U.S federal holidays U.S citizens
traveling or residing overseas are encouraged to enroll with the State Departments Smart
Traveler Enrollment Program For any emergencies involving U.S citizens in Mexico please
contact the U.S Embassy or U.S Consulate with responsibility for that persons location in
Mexico For information on the ten U.S consular districts in Mexico complete with links to
Embassy and Consulate websites please consult the Mexico U.S Consular District map The
numbers provided below for the Embassy and Consulates are available around the clock The U.S
Embassy is located in Mexico City at Paseo de Ia Reforma 305 Colonia Cuauhtemoc telephone
from the United States 011-52-55-5080-2000 telephone within Mexico City 5080-2000
telephone long distance within Mexico 01-55-5080-2000 U.S citizens may also contact the
Embassy by e-mail
Consulates with consular districts
Ciudad Juarez Chihuahua Paseo de Ia Victoria 3650 tel 01152656 227-3000
Guadalajara Nayarit Jalisco Aguas Calientes and Colima Progreso 175 telephone 01152
333 268-2100
Hermosillo Sinaloa and the southern part of the state of Sonora Avenida Monterrey 141
telephone 01152662 289-3500
Matamoros the southern part of Tamaulipas with the exception of the city of Tampico
Avenida Primera 2002 telephone 01 152868 812-4402
Merida Campeche Yucatan and Quintana Roo Calle 60 no 338-K 29 31 Col Alcala
Martin Merida Yucatan Mexico 97050 telephone 01152999 942-5700 or 202-250-3711
U.S number
Monterrey Nuevo Leon Durango Zacatecas San Luis Potosi and the southern part of
Coahuila Avenida Constitucion 411 Poniente telephone 01 152818 047-3100
Nogales the northern part of Sonora Calle San Jose Nogales Sonora telephone 01152
631 311-8150
Nuevo Laredo the northern part of Coahuila and the northwestern part of Tamaulipas Calle
Allende 3330 col Jardin telephone 01152867 714-0512
Tijuana Baja California Norte and Baja California Sur Paseo de Las Culturas s/n Mesa de
Otay telephone 011 52 664 977-2000
All other Mexican states the Federal District of Mexico City and the city of Tampico Tamaulipas
are part of the Embassys consular district
Consular Agencies
Acapulco Hotel Emporio Costera Miguel Aleman 121 Suite 14 telephone 01152744 481
-0100 or 01152744 484-0300
Cancn Blvd Kukulcan Km 13 ZH Torre La Europea Despacho 301 Cancun Quintana Roo
Mexico C.P 77500 telephone 01152998 883-0272
Cozumel Plaza Villa Mar en el Centro Plaza Principal Parque JuÆrez between Melgar and 5th
Ave 2nd floor locales and telephone 01152987 872-4574 or 202-459-4661
U.S number
Ixtapa/Zihuatariejo Hotel Fontan Blvd Ixtapa telephone 01152755 553-2100
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00798
Mexico PagelOoflO
Los Cabos Las Tieridas de Palmilla Local B221 Carretera Transpeninsular Km 27.5 San JosØ
del Cabo BCS Mexico 23406 Telephone 624 143-3566 Fax 624 143-6750
Mazatlthn Playa Gaviotas 202 Zona Dorada telephone 01152669 916-5889
Oaxaca Macedonlo Alcal no 407 interior 20 telephone 01152951 514-3054 011 52
951 516-2853
Piedras Negras Abasolo 211 Zona Centro Piedras Negras Coah Tel 01152878 782-
5586
Playa del Carmen The Palapa Calle Sur between Avenida 15 and Avenida 20 telephone
01152984 873-0303 or 202-370-6708a U.S number
Puerto Vallarta Paradise Plaza Paseo de los Cocoteros Local Interior 17 Nuevo
Vallarta Nayarit telephone 01152322 222-0069
San Luis PotosI Edificlo Las Terrazas Avenida Venustiano Carranza 2076-41 Col Polanco
telephone 01 152444 811-7802/7803
San Miguel de Allende Centro Comercial La Luciernaga Libramiento Manuel Zavala Pepe
KBZON telephone 01152415 152-2357
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00799
CASENUMBER414.270
IN THE ESTATE OF IN PROBATE COURT NO ONE
DOROTHY LOIJISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
ORDER DENYING MOTION OF SHELBY LONGORIIA
TO DISMISS OR TO ABATE COUNTERCLAIMS
On October 2013 the Court heard Counter-Defendant Shelby Longorias Motion
To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending
Resolution of Will Contest and Mexican Litigation the Motion Having considered the
Motion the brief filed in support of the Motion the response to the Motion the evidence
admitted during the hearing on the Motion and the record of this case the Court has
concluded that the Motion should be denied
IT IS THEREFORE ORDERED that Counter-Defendant Shelby Longorias Motion
To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending
Resolution of Will Contest and Mexican Litigation be and hereby is DENIED
SO ORDERED on this
______ day of_____________________ 2013
PRESIDING JUDGE
PROBATE CouRT Nu1vIBER ONE
HARRIs CouNTY TEXAS
ORDER DENYING MOTION OF SHELBY LONGORIA
TO DISMISS OR TO ABATE COUNTERCLAIMS Solo Page
00800
Case Number 414270
IN THE ESTATE OF IN THE PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED
HARRIS COUNTY TEXAS
Shelby Longorias Reply in Further Support
of Motion to Dismiss or Abate
2888738v1/013774
00801
Table of Contents
The Court Should Dismiss Tommys Claim for Forum Non Conveniens
Mexico Is an Available and Adequate Alternative Forum
The Private Interest Factors Support Dismissal
The Public Interest Factors Support Dismissal 10
II Alternatively the Court Should Abate Tommys Claim 11
2888738v1/013774
00802
Table of Authorities
Aguinda Texaco Inc
142 Supp 2d 534 S.D.N.Y 2001
Del Istmo Assurance Corp Platon
2011 WL 5508641 S.D Fla Nov 92011
DTE LLC BBVA Bancomer S.A
508 F.3d 785 5th Cir 2007
Dunsby Transocean Inc
329 Supp 2d 890 S.D Tex 2004
Gallego Garcia
2010 WL2354585 S.D Cal.June92010 511
Gomez de Hernandez Bridgestone Firestone Am Tire
204 S.W.3d 473 Tex App Corpus Christi 2006 pet denied
Ibarra Orica USA
493 Fed Appx 489 5th Cir 2012
In re Air Crash Over the Mid-Atlantic on June 2009
792F.Supp.2d1090N.D.Cal.2011 ..
In re BPZ Resources Inc
359 S.W.3d 866 Tex App Houston Dist 2012 orig proceeding
In re Ford Motor Co
591 F.3d 406 5th Cir 2009
In re Mantle Oil Gas LLC
2012 WL 5323584 Tex App Houston Dist 2012 no pet
In re Pirelli Tire L.L.C
247 S.W.3d 670 Tex 2007 .67
In re Pittsburgh Corning Corp
2013 WL 2299620 Bankr W.D Pa May 24 2013
Israel Discount Bank Ltd Schn app
505 Supp 2d 651 C.D Cal 2007
2888738v1/013774
00803
ISTIL Group Inc Masood
2004 WL948376D.Or.Apr.302004
Liberty Mutual Ins Co Transit Mix Concrete Materials Co
2013 WL 3329026 Tex App Texarkana June 28 2013 pet filed
Miralda Tidewater Inc
2012 WL 3637845 E.D La Aug 232012
Morales Ford Motor Co
313 Supp 2d 672 S.D Tex 2004 89
Navarrete de Pedrero Schwezer Aircraft Corp
635 Supp 2d 251 W.D.N.Y 2009
Paolicelli Ford Motor Co
289 Fed Appx 387 11th Cir Aug 20 2008
Paulownia Plantations de Panama Corp Rajamannan
793 N.W.2d 128 Minn 2009
Rustal Trading US Inc Makki
17 Fed Appx 331 6th Cir Aug 212001
Megga Telecommunications Ltd Lucent Technologies Inc
1997WL86413D.Del.Feb.141997
Sonat Exploration Co Cudd Pressure Control Inc
271 S.W.3d228 Tex 2008 10
Transunion Corp Pepsico Inc
811F.2d1272dCir.1987
United Bank for Africa PLC Coker
2003 WL22741575 S.D.N.Y.2003
Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de
336 S.W.3d 664 Tex App Houston Dist.J 2010 no pet 10
ill
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00804
This case is beginning to resemble the old-time carnival game Whack-a-Mole.1 quick
timeline shows Tommy Dorseys repeated efforts right up to the week before the hearing to
recast the estates purported claims in some way that will avoid forum non conveniens dismissal
Tommy filed this case on May 2013 seeking to do three things
invalidate Mexican judgment partitioning community property2
invalidate Mexican trust3 and invalidate orders of Mexican court
Eduardo Longoria Sr.s will.4
probating
Shelby answered the petition on June 17 2013 and asserted forum non
conveniens as defense.5 On June 18 2013 Shelby filed petition
contesting the will pursuant to which Tommy was appointed as
independent executor of Dorothys estate
On July 18 2013 after reviewing Shelbys answer asserting forum non
conveniens defense Tommy nonsuited his claim and refiled it as
counterclaim to the will contest procedural subterfuge designed to
support the fictions in Tommys response brief that Shelby somehow
initiated this litigation and that Tommys claims somehow are intrinsically
related to Shelbys will contest.6
On September 26 2013 having reviewed Shelbys motion to dismiss
Tommy filed another set of counterclaims which he completely rewrote to
scrub the references to Mexico and accenthate the references to Texas.7
Tommy seeks to avoid forum non conveniens by completely rewriting his pleading right
before the hearing and then claiming that Shelby is now attacking straw man Tommy asserts
contrary to his original petition and his original counterclaim that he is not contesting the
Mexican trust and not contesting the orders of the Mexican court probating Eduardo Sr.s will
But the Inventory Appraisement and List of Claims that Tommy filed in this Court just five
The term Whac-a-Mole or Whack-a-mole is used colloquially to denote repetitious and futile task each
time an adversary is whacked only pops up
it again somewhere else In re Pittsburgh Corning Corp 2013 WL
2299620 at Bankr W.D Pa May 24 2013
n.8
Plaintiffs Original Petition May 2013 at 11
31d 21-24
4id 27-29
Defendant Shelby Longorias Answer to Plaintiffs Original Petition June 17 2013 at
See Non-Suit Without Prejudice July 18 2013 and Original Counterclaims of James Thomas Dorsey
Independent Executor of the Estate of Dorothy Louise Longoria Deceased July 18 2013
Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria
Deceased to Shelby Longorias Amended Contest of 2010 Will September 26 2013
2888738v1/013774 .1
00805
weeks ago tells different story He says that the estate has claim for 49011050 for shares
of stock in two Mexican companies formerly held by the Mexican trust.8 This filing can be
squared only with claim that seeks to recover for the estate half of the assets that were held by
the Mexican trust
In order to prevail on such claim Tommy at minimum would somehow have to
persuade court to invalidate the Mexican trust and to invalidate the orders of the Mexican court
probating the will of Eduardo Sr which provided for his property to be passed to Shelby and
Eduardo Jr through the Mexican trust This Court must decide whether Texas court indeed
Harris County jury or Mexican court is better forum for resolving these attacks on Mexican
legal documents and court orders
Tommys response also tacitly admits that he somehow will have to overcome the agreed
1983 order of Mexican court partitioning the property of Eduardo Sr and Dorothy.9 Tommys
pleadings and his briefs have all avoided expressly mentioning the Mexican court order of
partition but it will not go away just because Tommy pretends that it does not exist It does exist
and its existence is an insurmountable barrier to the estate recovering based on theory that it is
entitled to community property interest Presumably Tommy has some undisclosed theory
about why and how the estate can attack 30-year-old Mexican court order This court must
decide whether Texas court or Mexican court is better forum for resolving an attack on this
Mexican court order
In an effort to create the
appearance that this case is not primarily about Mexican
property trusts and court orders Tommy added allegations to his new amended counterclaim
about two letters sent to Dorothy in Texas The merit of Shelbys motion is illustrated by the
Exhibit hereto at
to Motion to Dismiss or Abate Counterclaims at 23
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00806
weakness of the new allegations which Tommy chose to highlight in an apparent attempt to
demonstrate Texas connection
First Tommy alleges Shelby promised Dorothy in 2007 that he would pay $100000 each
to Sylvia and Adriana upon Dorothys death Tommy admits that Shelby tendered this money to
Sylvia and Adriana but complains that Shelby requested them to release any claims against him
in return for receiving this substantial gift It is mystery how these facts are supposed to support
claim by the estate against Shelby
Second Tommy points to letter that Eduardo Jr sent to Dorothy more than thirty years
ago on August 1983 over his and Shelbys signature.1 The handwritten letter which Tommy
grandiosely characterizes as establishing private trust states in full
Dearest Mom
Shelby and are writing you this letter with great deal of love and respect We
want you to know that the assets that Dad has willed to us as long as you live we
will hold them as if they were yours We will make the fruits available to you for
your direction as to their use This letter has value to only you because of our
commitment to your well-being and happiness More importantly than the worldly
goods is our promise to always care for you and to provide for spiritual
your
needs We hereby pledge to you our unending devotion
Your Sons
Eduardo Longoria Shelby Luis Longoria2
Make no mistake Shelby always supported his mother to the end of her life He always
cared for her and provided for her needs But the Court is not required to overlook the clear facts
It is absurd for Tommy to maintain that he is seeking to recover for the estate based on an
obviously unenforceable 30-year-old pledge of devotion while implausibly asserting that his
case has nothing to do with the subsequent Mexican and Mexican court orders that
agreements
10
Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise
Longoria Deceased to Shelby Longorias Amended Contest of 2010 Will September 26 2013 at 17
11d 16
2Exhjbit hereto
2888738v1/013774
00807
actually governed the arrangements for disposition of the Mexican property that made up the
bulk of the assets separately owned by Eduardo Sr and Dorothy
In his inventory of claims Tommy told the Court what he is seeking in this lawsuit
recovery of half of the value of the businesses formerly held by the Mexican trust Tommys new
far-fetched allegations are just temporary fix to get him past the motion to dismiss hearing If
the Court were to deny Shelbys motion Tommy would almost certainly pop back up His
extensive original discovery relating to the Mexican trust court orders and property would
surface The Court should end this game now and send the case to Mexico where it
belongs
The Court Should Dismiss Tommys Claim for Forum Non Conveniens
Recognizing that his case is in hole Tommy relies on artful repleading to argue against
forum non conveniens dismissal For example after having first sued Shelby Tommy non-suited
his claim once Shelby subsequently filed will contest Tommy then refiled the same claims
with which he initiated this litigation as counterclaims to the will contest and now tries to argue
that it was Shelby who first invoked the jurisdiction of this Court Regardless Tommy is flat-out
wrong when he argues that the Court cannot dismiss Tommys counterclaim while maintaining
jurisdiction over Shelbys claim See Israel Discount Bank Ltd Schnapp 505 Supp 2d 651
662 C.D Cal 2007 dismissing counterclaim for forum non conveniens in favor of an Israeli
forum while remanding the plaintiffs claim to California state court affd 321 Fed Appx 700
9th Cir 2009 ISTIL Group Inc Masood 2004 WL 948376 at 6..7 Or Apr 30 2004
dismissing only the counterclaim because Channel Islands were superior forum United Bank
for Africa PLC Coker 2003 WL 22741575 46 S.D.N.Y 2003 dismissing employees
employment related counterclaims on grounds of forum non conveniens or deference
judicial
while permitting employer to pursue RICO and other claims related to defendants former
2888738v1/013774
00808
employment Megga Telecommunications Ltd Lucent Technologies Inc 1997 WL 86413
Del Feb 14 1997 dismissing for forum non conveniens counterclaims which would
unnecessarily burden the trial of plaintiffs claims
Similarly Tommy tries to avoid the issues by devoting whole section of his brief to the
irrelevant distinction between statutory
and common law forum non conveniens But the
very
case on which he relies Liberty Mutual Ins Co Transit Mix Concrete Materials Co 2013
WL 3329026 at Tex App Texarkana June 28 2013 pet filed acknowledges that there
is substantial overlap between statutory forum non conveniens caselaw and common law forum
non conveniens case law that the statute has deep roots in the common law and that courts
rely on the same precedent in applying the forum non conveniens doctrine in both statutory and
common-law cases
Finally Tommy seems intent on wrongly casting aspersions on Shelby Lets clear this
out of the way Shelby told the Court that he has the burden of proof on the issue of forum non
conveniens13 that he maintains his home in Texas4 and that some court opinions state that more
deference should be paid to the venue choices of in-state plaintiffs5 Tommy suggests otherwise
only to distract from the real issues
As Shelby demonstrated on page 14 of his brief courts have applied forum non
conveniens to dismiss cases brought by Texas plaintiffs and brought against Texas defendants
And forum non conveniens dismissal was warranted for claims asserted by an estate of resident
of the forum state Gallego Garcia 2010 WL 2354585 S.D Cal June 2010 The
13
Counter-Defendant Shelby Longorias Brief in Support of His Motion to Dismiss Counterclaims for Forum Non
Conveniens or Alternatively to Abate Pending Resolution of Will Contest and Mexican Litigation Aug 2013 at
13
14
Shelby Longorias Amended Contest of 2010 Will Aug 30 2013 at Shelby Longoria Shelby is an
individual domiciled in Hidalgo County Texas.
15
Counter-Defendant Shelby Longorias Brief in Support of His Motion to Dismiss Counterclaims for Forum Non
Conveniens or Alternatively to Abate Pending Resolution of Will Contest and Mexican Litigation Aug 2013 at
13
2888738v1/0l3774
00809
dispositive question is not the residency of the parties but the availability and adequacy of
Mexican forum and the balance of the private and public interest factors Shelby has
demonstrated that the test for forum non conveniens dismissal is met in this case
Mexico Is an Available and Adequate Alternative Forum
There is nearly airtight presumption that Mexico is an available forum In re Ford
Motor Co 591 F.3d 406 413 5th Cir 2009 Numerous Texas and federal cases have found
Mexico to be an adequate and available forum DTEX LLC BBVA Bancomer S.A 508 F.3d
785 796 5th Cir 2007 Ibarra Orica USA 493 Fed Appx 489 493 5th Cir 2012 In re
Ford Motor Co 591 F.3d 406 412 5th Cir 2009 In re Pirelli Tire L.L.C 247 S.W.3d 670
677-78 Tex 2007 Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336
S.W.3d 664 675 Tex App Houston Dist 2010 no pet Gomez de Hernandez
Bridgestone /Firestone Am Tire L.L.C 204 S.W.3d 473 483 Tex App Corpus Christi
2006 pet denied
Tommy does not cite single case finding that Mexico is not an available and adequate
forum And he offers no meaningful basis for this Court to be the first court to buck the nearly
airtight presumption that Mexico is available and adequate
Tommy argues that Shelby would not be subject to personal jurisdiction in Mexican
courts But Shelby has already subjected himself to personal jurisdiction in Tamaulipas and the
court there has acknowledged his submission and his appearance.6 This is sufficient to
accepted
make Mexico an available forum In re Ford Motor Co 591 F.3d 406 413 5th Cir 2009
Tommy argues that third-party defendants Adriana and Sylvia will not submit to the
jurisdiction of the courts of Tamaulipas But they already have submitted to the jurisdiction of
those courts by filing lawsuits in those courts against Shelby Moreover both have to
agreed
16
Exhibit hereto Shelby will submit certified translation of Exhibit the Courts request
upon
2888738v1/013774
00810
submit any disputes concerning the Mexican trust to resolution by Tamaulipan courts Shelby is
willing to assume the very minimal risk that Sylvia aiid Adriana would somehow be able to
evade the jurisdiction of Tamaulipan courts over Shelbys claims against them But regardless
Sylvia and Adriana who are in league with and share counsel with Tommy cannot defeat
forum non conveniens by engaging in practices deliberately designed to defeat jurisdiction in
the foreign forum In re Air Crash Over the Mid-Atlantic on June 2009 792 Supp 2d
1090 1097 N.D Cal 2011
Tommy argues that there is not cause of action in Mexico for breach of informal
fiduciary relationships or private trusts This is of no moment because as shown in Dr
Gabuardis affidavit Mexican law permits actions in damages to redress purported injuries such
as the one claimed by Tommy The law is clear that Mexico is not an unavailable forum just
because it does not recognize all causes of action that may be available in the United States In re
Pirelli Tire L.L.C 247 S.W.3d 670 678 Tex 2007
Tommy has run on his claims in Mexico To Mexico
argues that limitations that extent is
not distinguishable from the United States But in any event if the Court believes that it is
necessary it can condition forum non conveniens dismissal on Shelbys agreement not to assert
limitation defenses in Mexico In re Mantle Oil Gas LLC 2012 WL 5323584 Tex App
Houston Dist 2012 no pet Dunsby Transocean Inc 329 Supp 2d 890 895-96
S.D Tex 2004
Finally Tommy claims that Tamaulipan courts would not have subject-matter
jurisdiction over his claims His experts affidavit makes clear that the only basis for this
argument is purported Tamaulipan statute which the expert contends would divest
Tamaulipan courts of jurisdiction due to the prior filing in the United States However the
2888738v1/013774
00811
concept of preemptive jurisdiction under Mexican law does not prevent Mexican court from
asserting subject-matter jurisdiction over case dismissed from court in the United States
Navarrete de Pedrero Schweizer Aircraft Corp 635 Supp 2d 251 261 W.D.N.Y 2009
And courts both state and federal have refused to recognize foreign laws that purport to make
the home forum unavailable because of prior U.S filing Del Istmo Assurance Corp
Platon 2011 WL 5508641 S.D Fla Nov 2011 see Morales Ford Motor Co 313
Supp 2d 672 676 S.D Tex 2004 Aguinda Texaco Inc 142 Supp 2d 534 546
S.D.N.Y 2001 Paulownia Plantations de Panama Corp Rajamannan 793 N.W.2d 128
134-35 Minn 2009
The Private Interest Factors Support Dismissal
In order to argue position on the private-interest factors Tommy relies heavily on his
attempted refashioning of his claims It
simply is not credible for Tommy to argue that even
though he seeks to recover half the value of the Mexican trust he is not actually contesting
Eduardo Sr.s will or the trust agreement Tommy correctly notes that there are some witnesses
in the United States but he does not controvert Shelbys showing that witnesses are in
many key
Mexico
Tommy concedes that the relevant documents are in Mexico but he argues that Shelby
controls the documents Shelby does not control all of the Mexican witnesses and entities at
issue To the extent that he has control over relevant documents in Mexico that does not
any tip
the scales in favor of venue in the United States In of the cases discussed on pages 20-22
many
of Shelbys brief court dismissed in part because documents controlled by defendant were
located in foreign forum
Tommys principal private interest argument is that Tamaulipas is dangerous But as
matter of law dangerous or violent conditions in foreign forum do not weigh against dismissal
2888738v1/013774
00812
in favor of that forum unless those conditions have adversely impacted the judicial system See
In re BPZ Resources Inc 359 S.W.3d 866 879 Tex App Houston Dist 2012 orig
proceeding Allegations of political unrest have generally been unsuccessfUl in courts
determinations that foreign forum is inconvenient Transunion Corp Pepsico Inc 811
F.2d 127 129 2d Cir 1987 no showing was made that political unrest in the Philippines has
had an adverse effect
upon the judicial system there Paolicelli Ford Motor Co 289 Fed
Appx 387 391 11th Cir Aug 20 2008 plaintiff Bonilla alleges that the political instability
in Colombia poses safety risks for the parties but absent evidence the political unrest has
affected the Colombian judicial system or would affect litigation of this case this fact is not
sufficient to outweigh the other factors that weigh in favor of dismissal Rustal Trading US
Inc Makki 17 Fed Appx 331 337 6th Cir Aug 212001 forum non conveniens dismissal
was warranted despite State Department travel advisory concerning hazards of travel in Sierra
Leone in the absence of some credible evidence indicating that the conditions in Sierra Leone
would prevent the parties from accessing the courts in Freetown Miralda Tidewater Inc
2012 WL 3637845 at E.D La Aug 23 2012 several federal appellate courts have
uniformly concluded that the political unrest of the alternative forum does not per se render this
forum inadequate in the forum non conveniens context absent some that this unrest
showing
negatively affects the judicial system of the country or the litigation at issue Morales Ford
Motor Co 313 Supp 2d 672 682 S.D Tex 2004 convincing argument against
forum non conveniens dismissal premised on delay due to unrest and the like should
political
involve exact evidence for the length of the delay and delay of many years Such evidence
is lacking in this case.
2888738v1/013774
00813
Tommy cites oniy State Department travel advisory which does not even hint that the
judicial relief has been foreclosed due to conditions in Tamaulipas Sylvia Adriana and Tommy
all have been able to hire attorneys and file claims against Shelby in Tamaulipas in the last few
months They do not explain why their attorneys in Tamaulipas carmot continue to handle claims
against Shelby in Tamaulipan courts
The Public Interest Factors Support Dismissal
Tommy has not distinguished the
many cases discussed in Shelbys brief which strongly
the of choice-of-law
emphasize importance to the analysis of the public interest factors Tommy
addresses choice of law principally by arguing that he has not pled cause of action under
Mexican law But choice of law is not pleadings issue instead choosing the applicable law is
obviously question of law Sonat Exploration Co Cudd Pressure Control Inc 271 S.W.3d
228 231 Tex 2008
The Court does not have to definitively resolve the choice of law in order to conclude that
the public interest factors weigh in favor of Mexican forum since even the possibility that
foreign law applies to dispute is sufficient to warrant dismissal on forum non conveniens
grounds Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664
679 Tex App Houston Dist 2010 no pet. Here that possibility is very likely indeed
Tommy has not even attempted to make cogent argument that Texas law somehow
could apply to challenge to the order of the Mexican court partitioning community property
the Mexican trust agreement and to orders of the Mexican court probating Eduardo Sr.s will
he law would govern
Instead argues that Texas the question of whether there was fiduciary
duty relating to property and trusts located within Mexico and that Texas law would govern
whether the marital estate was community property despite an agreed order of Mexican court
2888738v1/013774 10
00814
that it was separate property He does not and cannot cite single case in support of these
arguments much less refute the possibility that foreign law applies to the dispute
Tommys principal argument is that Dorothy lived in Houston But he cannot distinguish
Gallego Garcia 2010 WL 2354585 S.D Cal June 2010 case almost directly on point in
which the court dismissed for forum non conveniens an action brought by representatives of an
estate appointed by United States court to recover for fraud involving Mexican businesses
which was directed at decedent who resided in the United States Tommys only argument
against application of Gallego is that it was case brought in federal district court not in probate
court But both sides liberally cite and discuss cases that were not brought in probate court and
there is no non-frivolous argument that an action in probate court is not subject to the same
forum non conveniens rules as actions in other courts
II
Alternatively the Court Should Abate Tommys Claim
Tommys arguments against abatement are likewise misguided Tommy is highly
unlikely to be able to continue as executor of this estate
On June 29 2012 Tommys wife Sylvia filed an application to probate
Dorothys 2010 will and to appoint Tommy as executor She represented
to the Court that the 2010 will was Dorothys last will and testament and
that it had never been revoked.7 This representation was false In 2011
Dorothy executed new will and appointed new executor.18 Sylvia knew
about this new will but chose not to mention it in her filing with this
Court.9 Tommy maintained the subterfuge when he filed this action
against Shelby and himself represented that the 2010 will was Dorothys
last will and testament.2
Tommy admits that the 2010 will purports to cut out Shelby as
beneficiary of Dorothys estate and he does not deny that Shelby was
17
Application for Probate of Will and Issuance of Letters Testamentary June 28 2012 at
Exhibit hereto
19
Exhibit hereto
20plaintifrs Original Petition and Demand for Trial by Jury May 2013 at 33
2888738v1/013774 11
00815
beneficiary and named executor in the wills which will
govern Dorothys
estate in the event that the Court invalidates the wills that Dorothy
purportedly executed in the last stages of her life Tommy therefore cannot
deny that Shelby has standing to his will contest and removal of
pursue
Tommy as executor
Tommy cannot effectively ftilfill his role as executor because he will not
investigate and pursue his own wifes theft of Dorothys assets
Tommy of course denies his wifes malfeasance but he provides no basis
to conclude that he could continue as executor in the event that these
allegations have merit which they do
In an amended will contest filed more than month ago Shelby noted that
Tommys recent actions as executor had laid bare his conflicts of interest
Prior to and after Dorothy passed away Sylvia appropriated for her own
use items which were owned by Dorothy For example Dorothy owned
very valuable painting by the renowned Mexican artist Leonora
Carrington This painting likely was the most valuable asset in Dorothys
estate Yet Tommy Dorsey omitted it from the Inventory Appraisement
and List of Claims filed with the Court on August 27 2013 in order to
cover up his wifes malfeasance The Leonora Carrington painting is not
the only valuable item which Tommy left out of the inventory Dorothy
owned Steinway grand piano tens of thousands of dollars worth of
and other valuable items which Tommy did not include in
jewelry many
the inventory.21 Tommy does not even address these issues in his
response to Shelbys motion
Tommy admitted in the inventory that his wife Sylvia and his co
conspirator Adriana owe substantial amounts of money to the estate for
loans which were made by Dorothy in her weakened condition late in
life As noted by the amended will contest Tommy cannot act in the
interest of the estate to invalidate these loans because the loans are invalid
for the same reasons that the 2010 will is invalid.22
Tommy does not
address this issue in his response to Shelbys motion
It does disservice to the estate and lays bare his true motivations that Tommy would
for the parties to proceed all the way through discovery and possibly even trial of this
argue
matter when the whole proceeding may be invalidated by removal of the executor It would be
2f
Shelby Longorias Amended Contest of 2010 Will Aug 30 2013 at 11 45-46
221d 47-49
2888738v1/013774 12
00816
extraordinarily inefficient to allow Tommy to
pursue his claim in the capacity as executor when
his position is under such cloud
Tommys principal argument is that any successor executor would pursue the same claim
against Shelby There is no evidence of this Tommys say-so
is no evidence that there actually is
claim for the This is one reason Court should appoint
estate to pursue against Shelby why the
an independent executor The estate needs someone who is not tamed by conflict to assess
whether it makes sense for the estate to assert these claims
If new independent executor does choose to maintain these same claims the estate will
be much better off than if Tommy were pursuing them as the executor As Shelby pointed out in
his brief and Tommy did not dispute in his
response Tommys claims as executor will be
subject to an unclean hands defense which Shelby would not have against truly independent
executor
Finally Tommy cannot explain why this Court should not also await the results of the
lawsuits filed in Mexico by Sylvia and Adriana As discussed above the estates claims are
entirely dependent on invalidation of the orders of the Mexican court probating Eduardo Sr.s
will That issue must be resolved by the Mexican courts not this Court Tommy does not explain
how the estate can seek to recover for the purported conversion of Dorothys community
property into separate property held by her husband so long as there is valid judgment of the
Mexican court uncontested by Dorothy repeatedly acknowledged by her and entered during her
lifetime approving the
very distribution of her husbands assets which she now seeks to
challenge
2888738v1/013774 13
00817
Respectfully submitted
SUSMAN GODFREY L.L.P
By /7
Johnny Carter
Bar No007963 12
Richard Hess
State Bar No 24046070
Kristen Schiemmer
State Bar No 24075029
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713 654-6666
Robert Maclntyre Jr
State Bar No 12760700
MAcINTYRE McCuLL0cH STANFIELD YouNG
3900 Essex Lane Suite 220
Houston Texas 77027
Telephone 713 547-5400
Attorneys for Shelby Longoria
CERTIFICATE OF SERVICE
This is to certify that on this the day of October 2013 true and correct of the above
copy
and foregoing instrument was properly forwarded to the following counsel of record in
accordance with Rule 21 of the Texas Rules of Civil Procedure as indicated below
James Austin Fisher Via Electronic Mail
FIsHER WELCH
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Email jfisher@fisherwelch.com
2888738v1/013774 14
00818
Wesley Holmes Via Electronic Mail
THE HOLMES LAW FIRM
1000 North Central Expressway Suite 400
Dallas Texas 75231
Email wes@wesholmes.com
Attorneys for James Thomas Dorsey Sylvia Dorsey and Adriana Longoria
John3yW
Car
2888738v1/013774 15
00819
Case Number 414270
IN THE ESTATE OF THE PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED
HARPJS COUNTY TEXAS
Affidavit of Johnny Carter in Support of
Shelby Longorias Reply in Further Support
of Motion to Dismiss or Abate
C-
.4
Johnny Carter declare as follows
My name is Johnny Carter am over the age of twenty-one yes am
competent to testify to the matters stated have of the
herein personal knowledge facts and
statements in this declaration and each of the facts and statements is and
true correct
am an attorney in the law firm of Susman Godfrey L.L.P am licensed to
law in the of Texas and before Court
practice state this am counsel of record for Shelby
Longoria in the above-referenced litigation
Attached as Exhibit is true and correct of an
copy Inventory Appraisement
and List of Claims filed by James Thomas Dorsey on August 27 2013
Attached as Exhibit is true and correct of document produced
copy by James
Thomas Dorsey bates-labelled DORSEY 003596 consisting of letter dated August 1983
Attached as Exhibit is true and correct of Mexico
copy filing in court in and
Mexican court order relating to personal jurisdiction over Shelby Longoria
Attached as Exhibit is true and correct of document
copy produced by
Adriana Longoria bates-labelled ADRIANA 00104-109 and document produced by James
2889810v1/013774
00820
Thomas Dorsey bates-labelled DORSEY 005147-52 consisting of will purportedly executed
by Dorothy Longoria in 2011
Attached as Exhibit is true and correct copy of document bates-labelled
DORSEY 003906 consisting of emails dated July 31 2011 concerning Dorothy Longorias
purported 2011 will
FURTHER AFFIANT SAITH NOT
Johnny
//
SUBSCRIBED AND SWORN TO BEFORE Notary Public by Johnny Carter
on this 2nd day of October 2013 to certify which witness my official hand and seal of office
L44
Notary Public in and for the State5
NotatyPuStateoflta
Corn slonExphs 11-10.2014 My Commission Expires____________________
2889810v11013774
00821
EXHIBIT
00822
NUMBER 414270
ESTATE OF IN PROBATE COURT NO ONE
DOROTHY LOUISE LONGORIA
DECEASED OF HARRIS COUNTY TEXAS
INVENTORY APPRAISEMENT AND LIST OF CLAIMS
TO THE HONORABLE JUDGE OF THIS COURT
AND TO ALL INTERESTED PARTIES
COMES NOW James Thomas Dorsey as Independent Executor of the Estate of
Dorothy Louise Longoria Deceased and submits for filing this Inventory Appraisement
and List of Claims in compliance with Section 250 of the Texas Probate Code
Date of Death April 2012
Date of Qualification October 2012
The following is true and complete Inventory and Appraisement of all personal
property and all real property situated in the State of Texas together with list of claims due
and owing to this Estate as of the date of death which have come into the possession or
knowledge of the undersigned
REAL PROPERTY
To the knowledge of the Independent Executor the Decedent owned no real property
on the date of her death
The Decedent may have owned community property interest in real property
owned by Eduardo Longoria on the date of his death An investigation is being conducted
to determine whether Eduardo Longoria owned any real property on the date of his death
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00823
PERSONAL PROPERTY
To the knowledge of the Independent Executor the Decedent owned the following
personal property on the date of her death
Cash and Bank Accounts
Texas Community Bank Account Number 4988
Texas Community Bank Account Number 27538
Texas Community Bank Account Number 7680
Texas Community Bank Certificate Number 72918
Total Cash and Bank Accounts2 113124
Stocks Bonds and Other Securities
Directownership of orrigbtto constructive trustimposed on undivided one-halfinterestin
50 shares of Series stock in Vertice Empressarial S.A de CV
8934 shares of Series stock in Vertice Empressarial S.A de C.V
49000 shares of Series stock in Inmuebles Terrenos S.A deC.V and
4375350 shares of Series stock in Inmuebles Terrenos S.A de C.V
49.011050
Total Stocks Bonds and Other Securities3 49011050
Other Personal Property
Jewelry
Choker gold necklace 400
The Decedent may have owned additional accounts Shelby Longoria is believed
to be in possession of information regarding such accounts if any but to date he has refused
to provide it
The Decedent may have owned additional stocks bonds or other securities Shelby
Longoria is believed to be in possession of information regarding such stocks bonds and
other securities if any but to date he has refused to provide it
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00824
Small diamond necklace 1000
Silver and small diamond ring 500
Small hoop gold and diamond earrings 1500
Peridot earrings 250
Calsidney earrings 250
Coral and diamond earrings 1000
Coral ring 500
Elizabeth Showers earrings 600
Watch 2000
Gump Peridot necklace 150
Diamond ring 1500
Pearl necklace 2000
Pearl and diamond earrings 1000
Short strand of black pearls 1000
Pearl and smoky topaz bracelet 350
Necklace from India with topaz peridot and amethyst beads 250
Thirty-inch long string of pale green beads and matching earrings 180
Two small gold chains 120
Set of silver diamond loops and hanging blue stone 100
Four silver rings 120
Gold chain with small diamond 120
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00825
Five slides for loops 260
Small faux diamond necklace 250
Set of turquoise earrings with small diamond 2500
Gold chain with pink coral 200
aa Aqua ring and earring 350
bb Faux emerald earrings with briolette 250
cc Ring with cocktail diamonds 5000
dd Ring with faux diamonds 250
ee Six strands of pearls yellowed 300
ff Set of loop earrings with hanging briolette 4000
gg Miscellaneous costume jewelry and accessories numerous pieces 500
Total Jewelry 28750
Electric Wheelchair 1500
Clothing 5000
Miscellaneous Personal Effects 1000
Total of Other Personal Property 36250
TOTAL PERSONAL PROPERTY KNOWN TO EXECUTOR 49160424
TOTAL ESTATE KNOWN TO EXECUTOR
NOT INCLUDING CLAIMS LISTED BELOW 4916Q424
The Decedent was predeceased by her husband and she never remarried so no one
owned community-property interest in any property listed above
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00826
LIST OF CLAIMS
To the knowledge of the Independent Executor the Decedent owned the following
claims on the date of her death
Claim against Adriana Longoria based on promissory note
dated August 12011 in the principal amount of $70000 70478
Claim against Sylvia Dorsey for amounts loaned to her 75000
Claim against Shelby Longoria based on August 2011 agreement 200000
Claim against Shelby Longoria for breach of fiduciary duty 25000000
Claim against Shelby Longoria for exemplary damages jQQ00000
TOTAL CLAIMS4 35345478
RESERVATION OF RIGHT TO AMEND
The Independent Executor expressly reserves the right to amend this Inventory
Appraisement and List of Claims
There may be additional claims against Shelby Longoria He has withheld
information that has formally been requested in this proceeding this inventory
Accordingly
may be amended when such information is obtained
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00827
James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise
Longoria Deceased do solemnly swear that the above two pages shown as the Inventory
Appraisement and List of Claims are true correct full and complete statement of the
property and claims of the Estate that have come to my knowledge
Respectfully submitted
Si nature of Independent Executor
/s/James Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
FISHER WELCH
Professional Corporation
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Telecopier 214.661.9404
ATTORNEY FOR JAMES THOMAS
DORSEY 1DEPENDENT EXECUTOR
OF THE ESTATE OF DOROTHY
LOUISE LONGORIA DECEASED
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00828
STATE OF TEXAS
COUNTYOFDALLAS
Sworn to and subscribed before me on August 27 2013 by James Thomas Dorsey as
Independent Executor of the Estate of Dorothy Louise Longoria Deceased
in
atee of Texa
v1Y\t
Printed Name of Notary Public
My Commission Expires
aeciT.sc
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00829
CERTIFICATE OF SERVICE
hereby certify that on August 27 2013 true and correct copy of this document was
served on the Defendant through his attorneys of record named below in the manner
indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schiemmer
Susman Godfrey LL.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
BY EMAIL TO jcartersusmangodfrey.corn rhesssusmangodfrey.corn and
kschlernrner@susrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO macinyremrnlawtexas.corn
Is/James Austin Fisher
James Austin Fisher
INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page
00830
EXHIBIT
00831
EDUARDO LOWOORIA
BOX 1318 Apdo PO8il 100
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00832
EXHIBIT
00833
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00835
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00837
EXHIBIT
00838
LAST WILL AND TESTAMENT
OF
DOROTHY LOUISE LONGORIA
DOROTHY LOUISE LONGORTA being of sound and disposing mind and
memory and over the age of eighteen years and not being actuated by any fraud duress
mistake or undue influence hereby make declare and publish this my Last Will
menace
and Testament expressly revoking all Wills and Codicils heretofore made by me
be limited to graveside
Upon my death request that my funeral services
service and that be buried in the Longoria Family Plot in Nuevo Laredo Mexico
be my Executrix soon as
further direct that all
my funeral expenses paid by practical
after my death
IL
appoint my daughter ADRIANA LONGORIA as the Sole Independent
Executrix of this my Will to serve without bond If she is unwilling or unable to act in
that capacity then direct and appoint SYLVIA DORSEY to serve as the Sole
Independent Executrix
No other action shall be haLl in any court in relation to the settlement of my estate
other than the and recording of this Will and return of an Inventory
probating
Appraisement and List of Claims of my Estate My Independent Executrix whether
substitute or successor is referred to as my Executrix
original alternate
shall not be entitled to compensation for her services
direct that my Executrix
and in addition to inherent implied or
and not of any
By way of illustration limitation
Page of6
ADRIANA 00104
00839
executrix my Executrix is authorized
statutory powers granted to generally specifically
and empowered with respect to any property
real or personal at any time held under any
and income borrow
provision of my Will to allot allocate between principal assign
contract continue business of mine
buy care for collect compromise claims any
invest convey convert deal with dispose of exchange bold improve incorporate any
business of mine invest lease manage mortgage take possession of receive release
sell sue for and in general to exercise all
powers in the management and
repair
settlement of my estate upon such terms and conditions as my Executrix deems best and
to execute and deliver and all instruments and to do all acts which my Executrix may
any
deem the of this Will without limited to
proper or necessary to carry out purpose being
power made and without
the of the necessity of any court
or in any way by specific grants
orders or court supervision
III
of or mixed property which have
It is
my intention to dispose all real personal
the right to dispose of by any Will
Iv
and well as
direct that all my just debts secured unsecured as all estate
death or similar taxes together with interest and/or penalties
Inheritance succession any
death and to
thereon payable as result of my imposed with respect any property
be paid as soon
by this my Last Will and Testament shall as
whether or not disposed of
the distribution of that of my estate
practical after my death but prior to portion
and if not sufficient before distribution of any other part of
responsible for such payment
my estate
Page2of6
ADRIANA 00105
00840
of InterContinental Bank of MeAllen Stock and
GIVE and BEQUEATH all
my
Bank of MoAllen Stock which should inherit from my husband
all InterContinental
Eduardo Longoria and other Savings and Personal Accounts both foreign
deceased all
from husband Eduardo
and domestic owned by me or which should inherit my
Longoria deceased to my daughter ADRIANA LONOORIA In the event she should
predecease me then GIVE AN BEQUEATH such stock to the children of such child
of mine who survives her in equal shares
VI
All cash which should inherit from my husband Eduardo Longoria deceased
GIVE and BEQUEATH to my daughter ADRIANA LONGORIA In the event she
should predecease me then GIVE AND BEQUEATH such share to the children of such
mine who survives her
child of in equal shares
VII
further GIVE and BEQUEATH unto my daughters ADRIANA LONGORIA
and and the homes found at
and SYLVIA DORSEY all of my right title interest in to
11011 Uptown Bank Blvd Apt 152
Texas 77054 and all of the contents therein In the event ADRIANA
Houston
DORSEY me then GIVE AND
LONGORIA and SYLVIA should predecease
of such child of mine who survives them in
BEQUEATH such property to the children
shares However direct that my son EDUARDO LONGORIA JR can continue
equal
from the date of my death at the home at 110
to reside for period of seven years
he the taxes maintenance
Court in Lakeway Texas rent free provided that pay
Paragon
of the home during this period of time
and upkeep
Page3of6
ADRIANA 00106
00841
VIII
All of the rest and residue of the property which may own at the time of ny
and of whatsoever natare and
death real personal mixed tangible intangible
which acquire or become entitled to
wheresoever situated including all property may
after the exeeution of this Will and not devised hereunder including all lapsed legacies
and devises give devise and bequeath to my daughter ADRIANA LONGORiA
the share of such child of mine be
Should she predecease me give devise and bequeath
distributed in shares to her then living children
equal
Ix
or not related in way be blood to me shall either
If any person whether any
or to or set aside the probate of this Will or to impair or
directly indirectly attempt oppose
hereof and such shall establish to
any of
invalidate the provisions person right any part
the sum of One and No/lOOths
of my estate GIVE and BEQUEATH to such person
and no in my estate
Dollars $1.00 only further interest
and
IN TESTIMONY WHEREOF have hereunto subscribed signed these
Texas of the witnesses whose names
presents in Laredo Webb County in the presence
and in the of said witnesses have declared and
are affixed hereto as witnesses presence
Testament on this the day of
published the foregoing as my Last Will and _______
2009
DOROTHY LOUISE LONGORIA
Testatrix
Page4of6
ADRIANA 00107
00842
The foregoing instrument consisting of this and four preceding pages was
signed published and declared by DOROTHY LOUISE LONGORIA Testator to be her
her presence and
Last Will and Testament in our presence and we at her request and in
in the presence ofh other have hereunto subscribed our names as witnesses this the
day 20P
WI ncss Witness
____
Strft Address Street Address
and Zip Code City State and Zip Code
Page5 of6
ADRIANA 00108
00843
STATE OF TEXAS
COUNTY OF
BEFORE ME the undersigned authority on this day personally appeared
DOROTHY LOUISE ONGORJA ________________ and
____________ known to me to be the lestator and witnesses
subscribed the foregoing instrument in their
respectively whose names are to respective
and all of said being by me duly sworn the said DOROTHY
capacities persons
LOUISE LONGORIA Testator declared to me and to the said witnesses in my presence
said instrument is her Last Will and Testament and that she had willingly made and
that
therein and that the said
executed it as her free act and deed for the purposes expressed
witnesses each on his/her oath stated to me in the presence and hearing of the said
DOROTHY LOUISE LONGORIA that the said DOROTHY LOUISE LONGORIA
had declared to them that said instrument is her Last Will and Testament and
Testator
she executed same as such and wanted each of them to sign it as witness and upon their
each witness stated further that he/she did sign the same as witness in the
oaths
presence of the said DOROTHY LOUISE LONGORIA1 and at her request that she was
time nineteen and was of sound mind and that each of said
at that years of age or over
witnesses was then at least fourteen years of age
-.2
L.-
LOROTFIY LOUJSE LONGORIA
Testator
Witness
Witness
SUBSCRIBED AND ACKNOWLEDGED BEFORE ME by the said DOROTHY
LOUISE LONGORIA Testator and SUBSCRIBED AND SWORN to before me by the
said
and __________________________
________
the day of 2009
Witnesses this _______ ________________
Notary Public State of Texas
of
Pege
ADRIANA 00108
00844
LAST WILL AND TESTAMENT
OF
DOROTHY LOUISE LONGORIA
DOROTHY LOUISE LONGORIA being of sound and disposing mind and
and the ot eighteen years and not being actiated by any fraud duress
memory over age
make declare and publish this my Inst Will
menace mistake or undue inluence hereby
and Testament expressly revoking all Wills and Codicils heretofore made by me
ny funeral leliwted to grÆvesld
Upon my jeath request that services .a
srv1ee and that be burled ii the Longori FamIly Plot in Nuevo Laredo Mexico
furthet direct that all
my funeral expenses be paid by my Executrix soon as practioal
after my death
II
pjoittt my danghter ADRIANA LONOORTA as the Sole Independent
Executrix of Will to without bond If she IS unwillin .or nable to act iii
this my serve
that capacity then dircet and appoint SYLVIA DORSEY tr serve as the 5$le
Independent Executrix
No other action shall be had in cOurt in relation to the settlement of my estate
any
of this Will and ietrn of
other than the probating and recording aix TnventOiy
and List of Claims of my Eatate My Independent Executrix hether
Appraisemeot
original alternate substitute or successor Is referred to as my Executrix
direct that my Executrix shall not be entitled to compensation for her services
By way of Illustration and not of 1lnitatioh and in addition to any inherent irnplicd or
Pane of6
DORSEY 005147
00845
to executrix generally my Execntth is speficaLly authorized
statutoty powers granted
and empowered with respect to any property3 real or Versnal at any time held tinder any
of between and income assit borrow
provision my Will to allot allocate principal
compromise claims contract continue business Qf mine
buy care for collect any
invest convert deal with dispose of exchange hold improVe iharpora1e any
convey
business of mine Invest lease manage niortgage take possession of receive release
repair sell sue far nd lii
general to exercise all
powers
in the managemexit and
settlement of my cthte upon such terns an conditions as my Excutrix deems best and
to execute and delher any an4 all instrumenta and to do all acts which my Executrix tiy
deem ptoper or neceasary to carry out the purpose .of this Will without being limited to
of
or in any way by the specific grants of power made and wIthout the necesSity any ourt
orders or court supervision
Ill
of or mined property whieh have
it is my intention to dispose all teal persojial
the right to dispose of by any WilL
Iv
diret that all
my just debts seciirad and imsecured as ell as all estate
death or similar taxes together with any interest and/o penalties
inheritance succession
thereon as result of my death and impsed with respect to any pToperty
payable
Last Will and Testament shall be as soon as
whether or not disposed of by this my paid
practical after my death but prior to th dIstribution of that portion of th estate
such and if not sttfflcint before dittibution if any other part of
responibie thr payment
my estate
Page of
DORSEY 005148
00846
GIVE and BEQUEATH all of my tnterContinentel Dank oMeAllen Stock and
all InterContinental Bank of MeAllen Stock which should inherit from my husband
Eduardo Longoria deceased and all other Savings arid Personal Accounts both foreign
and domestic oied by the or which should inherit front my husbnnd Eduardo
Longoria deceased to my daughter ADRIANA LONGORJA in the event he shcmld
predecease me then GIVE AND BEQUEATI1 such stock to the uhildren of such child
of mine who sirvlves her in equal shares
VI
All gash which should inherit from my husband Eduarcto Longorl deceased
GIVE and BEQUEATh to my daughter ADR1ANA LONOOUA In the event she
should predecease me then CIIV AND BEQUEATH such share to the children of auth
child of mine who tirvives .he in eqUal shares
VII
further GIVE and BEQUEATH unto my daughters ADRIANA LONOORJA
and SYLVIA DCRSEY all of my right title and lAtereat in and to the hontes found at
tO Paragon CoUrt Lalteway Texas 78734 and 1011 Uptown Bank Blvd Apt 152
Boustoh Tecas 77054 and all of the eontent therein In the event AXRIANA
LONGORIA and SYLVIA DORSEY should predecease me then GIVE ANI
BEQUEATh such property to the children of such child of mine who survives them in
equal shares However direct that thy sons EDUARDO LONGORM JR can continue
front the of my dath at the home 110
to reside for period of seven years date at
Paragon Court in Lakeway Texas rent free provided that he pay the taxes maintenance
and upkeep of the home during this period of time
Pago3of6
DORSEY 005149
00847
VIIL
All of the rest and residue of the propcrt which may wn at the time of my
mixed tangible and intangible of whatsoever nature and
death real1 personal
wheresoever situated including all whinh may acquire or become ntLtIed to
property
after the execution of this Will and nut devised hereunder including all lapsed legacies
and devises give devise and bequeath to my daughter AJR.IM4A LONGOR.IA
the of such of mine be
Should she predecease me gIve dovise and bequeath share child
distributd ip epial shares to her then living children
Ix
If any person whether or not related in any way be blood to mc shall either
or in4ictiy or set aside the probate of this Will or to impair or
directly attempt oppose
invalidate any of
the provisions hereof and such person shaft establish right to any part
GIVE and EEQUEATFI to sueh person the suinof One and NIlO0ths
my estate
Dollars $1.00 only and no Thrther interest in my estate
IN TESTIMNY WHEREOF have hereunte subscribed and signed these
Webb eounty Thxas in th presence of the witnesses whose names
presents in Lnredo
are affixed hereto as witnessee and in the pisenoe of said witnesses have declared and
published the oregqixig as ny Last Wilt and Testament on this the
______ day of
.2009
1441 1a
__42s.ea-
DORO LONGORIA
It IYLOWj
Testatrix
Page of6
DORSEY 005150
00848
The foregoing nstrunient consisting of this and four preceding pages was
signed pubbahed and deo1wd by DOROTHY LOUISE LONGORIA3 Tostator to be her
Last Will and Testament rn our pre ne and we at her request alid in het presence and
in the of esch other have hereunto subscribed our names as witnesses this the
preserue
__day of 2OQ9
root Address Strett Address
tyStatandZipCode Ci tatetmdZipCode
Page of6
DORSEY 005151
00849
.STATE OF TEXAS
COUNTY OF____
BEFORE ME the unlcrslgned authority on his day personally nppeared
DOROTHY LOUISE LONGO1UA____________
known to Ic lx the leqtator and wnnciscs
___________
whose nmics am subscribed their
respectively to the foregoing instrument so tespeotzve
and all of said being by me duly sworn the said DOROTHY
capacities persons
LOUISE LONOORIA Testator 4eclured to tue and tth ai4 witnesses in my presence
that instrument her Last WiJI and Tetantent afld that she had willingly made and
said
executed it as her free act and deed for the purposes thrern expressed aud that the ad
in the and of the said
witneSses each on hii/her oath stated to ins presence hearing
DOROTHY LOUISE LONGORIA that the stud DOROTHY WJJSE LQNOORIA
had declared to them that said msthinicnt Is bet Last Will and Testament and
estator
she executed same as such and wanted each of them to sign as witness and upon their
each witness stated iutber that hefshe did sign the same as witness iii the
oaths
of the stud DOROTHY LOUISE LONGORIA and at her re4utst that ie was
presence
at that time 1rtie years of age ci ovet and Was of sound mmd and That each of said
witnesses was thert at least fourteen years of age
DOROTHY LJ3E LONCORIA
ctutO
Witncss
Witness
SUBSCR15Dt AND ACKNOWLEDGED BEFORE ME by the said DOROTHY
LOUISE LONUORIA Testator7 and SuSCRED SWOIU4 ND to before me by the
and
said
____ _____ ________________
Witnesses this the day of 2009
_______ ______________
Notary Pttblio State of Texas
Pagoof
DORSEY 005152
00850
EXHIBIT
00851
Fwd Dorothy Longorlas Will Revlsedjuly28 2011 8/1/11 828AM
From SyMa Dorsey sidorsayoolaol.com
To sldorseyoOlaoLcom
Subject Fwd Dorothy Longorlas Wit Revised .July 28 2011
Date Sun Jul31 2011 924 pm
Attachments Nona_WlJuiy_28_20l 1.pdf 3119K
Original Message
From Raymond Hart ravmondravmondhart.com
To Sylvia Dorsey sk1orv001 @aoLcorn
Sent Sun Jul 31 2011 816 pm
Subject FW Dorothy Longorias WUl Reiised July 28 2011
From Rymoad Hart ravmond@ravmondhqrt.com
Date Sun 31 Jul 2011 193704 -0500
To Sylvia Dorsey Sylvia@longoriacotlection.coxn
Cc Adriana Longoria g1ougoril943@ gmailcom Tommy Dorsey Tommv@dorseyhomes.net
Snbect Dorothy Longorias Will Revised July 282011
Sylvia
As per our conversation please find attached Nonas wilt which she newly executed last week
am troubled by your frustration as mistrust seems to be running ramped In the family which is the last thing we
need between you and my mother during this crisis
It Is Important to note that the changes that were just made were suggested many months ago and it just so
happens that since we were going to Nonas to get the note signed we decided to also get the corrections to
the Will signed as well
Again It is important to point out that the purpose of the Initial changes were to give my mother the benefit of
leave else
any and and to
all
judgements in her behalF as It relates to her legal matter with Shelby everything
the same
From my understanding of the current Wili specifically section VII the house and all the contents are split 50/50
between you and my mother which believe the last Will failed to capture and which was the point of contention
As mentioned on the phone we are transparent and as George Shipley mentioned It
you and Tommy decided
Nonos we have faIr and agreement
to participate in helping us remedy the misallocation of estate would legal
outlining the arrangement before moving forwarci
If
you take Issue with the Will In Its current form we are more then willing to sit down and come up mutually
agreeable one
am truly sorry for any misunderstandings and lack of communication
Page of
hUp//mallaoI.com/33996_311/aol_1enus/maIl/Pr1ntMesagespC
DORSEY 003906
00852
811111 828 AM
rwd Dorothy LqngorI Wilt RevIsed July 28 2011
this detail
Please let me know if you would like to discuss in greater
Monte
other be the center of attention
Nona everyone against each to
PS You and Mom need to realize likes to play
seeds of doubt
know this but iVs haiti to ignore her as her words can plant
know that you both
tom Adæana Banks kIthtmail
Date Sun 31 2011 191411 4400
ymn@rond
Jul
To Raymond Hart
NonaYs Will July 282011
Subject
Adriana Banks
Email banks.adrlana@gmali.COm
Cell 713 898-6557
Vuma Companies
1177 West Loop South Sulte1 825
Houston IX 77027
Phone 713 968-7089
Tulane University
6823 St Charles Ave
New Orleans LA 70118
Phone 504865-5000
lag or
DORSEY 003907
00853
TRIAL COURT CAUSE NUMBER 414270
IN THE ESTATE OF IN THE PROBATE COURT OF
DOROTHY LOUISE LONGORIA HARRIS COUNTY
DECEASED COURT NUMBER ONE
PRELIMINARY STATEMENTS BY COUNSEL AND THE COURT IN MOTION TO
10 DISMISS COUNTERCLAIMS AND MOTION TO COMPEL AND FOR SANCTIONS
11 AND RESPONSE AND OBJECTION TO MOTION TO QUASH HEARING
12
13 Came to be heard on this the 3rd day of October
statements counsel of record and the Court
14 2013 preliminary by
15 the Motion to Dismiss Counterclaims and Motion to Compel and
on
16 for Sanctions and Response and Objection to Motion to Quash
17 in the above-entitled and numbered cause and all
Hearing
18 in and/or being represented by Counsel
parties appeared person
19 of Record before the Honorable Loyd Wright Judge Presiding
20
21 VOLUME OF
22
23
24 ORIGINAL
25
00854
APPEARANCES
Attorney for Plaintiff Shelby Longoria
Johnny Carter
State Bar No 00796312
1000 Louisiana Suite 5100
Houston TX 77002-5100
Telephone 713.651.9366
10
11 Attorney for Defendant Counter-Plaintiff James Thomas
12 Dorsey Independent Executor of the Estate of Dorothy
13 Louise Longoria Deceased
14
15 James Austin Fisher
16 State Bar No 07051650
17 2800 Lincoln Plaza
18 500 North Akard Street
19 Dallas Texas 75201
20 Telephone 214.661.9400
21
22
23
24
25
00855
THE COURT Do yall want to argue from there
Whatever is most comfortable
MR CARTER This is fine Your Honor My name
is Johnny Carter Im one of the counsel for Shelby Longoria
along with Rick Hess and Cameron McCulloch
THE COURT Okay
MR CARTER think we need to start by telling
you we may have resolved two of the motions
THE COURT All right
10 MR CARTER We are working on Rule 11
11 to resolve the issues surrounding the deposition of
Agreement
12 Adriana and the Motion to Quash and Motion to Compel
Longoria
13 relating to the subpoena of Dr Mitchell Young Therefore we
that the Court those pending motions Keep them
14 suggest pass
will have Rule 11 Agreement to submit to
15 live but think we
16 you
THE COURT That was the easiest one If thats
17
18 good news Im glad you are working through it but yeah you
think are to have Rule
19 are just saying hold it you you going
20 11 that resolves both of those deposition issues Is
Agreement
21 that what it was
fIR McCULLOCH Keep it on the corner of the
22
clerks office to disappear into
23 desk and dont send it to the
24 never-ever land
THE COURT Are saying that because they
25 you
00856
couldnt find one of the documents
MR McCULLOCH Im not taking shot at her
THE COURT Okay
MR CARTER And the second guess procedural
issue about how we are going to proceed today Your Honor is
these sorts of motions forum non conveniens motions are
typically ruled on on the papers There is no particular
requirements about and the civility or the form of the evidence
is submitted in and as Im sure youre aware we have
10 submitted fairly substantial briefs and documents and
11 affidavits related to it So you know we are prepared to
12 just argue the motions you know maybe present 15 minutes each
13 of argument on that motion however counsel for the Estate has
14 subpoenaed Shelby Longoria and he is here to testify today
15 So if its -- and believe that they also want to present
16 three other witnesses so if this is to be hearing with
17 witnesses in live court think we would have
testifying
18 couple of witnesses Mr Longoria an expert they would have
19 three we would have rebuttal so it would be much more
20 Our suggestion is to just rule on the
lengthy proceeding
with some legal argument but understand that
21 papers maybe
22 counsel for the Estate disagrees with that
23 fIR FISHER Your Honor Im James Fisher
24 the Executor James Thomas Dorsey also represent
represent
25 third defendant who is Sylvia Dorsey This is my
party
00857
Wes Holmes We believe that Motion to Dismiss for
colleague
conveniens is an evidentiary hearing and that we are
forum non
entitled to call witnesses It wont take long time but
think we will have approximately one hour of live testimony
ask There is also no rule that says that says an
would just
is admissible in this kind of hearing Affidavits
affidavit
Here is case we have cited on point that says
are hearsay
and not admissible in this kind of
affidavits are hearsay
hearing
THE COURT Well you know you can certainly
10
and evidence Is there anything you are
11 have your hearing your
what arguing in
12 going to present that is different from youre
13 your response
FISHER Well would not say different
14 fIR you
15 but augments it with more detail
And point is that
16 THE COURT Okay guess my
read it all and without
17 Im going to you know obviously
its face as
18 really objecting you know Im going to take it on
each side is each
19 that whats being presented to me and by
view to this particular issue but you
20 sides point of as
because have an 11 oclock
21 know an hour is problematic
22 docket
MR CARTER Your Honor might add if they
23
and we have two witnesses actually they
24 have three witnesses
one or two
25 have at least three they told me they may call
00858
other folks doesnt sound like an hour to me
THE COURT Why dont we get started and we will
see where it goes and you know may have to work in 11
oclock docket matters you know as we come to that point in
time but its your motion right
MR CARTER Right
THE COURT have got that straight Actually
Ive been over this So you want to take the lead and call
your witnesses first and then they can be the respondents
10 MR FISHER Right Very good
11 THE COURT Frankly you can argue your motion
12 and then call your witnesses You can summarize your point of
13 view etcetera and then
14 fIR McCULLOCH Give an opening for lack of
15 better way to describe it
16 MR CARTER That would be fine Your Honor
17 THE COURT mean have pretty good
18 of what the issues are but you know dont
understanding
to frame the the
19 want to short circuit yalls ability argument
20 way you want to
21 MR CARTER Well and it may streamline what we
witnesses if we kind of put the issues out in front of
22 do with
that If it please the Court will
23 the Court prior to
24 and little argument and then we will call Shelby
present
and then we will call Professor Carlos Gabaurdi
25 Longoria
00859
THE COURT All right
MR CARTER So the first think question for
the Court is what is this case really about and think that
the Court can and should in deciding the motion get to the
heart of the case what is this case really about and
absolutely Your Honor there is Texas connection in this
case All right The Decedent was Mexican citizen living in
Texas at the time of her death But the question opposed by
the forum non conveniens doctrine is not whether there is any
10 connection in Texas the question is on balance whether this
11 case should be tried in Mexico or should it be tried in Texas
12 And the fact that this case belongs in Mexico is illustrated by
13 the long history of the marriage between Eduardo Longoria Sr
14 and Dorothy Longoria Eduardo and Dorothy were married in both
15 Texas and Mexico There is marriage certificates from the
16 early 1940s on either side of the border Eduardo Sr
17 into the marriage and continued to manage and profit
brought
18 from the course of th.e marriage businesses in
throughout
19 Mexico Going back as far as the 1960s there were series
20 of Wills of both Eduardo and Dorothy dealing largely with
21 property in Mexico
22 In 1983 Dorothy and Eduardo Sr entered into
23 an agreement to partition their community property They
24 entered into that agreement in Mexico They sought an agreed
25 of court in Mexico that would partition their
judgment
00860
property The Court in Mexico granted the Request for
Partition of the Property As result of that partitioning
Dorothy owned considerable real estate in Mexico and shared in
Mexican companies She subsequently confirmed in Wills and
other legal documents that her marriage was subject to
separate regime
Later in life in 2002 Eduardo Sr
transferred all of his of his property into Trust managed by
Mexican bank Banca Afirme The Trust Agreement and Will
10 that he executed at the same time provided for the Trust to
11 continue managing the property for the benefit of their two
12 sons Shelby and Eduardo Jr upon the passing of Eduardo Sr
13 There are also two daughters Sylvia and Adriana and the
14 Agreements and the Wills of which there are many over period
15 of many decades made clear that the understanding and the
16 intent of the parents was that the businesses would go to the
17 sons and the cash would go to the daughters and that the cash
18 would be paid to the daughters during the lifetime of the
19 For many -- for large portions of this period of time
parents
20 that cash consideration was actually more valuable than the
21 interests and businesses that was going to pass to Shelby and
22 Eduardo Jr
23 All of the children were aware of the Trust
24 arrangements in 2002 and Dorothy was too At the same time
25 that the Trust was established Eduardo Sr entered into what
00861
were called Private Agreements One with Sylvia his daughter
Sylvia and one with his daughter Adriana And those
agreements say that you will be continued to be paid sum
certain in cash for period of years and that if there are any
disputes that you the daughters have concerning the Trust and
all of these arrangements those disputes will be governed by
Mexican law and you will file suit in the courts of the State
of Tamaulipas in the City of Reynosa which is across the
border from McAllen
10 When Eduardo Sr died in 2005 Shelby
11 Longoria who was named as the Executor of Eduardo Sr
12 Estate probated his Will in Mexico in Nuevo Laredo across
13 from Laredo which is also in the State of Tamaulipas in
14 Mexico There were subsequently multiple orders of the courts
15 of Nuevo Laredo probating Eduardo Sr Will
16 After Eduardo Sr passed away Dorothy moved
17 to Houston and was supported for all of the remaining years of
18 her life Shelby He arranged for about quarter of
by
19 million dollars to be transferred from the businesses in
year
the Mexican Trust to Dorothy here in
20 Mexico managed by
21 Houston so that she could continue to live in the manner she
22 desired
The Executors efforts to deep six the fact that
23
is all about Mexico are too little too late There
24 this case
Amended Counterclaim filed by the Estate last Friday
25 was an
00862
10
which attempted to essentially go through their previous
counterclaim and delete references to Mexico and add in
references to Texas But lets look at the procedural history
here all right Mr Dorsey as Executor filed his complaint
in early May He initiated this litigation in this court He
said that he was seeking to recover on behalf of the Estate
community property interest that Dorothy Longoria had lost
somewhere along the way He alleged that there was something
fraudulent about the transaction creating the Mexican Trust and
10 the execution He alleged there was something fraudulent about
11 the execution at the same time in Mexico of Eduardo Sr
12 Will All of this in 2002
13 Mr Dorsey the Executor alleged that there was
14 something fraudulent about the manner in which Shelby probated
15 Will in Nuevo Laredo Mexico Mr Dorsey the Executor for
16 challenged the 1983 Agreement to partition the
implicitly
17 of Eduardo and Dorothy because he alleged that there
property
18 should have been community property that passed to
was --
and that that was somehow lost along the way So in
19 Dorothy
that have to somehow invalidate
20 order to prevail in you would
the to the property and to make the
21 agreement partition
22 marriage into separate property regime
After Mr Dorsey the Executor filed that case
23
Adriana and Sylvia and just for
24 in this court he as well as
this in but Dorsey one of
25 -- you may have seen papers Sylvia
00863
11
the daughters of Eduardo and Dorothy is the wife of Tommy
Dorsey the Executor of Dorothys Estate All right And
Adriana is her sister So Mr Dorsey as the Executor of the
estate Adriana and Sylvia they filed lawsuits After they
filed this lawsuit they filed lawsuits in Nuevo Laredo in
Mexico And those lawsuits sought to set aside the probate of
Eduardo Sr Will which is essentially the same sort of
allegation that had been made in the lawsuit that had been
filed in this court At least one of those proceedings the
10 one that was filed by the sisters Sylvia and Adriana and is
Longoria has voluntarily appeared in
11 still pending Shelby
that He has absolutely stipulated that he will
12 proceeding
13 consent to in Mexico and lay his
personal jurisdiction
14 limitations defenses in Mexico with respect to that proceeding
15 other in Mexico if this case were to be
or in proceedings
16 dismissed from this court
After or around the time that he filed the
17
the time that the lawsuits were filed in Nuevo
18 lawsuits around
in this
19 Laredo Mr Dorsey the Executor initiated discovery
served set of 194
20 case And the way he did it was he
21 Requests for Production on Shelby Longoria requesting
to dozens of Mexican companies and not
22 documents relating
He then just five weeks ago filed
23 single American company
that said that the main claim of
24 Inventory and List of Claims
he valued it at $49 million was for shares in
25 the Estate and
00864
12
two Mexican companies formally held by the Mexican Trust
Those companies are Vertice Empresarial and one called Imuebles
Interainios SA which the parties call ETSA ET and SA The
only way the Estate recovers some share of those companies is
if at minimum it proves that the Mexican Partition
Agreement isnt valid Mexican Trust is invalid and Eduardo
Srs Mexican Will is invalid And any such claim would of
course be governed by Mexican law It wasnt until they
amended the petition last Friday that Mr Dorsey did search
10 and replace to get out the allegations relating to Mexico But
11 since the whole locus of this marriage was in Mexico the
12 property was in Mexico the agreements were in Mexico dont
13 know what the Estate is after here in the United States and my
14 belief is that are not after anything in the United States
they
15 because there is nothing here They are just looking to get
16 the and then we will be right back attacking the
past hearing
17 Mexican Court Orders and Agreement which they would have to
18 defeat anyway in order to prevail on their claims and they
19 will be discovery regarding the Mexican property as
seeking
20 indicated in the Inventory they are seeking to recover some
of the value of the Mexican property So per forum
21 portion
the standards are set out in the briefs we have to show
22 non
Mexico isnt available in adequate forum and then the
23 that
interest and the public interest in
24 court balances the private
to assess where this case is most appropriately venued
25 order
00865
13
First off available in adequate forum Thats
not an issue that needs to detain the Court for very long The
Fl fth Circuit has said that there is nearly ai rti ght
presumption that Mexico is available in adequate forum And
there are multiple Fifth Circuit cases that follow that There
are multiple state court cases that follow that and the Estate
has not pointed to single case which has gone the other way
Longoria has consented to personal jurisdiction and to
Shelby
no application of the statute of limitations in Mexico if this
10 case is dismissed That as matter of law means that Mexico
11 is available in adequate forum And for that purpose you can
12 look at Texas Supreme Court case cited in our brief called In
13 Re Pirelli Tire which was in fact case involving
14 Plaintiffs from Tamaulipas and the court said that the consent
15 to no limitations and to waiver of personal jurisdiction
having
16 issues in Tamaulipas rendered Mexico available in adequate
17 forum
18 With respect to the private interest factors
think the issue is that the documents are
19 mean maybe biggest
And depending on how far we get
20 overwhelmingly in Spanish
the facts with these witnesses you may see some of that
21 into
having to do with this couples
22 today Virtually everything
and Eduardo Sr is in Spanish because the
23 properties Dorothy
the Trust was in Mexico the Partition
24 property was in Mexico
25 Agreement was in Mexico
00866
14
There is an expense issue in translating the
documents but there is also an issue of time and effort in
trying to impart Spanish language concepts to the jury and to
the Court
With respect to the witnesses if the case is in
Mexico the parties will all have the opportunity to testify
there -- testify here for the case in Mexico just
just as or
as if the case were here or if another party wanted to
it could be the Mexican court could compel them to do
testify
The involved in
10 so The real issue is the non-parties people
the execution of the to partition the property or who
11 agreement
12 know about that the people who managed the Trust the
13 who had drafted the Trust documents and Eduardo
attorneys
Srs Wills the attorney who drafted Dorothy
14 Longoria
these folks are all in Mexico and out of reach
15 Longorias Will
of but within the reach of the
16 of American service process
17 Mexican courts
The same with the documents You have
18 thing
files the files of the
19 Mexican court files Mexican attorney
20 Mexican businesses they are Mexico and they are in Spanish
lot of cases in our brief This is well-trodden
21 We discuss
cant defeat forum non conveniens by
22 grounds plaintiff
here are few things about this dispute
23 coming in and saying
States The court has to look at
24 that relates to the United
to determine where trial would be
25 the entirety of the case
00867
15
most expeditious The case thats cited in our brief First
Court of Appeals case Denmar Finance where the court found
that forum non conveniens was warranted because the defense
witnesses and the defense documents were in Mexico and were
written in Spanish So thats the private interest factors
Public interest factors think the most
important issue is choice of law And there are lot of cases
that say in fact that where there is choice of law issue
that is the most important issue to look at with respect to
10 public interest factors
11 The Agreement Partition of Marital Property
12 that is governed by Mexican law dont see where there could
13 be that the validity of that agreement which was
any argument
14 entered as an Order of the Court in Mexico could be governed
15 by any laws other than Mexicos The Trust Agreement expressly
Mexican law and in fact Adriana
16 says that it is governed by
17 and to the application of Mexican law with
Sylvia agreed
18 to claims that they would have relating to the
respect any
19 Trust
20 The challenges to the court proceedings those
Mexican court the proceedings around the
21 are all proceedings
22 the proceedings around the probate
separate property agreement
23 of Eduardo Srs Will The current proceedings now going on
that is Mexican law and it is
24 Nuevo Laredo all of governed by
will see here today the parties have here
25 huge issue as you
00868
16
in the courtroom today experts in Mexican law to testify about
Mexican law and Mexican procedure And if this case goes
forward in this court there are probably going to be regular
hearings for it whereas you would not have to do that if this
case were in Mexico you would not have to have lawyer come in
and testify as to Mexican law in court in Mexico
The Plaintiffs primary argument is that
Tamaulipas is dangerous you know there is drug gangs there
is lot of murders in Tamaulipas and Nuevo Laredo and Reynosa
10 but the law is clear this would weigh against dismissal only
11 if violence in the alternative forum has greatly limited access
12 to justice And there is no evidence of that Nuevo Laredo
13 Reynosa other places in Tamaulipas have fully functioning
14 court systems In the cases we cite in our reply brief that we
15 filed there is dismissals in favor of Columbia in
yesterday
16 favor of Venezuela in favor of Sierra Leon There is Texas
17 Court case just from few years ago the Pirelli Tire
Supreme
18 case that mentioned that dismisses the case in favor of
19 forum in Tamaulipas Mexico It is likely that Mr Dorsey if
20 he does not want to will even have to go to Mexico if he files
21 this case in Mexico because in Mexico most things are done on
22 the You have to basically compile your evidence and
papers
23 documents and file it along with the brief to the court and the
24 court makes its decision The party can if asked by another
25 can into court and testify Nonparties can go into
party go
00869
17
court and testify based on previously submitted written
questions But that would be one time only thing At the
conclusion of all of that the court would review what was
submitted to it to make decision and there wouldnt be such
thing as multiple week trial in Mexico where everybody would
have to be living in Nuevo Laredo for an extended period of
time So all of that is to say that it makes no sense for this
case to be here in Houston and despite the efforts to replead
the case at the last minute this case is really is about
10 Mexico
11 The second part of our motion relates to
12 abatement for this case This is an alternative argument
13 Abatement pending resolution of the Will contest that Shelby
14 filed Remember the first party to file something in
Longoria
15 this matter was the Executor Mr Dorsey He filed the lawsuit
16 against Shelby Longoria Subsequently Mr Longoria filed
17 Will contest and said that Dorothy lacked capacity and there
undue influence when she executed Will 2010 at the end of
18 was
19 her life when she was very sick and on lot of psychotropic
20 medications in which she appointed Mr Dorsey as Executor We
21 have since found out by the way there were three Wills
one 2010 one in 2011 It is little bit
22 executed in 2009 in
the where pick sides in baseball
23 like Your Honor game you
the kids would one hand on top of the other Adriana
24 where put
and have her sign
25 would go to Dorothy and say here sign this
00870
18
over all of her Estate to her But then Sylvia would find out
about it and she would go to Dorothy and have her sign
something And then the last Will was one that apparently
Adriana got her mother to sign in the last months of her life
just few months after the 2010 Will that was admitted to
probate And so that 2011 Will in which Adriana is named as
Executor is in fact the last document that is apparently
signed by Dorothy Longoria that purports to be Will The
whole of events reeks of undue influence and lack of
sequence
10 capacity But will also say by the way just
the prior Will had -- were from the late
11 parenthetically
named Executor and he was an
12 1980s Shelby Longoria was as
13 heir So the obvious intent of the 2009 2010 and 2011 Wills
14 was to Longoria to sign something which had the
get Dorothy
15 affect of cutting Shelby out of the Will when clearly she
16 didnt know what she was doing and signing what was put in
17 front of her
18 There is an additional issue too which is that
19 for reasons independent of that Mr Dorsey is completely
executor for this estate mean first of all
20 inappropriate
and we will show in this case misappropriation of
21 there was
from in the last years of her life by
22 money Dorothy Longoria
The the children arranged the affairs was
23 Sylvia Longoria way
24 was here in Houston Sylvia Dorsey was helping
Dorothy Longoria
25 her affairs but it was entirely funded by
to manage day-to-day
00871
19
from the Mexican businesses Shelby lives in McAllen
Shelby
but he substantial amount of his time in Reynosa
spends
businesses that are across the border and he would
managing
have those businesses extend about quarter of million
that she could continue to maintain her life
dollars year so
time So there is misappropriation by the executors wife
includes checks that are written to Tommy
The misappropriation
There are loans to Sylvia and
Dorsey the Executor improper
Adriana from around the same time as all these Wills
dating
Executor wont or cant attempt to try to claw back
10 And the
loans because it would undercut his argument
11 those improper
the of the Will There was very valuable
12 about validity
the Estate which Tommy Dorsey omitted from
13 property taken from
14 the and Claims in the property
Inventory
There is the whole issue Your Honor that
15
and have represented to this Court on multiple
16 Sylvia Tommy
2010 Will was Dorothys Last Will and
17 occasions that the
had in their files and knew that there was
18 Testament when they
Will The 2010 Will was the basis of the appointment
19 2011
20 for Tommy but it wasnt the Will that was executed
the Estate does not have claim against
21 Now
if it did think it does great
22 Shelby Your Honor but
to the Estate to have this Executor pursue it So
23 disservice
want to to the end of this case
24 the question is whether we get
the work involved on the claim asserted by
25 go through all of
00872
20
Tommy Dorsey against Shelby Longoria only to conclude that the
Executor should be appointed
think it would be extremely inefficient and
pose an undue burden on the parties In an exercise to manage
its own docket the Court can deal with that problem by abating
the Executors claim against Shelby and trying the Will contest
first Thank you
THE COURT Okay Just question Are you
saying since this is forum non conveniens the argument
10 isnt that what could take place in his court might not have an
11 affect on Mexican property is it mean the jurisdiction is
12 okay in this Court in other words
13 MR CARTER We are not challenging
14 jurisdiction Your Honor
15 THE COURT And youre talking about all sorts
16 of instruments that are really Mexican instruments in nature
17 and the is in Mexico Is there concern that
property
18 whatever happens in this court would not be recognized or
19 accepted by the Mexican authorities or is --
20 MR CARTER You know think that could be
concern For example know if the parties have to try
21 you
22 issues involving the agreement to partition the property
23 and there is decision in this court that kind of
right
24 relates to or bears upon the validity of that dont know
25 allow the Mexican courts would view that mean you would
00873
21
have conflict between the court systems of two different
nations at that point
THE COURT Okay All right and how long would
your opening statement be so to speak
MR FISHER We can hold it down to less than
ten minutes Your Honor
THE COURT Okay What Im going to do is you
go forward with your response and then we are going to take
break and Im going to try to address my 11 oclock docket
10 matters and then we will come back and keep going
11 MR FISHER Okay
12 THE COURT If you want to take that time to get
13 something to eat or anything else thats fine dont want
14 to just tell yall to come back at two because want to keep
15 going Ive got to leave by four today so want to make sure
16 address all of issues and evidentiary matters before
your
17 that So thats what we will do just you will be allowed
18 and we will take break and come back and
your response
19 would say we will start up again at noon unless my
probably
20 II ocock throws me few curve balls which has happened
21 before so go ahead
22 FIR FISHER With all due respect Your Honor
23 the only that the Movant can make colorable argument
way
24 under the US Court case law is by miscasting our case
Supreme
it we are not
25 misconstruing Let me say with perfect clarity
00874
22
of judgment of any Mexican court
contesting the validity any
to review or overturn any Mexican
We are not asking you
will that was signed in
proceeding We are not contesting any
the miscasting of our case is
Mexico And perhaps biggest
between Longoria and his
describing it as fight Shelby
case by an Executor who has duty
sisters This is brought
of the Estate and those assets include
to marshal the assets
Longoria There are claims
valuable claims against Shelby
very
that the locus of
under Texas law Mr Carter erroneously said
true moved to
10 the marriage was in Mexico Thats not They
lived in the United States for
the United States in 1987 and
11
2005 so he
12 the rest of their lives Mr Longoria died in
Longoria died in 2012 She
13 lived here for 17 years Dorothy
that period of
lived here for almost 25 years Throughout
14
had fiduciary duty to her And if you
15 time Shelby Longoria
to what Mr Carter said he admitted it
16 listen carefully
to Dorothy from the Mexican
17 Shelby Longoria oversaw payments
the of
for her benefit And under Texas law theory
18 businesses
is well-settled it exists
informal fiduciary relationship
19
it does not exist under Mexican law and so
20 But will note
that Mexico is an
Mr Carters statement that it is watertight
21
those cases involve informal fiduciary
forum none of
22 adequate
And one of the things that our expert
23 relationship claims
there is no
24 witness will testify in compelling way
in Mexico There is no
of fiduciary duty claims
25 recognition
00875
23
remedy There is no recourse
much their argument is devoted to the
Now of
that our case is lousy and going to lose If
proposition
to move the case out of
thats true why are they so desperate
of rendering of
this court Your Honor is fully capable
where case is weak But the truth is it is
Summary Judgment
weak Shelby Longoria acted in fiduciary capacity
not
towards his mother for decades and its documented
There was reference to these private agreements
choice of law provisions These agreements
10 which contained
was party and
11 were not agreements to which Dorothy Longoria
the Executor of her Estate She
12 so are no way binding on
they
she did not even mention in
13 didnt sign it Those agreements
whatsoever over her estate Thats
14 them They have no bearing
15 red herring
there are two steps to the legal analysis
16 Now
to undertake The first is whether
17 that the Court is required
and available forum for
18 Mexico is an adequate forum adequate
The second is even if there
19 the claims that we have pleaded
forum has the movant carried its
20 is an adequate and available
showing that the factors
burden to make strong
21 quote heavy
and all of those words are
heavily in favor of Mexico
22 weigh
Court authority The common
23 used in the United States Supreme
the US Court
forum non convenienS is law that Supreme
24 law of
in on and the Texas Supreme Court has relied on so
25 has weighed
0876
24
its entirely appropriate and indeed mandatory that we consider
US Supreme Court authority That Court has imposed very
heavy burden but as the Court has read our brief wont burden
you by going over all of those cases again
Let me address the first part of the analysis
Is Mexico an available forum Our expert witness will say that
the Courts of Tamaulipas do not have subject matter
jurisdiction over this case and even if they did they would
no because there is no cause of action for
provide remedy
10 breach of fiduciary duty recognized there Not only does that
11 Mexican state not recognize informal fiduciary duties it does
12 not even recognize private trusts So if private individual
13 is settler and signs trust agreement which is common in
14 the United States thats not enforceable in Mexico Its
15 clear there is no remedy and thats why they want to send us
16 there we cant win in Mexico
17 Now lets turn to the convenience factors The
Mexico are the who
18 witnesses that they say are in people
19 witnessed of Wills signing of Trust Agreements who
signing
20 advised Eduardo in connection with those transactions We are
those transactions We are not saying those
21 not challenging
invalid in this case so the witnesses to those Wills
22 Wills are
23 will not be testifying in this proceeding Their testimony
other hand there are
24 wont be relevant to anything On the
25 numerous witnesses in Texas including Dorothys accountant
00877
25
Lawyers who advised Shelby in proceedings involving Dorothys
transactions involving Dorothys property Some
property and
of them are named in our response
And with to the documents relating to the
regard
Mr Longoria has access to those and
Mexico businesses Shelby
lives in Texas He runs those businesses from here He
he
The best to see the flaw in their
rarely goes to Mexico way
imagine trustee in
analysis is to think of simple example
administering trust for beneficiary who is in Texas
Texas
trust for resident of
10 so Chase Bank for example managing
of the trust is bank account in
11 Houston but the conference
that that Trustee with malice
12 Switzerland and supposedly
off out of that Swiss bank account
13 forethought siphoned money
and breaches the fiduciary duty to the Beneficiary
14 flagrantly
have to sue the Trustee in Switzerland
15 Does the Beneficiary
the assets are in another nation
16 Of course not Just because
is not at cause of action in Texas
17 does not mean that this
Texas law And thats crystal clear Thats all
18 Court under
here Mr Carter chided us for
19 that we are talking about
but Im sorry the law allows that
20 amending our pleading
to make it crystal
21 The law allows it We amended our pleading
claims under Texas law and claims
22 clear we are asserting only
Texas With regard to the community property
23 that arose in
our case but not all of it It is
24 issue that affects part of
and Eduardo Longoria were married
25 beyond dispute that Dorothy
00878
26
in Texas They subsequently went through marriage ritual in
Mexico but that is legal nullity The marriage -- they
became married in Texas and once youre married you cant get
married again unless the marriage is annulled or terminated in
some way They had community property estate under Texas law
We have carried our burden to prove community property estate
by proving they were married in Texas So the burden shifts to
Shelby Longoria to show that that community property estate was
terminated If he is relying on something that happened in
10 Mexico so be it He is entitled to try to prove that But it
11 is his burden on his affirmative defense His affirmative
12 defense cant yank the whole case into Mexico
13 My final point is the most important There are
14 four parties to this case that they are trying to terminate
15 There is the Executor who filed counterclaims against Shelby
16 Longoria and then he as counter-defendant filed third
17 party claims against his sisters Sylvia and Adriana Of those
18 four parties how many live in Mexico Zero How many live in
19 Texas All of them They cite not one case anywhere in the
20 country where all of the parties were in the forum and the case
21 was still transferred for forum non conveniens It is unheard
22 of unprecedented
23 If the Court granted this motion it would be
24 turning one case into three because Will contest would stay
25 here we would have proceeding in Mexico which they say is
00879
27
an adequate and available remedy for us that there is case
down there that we can pursue arid then if we prevailed there
would be the third party litigation back here because no
Mexican court has jurisdiction over Sylvia and Adriana who live
here in Houston One case would be turned into three That
doesnt sound very convenient or judicial efficient Its
case based on Texas law arising in Texas between Texas
citizens The motion should be denied
Very quickly on abatement They say the case
10 should be abated because they might win their Will contest and
11 Tommy might be removed as Executor Well at this point they
12 have offered no evidence to the Court that any of that is true
13 There is no evidence of misappropriation of assets by Sylvia
14 and she categorically denies that and there is no evidence of
15 subsequent Will They havent offered subsequent Will
16 The 2011 document he mentioned is you facially unenforceable
17 not valid Will at all It was notarized and one of the
18 people that signed it was an interested person legatee named
19 in the Will Thats why we didnt offer you that one This
20 Will that we offered to probate and that was admitted to
21 probate was written by lawyer who met multiple times with
22 Dorothy Longoria It was witnessed by two other lawyers
23 Three officers of the Court will testify they saw her sign the
24 Will and questioned her about it The alleged undue
25 influencers werent even in the room Werent even in the
00880
28
building Dorothy Longoria the Testatrix wrote the check to
pay the lawyer to prepare the Will She was as sharp as can
be She wrote lot of checks Her handwriting was clear and
clean She used computer And small army of doctors and
caregivers are going to testify she was perfectly competent in
January of 2010 So with all due respect we do not agree that
this will contest has any realistic chance of success It was
just retaliatory move on the part Mr Longoria
With regard to the alleged misappropriation
10 Shelby Longoria has no standing to complain about that because
11 he is not beneficiary under the Will that was admitted to
12 probate So thats red herring respectfully request that
13 both motions be denied
14 THE COURT All right thank you And so we are
15 going to take break as said Lets say we start up at
16 1215 And one question noticed there are obviously there
17 are affidavits attached to the response and the motion Are
18 the witnesses different from the people who have done the
19 affidavits
20 MR CARTER Your Honor our witnesses are the
21 same which is Shelby Longoria and Carlos Gabaurdi We also
22 have the affidavit of the lawyer proving up some additional
23 documents but obviously you wouldnt visit that
24 THE COURT And you have objected to the
25 affidavits in some respects
00881
29
MR FISHER In some respects have withdrawn
my objection to their experts affidavit and have agreed that
certain exhibits can be admitted
THE COURT Okay All right and on your
response are you -- you have attached affidavits or an
affidavit
MR FISHER One affidavit of our expert And
he is here would like to present at least few minutes of
his testimony Your Honor
10 THE COURT Sure will see yall at 1215
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
00882
30
CERT FICATE
COUNTY OF HARRIS
STATE OF TEXAS
Donald Pylant Official Court Reporter in and for
Probate Court No of Harris County State of Texas do hereby
certify that the above and foregoing contains true and
correct transcription of all portions of evidence and other
proceedings requested in writing by counsel for the parties to
be included in this volume of the Reporters Record in the
above-styled and numbered cause all of which occured in open
court or in chambers and were reported by me
further certify that this Reporters Record
truly and correctly reflects the exhibits if any admitted
tendered in an offer of proof or offered into evidence by the
respective parties
10 preparation
pal by
of this
further
Reporters
certify that
Record
the
is$i gO
total cost
and
for
will
the
be
Given under my hand and seal of office this the _____ day
12 of 2014
15
.nadS.R
Official Court Reporter
16 in and the
for County of
Harris and the State of
17 TEXAS
18 Certification No 668 Exp Date 12-31-2014
Probate Court No One 201 Caroline Street 6th fi
19 Houston Texas 77002 713 368-6692
20
21
22
23
24
25
00883
TRIAL COURT CAUSE NUMBER 414270
IN THE ESTATE OF IN THE PROBATE COURT OF
DOROTHY LOUISE LONGORIA HARRIS COUNTY
DECEASED COURT NUMBER ONE
MOTION TO DISMISS COUNTERCLAIMS AND MOTION TO COMPEL AND FOR
10 SANCTIONS AND RESPONSE AND OBJECTION TO MOTION TO QUASH HEARING
11
12 Came to be heard on this the 3rd day of October 2013
13 Moti on to Di smi ss Counterclaims and Motion to Compel and for
14 Sanctions and Response and Objection to Motion to Quash
15 Hearing in the above-entitled and numbered cause and all
16 parties appeared in person and/or being represented by Counsel
17 of Record before the Honorable Loyd Wright Judge Presiding
18
19 VOLUME OF
20
21
22 ORIGINAL
23
24
25
00884
APPEARANCES
Attorney for Plaintiff Shelby Longoria
Richard Hess
State Bar No 24046070
1000 Louisiana Suite 5100
Houston TX 77002-5100
Telephone 713.651.9366
Attorney for Defendant Counter-Plaintiff James Thomas
Dorsey Independent Executor of the Estate of Dorothy
Louise Longoria Deceased
James Austin Fisher
State Bar No 07051650
2800 Li ncol P1 aza
500 North Akard Street
10 Dallas Texas 75201
Telephone 214.661 .9400
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
00885
CHRONOLOGICAL INDEX
Page
Court calls case
Plaintiff to call witnesses
Resolved objections
No objections to exhibits
Exception to admission of exhibits 10
Shelby Longoria Direct Examination 13
P-i offered into evidence 23
10 P-i admitted into evidence 24
11 Shelby Longoria cross examination 38
12 D-3 offered into evidence 39
13 D-3 admitted into evidence 39
14 D-4 offered into evidence 46
15 D-4 admitted into evidence 46
16 D-5 offered into evidence 47
17 D-5 admitted into evidence 47
18 D-6 offered into evidence 51
19 D-6 admitted into evidence 51
20 Mr Hess offers Gabaurdi Affidavit 52
21 Court admits Gabaurdi affidavit 53
22 Carlos Gabuardi Direct Examination 53
23 Carlos Gabuardi Cross Examination 68
24 D-2 offered into evidence 72
25 D-2 admitted into evidence 72
00886
CHRONOLOGICAL INDEX
Continued Page
Carlos Gabuardi Redirect Examination 75
Carlos Gabaurdi Questions by Court 76
Movant rests 79
Fernando Calles Direct Examination 79
Fernando Calles Cross Examination 84
han Rosenberg Direct Examination 86
Mr Fisher requests judicial notice 108
10 Mr Hess requests judicial notice 109
11 The Court takes judicial notice 110
12 Mr Fisher will not voluntarily submit
13 Sylvia Longoria to jurisdiction
14 of Mexican court 110
15 Mr Fisher rests 110
16
17
18
19
20
21
22
23
24
25
00887
WITNESS INDEX
Page
Shelby Longoria
Direct Examination by Mr Hess 13
Cross Examination by Mr Fisher 38
CARLOS GABAURDI
Direct Examination by Mr Hess 53
Cross Examination by Mr Fisher 68
10 Redirect Examination by Mr Hess 75
11 Examination by the Court 76
12
13 FERNANDO CALLES
14 Direct Examination by Mr Fisher 79
15 Cross Examination by Mr Hess 84
16
17
18
19
20
21
22
23
24
25
00888
EXHIBIT INDEX
Page
Exhibit
Will of Dorothy Longoria dated 1-9-60
Exhibit
Will of Dorothy Longoria dated 4-6-88
Exhibit
Will of Dorothy Longoria dated 4-27-89
Exhibit
10 Wish Letter of Eduardo Longoria Sr
11 Exhibit
12 Trust dated 10-15-02
13 Exhibit
14 Will of Eduardo Longoria Theriot dated 10-15-02
15 Exhibit
16 Private Agreement of Sylvia dated 12-17-02
17 Exhibit
18 Private Agreement of Adriana dated 12-17-02
19 Exhibit
20 Page of Release Agreement dated 12-29-06
21 Offered by Agreement
22 Agreed by Mr Fisher 10
23
24
25
00889
EXHIBIT INDEX
continued Page
Plaintiffs Exhibit No
Letter from Eduardo Shelby to Dorothy
Offered 23
Admitted 24
Affidavit of Dr Carlos Gabaurdi
Offered 92
10 Addmitted 92
11
12 Defendants Exhibit No
13 Affidavit of han Rosenberg
14 Offered 91
15 Admitted 91
16
17 Defendants Exhibit No
18 Travel Warning
19 Offered 72
20 Admitted 72
21
22 Defendants Exhibit No
23 Shelby Longorias Response to Request for Disclosure
24 Offered 39
25 Admitted 39
00890
EXHIBIT INDEX
continued Page
Defendants Exhibit No
Certificate of Marriage
Offered 46
Admitted 46
Defendants Exhibit No
10 Letter to Dorothy Longoria dated 10-9-07
11 Offered 47
12 Admitted 47
13
14 Defendants Exhibit No
15 Letter of Intent dated 3-29-07
16 Offered 51
17 Admitted 51
18
19
20
21
22
23
24
25
00891
THE COURT This is your motion right
MR FISHER Yes sir
THE COURT And the only way there is little
confusion is early on you were thinking that you werent going
to put on witnesses but now we know that witnesses are going to
testify and since it is your motion Im going to let you take
the lead in terms of calling witnesses unless want to defer
you
to them first and just have an agreement that they will on
put
their witnesses and then you put on your witnesses
10 MR FISHER We will call witnesses Your Honor
11 THE COURT Okay
12 MR FISHER We will call Shelby Longoria
13 MR HESS Before Mr Longoria takes the stand
14 Im pleased to report that we have met with counsel for the
15 Executor and resolved some objections as to the particular
16 documents attached to Mr Longorias affidavit so in the
17 interest of streamlining Mr Longorias testimony We will
18 still hear from him but would like to go ahead and read for
19 the record the exhibits to his affidavit which has already been
20 filed to which there was no longer an objection
21 THE COURT Okay
22 MR HESS We have -- these are the attachments
23 to the Shelby Longoria affidavit filed with the Court on August
24 9th of this year My understanding from speaking with counsel
25 for the Executor there is no objection to Exhibits and
00892
10
all of which are previous Wills executed by Dorothy Longoria
and Eduardo Longoria There is no objection to Exhibit to
Mr Longorias affidavit which is the 2002 Trust There is no
objection to the private agreements entered by Adriana Longoria
and Sylvia Dorsey Thats Exhibit and There is no
objection to the letter as Exhibit and there is no objection
to portion of an Exhibit as in Mary which is settlement
agreement There is an objection to the portion that lists at
the end of the agreement particular dollar figures but
10 dont think thats going to be an issue Im not going to
11 speak to that portion and just to confirm with counsel thats
12 their understanding as well
13 MR FISHER Your Honor that is correct with
14 the clarification that this stipulation is solely for the
15 purpose of this hearing We reserve all rights to object to
16 admission of those items in any future proceeding But for the
17 limited purpose of this hearing and the Motion to Dismiss to
18 form and convenience we stipulate to the admission of Exhibits
19 and the first two pages of Exhibit
20 Thank you
21 THE COURT And that was the as in Dog
22 MR FISHER Yes sir Sorry Im losing my
23 voice
24 THE COURT No thats all right just wanted
25 to make sure heard it correctly
00893
11
MR HESS There may be no objection to one
additional exhibit attached to Mr Longorias affidavit based
on the argument from Mr Fisher early today and that is
Exhibit as in Boy That is the 1983 Separate Property
Agreement thats been entered as judgment in court in
Mexico understand from the argument earlier today that the
Executor is not challenging the validity of the Separate
Property Agreement Exhibit and so assume based on that
there is no objection to its admissibility as an exhibit just
10 for the purposes of this hearing
11 MR FISHER That was incorrect We do object
12 to admission of Exhibit Your Honor
13 THE COURT Okay
14 fIR FISHER Its not because we have claim
15 that that judgment should be set aside but dont think that
16 this is properly proven up dont believe the translation is
17 properly verified and don1t believe the testimony about it
18 is accurate It is described as an agreement and it is not an
19 agreement at all Its not signed by Dorothy Longoria
20 THE COURT Okay
21 MR HESS Your Honor if may simply to
22 streamline the process this is translation that is certified
23 by the translator There is signed statement at the end of
24 the translation by the translator who is certified by the
25 Supreme Court for the courts in Mexico to provide these
00894
12
translations And if there an objection to translation
Texas Rule of Evidence 1009 provides procedure of resolving
that It requires the objector to provide specific -- you
have to point out the specific inaccuracy or offer competing
translation That hasnt happened here and we are simply
asking the Court to permit the admi ssi bill ty of thi particular
document just for the purpose of this hearing
MR FISHER Your Honor that is true only if
the translation has been properly certified and unfortunately
10 this one was not
11 THE COURT Well yall have an agreement as to
12 certain of the objections Im assuming this is these are
13 your amended objections correct
14 MR FISHER Yes Your Honor
15 THE COURT And they contain all the oblections
16 that you had to the attachments correct
17 MR FISHER Actually this is an addition and
18 would say it is subsumed in the hearsay objection
19 THE COURT Okay But my point is that yall
20 have certain agreement as to part of the documents
21 attached
22 MR FISHER Yes
23 THE COURT And Im still going to be in
24 position when review all of this to through
go your
25 objections that are still there to see if they are valid
00895
13
MR FISHER Yes Your Honor
THE COURT Thats the process will go
through And taking that into account will also determine
the outcome of the motion itself and taking into account your
response
MR HESS Thank you
THE COURT So Im glad yall agree to some of
it But it is still my task to consider the objections and
their validity as go through the whole process of this
10 MR FISHER Thank you
11 MR HESS Thank you Well if there is nothing
12 further we will call to the stand Mr Shelby Longoria
13 THE COURT Okay
14 SHELBY LONGORIA
15 called as witness after first having been duly sworn
16 testified as follows
17 DIRECT EXAMINATION
18 Questions By Mr Hess
19 Mr Longoria could you please give us your full name
20 for the benefit of the record and the court reporter
21 Shelby Longoria
22 How old are you Mr Longoria
23 Sixty-one
24 Where were you born
25 In Laredo Texas
00896
14
What is your nationality
have dual citizenship in Mexico and the US
Why are you dual citizen
was born of Mexican parents and grew in Mexico
up
but was born in the US so that allowed me to have dual
citizenship
Are you married
Yes sir
How long have you been married
10 Thirty-four years
11 Is your spouse in the courtroom today
12 Yes she is
13 Who is your spouse
14 Tita Longoria
15 Do you have any children
16 Yes do
17 Who are they
18 Adrian is oldest daughter 33 old
my years Sarah my
19 middle daughter she is 26 mean 30 years old and my son
20 Shelby is 27
21 Where do you and Tita live
22 We live in McAllen Texas
23 Why do you and Tita live in McAllen
24 Tita is originally from Brownsville Im from Nuevo
25 Laredo and when we got married didnt want to live in Nuevo
00897
15
Laredo and we lust decided halfway it was good place to live
and it was also geographically in good place as far as the
business was concerned but our original idea was to live in
Reynosa Mexico but we couldnt find place to live in
Reynosa
Where did you grow up
In Nuevo Laredo
Did you go to school in Nuevo Laredo
Yes did
10 Did you continue your education in the United States
11 Yes went to high school in Austin Texas
12 know you have siblings Can you tell us who they
13 are and how old they are
14 My oldest sibling is Deanna believe she is
15 seventy My next in line is my brother Wayo believe he is
16 67 or 68 Then Sylvia believe she is 66 Somewhere around
17 there
18 And did you attend college
19 Yes did
20 And where did you go
21 Trinity University in San Antonio
22 And did you get degree
23 Yes did
24 What was your degree
25 business degree
00898
16
What did you do upon your graduation from Trinity
University
went to back to Nuevo Laredo to help out with my
dad in the business
Lets talk little bit about the business that you
worked in with your father Can you tell the Court little
bit about the family business and what it was like back in
1975 What kind of businesses were you involved in
My father was involved with his four other brothers
10 so there were five brothers and they would split their
up
11 tasks They were involved in different businesses so my dad
12 was involved with Chevrolet dealerships and think of
couple
13 ranches
14 Did the business back in 1975 have other of
types
15 businesses it was involved in
16 Yes the brothers were involved in -- their main
17 business was the cotton business and the banking business
18 How did the business change over time
19 Well in 1976 was very bad year for Mexico There
20 was big devaluation There hadnt been devaluation in
21 Mexico for approximately 20 years So when we get the exchange
22 rate goes from twelve-fifty to double so its one hundred
23 percent devaluation that creates economic chaos in Mexico so
24 it was very difficult time And that happened subsequently
25 every new president every six years so for 25 Mexico
years
00899
17
had difficult economic time so the businesses suffered
You were working in Mexico for or with your father
did your brother work with you as well
Yes When my brother got out of school he went to
work for the family in the cotton business in Baja California
and dont remember how long he was there Two or three four
years And then after that he came back to Nuevo Laredo to
help my dad
What were your sisters doing at this time
10 believe they were both married and they either
11 lived in -- think Sylvia lived in Houston when she got
12 married and my sister Adriana lived in Laredo for while and
13 then later moved to Houston
14 Did your si sters have rol he ping with the
15 family business
16 No they did not
17 And what is your sense as why your sisters were not
18 involved in running the business
19 dont think they had any interest in being involved
20 in the business and don1t think they had interest in
any
21 living on the border
22 Where did they work
23 Well dont believe my sister Adriana has ever
24 worked and think Sylvia when she moved to Houston she
25 opened up the store
00900
18
Was there point in time where you took on most of
the responsibility of running the Mexico businesses
Yes did When my brother decided to move to
Austin And believe that was around 1978 or 1979
When you took over most of the responsibilities what
was your father doing
Re was mostly retired
What did he do in his retirement
My dad loved the ranch and he loved to play golf
10 Where was your fathers ranch located
11 It was in -- there is town called Columbia which is
12 in Mexico maybe about 30 miles northwest of Nuevo Laredo on
13 the Mexico side
14 Now lets just to close and complete the picture
15 tell me about the Mexico businesses today What businesses are
16 you in involved in today compared to 1975
17 Well guess if you could take picture of 1975
18 with picture today there is absolutely no The
similarity
19 businesses have been able to grow and prosper Mexico as
20 country has done better So the businesses that were involved
21 in then they have grown to other areas For instance the
22 restaurant business and the finance business
23 And where are al of these Mexican businesses located
24 today
25 In various states in Mexico
00901
19
And who owns the Mexican businesses
The Mexican Trust
What Mexican Trust
Its called the Afirme Trust
When was that Trust executed
In 2002
Were these Mexican businesses always successful over
the last 40 years
No
10 But today how are the businesses doing
11 Business is better
12 How often are you in Mexico today for your work
13 Im in Mexico quite bit travel throughout the
14 area where the business is located and its just -- depends on
15 what trips and what activities have going on and when Im in
16 McAllen frequently go to my office in Reynosa
17 And when you say quite bit is that couple of
18 times year or couple of times month
19 No much more than that Like when Im in McAllen
20 go two three four times week to Reynosa and to other areas
21 It was suggested earlier today that to
you rarely go
22 Mexico and that you operate your business from Texas Is that
23 true
24 Thats not true
25 What parts of Mexico do you travel to
00902
20
On the border travel to Reynosa travel to
Matomoros to Reo Bravo travel to Miguel Aleman Nuevo
Laredo Piedras Negras Thats mostly on the border And when
travel into the interior travel to Mexico City Monterrey
Tampico various cities in Vera Cruz Porto de la Cruz
travel to Costa Rica de la Cruz travel to Casa Qualcos
travel to Carretica Puebla to Dia maso Tabasco Campeche duce
la Guitierrez and in Chiapas travel to many areas
1-lave
you now named all the cities in Mexico
10 No not quite
11 When you travel to Mexico how do get there
you
12 On the border drive And once in the interior
13 usually fly
14 Do you travel with security guards when to
you go
15 cities in Mexico
16 No dont
17 Isnt it dangerous for you to be driving around
18 Mexican border towns
19 Well Ive been doing it all my life and guess just
20 like any situation you use common sense and just like in any
21 city at particular times maybe in the US could be dangerous
22 so just use common sense and be careful
23 And have you ever hired private security for your
24 travels in Mexico
25 No have not
00903
21
And want to turn your focus to the subject that
brings you here today the lawsuit At some point somebody
filed lawsuit Did you initiate lawsuit here in Houston
Probate Court
No did not
Who did
Tommy Dorsey on behalf of my moms estate
When did you first learn that you were going to get
sued
10 received call from my brother Wayo maybe few
11 before this happened and he informed me that he had spoken to
12 my nephew Raymond Hart that they had made the decision to
13 file the lawsuit and he was very sorry that that was going to
14 happen
15 And when did you actually get the lawsuit
16 dont remember specifically but it must have been
17 few days after his phone call got served at my house
18 And your house today is where
19 In McAllen Texas
20 What was your reaction when your brother Wayo let
21 you know that you were going to be sued
22 Well was devastated was very hurt by what they
23 were mean didnt know exactly how it was going to happen
24 and exactly who was going to file the lawsuit so it was just
25 very very -- was very disappointed
00904
22
What did it mean to you that were being sued
you by
your mothers estate
MR FISHER Objection irrelevant to the issue
before the Court which is Motion to Dismiss for forum non
conveniens
THE COURT Sustained
By Mr Hess Were you ever estranged from your
mother
Never
10 Did you know that the original lawsuit filed against
11 you got dismissed by the person who filed it
12 Yes
13 Did you know that the Executor then filed new
14 Counterclaims in response to your Will Contest
15 Yes
16 MR HESS Your Honor may approach
17 THE COURT You may
18 MR HESS Im handing the Original
19 Counterclaims of Shelby Longorias Will Contest to opposing
20 counsel May approach the witness
21 THE COURT You may
22 By Mr Hess Now do you have before you the
23 Original Counterclaims to Shelby Longorias Will Contest
24 Yes
25 Would you look at paragraph 16 please
00905
23
Okay
You see paragraph 16 referencing letter dated
August 1983
Yes do
MR HESS have document marked Dorsey 3595
Im showing to opposing counsel would like to mark this for
identification
At which time the court reporter marked said instrument for
identification purposes only as Plaintiffs Exhibit
10 By Mr Hess Mr Longoria Im handing you
11 Plaintiffs Exhibit Do you recognize Exhibit Plaintiffs
12 Yes
13 What is Exhibit Plaintiffs
14 It is letter written to my mom and written by my
15 brother Wayo dated August 5th 1983
16 Do you recognize the handwriting on Plaintiffs
17 Yes do
18 Whose is it
19 My brother Wayo
20 How are you familiar with your brothers handwriting
21 have seen his handwriting over the years
22 MR HESS Move the admission of exhibit
23 Plaintiffs
24 THE COURT Any objection
25 MR FISHER No objection
00906
24
THE COURT Plaintiffs Exhibit is admitted
By Mr Hess Mr Longoria is Plaintiffs Exhibit
the August 1983 letter that to be referred to in the
appears
counter-claims of the Amended Will Contest in paragraph 16
Yes it is
MR HESS Your Honor may approach
THE COURT Yes
By Mr Hess This appears to be letter addressed
to Dorothy Longoria correct
10 Yes it does
11 Did you sign this letter along with your brother
12 Wayo
13 Yes
14 Where did your mother live in 1983 at the time that
15 this letter was written
16 Nuevo Laredo Mexico
17 While this letter is addressed to box in
18 Laredo Texas right
19 Yes thats common practice for people who live on
20 the border in Mexican town they usually have box on
21 the US side if they are getting correspondence from the United
22 States Its going to get there lot quicker than finding its
23 way through the mail system in Mexico
24 If you look at the second of Plaintiffs it
page
25 appears to be on letterhead for someone
00907
25
Yes
And who is that
Thats my dads
And the address underneath his name
Yes
And whats his address
Box 1316 Laredo Texas and his Box in Mexico
pdo Postal 100 Laredo Tamps Mexico
And you can see that the address underneath his name
10 in Laredo Texas is the same as the address on the envelope
11 That is correct
12 This letter is not too long Lets take look at it
13 each sentence
14 Okay
15 In fact why dont you read it
16 To Dorothy Kowalski de Longoria Dear Mom Shelby and
17 are writing you this letter with great deal of love and
18 respect
19 So this document is written by whom
20 Its written by my brother
21 All right keep going
22 We want you to know that the assets that Dad has
23 willed to us as long as you live we will hold them as if they
24 were yours
25 Have you seen portion of that sentence quoted in
00908
26
the Executors Amended Counter-Claims
Yes
Was it accurate in the Amended Counter-Claims
Well no it says the assets that Daddy never
called my father Daddy
Read the next sentence please
We will make the fruits available to you for your
direction as to their use
Did you honor your mothers wishes whenever she
10 wanted money
11 Yes
12 The sentence right before that one the one thats
13 quoted incorrectly in the counter-claim were and
you Wayo
14 telling your mother in this letter that are her the
you giving
15 assets that Dad willed to you
16 Absolutely not
17 What are you telling her
18 Well we can read it again together think its
19 very clear We want you to know that the assets that Dad has
20 willed to us as long as you live we will hold them as if they
21 were yours dont know what other clarification may be
22 able to provide
23 Will you read the next sentence after the next one
24 We will make the fruits able to you for your
25 direction as to their use
00909
27
And the next one
This letter has value to only you
Was this letter intended to give some rights to your
sisters
Absolutely not
And the next sentence please Mr Longoria
Because of our commitment to your well-being and
happiness more importantly than the worldly goods is our
promise to always care for your you and to provide for your
10 spiritual needs
11 And the final sentence
12 We hereby pledge to you our unending devotion Your
13 sons
14 Did you mean that when you signed the letter stating
15 that to your mother
16 Well dont remember this letter and hadnt seen
17 it up until recently but yes love my mom
18 Flow long ago was this letter written
19 Over 30 years ago
20 Do you remember seeing exhibit Plaintiffs at any
21 time in the last 30 years before last week
22 No
23 What can you tell the Court about why this letter was
24 sent to your mother
25 Well reading it now obviously we loved our mother
00910
28
very much and we obviously wanted to provide comfort to her
To your knowledge did your parents have attorneys
and advisers to assist them with their estate planning
Yes
Is this August 5th 1983 letter document by which
it intended to establish some kind of trust to your mother 30
years ago
Absolutely not
Have you ever heard anyone before last week ever
10 claim that this 30-year-old letter created private trust
11 expressed trust or any kind of trust
12 Never heard that
13 Were you in fact committed to mothers
your
14 well-being and happiness
15 Yes was
16 And did you promise mother to care for
your always
17 her and to provide for her spiritual needs
18 Yes did
19 Did you did you keep those promises her entire
20 lifetime
21 Yes sir did
22 want to step back now and ask you few questions
23 about your parents estate planning What is your
24 understanding as to your parents basic wishes as it relates to
25 yours and your siblings inheritance
00911
29
Its really very simple their idea was for the boys
to have the business and the girls to have cash The boys to
take all the risk take all the business risks and he did not
and my mom they didnt want the girls to take the business
risk and he wanted them to have cash
What is your understanding of why your parents wanted
to divide the assets that way
Well dont think my sisters had shown any interest
to participate in Mexico in Mexican businesses and it was my
10 parents wish that we would be the ones to carry that torch and
11 to work on the Mexican businesses
12 Did your parents inform and siblings about
you your
13 how they intended to divide their assets
14 It was talked about many times
15 Did your sisters know just as well as you knew what
16 your parents plans for them was
17 Absolutely
18 And how do you know that
19 We talked about it and it was common discussion
20 Did your parents document these wishes in various
21 written instruments over the years
22 Yes they did
23 And why would your sisters be receiving their
24 inheritances while your parents were still alive
25 MR FISHER Objection calls for speculation
00912
30
THE COURT Overruled
By Mr Hess Why would your parents pardon me why
would your sisters receive their inheritances while your
parents were still alive
Very simple they were always asking for money and
they were always needing money
You mentioned Trust earlier in that
your testimony
owned the Mexican businesses when was this trust created
In 2002
10 And who were the Beneficiaries of the Trust
11 My father was the first Beneficiary and my brother
12 and were second Beneficiaries
13 Did your sisters know that your father had created
14 the Trust
15 Absolutely
16 How do you know that
17 They signed the private agreement which spelled out
18 the arrangement with the Trust and the arrangement with them as
19 far as their inheritance derived from the wish letter And if
20 may add that agreement also specified that for jurisdiction
21 purposes it would be in Reynosa Mexico which they agreed to
22 Are you aware of separate property agreement
23 executed by your parents
24 Yes am
25 What can you tefl the Court about that agreement
00913
31
Its -- the agreement was done in 1983 by my parents
long-term attorney Mario Gonzalez in Nuevo Laredo Mexico
Its very comprehensive agreement It was -- there were
appraisers involved to make sure that there was an equitable
distribution and it was ratified by the Mexican court or there
was Judgment ratified by the Mexican court
What did this agreement specify as to mothers
your
potential community property
MR FISHER Objection violates the best
10 evidence rule The agreement has to speak for itself
11 THE COURT Overruled
12 Can you ask me again
13 By Mr Hess Sure What did this separate property
14 agreement from 1983 specify about your mothers community
15 property interest if any
16 It was going to be separated and from thereon they
17 were subject to the separate property regime
18 To the best of your knowledge Mr Longoria did your
19 mother have any community property after 1983
20 To the best of my knowledge no
21 How do you know that your parents executed an
22 agreement partitioning their community property and subjecting
23 their marriage to separate property regime
24 Because have seen the agreement and have spoken
25 to the attorney that drew it
00914
32
Have you seen that separate property agreement in the
last few months
saw it about two months ago maybe
Is true and correct copy of it attached to your
affidavit
Yes
Have you seen references to the separate property
agreement in other agreements executed by mother
your
Yes have
10 want to talk little bit about your parents
11 connections to Mexico Where did your parents live for most of
12 their marriage
13 In Mexico
14 What part
15 In Nuevo Laredo
16 But at some point didnt they move to the United
17 States
18 Yes
19 When was that
20 It was 1987 maybe 88
21 And to where did they move
22 They moved to Laredo Texas
23 Where in Laredo
24 At the Laredo Country Club
25 Why did they move to the Laredo Country Club
00915
33
It was lust being built and it had golf course and
he wanted to be by the golf course
Was your dad much of golfer
He was golfer yes
Did your parents retain their Mexican citizenship
when they moved to the United States
Yes they did
How close was your parents house in Laredo to
Mexico
10 Very close mean three miles maybe four miles
11 How often did your father return to Mexico when he
12 was livi ng in Laredo
13 When they first moved over there often He
very
14 would go to the ranch on regular basis
15 Where was the ranch again
16 It was maybe thirty minutes crossing the border on
17 the Columbia Bridge on the Mexico side And he would always go
18 to his office He retained an office in Nuevo Laredo
19 And when your parents moved to Laredo did your
20 father change his legal domicile
21 No
22 Where did he remain domiciled
23 In Mexico
24 Why
25 Well his intent was always to be in Mexico His
00916
34
business relationships were in Mexico and guess most
importantly it allowed him to distribute gifts to his
daughters tax free
What year did your father away
pass
2005
Did he have any instructions about where he wanted to
be buried
Yes he did
Where
10 In Nuevo Laredo He had already purchased the
11 cemetery plot the family cemetery plot
12 Were you there in Nuevo Laredo when he was buried
13 Yes was there
14 After your father died did older sisters
your
15 continue to receive payments of their inheritance under private
16 agreements
17 Yes they did
18 Im sorry
19 Please reask the question Im sorry
20 Did your older sisters continue to receive payments
21 under their agreements after your father died
22 Yes they did
23 How did they receive the payments
24 It was deposited in their Mexican account
25 Who was responsible for making sure that that
00917
35
happened
People at the office
At some point did one of your sisters ask if she
could receive the rest of her inheritance faster than called
for in her agreement
Yes
What was that
Well Sylvia had requested that she wanted to get
paid as quickly as possible and thats the way she made the
10 request
11 What did you do when you became aware of Sylvias
12 request
13 Well spoke to people at the office and the
14 attorney that set up the Trust and to see first of all if the
15 business could do it if they had sufficient cash flow to do
16 what Sylvia wanted and the other thing is wanted to call my
17 other sister Adriana because we definitely couldnt do both
18 sisters so called Adriana to see if it was okay with her and
19 she told me that it was okay with her
20 How much cash or properties did the sisters receive
21 under their private agreements
22 It specified $3 million each but that doesnt count
23 the money that they had received prior to that from my parents
24 money and properties
25 After your father passed way did your mom move from
00918
36
Laredo
Yes
Where did she go
To Houston
What did you do to take care of your mother after
your dad passed way
Well continued to do my part in supporting her
How would you support her
The company would send the money that was required
10 for her to live in the style that she was accustomed and to
11 provide anything that she wanted
12 How would you learn how much mother
money your
13 required to live in the way she was accustomed
14 My sister Sylvia would let us know and she had
15 contact with people at the office or would let me know
16 How much money on average did you send to your
17 mothers account every month
18 think if there was an average around two hundred
19 to two hundred and fifty thousand dollars year
20 Where would that money get deposited
21 It would eventually get deposited into my Moms
22 account in her bank in Houston
23 Did you have the rights to or signatory on that
24 account
25 No did not
00919
37
Who did
My mom and Sylvia
Did you learn at some point this summer that your
sisters and an attorney on your mothers behalf or on behalf of
her Estate had sued you in Mexico
Yes
Have you submitted to the jurisdiction of the Mexican
courts
Yes have
10 If this Court were to condition dismissal of the
11 counterclaims against you on your willingness to waive the
12 statute of limitations defense in Mexico would you do it
13 Yes would
14 If this Court were to condition dismissal of the
15 counterclaims on your willingness to submit to the
16 jurisdictions of both federal and state courts in Mexico would
17 you do it
18 Yes would
19 Thank you for your time
20 MR HESS pass the witness
21 THE COURT All right
22 MR FISHER May approach the witness Your
23 Honor
24 THE COURT You may
25 MR FISHER Your Honor have marked some of
00920
38
these just as Exhibit without Defendant or Respondent
designation Would the Court prefer different way
THE COURT Say that again
MR FISHER My exhibit stickers just say
Exhibit they dont say Respondents Exhibit or Defendants
Exhibit
THE COURT You can just put or an just to
sort of differentiate it
CROSS-EXAMINATION
10 Questions By Mr Fisher
11 Mr Longoria Im handing you document thats been
12 marked Exhibit D-3 Its entitled Shelby Longorias Response
13 to Request for Disclosure In the course of this lawsuit have
14 you helped gather information that needed to be provided
15 have tried to be as helpful as can
16 And is one of the things that did is names
you gather
17 and addresses of people that might know something about the
18 case
19 Yes
20 And would you please turn to -- do this
you recognize
21 document as your response to request that was submitted in
22 the course of this case
23 have seen lot of documents but want to say
24 yes probably have
25 And please turn to page if you would please look
00921
39
at the bottom request for disclose asks for the name
address and telephone number of persons having knowledge of
relevant facts and brief statement of each identified
persons connection with the case and the first person you
list is your sister Sylvia right
Uh-huh yes
And you list her husband Tommy Dorsey right
Right
You list your brother Wayo right
10 Correct
11 And you list your sister Adriana right
12 Correct
13 You list several more people
14 Right
15 How many of the people you list live in Mexico
16 Well Im looking at the list Well the ones that
17 are here live in the US
18 All of them
19 It appears to be
20 MR FISHER Your Honor move for the
21 admission of D-3
22 THE COURT Any objection
23 MR HESS No
24 THE COURT Exhibit 36789 is admitted
25 will represent to the Court and can testify that this
00922
40
disclosure has never been supplemented by the movant
Now you testified that you live in McAllen When
did you first move to McAllen
In 1979
Okay and you lived there ever since
Yes
You testified that in the mid 70s you began
helping your dads with the family business
Correct
10 And how old were you at that time
11 was born in 1952
12 Okay so you were in your mid 20s
13 Yes sir
14 And how long was it before were running the
you
15 companies
16 Well again when my brother left to live in Austin
17 was around 1978 or 1979
18 So you were 26 or 27 years old when that happened
19 However that works out
20 Okay
21 As far as the age is concerned
22 Has Wayo lived in Austin ever since then
23 Yes
24 And just so the record is clear by Wayo mean
25 Eduardo Longoria Jr is that what you meant
00923
41
Yes correct
All right you gave testimony about Mexican Trust
and what was conveyed into that Trust was stock in two holding
companies is that correct
Yes
And those companies were Inmuebles Terranos and
Vertice Empresarial
Correct
And your father conveyed his stock in those companies
10 into the Trust
11 Yes
12 In 2002
13 Yes
14 And how long had he owned that stock
15 Im not sure dont know
16 Can you tell us approximately how long he had owned
17 it
18 If knew that would tell you but really dont
19 know
20 Have you ever owned it
21 dont think have owned Vertice and probably did
22 own Inmuebles Terranos at some period of time Thats my
23 recollection
24 So that stock was conveyed to you at some point and
25 then conveyed to your father is that right
00924
42
MR HESS Object to form
THE COURT Overruled
dont know the logistics of how the stock moved
from
By Mr Fisher Okay Do you hold title or
position in those companies management position
would describe my role more as an advisory role to
the management team
Are you on the management team
10 Again its mostly advisory and technically dont
11 know There is several companies and havent looked to see
12 if Im named as manager or management
13 Im asking about the holding company now
14 Right
15 The two that we have named
16 Correct
17 And are you the president chief executive officer
18 or in some other management position
19 dont know could be the chairman
20 At least one of those companies Inmuebles --
21 Right
22 -- made payments to your mother Dorothy didnt it
23 Yes
24 And it did so at your direction didnt it
25 Well it was again didnt own the companies they
00925
43
were owned by the Trust
So is it your testimony that there is someone else at
Inmuebles that directed that company to pay your mother money
No we had accountants and we have management team
and we have attorneys that helped us set the Trust so
up
would always confer with them to make sure everything was being
done properly
Okay Well this is not charitable company is it
No sir
10 Its in business for profit
11 Yes sir
12 And she was receiving because she was
money your
13 mother right
14 Well was trying to do my part in being good son
15 yes
16 Right It wasnt that she had rendered services and
17 was being compensated for her services these were payments
18 that you were making because you were her son and were taking
19 care of her
20 Again it was -- was trying to do my part to be
21 good son so she could live her life
22 Okay Now Im just following along the direct
23 examination so if jump around little bit apologize
24 Okay
25 You testified that you dont travel with security
00926
44
guards in Mexico Have you ever told anyone that the reason is
because security guards can be bought and could give
information to the bad guys
It sounds like something that might have said
So it wasnt because you dont feel the need for
security its because you cant even trust the security
guards right
Well not necessarily That sounds like comment
that could have made But there is people in Mexico
many
10 that have security guards and they trust them so it was just
11 comment
12 And it was your judgment call that were better
you
13 off not having them
14 No it was comment
15 Did you mean it when you said it
16 just made comment that sometimes that could
17 happen
18 Okay
19 Its within the realm of possibilities
20 Okay Now you were asked about Plaintiffs Exhibit
21 which is the 1983 letter
22 Yes sir
23 And just want to confirm that when this letter was
24 sent to your mother you lived in the state of Texas correct
25 In 1983 yes
00927
45
And your brother Eduardo Longoria Jr also lived
in the state of Texas
Yes sir
You testified about an agreement that parents
your
made that you say separated their marital estate from community
property into separate property
Yes
And correct me if heard you wrong did you say you
saw that about two months ago
10 Thats -- think saw it about two months ago yes
11 And is that the first time that you had ever seen it
12 Yes
13 All right and you testified about private agreements
14 with one with Sylvia and one with Adriana and payments were
15 made to them under those agreements as testified
you
16 Correct
17 But question is this was your mother
my Dorothy
18 party to those agreements
19 dont believe she was
20 She didnt sign them did she
21 No
22 And they dont even mention her do they
23 No
24 Mr Longoria Im showing you certified copy of
25 marriage certificate reflecting marriage of Eduardo Longoria
00928
46
and Dorothy Louise Kowaiski
Yes
On July 3rd 1942 in the State of Texas Do you see
that sir
Idoseeit
And is it your understanding that were
your parents
married in the State of Texas in 1942
Yes
MR FISHER Your Honor we offer Exhibit D-4
10 THE COURT Any objection
11 MR HESS No objection
12 THE COURT D-4 is admitted
13 MR FISHER Your Honor to save time may
14 have continuing permission to take exhibits to the witness
15 THE COURT Yes
16 MR FISHER promise not to hover over him
17 will return to my spot here
18 THE COURT Yes And just to comment want to
19 make sure we just stay on track Im deciding whether this
20 counterclaim is supposed to be here or in Mexico
21 MR FISHER Yes sir
22 THE COURT And dont want to try the case
23 MR FISHER Understood
24 THE COURT Im not really looking for at least
25 yet mean who is good guy or bad guy or who did what or
00929
47
who didnt do what want it connected to the issue of whether
this is the appropriate forum or should defer to the
counterclaims to Mexico in some fashion
MR FISHER Yes sir hear you loud and
clear
THE COURT Thats to both sides
MR HESS Yes sir
By Mr Fisher Mr Longoria would you please look
at Exhibit D-5
10 Yes sir
11 Is this copy of letter that you sent to your
12 mother on or about October 9th 2007
13 Yes
14 Did she sign it
15 Yes
16 fIR FISHER Your Honor we offer Exhibit D-5
17 MR HESS No objection
18 THE COURT Admitted
19 By Mr Fisher Again when you sent this you lived
20 in McAllen Texas
21 Yes
22 And you sent it to your mother at her home address in
23 Houston Texas
24 Yes
25 And wont dwell on this but in this letter you
00930
48
make reference to your fathers wishes for your mother to
receive sum of $450000 upon his passing Do see that
you
see it
Okay And whats interesting about that is that
wish was never provided for in any Will that brought
you
forward was it
Can you ask me that again
Yes that was clumsy question and apologize You
haven brought forward to this Court Will in which
any your
10 father said your mother was to get this $450000
11 Not that know of
12 And so there were testamentary wishes that your
13 parents had that werent always put in the Wills right
14 Well can expain it if you would like me to
15 explain it
16 Well just answer my question first if you would
17 please Sometimes your parents intended things to happen with
18 their property and they didnt get it put down in Wills and
19 this is an example of that
20 No thats not an example of that
21 Okay Third paragraph says and quote Since
22 Dads wishes were for you to receive $450000 upon his passing
23 and your wishes are that Adriana and Sylvia receive this money
24 from you we have agreed that will subtract -- blah blah
25 blah
00931
49
Right
But you refer to your fathers wishes --
Im just going to explain it
All right go ahead
Well its just that my mom was insisting that my
father hadnt left her anything and that she was despondent
about that and she had said that my dad did want her to have
some money and really again this is similar to the other
letter you showed me in 1983 was really wanting to make her
10 feel good that my dad did really want her to have some money
11 Thats the best way can explain it
12 Okay appreciate that explanation
13 All right
14 Thats helpful And you acknowledged in this letter
15 that your mother wanted the money to go to her daughters
16 Sylvia and Adriana in equal shares
17 Yes
18 Would you please look at Exhibit D-6 which am
19 handing you now Is this copy of letter of intent that you
20 entered into with your brother Wayo Longoria First Amendment
21 to that Letter of Intent and Second Amendment to that Letter
22 of Intent all of which you signed
23 Is there question Fm sorry
24 Is this copy of Letter of Intent that you and
25 your brother Wayo Longoria signed
00932
50
Yes see my signature
And this is First Amendment and Second Amendment
to it
Do you want me to check it
Yes sir
see the First Amendment here And see Second
Amendment
Okay And the agreement embodies in these letters of
intent was culminated and fulfilled later in 2007 correct
10 dont recall exactly unless you want me to look at
11 this and --
12 Well let me ask you this you have identified this
13 Yes see it here the 29th day of March 2007
14 Okay Later in 2007 was there transaction in
15 which your brother Wayo was paid about $24 million in return he
16 gave up his interest in the Trust that your father created in
17 2002
18 Whats the question Im sorry
19 Later in 2007 was there transaction in which your
20 brother Wayo was paid about $24 million and in return he gave
21 up his 40 percent interest in the Trust that your father
22 created back in 2002
23 Well the way understand it the Trust split into
24 two trusts and one Trust paid the other Trust
25 Okay
00933
51
Thats my general understanding
All right And one Trust ended with about $24
up
million in it and Wayo got that Trust
really dont remember specific figures would
have to
Okay
MR FISHER offer Exhibit D-6 Your Honor
MR HESS No objection
THE COURT Exhibit D-6 is admitted
10 By Mr Fisher This Letter of Intent was negotiated
11 between you and Wayo in the United States wasnt it
12 dont remember Mr Fisher where we were
13 You had the assistance of American counsel in this
14 transaction
15 Yes did And also Mexican counsel
16 Was Carolyn Becket lawyer that helped with
you
17 this
18 Yes sir she is one of the attorneys
19 She is in Austin Texas
20 Yes
21 And in connection with that transaction was an
22 appraisal done of the stock in the two holding companies that
23 you named earlier
24 dont recall
25 Do you recall an appraisal of that stock at
being $98
00934
52
million and change
No do not
After your mother died in April of 2012 did ever
you
offer for probate through any Mexican court Will that she
signed
Did offer Can you ask it again please
After your mother passed away in April of 2012 did
you ever go to Mexican court either you or your lawyer to
offer Wills to probate
10 No
11 MR FISHER No further questions
12 THE COURT All right
13 MR HESS Nothing from us Your Honor
14 THE COURT You may step down
15 MR LONGORIA Thank you Your Honor
16 THE COURT Thank you
17 MR HESS Our next witness is Professor Carlos
18 Gabuardi
19 THE COURT Okay
20 MR HESS We submitted his affidavit with
21 briefing understand the objections have been withdrawn to
22 that affidavit so request that it be admitted and considered
23 for this proceeding
24 MR FISHER No objection
25 THE COURT Okay And what is the witnesss
00935
53
name
MR HESS Its Gabuardi G-A-B-U-A-R-D-I
THE COURT Affidavit of Dr Gabuardi is
admitted And its attached to your motion
MR HESS Right
THE COURT To Counter-Defendant Shelby
Longorias Motion to Dismiss Counterclaim etcetera
MR HESS Right
CARLOS ALBERTO ENRIQUE JOSE LORENZO GABUARDI ARREOLA PhD
10 called as witness after first having been duly sworn
11 testified as follows
12 DIRECT EXAMINATION
13 Questions By Mr Hess
14 Good afternoon Professor
15 Good afternoon
16 Could you introduce yourself to Judge Wright
17 Sure My name is Dr Carlos Alberto Enrique Jose
18 Lorenzo Gabaurdi Arreola was born in Monterrey Mexico in
19 1957 studied the law in Monterrey the University of
20 Monterrey have been practicing lawyer since was law
21 student because under Mexico law you can do it to the extent
22 you do it under the supervision of an attorney have worked
23 both as corporate counsel as litigator and as academician
24 Most of my life with an exception of time in which lived
25 in the United States have done both academic and
00936
54
professional work also was lawyer in the World Bank in
Washington DC had been -- am member of the National
System of Legal Researchers in Mexico which is government
nsti tuti on that provides funds for academicians in order to
retain Mexican talent to continue living in Mexico And now
am ascribed as an honorary legal researcher to the Facultad
Libre Lecho which is an independent law school in Monterrey
When did you become lawyer
finished law school in December 79 and wrote my
10 dissertation and finally got my degree in 81 But forgot to
11 say that studied master of law in Tulane which received
12 with distinction and also PhD from Tulane University Law
13 School
14 And you currently live in Monterrey
15 Yes
16 And you currently practice law in Monterrey and other
17 locations in Mexico
18 Yes my office is in Monterrey But when my clients
19 have needs or have the need of legal advice or legal counseling
20 in other parts of Mexico go there
21 And what state of Mexico is Monterrey
22 Nuevo Leon
23 And where is Nuevo Leon in comparison to Tamaulipas
24 Okay Nuevo Leon is to the west of the state of
25 Tamaulipas and has small -- piece of border very small
00937
55
in Columbia which was mentioned before by Mr Longoria
And they are bordering -- they are states that border
each other
Yes contiguous border
And have you practiced law at times in Tamaulipas
Yes was lawyer for Texas Bank in its affairs --
legal affairs in Mexico which most of them were related to
Tamaulipas and spent almost five years of my life practicing
law there
10 When you practice law in Mexico do have to
you bring
11 bodyguard around with you wherever you go
12 No
13 Why not
14 Because dont need it feel safe and comfortable
15 wherever go in Mexico
16 Do other lawyers have bodyguards and private security
17 people who go with them to the courthouse
18 At least not that am aware of
19 The state of Tamaulipas adjoining the state of Nuevo
20 Leon does it have functioning judiciary
21 Yes
22 Have problems with crime in Tamaulipas caused the
23 court system to shut down
24 No never
25 Are you aware in fact of lawsuits filed in court in
00938
56
Tamaulipas involving some of the parties to this case
If am aware yes
And believe that there was what reference earlier
today to an amparo proceeding A-M-P-A-R-0
Yes
The lawsuits that you are familiar with are those
amparo lawsuits amparo proceedings
In this case yes am aware of other matters which
of course can not disclose but have seen two amparo
10 petitions concerning this matter filed one by the Estate of
11 Dorothy Kowalski Longoria and another petition for amparo
12 filed on behalf of Mr Longorias two sisters Adriana and
13 Sylvia Longoria Kowalski
14 When you say other matters you cant disclose
15 you are talking about involving people who are not parties in
16 this case other lawsuits that are totally unrelated to this
17 Yes totally unrelated to them but that am familiar
18 with
19 In other words your testimony -- you described the
20 matters in Tamaulipas that you are familiar with involving the
21 parties to this case
22 Yes am only making reference to the judicial
23 matters of amparo related to this case
24 Can you tell me what an amparo proceeding is What
25 sort of litigation matter is that
00939
57
Sure The juicio the amparo which is the official
name of the institution its legal proceeding by means of
which private individual or an entity may prepare
proceeding by means of which you ask the federal judiciary
provide protection to you against an infringement or
violation that any governmental authority either executive or
the judiciary or eventually the legislature is committing
against your fundamental human or constitutional rights
And what is the alleged infringement that is at issue
10 in the two amparo proceedings one which was filed by the
11 Executor here and the one which was filed by Adriana and
12 Sylvia
13 Sure Basically they are claiming that their
14 Constitutional right to due process of law was infringed to
15 them because in the probate proceedings related to the
16 testament of Mr Eduardo Longoria Theriot which is Mr
17 Longorias father they were -- they will that were
argue they
18 not called to meeting which is set forth or provided by the
19 Code the Tamaulipas Code by means of which the has to
judge
20 hold meeting with the named heirs either or
testamentary
21 not and any other relatives which are ascendant or descendant
22 So if Im understanding this correctly are they
23 going to the federal court in Tamaulipas in Nuevo Laredo and
24 asking it to direct that the state court do something
25 Yes they are asking the federal judiciary the
00940
58
federal court in Nuevo Laredo to review what the state court
the state family court did to resti tute them of their infringed
rights therefore to call this meeting of heirs and relatives
and consequently to vacate or live without anything that
happened before that meeting after that meeting am sorry
Have you heard of mandamus petitions or writs of
habeas corpus in the United States
have heard of several names and several writs which
are used in the United States and am familiar with some
10 original common law writs like the writs of and so on
trespass
11 and so forth but do not know them in detail and am --
12 dont know their particularities on how to action them or
13 something
14 In the proceeding like the amparo proceeding what is
15 the role of someone like Sylvia Longoria who is impacted by the
16 relief that is being sought in the amparo
17 Sure The parties to the amparo procedure are
18 basically conceptually three One is the complainant the
19 person who actions the petition who files complaint which
20 in Spanish is call queoso Okay then this counter-party to
21 that is the authority who allegedly committed the violation of
22 fundamental rights And in ludicial proceedings there is
23 another party which is called the third interested party to
24 set up empresarlo sic which has the right to appear before
25 the court and submit arguments supporting his own rights and
00941
59
supporting the role of the authority in order to avoid -- in
order to demonstrate that no infringement was committed so it
is three-party litigation
So the amparo is the third interested party
Yes
Like real party in interest
The third interested party is real party in
interest And that has been acknowledged by both well it has
been acknowledged by statutory law by case law and scholarly
10 writings
11 Does it appear that Adriana and Sylvia and the Estate
12 were able to find lawyers to assert this claim on their behalf
13 in Court in Nuevo Laredo
14 Yes
15 Would Adriana Sylvia or representative of the
16 Estate have been required to travel to Nuevo Laredo to assert
17 this claim
18 As far as understand from what read the
19 petitions of amparo were filed by lawyers that received power
20 of attorney from the Estate of Mrs Dorothy Kowalski Longoria
21 and the sisters Sylvia and Adriana Longoria Kowalski and this
22 attorney signed and filed the petitions of amparo on behalf of
23 them assume that the lawyers were physically there in the
24 office the clerical office of the Court to submit the
25 petitions themselves
00942
60
MR FISHER object to the testimony about
what he assumed Thats not proper and we respectfully move to
strike it
THE COURT Overruled
By Mr Hess Based on your review of the documents
and your knowledge of Mexican law would there have been any
legal requirement for Adriana Longoria Sylvia Dorsey or
representative of the Estate to have gone to Nuevo Laredo to
file this other than through their lawyers In other words
10 for example if Im going to -- if my client is Shelby
11 Longoria if file petition here in the state courthouse on
12 his behalf as his attorney right Shelby Longoria doesnt have
13 to come down to the courthouse with me and so Im asking you
14 whether if thats the case under Mexican law as well If you
15 have an attorney do you have to go yourself
16 If you have an attorney who has been vested with the
17 power of attorney and therefore is your empowered agent it is
18 not necessary for the grantor of the power of attorney to be
19 there
20 By filing an amparo proceeding have the Estate of
21 Dorothy Longoria has Sylvia Dorsey or Adriana Longoria
22 submitted themselves to the jurisdiction of the federal courts
23 in Tamaulipas Mexico
24 Yes
25 By filing an amparo proceeding have the Estate and
00943
61
Sylvia and Adriana submitted themselves to the jurisdiction of
the state courts in Tamaulipas Mexico
By filing that petition they have shown that they
are complaining from an infringement of the state court and
that they want restitution of their violated rights and
therefore they will enjoy the benefit of the final decision if
it is favorable to them
Would it be unusual for someone to file an but
amparo
then take the position that the state court that is to be
10 directed by the federal court does not have jurisdiction over
11 them
12 Well have never heard of case -- situation of
13 that nature and it would be contrary in its sense
14 And has Shelby Longoria submitted himself to the
15 jurisdiction of the courts in Tamaulipas Mexico in connection
16 with the amparo proceeding
17 Thats what understand from the documents that have
18 been shown to me
19 In fact he made written submission with respect to
20 submitting himself to the jurisdiction of those courts right
21 Yes
22 And did the court acknowledge that written
23 submission
24 was shown court order having him appearing before
25 the court and by means of which he submitted some additional
00944
62
documents that were recorded by the court to be heard when the
appropriate hearing comes and by means of which the court or
provides that all documentation is -- all documentation
concerning service of process be at the disposable of Mr
Longoria in the offices of the court so that he can and have
go
them for whatever purposes that might be necessary under the
law
There is lot of back and forth in your affidavit
and the affidavit of the estate expert Ilan Rosenberg
10 concerning personal jurisdiction Regardless of the rules
11 concerning of process and where the defendant lives or works in
12 Mexican state can federal and state courts in Tamaulipas and
13 also in Mexico assume jurisdiction over matter in which the
14 defendant has consented to personal jurisdiction
15 Yes
16 Similarly can defendant in an action in Mexico
17 such as Shelby Longoria if he is sued there by the Estate
18 waive or just not assert statute of limitations defense
19 These require clarification have never heard of
20 situation like you are saying waiving before the court
21 Usually when you do not want to exercise the statute of
22 limitations defense you just do not file it But the court
23 more appropriately cannot assert any defense on behalf of the
24 parties because the litigation private litigation is only or
25 litigation of this nature is party-driven as opposed to
00945
63
court-driven
So if the party that has the defense chooses not to
assert it then the defense is not part of the case right
Yes
Lets suppose that the claim that is asserted in this
lawsuit in Harris County by the Estate is dismissed by the
court here in Harris County so that it is no longer pending
here in Harris County All right could the Estate then file
lawsuit asserting the same claims in Tamaulipas Mexico and
10 have the court there assert subject matter jurisdiction over
11 those claims
12 Yes
13 What sort of causes of action might be available to
14 an Estate which alleges that the Decedents son somehow stole
15 money from or defrauded the Decedent
16 State elections
17 Yes
18 Okay it is an academic question but it might be
19 actions for negligence mismanagement fraud or whatever is
20 thought to be illegal or inappropriate and you have the right
21 to recover
22 So there are such causes of action in Mexico
23 Yes
24 And if the Estate were to prove its claims in Mexico
25 could Mexican court award damages to the Estate
00946
64
Yes
And could Mexican court in enforce its damages
Yes
Now in case in the United States plaintiff will
file petition there will often be discovery motion
practice the plaintiff might change the nature of its claims
but eventually if the case is not dismissed or summary
judgment is not granted the case will be tried in the
courtroom to court or the jury over period of days or weeks
10 or God forbid for period of time So thats how things
11 work in the United States Can you describe for the Court the
12 natural progression of how case proceeds in court in
13 Mexico
14 Sure May write notes so that can explain
15 THE COURT Sure Any objection to him writing
16 notes as he goes through to clarify his
17 MR FISHER No Your Honor
18 THE WITNESS Well it is not notes graphic
19 THE COURT Any objection to his explanation as
20 to how it would transpire
21 MR FISHER No
22 THE COURT To his explanation of how it would
23 transpire But you are explaining it out there to them Im
24 listening but you dont have to look back at me you can look
25 out there
00947
65
Okay Basically the procedure as understand it
in the United States begins with petition thats submitted
by the plaintiff and an answer submitted by the defendant As
far as understand the petition of the plaintiff is brought
and an answer from the defendant is also brought usually
general denial
In other words allegations tend to be often times
fairly general in nature
Yes The point is that it is my understanding its
10 how interpret this is basically the parties come before
11 court and they agree that they have an actionable cause or
12 claim thats an actionable cause of action Then there is
13 period that understand its called discovery in which
14 really the parties are dancing strategically to find out what
15 they really want in terms of what will be -- what are there
16 the issues in questions and what was the evidence they can
17 obtain to support their case Its called collaborative
18 process as opposed to an antagonist process And then when
19 they finally think there is enough discovery they agree on
20 what are the issues in question here and at this point they
21 lock the issues under litigation and then they have the hearing
22 or the trial the trial which is to try the evidence and their
23 arguments Well this is -- and finally after trial there is
24 adjudication This is not what happens in Mexico First the
25 main trial is not infrequently mistranslated What we have in
00948
66
Mexico is something that we call juiclo and it is basically
judicial proceeding As it happens in the United States
everything begins with petition and an answer from the
defendants But as opposed to what happens in the United
States the petition has lot of formalities which require
this detailed narration of all the facts citation of all the
authorities upon which you are basing your claim and the type
of action that you are submitting to the court both in
statutory authorities and case law authorities and have
you
10 make detailed list of all the evidence that you want the
11 court to hear And in addition to that you have to say what
12 do you want to prove with the evidence that are
you offering
13 And this is all at the beginning
14 Yes And the answer is as detailed It has to
15 address all the facts all the authorities all the evidence
16 everything Once the petition is filed and the answer is
17 filed the issues in question are locked So at this moment
18 the issues in and questions are locked as opposed to what
19 happens in the American version in which the issues are locked
20 here So during this period here pointing to graphic
21 basically the court will what you will say try all these
22 issues and questions hearing evidence and everything the
23 lawyers will argue whatever they think is appropriate to
24 support their cause of action or their exceptions and defenses
25 and finally the court will adjudicate In opinion the most
my
00949
67
important differences are that we lack of discovery and the
time in which the issues under litigation are locked
In court in Mexico if you have lawyer can you go
through that process by having your lawyer to court without
go
necessarily having to appear yourself
Well in almost all of the cases it is the lawyer
that does the court appearing and all that stuff The owners
of the litigation your cThents seldom to court unless
go you
call them for purpose
10 Now sometimes is there testimony in court in Mexico
11 Well in almost all cases testimony either of the
12 parties or other parties is one of the evidence submitted
13 unless you are relying totally on documentary evidence
14 When there is live testimony in court in Mexico is
15 that typically one-time occurrence or does it sometimes
16 happen that witness has to go back to court over and over
17 again to testify
18 Usually when someone submits his or her is
testimony
19 one shot deal They dont call you again and again It is
20 one way -- one shot deal even if it takes long hours
21 And is there procedure in Mexico -- is there
22 procedure for Mexican court to obtain evidence from witnesses
23 who are in the United States
24 Yes Actually yes
25 And can you describe that
00950
68
Well there is the Hague Convention on getting
evidence abroad which dont know but assume that the
United States is party but the Codes themselves for
provides
procedure And interestingly the practice is that American
courts are very open to receive orders from countries and they
always honor them
And in the event if you are trying to get the
testimony of party to the case you can ask the court and the
court has exercised personal jurisdiction over the party you
10 do not have to go through that right
11 Can you rephrase
12 If there party to the case and the court has -- in
13 Mexico and the court has exercised personal jurisdiction you
14 can also obtain testimony in that way right
15 Yes
16 MR HESS Pass the witness
17 CROSS EXAMINATION
18 Questions By Mr Fisher
19 Sir you testified that in Mexico actions for
20 mismanagement fraud and negligence are available right
21 Yes
22 But let me ask you what that means What are the
23 elements of an action for mismanagement And let me ask you
24 specifically about the state of Tamaulipas Do you know
25 dont know the entire Code by heart If you bring
00951
69
me the law the statute and you ask me the specific questions
you want me to answer will gladly give you an opinion here
for what you are asking me
Okay So you are not testifying today that Thomas
Dorsey as Executor of the Estate of Dorothy Longoria would
have cause of action against Shelby Longoria for negligence
under the laws of the State of Tamaulipas You are not
prepared to give that opinion are you
No
10 And similarly with regard to fraud you are not
11 prepared to testify that that would be available to the
12 Executor in the State of Tamaulipas
13 Can ask you exactly what you are asking me Are
14 you asking me if fraud action can be filed against Mr
15 Dorsey
16 Let me try to be more specific
17 Yes please
18 Can you tell us What are the elements of an action
19 for fraud in Tamaulipas
20 As told you before need to see the Code
21 dont know the Code by heart Whenever in my practice we have
22 to assess or submit an action we look to the Code scholarly
23 interpretation of the Code and we review case law so that we
24 can be fully sure diligently sure that our cause of action
25 will prosper because as mentioned and that have all the
00952
70
elements because as mentioned to you filing lawsuit is
one shot deal If you do it wrong you are risking the whole
case
All right appreciate the candor about that As
general proposition would you agree that to bring any kind of
tort case in Mexico there has to be duty owed
Well first let me tell that tort is common law
concept and Mexico is civil law country tort is
procedural concept that does not exist in Mexico If your
10 question is if there might be causes of action for illegal
11 acts or negligence acts the answer is yes
12 Okay But you are not testifying to this court that
13 the allegations of Thomas Dorsey fulfill all of the elements of
14 any of those kinds of causes of action
15 am quite confused about what is the nature of the
16 allegations of the Estate because from all the documents have
17 reviewed my impression is that at some point the estate argues
18 one thing and the other thing dont know do not have
19 clear idea or picture in my mind of what kind of thing is that
20 is being actionable suppose that this is because of the
21 nature of the Anglo-American common law style of the legal
22 proceedings dont know
23 Have you read case law in the State of Texas on the
24 tort of breaching an informal fiduciary relationship
25 Not that remember
00953
71
Okay so thats not claim you are familiar with is
it
If you are asking me if have general of
knowledge
the English language in what you are saying assume but
have not read case law in that sense that recollect
Okay And its true isnt it that in Mexico
private trust relationships are not recognized
Well have been comparative law lawyer most of my
life both --
10 Please answer my question sir Are private trust
11 relationships recognized in Mexico
12 Thats leading question Its inappropriate you
13 are making the question in manner that can not respond in
14 the manner in which you are making the question
15 All right well let me try again If two private
16 citizens neither of which is registered trust company agree
17 between themselves to have trust relationship --
18 Trust meaning what
19 One party is holding property for the benefit of
20 another
21 There can be the functional equivalent to trust
22 yes in the manner that your describing it
23 And its your testimony that there are cases
24 enforcing those relationship Not contract
25 am not aware of case law for that specific
00954
72
question dont know
Now you have said you feel safe when you travel in
Tamaulipas Are you aware that the United States Department of
State has issued travel advisory
It is my understanding that there was in the past
travel advisory
Well in fact there wasnt one in the past there is
one in fact right now did you not know that
No
10 MR FISHER May approach the witness
11 THE COURT You may
12 By Mr Fisher Would you please look at Exhibit D-2
13 Sure
14 MR FISHER Your Honor since this is
15 governmental publication Im going to offer it into evidence
16 MR HESS No oblection
17 THE COURT Admitted
18 Should read it
19 By Mr Fisher will point you to certain parts
20 Turn to page if you would please At the bottom of that
21 page there is section specifically related to Tamaulipas
22 Uh-huh
23 And it says among other things and quote You
24 should defer non-essential travel to the State of Tamaulipas
25 All USC employees and will represent to you thats United
00955
73
States Government
Okay
employees are prohibited from personal travel on
Tamaulipas highways outside of Matomoros and Nuevo Laredo due
to the tenuous security situation Were you aware of that
No was not aware of that
And so employees of the United States government are
forbidden to travel on those highways
Thats what you are showing me
10 And if you will turn back to page in the next to
11 last paragraph this government publication says United
12 States government personnel and their families are prohibited
13 from personal travel to all areas to which it is advised to
14 defer non-essential travel When travel for official purposes
15 is essential it is conducted with extensive security
16 precautions United States government personnel and their
17 families are allowed to travel for personal reasons to the
18 areas where no advisory is in effect or the advisory is to
19 exercise caution And with regard to the genera public it
20 says and quote While the general public it says and
21 quote While the general public is not forbidden from visiting
22 places categorized under defer non-essential travel United
23 States government personnel will not be able to respond quickly
24 to an emergency situation in those areas due to security
25 precautions that must be taken by United States government
00956
74
personnel to travel in those areas Does that sound like
safe place to go to you
Should respond candidly
Yes
Okay
Please do
My clients lot of the work that do is represent
American clients doing business in Mexico and they frequently
travel between Monterrey and Laredo and also between Monterrey
10 and Reynosa for the purpose of doing business and because they
11 want to buy American goods or something and they are seldom in
12 agreement with this kind of circular and travel have
they
13 -- none of my clients have ever paid too much attention In my
14 opinion you are trying to magnify problem that we have in
15 Mexico
16 When you say you you mean the government of the
17 United States
18 No mean you
19 Well only read what this says sir
20 But you are asking my opinion You asked for my
21 opinion and requested to
your permission speak candidly and
22 am giving my opinion about what you are saying
23 Okay And its understandable that people trying to
24 do business in this region would resent publication like this
25 because it would hurt their business wouldnt it
00957
75
Well you can go to the public records of the amount
of trucks that cross every day between the two Laredos between
Reynosa and McAllen and you would be impressed and assume
that if those trucks cross the border its because they didnt
have an incident
MR FISHER No further questions Your Honor
THE COURT Okay
MR HESS Just few Your Honor
REDIRECT EXAMINATION
10 Questions By Mr Hess
11 If person goes and files lawsuit in Nuevo Laredo
12 when asked the question hypothetical question if person
13 in Houston files lawsuit in Nuevo Laredo in court in
14 Mexican Court right and lets say they even want to go and
15 attend in court themselves for the proceedings in that lawsuit
16 right could they get there by flying to the Laredo
17 International Airport in the American side and how far would
18 they have to drive to the courthouse in Nuevo Laredo
19 For the federal court
20 Federal court right
21 Its few blocks from the old bridge
22 So few blocks into Mexico
23 Yes And the state court you will have to drive
24 through one of the main roads to something which is called
25 Palaclo de lusticia is where all the state courts are
00958
76
Would that require the person coming from Houston who
actually decides to go to court even if they dont have to in
Nuevo Laredo to travel on these highways between Laredo and
Monterrey
No because courts are within city limits
And the city is right next to the United States
Right Actually they touch the river
Right Nuevo Laredo goes right up to the river
right
10 And Reynosa too
11 In Reynosa too And in fact Sylvia Dorsey and the
12 Estate have in fact already filed lawsuit in federal court
13 in Nuevo Laredo Tamaulipas right
14 That is shown by the documents have reviewed
15 Thank you
16 MR HESS Your Honor have nothing further
17 THE COURT All right Let me clarify one
18 thing The lawsuits that are currently pending in Mexico do
19 they relate to Eduardo Longorias Estate
20 THE WITNESS They challenge the Eduardo
21 something is at the court in Eduardo Longorias probate Estate
22 THE COURT Okay To your knowledge is there
23 anything pending there that relates Dorothy Longorias Estate
24 THE WITNESS No
25 THE COURT Okay Thank you Anything further
00959
77
THE WITNESS am sorry am sorry can
clarify
THE COURT Sure asked you yeah you can
clarify opened that door
THE WITNESS The petitions were made by the
Estate of Dorothy Longoria in that sense One of the petitions
was filed by the Estate of Dorothy Longoria challenging the
probate procedure of her husband The other petition was filed
by the sisters Sylvia and Adriana Longoria Kowaiski
10 challenging the probate procedures of his father Eduardo
11 Longoria Sr
12 THE COURT Okay
13 THE WITNESS They say in the petitions that
14 they claim for the protection of the federal judiciary because
15 thats the only remedy they have to obtain restoration of their
16 rights
17 THE COURT Okay and in your affidavit do you
18 fee like you have made that clear as to the different
19 litigation that is ongoing in Mexico scanned your
20 affidavit but the points you are making to me now are in
they
21 your affidavit as to the nature of proceedings going on in
22 Mexico
23 THE WITNESS Yes made reference to the
24 amparo proceeding highlight this kind of protection they
25 are asking for highlighted that they affirmed that that is
00960
78
the only remedy they have and thats why they are going to the
Court But didnt make this explanation or explain the
nature of the juicio or amparo
THE COURT All right thank you You may step
down
THE WITNESS Thank you
MR FISHER Professor Gabaurdi was our second
and final witness for our side
THE COURT Thank you guess at some point
10 have to be definitive mean Im going to -- whatever is
11 going on think 330 is the latest want to hear things
12 further Im not trying to short circuit it or guess am
13 trying to short circuit it but have got all sorts of
14 paperwork in front of me have heard the gist of the
15 different aspects of the argument for which forum the
16 counterclaims should be in and there is three or four key
17 things that have to think through to be presented but with
18 that being said you can present your evidence and just like
19 to shoot for 330 conclusion to all this
20 MR FISHER Yes sir
21 THE COURT Given that you told me that this was
22 going to take an hour
23 MR FISHER That was our case
24 THE COURT always double or triple what
25 attorneys tell me My feeble attempt at humor
00961
79
MR FISHER If you can give us five minute
break that may streamline things
THE COURT Okay five minutes
At which time the Court took short recess
THE COURT All right you are going to call
your witness now
MR FISHER Yes Your Honor Its my
understanding that the Movant has rested just want to
clarify that
10 MR HESS Yes
11 MR FISHER Your Honor we call Mr Fernando
12 Elias-Calles
13 FERNANDO ELIAS-CALLES ROIlO
14 called as witness after first having been duly sworn
15 testified as follows
16 DIRECT EXAMINATION
17 Questions By Mr Fisher
18 Would you please state your name sir
19 Fernando Elias-Calles Romo
20 Where do you live sir
21 live in Mexico City
22 What do you do for living
23 Fm petitioner lawyer
24 How long have you practiced law
25 Since graduated law school in 98
00962
80
Where did you go to law school
In Mexico went to law school at Escuela Libre de
Derecho and then obtained masters degree at the
University of Chicago Law School
And in what areas do you practice
do civil and commercial litigation and also
corporate work
Let me get the right to the point of your testimony
Do you know Sylvia Dorsey and Adriana Longoria
10 Yes do
11 And are they clients of yours
12 Yes
13 In what matter or matters do you represent them
14 am representing them in an amparo proceeding in
15 Nuevo Laredo
16 Have you ever represented James Thomas Dorsey as the
17 Executor of the Estate of Dorothy Longoria
18 Yes have
19 In what sort of proceeding
20 We filed amparo proceeding but that amparo
21 proceeding is not pending anymore because we decided to
22 concentrate our efforts in the Sylvia and Adriana personal
23 amparo proceeding
24 Okay So there is one amparo proceeding pending at
25 this time
00963
81
Yes sir this is
And what relief is being sought in that case
The only relief is we have requested the
constitutional judge to grant us protection and relief and
order the state court to respect the due process of rights so
the only effect would be to order the judge to give notice due
notice to Sylvia and Adriana as descendents of Eduardo Longoria
Theriot and give them access to that probate matter
So this is the case involving the probate of Eduardo
10 Longorias Will
11 Yes
12 It does not involve probating any Will of Dorothy
13 Longoria is that right
14 Yes
15 Now who is the defendant in that case
16 The defendant is the court the family court from
17 Nuevo Laredo
18 So this petition you filed on behalf of Sylvia and
19 Adriana was it filed in state court or federal court
20 Federal court
21 So it is not in state court of Tamaulipas
22 No it is not
23 But it relates to case in state court
24 Yes
25 And that case involved the probating of Eduardos
00964
82
Will
Yes
Now in connection with the petition you filed was
it necessary to have notice served on Shelby Longoria
When we filed the complaint which is named the
per
amparo statute which is named at that moment the defendant as
we would he adequate the authority and once the court of Nuevo
Laredo informed and gave us access to the probate file we
identified as third parties or third interest parties Mr
10 Shelby Longoria and Mr Eduardo Longoria Jr and we then
11 named them as the third interested parties
12 Okay And under the procedures applicable to this
13 kind of case who effects service of process Is it the
14 lawyer or the court or someone else
15 An official from the court
16 And tell this court what happened when the Mexican
17 court the Mexican federal court attempted to serve Mr
18 Longoria
19 Well the Mexican official of the court first tried
20 to serve Mr Shelby and Mr Eduardo Longoria Jr at an
21 address in Ciudad Reynosa Tamaulipas And that address was
22 obtained because in the probate court file of Eduardo Longoria
23 Theriot when Mr Shelby Longoria appeared he named or
24 designated his address with an ID stating that his address was
25 in Ciudad Victoria When the official from the court went to
00965
83
that address it appeared to be commercial building that was
unoccupied and there was sign for lease All this in the
court file After that the Court ordered that Mr Shelby
Longoria and Mr Eduardo Longoria Jr be served at the
procedural address that they had designated in the probate
proceeding of Eduardo Longoria Theriot Then the official from
the court proceeded to go to that address and its notary
publics office think if recall correctly Notary Public
No 97 in Nuevo Laredo And they did not accept service on
10 behalf of Shelby Longoria and Eduardo Longoria Jr stating
11 that even though that they had handled some business for them
12 that they had concluded that and that they thought that they
13 resided in the United States After that we requested the
14 court per the Mexican statutes that Mr Shelby Longoria and Mr
15 Eduardo Longoria Jr be served through rogatory letters which
16 is the way Mexican court can request the aid of foreign
17 authority to do the service of process and we had designated
18 their home addresses so they can be served and the due process
19 right is duly respected on their behalf And those letters
20 rogatory are in process of being delivered
21 When did you file this petition to start the amparo
22 case
23 We filed it at the beginning of June think on the
24 6th of June 2013
25 So June July August and September and
passed you
00966
84
werent able to get Shelby Longoria served
No
And to this day has he appeared in the case
He has filed an appearance think this happened
lust last week But thats the only thing that has happened
Do you anticipate that it will be for
necessary
Sylvia Dorsey and Adriana Longoria or either of them to travel
to Tamaulipas in order for you to proceed with the case that
you filed there
10 No
11 MR FISHER Nothing further Your Honor
12 THE COURT All right
13 CROSS-EXAMINATION
14 Questions By Mr Hess
15 Mr Calle
16 Yes
17 So Mr Longoria has appeared in the case
18 He has filed an appearance
19 Right He has submitted to the personal jurisdiction
20 of the court
21 To the jurisdiction dont know whether or not the
22 term personal jurisdiction we dont use it but to the
23 jurisdiction of the constitutional court yes he has
24 And he filed the case because believe that that
you
25 court could exercise jurisdiction over Shelby in this
Longoria
00967
85
cause of action right
No Can clarify
Sure
In Mexico we filed that amparo proceeding to question
the acts of an authority If would the as
you equate procedure
Mr Gabaurdi has already stated The defendants in that case
or the plaintiffs in the case would be Adriana and Sylvia
Longoria and the defendant is the court as an authority So
thats why we filed there So Mexican law the jurisdiction in
10 that case isnt in Nuevo Laredo because thats what the amparo
11 statute states and we are basically could
you say that we are
12 suing judge and we are requesting constitutional protection
13 You are suing judge because youre challenging
14 actions of court in Tamaulipas
15 Yes
16 Right And it is your belief that the courts of
17 Tamaulipas should have jurisdiction to address challenges to
18 actions -- try again Its your opinion that the federal
19 courts of Tamaulipas should have jurisdiction to address such
20 challenge to an action of the state court of Tamaulipas
21 MR FISHER Objection vague Federal courts
22 of Tamaulipas is contradiction of terms
23 MR HESS Federal courts in Tamaulipas
24 By Mr Hess Its your belief that the federal
25 courts in Tamaulipas have jurisdiction to entertain or to hear
00968
86
challenge to the actions of state court of the state of
Tamaulipas
would say yes with clarification Federal
courts in Mexico have two kinds or they address two wishes
One is federal matters and others are lust constitutional
matters In this case we are just speaking as to the
constitutionality process of amparo so would say yes just
in this case just in the amparo proceeding
And for that purpose you felt it was to
necessary
10 service Sylvia Longoria right
11 Uh-huh
12 And you have heard been here all day right
13 Yes
14 And you heard this morning that he consented to
15 personal jurisdiction in Mexico
16 heard yes
17 And you are aware that in fact he has filed paper
18 appearing in the amparo proceeding in Nuevo Laredo
19 Yes
20 Thank you
21 MR HESS Nothing further
22 fIR FISHER Nothing further from here
23 THE COURT Thank you You may step down
24 MR FISHER We call Mr Ilan Rosenberg
25 ILAN ROSENBERG
00969
87
called as witness after first having been duly sworn
testified as follows
DIRECT EXAMINATION
Questions By Mr Fisher
What is your full name
Ilan Rosenberg
How old you are you sir
am 39 years old
Where do you live
10 live in Philadelphia Pennsylvania
11 What do you do for living
12 am an attorney
13 How long
14 Practiced law for about fifteen years
15 When did you become licensed to law first
practice
16 originally became licensed to practice law in
17 Mexico and then became licensed to practice law in the
18 Commonwealth of Pennsylvania
19 Where did you go to law school
20 went to law school at the Escuela Libre de Derecho
21 in Mexico City
22 And what degree did you obtain
23 The degree is formerly called A-B-0-G-A-D-0
Abogado
24 Its bachelors of law
25 Is it comparable to juris doctorate degree in the
00970
88
United States
Correct
And have you earned any other degrees
have have earned Master of Laws from the
University of Pennsylvania Law School and Master of
Comparative Laws from the University of Pennsylvania Law
School
Are you licensed to practice law in all courts in the
nation of Mexico
10 Correct
11 In what courts of the United States are you licensed
12 to practice law
13 am licensed to practice law in the Commonwealth --
14 all courts of the Commonwealth of Pennsylvania as we as the
15 Eastern Middle Districts of Pennsylvania the Eastern District
16 of Wisconsin the Northern District of Illinois the Third
17 Circuit Court of Appeals the Third Circuit US Court of
18 Appeals the Federal Court of Appeals and the United States
19 Supreme Court
20 For how much of your professional career have you
21 been involved in litigation in the United Mexican states
22 Ive been engaged in litigation in Mexico since
23 graduated law school uninterrupted
24 For the entire fifteen years or so
25 Correct
00971
89
And have you ever handled litigation in the state of
Tamaulipas
About dozen times
Were any of those cases tort cases
Every single one of them
And have you handled cases in the United States which
involved the law of Tamaulipas
Yes
And were any of those tort cases
10 About seventy
11 Seventy
12 Seven zero
13 Okay Are you fluent in Spanish
14 Yes am
15 Have you ever been recognized and accepted as an
16 expert in Mexican law by any court in the United States
17 have Ive been accepted as an expert in Mexican
18 law by the 190 District Court of Harris County believe
19 thats the proper name And Ive been accepted as an expert in
20 Mexican law by the Northern District of Texas Dallas Division
21 and Ive been accepted as an expert in Mexican law by the
22 Central District of California US District Courts of the
23 Central District of California
24 Were you engaged by me as counsel for James Thomas
25 Dorsey Independent Executor of the Estate of Dorothy Longoria
00972
90
to opine on some issues of Mexican law
Iwas
And have you formed some opinions relating to this
case
have
Did you write an affidavit setting forth your
opinions
did
MR FISHER May approach the witness Your
10 Honor
11 THE COURT You may
12 By Mr Fisher Is Exhibit D-1 copy of your
13 affidavit
14 believe its actually the original but no
15 exhibits
16 No exhibit
17 Correct
18 MR FISHER Your Honor may substitute copy
19 with the exhibits attached
20 THE COURT Any objection
21 MR HESS No Your Honor
22 MR FISHER Thank you
23 By Mr Fisher Please identify Exhibit D-1
24 Thats the affidavit executed believe on
25 September 30th of this year
00973
91
Did you write this affidavit
did
The affidavit has two exhibits Can you identify
those please
Certainly The first of the exhibits is my CV The
second of the exhibits is the Spanish language version of
court opinion that transcribed or translated into English
in the body of the affidavit
Now Exhibit your curriculum vitae does it
10 accurately set forth the facts therein Is it true and
11 correct
12 believe that its correct yes
13 And is this affidavit true and correct in so far as
14 it relates facts
15 To the best of my knowledge yes
16 Okay
17 MR FISHER And Your Honor we offer Exhibit
18 D-1
19 MR HESS No objections
20 THE COURT Exhibit D-1 is admitted
21 By Mr Fisher Lets talk about claims for breach of
22 fiduciary duty
23 Certainly
24 If Mr Dorsey as an Executor of the Estate of
25 Dorothy Longoria were to try to bring his claims in court in
00974
92
Tamaulipas would those claims be recognized
Are we talking substantively
Yes
There is no cause of action for breach of fiduciary
duty under the laws of Tamaulipas
So if he were to file there the claims that he has
filed in this Court would remedy be afforded
any
None
Is an informal fiduciary relationship recognized
10 under the laws of State of Tamaulipas
11 Neither formal or informal are recognized
12 Were you present when Dr Gabaurdi testified
13 was
14 And did you agree with what he said about private
15 trusts being enforced in Mexico
16 Well private trusts the Mexican Supreme Court has
17 expressly said that Mexico does not recognize private trusts
18 It recognizes statutory trusts statutorily based relationships
19 where the trustee is also financial institution which are
20 the Supreme Court has explained is viable in Mexico due to
21 regulatory and legislative oversight of banking activities
22 Is there any tort thats recognized in Tamaulipas
23 that could apply to the claims that the Executor has asserted
24 in this Court
25 The only thing that would remotely be actionable is
00975
93
perhaps an unjust enrichment claim
Would that claim be available to the Executor in this
case
Not in this case no
Why not
Because that action is time barred
By statute of limitations
And by statute of repose
What was the difference
10 The statute of limitations is waivable its simply
11 the amount of time -- under Mexican law its not called the
12 statute of limitations its called prescription and its the
13 loss of right by the mere passage of time
14 And what is the statute of repose
15 The statute of repose which is actually in Spanish
16 called Caducidad C-A-D-U-C-I-D-A-D is essentially the --
17 provision of the law that is created as matter of public
18 policy that will bar any future actions
19 Can that be waived
20 It can not
21 And how long is the period of the statute of repose
22 The statute of repose is five years and the statute
23 of limitations is one year
24 Just so Im clear it is your testimony that the
25 statute of repose is non-waivable
00976
94
Thats correct
In addition to the simple fact that the cause of
action isnt recognized in Mexican law would the law of
Tamaulipas recognize any obstacle to anyone trying to bring
claim of breach of fiduciary duty
Well there is certainly lot of procedural
obstacles more than anything else as Dr Gabaurdi explained
earlier perhaps the biggest problem is that complaint as we
know that in Mexico is functionally judgment motion
summary
10 You have to have all of the information that could be available
11 to you on the day you file complaint because you are not
12 really allowed to amend pleadings or introduce evidence that
13 has not been identified at the outside So guess maybe
14 adding to that is the fact that there is no discovery and there
15 is no ability to inspect accounts so no it could not be
16 brought in Mexico
17 will represent to you that under Texas law if
18 fiduciary duty is owed the fiduciary has an affirmative duty
19 of disclosure and claims can be brought for failure to
20 disclose Is there anything like that recognized in Mexican
21 law
22 No
23 Would court in the state of Tamaulipas have
24 jurisdiction or Shelby Longoria if the Executor of the Estate
25 of Dorothy Longoria were to sue him on the theories presented
00977
95
here
The Court in Mexico would not have original
jurisdiction because the guess Mr Longoria Shelby is
admittedly resident of the United States and causes of action
in personam are -- the jurisdiction of Mexican courts and the
courts of Tamaulipas specifically in some actions is
per
dependent upon the residence of the defendant So if the
defendant does not reside within wont call it jurisdiction
but within the territorial ci rcumscri pti on of the Court then
10 no there is no original jurisdiction
11 You have heard it -- have you been present throughout
12 the hearing today
13 have
14 All right You have heard it said that Shelby
15 Longoria is voluntarily submitting to the jurisdiction of the
16 courts in Tamaulipas
17 In federal court the amparo court
18 All
19 Im sorry just want to clarify
20 All
21 All
22 fIR HESS want to make it clear all courts
23 in Tamaulipas either federal or state
24 Understood
25 By Mr Fisher Is it your testimony that court in
00978
96
Tamaulipas would dismiss case against Shelby even if he
vol untari purported to submit to its jun sdi cti on
There is two aspects to the jurisdictional argument
one is the personal jurisdiction There is distinct
very
likelihood would say almost certainly court that receives
complaint that sees complaint thats filed with the court
has duty to ascertain ab initio to whether it has
jurisdiction Thats the first thing the Court must do If
the court sees that the defendant is not resident of Mexico
10 the common practice among Mexican courts is that those cases
11 get dismissed So the defendant is never given notice and the
12 action is never admitted to process by the court
13 Sua sponte dismissal correct
14 That is sua sponte dismissal correct There is
15 separate issue as well with respect to what would call
16 subject matter jurisdiction and that there is claim pending
17 in the United States and the action which purportedly be
might
18 brought in Mexico is cross-claim to that action Now
19 understand based on the representations that were made today
20 that there is no challenge to this courts jurisdiction over
21 the Estate or over the claims that Shelby Longoria has
22 asserted The problem is that the claims that Shelby Longoria
23 has asserted are essentially standing claims If an action
24 were filed in Mexico there is no question that the Court could
25 not even ascertain whether the plaintiff has standing to file
00979
97
that suit So it could not entertain the substance of the
dispute if it cant even entertain the predicate of the
fundamentals which are does the party have standing to bring
the suit
You are talking about the standing of James Thomas
Dorsey as Executor
Correct My understanding is that Mr Longoria is
challenging Mr Dorseys appointment as the representative of
the Estate Executor of the Estate excuse me
10 Now with regard to the third party claims that
11 Shelby Longoria has filed against Sylvia Dorsey and Adriana
12 Longoria
13 Yes
14 If Shelby were sued in Mexico and lets just assume
15 hypothetically in spite of everything that have the
you said
16 court took the case exercised jurisdiction over it and
17 proceeded could the Court proceed to adjudicate those third
18 party claims
19 My understanding is that Adriana and Sylvia Longoria
20 have not stipulated to the jurisdiction of Mexican courts for
21 those purposes because they are foreign residents there is no
22 way that the court could adjudicate those claims that
23 Mexican court in Tamaulipas could adjudicate those claims
24 You understand that Sylvia Dorsey and Adriana
25 Longoria have filed an amparo action in federal court
00980
98
do
What is an amparo action
An amparo action is an action that seeks
constitutional redress from the Mexican federal judiciary
acting as constitutional court as against the acts of
authorities or individuals certain very limited categories of
individuals acting under color of state law
Dr Gabaurdi testified in his affidavit that the
filing of the amparo action was an acknowledgement of the
10 adequacies reliability and better convenience than the Mexican
11 judicial system Is that true
12 Well let me put it this way what it is an amparo
13 action is the only remedy that exists as far as know in the
14 world to obtain Mexican constitutional redress against
15 Mexican governmental entity so cant really speak to the
16 convenience dont know that its question of convenience
17 its question of it being the exclusive court that can
18 adjudicate the constitutional violations by Mexican government
19 authorities
20 So an amparo case could not have been brought in any
21 other courts
22 No
23 And is the filing of an amparo case some sort of
24 agreement to submit to the jurisdiction of the Mexican courts
25 Well its an agreement to submit to that court for
00981
99
the purposes of that proceeding
But nothing more than that
Nothing more than that or at large correct
Does the concept of minimum contacts exist in Mexican
law --
No
-- as to personal jurisdiction
Im sorry for not letting you finish No it does
not
10 What about the concepts of specific jurisdiction and
11 general jurisdiction
12 The concepts themselves dont exist but what the way
13 would articulate it is and will use the terms jurisdiction
14 and competence which is the term of art in Mexico
15 interchangably just because they are functioning synonyms
16 forgot where was The -- can you restate the question Mr
17 Fisher
18 Specific and general jurisdiction
19 Yes The most akin way to explain it if were
20 talking about US law is that Mexico recognizes essentially
21 something similar to specific jurisdiction So jurisdiction is
22 assessed on case by case basis There is no general
23 jurisdiction of particular court It must be assessed on
24 case by case basis
25 Now have you read Dr Gabaurdis affidavit
00982
100
have
And do you recall he makes reference to Supreme
Court decision regarding service of process
Ido
Do you agree or disagree with his opinion concerning
the significance of that case
agree with the significance of that case except it
has no application in Tamaulipas
Why not
10 Well let me distinguish Insofar as it to
pertains
11 the exercise of jurisdiction dont agree that that case
12 speaks to jurisdiction It does not It speaks to service of
13 process To the extent that it speaks to service of process
14 agree that the case says what it says but it deals with
15 provisions that are very different from those that exist in
16 Tamaulipas vis-a-vis service of process original service of
17 process
18 And whats the significance of that difference as it
19 relates to this case
20 Insofar as it pertains to this case in that the
21 plaintiff if plaintiff were to file an action against Mr
22 Longoria in Mexico in Tamaulipas specifically they would have
23 to identify his home address as the place where he lives and
24 the place where he must be served with process That requires
25 obviously that the court will immediately see what the court
00983
101
will immediately see is that the defendant is foreign
defendant and as mentioned earlier more likely than not
highly more likely than not will dismiss it sua sponte
Finally in his opening statement Mr Carter said
that Mexican court might not recognize judgment of this
court Do you agree or disagreewith that assertion
Thats -- pardon me thats wholeheartedly wrong
Mexican courts regularly enforce foreign judgments
particularly US judgments Mexico is the USs their largest
10 trading partner the US is Mexicos first largest trading
11 partner or largest trading partner as they are also known If
12 there were no way for their reciprocal judgments to be enforced
13 between nations that simply wouldnt be the case
14 Is there any or opinion concerning Dr Gabaurdi
15 affidavit that you were prepared to express that didnt ask
16 you about
17 Not that can remember
18 fIR FISHER Nothing further Your Honor
19 THE COURT All right
20 CROSS-EXAMINATION
21 Questions By Mr Hess
22 Mr Rosenberg you are not admitted to practice law in
23 Texas right
24 That is correct
25 You are not an expert in Texas law right
00984
102
Nor do hold myself out to be
Right You are not purporting to offer any greater
knowledge or expertise in Texas law than the court or Texas
lawyers in this room right
No
You are not offering any opinions about whether the
allegations that have been made in this case by the Executor of
the Estate meet any of the elements of any cause of action
under Texas either are you
10 Thats correct
11 You are not offering any opinions about the legal
12 significance on forum non conveniens consideration by Texas
13 court of the unavailability of particular cause of action in
14 Mexico right
15 Only to the extent that Texas adopts federal
16 standards for forum non conveniens which am familiar
very
17 with am licensed to practice in federal court too
18 Right And have handled lot of forum non
19 conveniens cases at the courthouse as well You are not
20 offering yourself as an expert with greater knowledge and
21 opinions that are being offered to this court on American legal
22 standards on forum non conveniens
23 No believe thats the job of the Court
24 Right And so you are not offering any opinions on
25 the legal significance in forum non conveniens -- in making
00985
103
forum non conveniens ruling in Texas or federal court of the
unavailability of cause of action in Mexico
No What was asked to offer an opinion on is
whether there is any cause of action under Mexican law under
the laws of Tamaulipas for the claims asserted or for the facts
as relayed in the counterclaim in this case And thats the
scope of my opinion that there is none
And you are offering no opinions in the legal
significance in the United States or specifically in Texas with
10 respect to forum non conveniens inquiry of the expiration of
11 statute of limitation or statutes of repose right
12 Im sorry that is little long
13 Right that was little long You are not offering
14 any legal opinions about the Court in applying American forum
15 non conveniens law the significance of expiration of statutes
16 of limitation and statutes of repose right
17 Once again Im not offering single opinion on US
18 law or Texas law That my understanding is the role of the
19 court
20 And you are offering an opinion that the statute of
21 repose has expired in Mexico
22 Correct
23 And statute of repose for these claims would be five
24 years right
25 Correct
00986
104
And so these claims accrued more than five years ago
right
Thats my understanding My understanding is that
Mr Longoria Sr Eduardo Longoria Sr passed way more than
five years ago And my understanding is that the affairs at
issue and that the claims at issue which my understanding is
and again dont purport to offer any opinion on US law but
the argument is arose at least as of 1983 claims that
any
arosethereon are barred by the statute of repose yes under
10 Mexican law
11 Because they accrued more than five years ago right
12 Well any unjust enrichment that accrued more than
13 five years ago regardless of whether it was discovered
14 yesterday or discovered three and half years ago no Im not
15 purporting to offer any further opinion on that
16 Right And were you aware that the statute of
17 limitations in Texas for breach of four
fiduciary is years
18 No As said Im not Texas lawyer nor am
19 licensed to practice in Texas or familiar with statute of
20 limitations or breach of fiduciary duty in Texas
21 Okay Now you testified that in Mexican court the
22 standing of the Executor would have to be resolved first
23 Well its threshold issue in every case
24 So its your testimony that court would want to
25 know whether the executor is the proper executor before it
00987
105
reaches the substantive issues in the case
No What am saying is that unless Mr Longoria
were to concede that Tommy Dorsey is the legitimate
representative of the Estate then the court would not enter
would not begin to study the case in Mexico at all would it
not entertain the case at all
Right The Court would not entertain the allegations
being made by Mr Dorsey if Shelby Longoria challenged Mr
Dorsey as Executor The court would wait for that challenge to
10 be resolved first
11 No they would dismiss the case There is no stay of
12 actions in Mexico The case would be dismissed in its
13 entirety There is no cause of action in Mexico is essentially
14 where Im trying to get overall because the court could never
15 assert subject matter jurisdiction
16 And you are not offering -- youre aware know
any
17 you are not offering opinions in the US law but are aware
you
18 that there are cases that address in the US the legal
19 significance of foreign courts For example in some
20 countries there are statutes that say we will reject subject
21 matter jurisdiction if the case was first filed in the United
22 States Are you aware of that
23 Yes am aware of that
24 And you are not offering any opinions of the legal
25 significance of that rejection of subject matter jurisdiction
00988
06
in the foreign forum
No And Im not talking about the statutory basis
Im talking about court action Im assuming you are talking
about the assertion of jurisdiction right
Right
By second Mexican court in this case
Right
Right No thats not what Im saying at all And
Im not offering opinion on that Im just saying the court
10 can assess the standing of the parties then it certainly
11 cannot entertain the substance of dispute
12 In any event if the Will Contest and the challenge
13 to the Executor were to proceed in this court and to the
get
14 end of that proceeding and it was found that the Executor is
15 the proper Executor there is no more challenge to it that
16 issue would go away in Mexico
17 Well certainly and there would still be no claims
18 to be asserted in Mexico
19 The Mexican Supreme Court interpreting the provisions
20 of both the Mexican federal and states Code of Civil
21 Procedure
22 What state Im sorry
23 Federal and many states Codes of Civil Procedure
24 Which ones sir
25 Okay The Mexican Supreme Court the
interpreting
00989
07
provisions of Mexican federal civil procedure has long held
the position that parties may agree or stipulate to submitting
their disputes to specific court even when that court can not
ordinarily exercise territorial un sdi cti on
Yes the Mexican Supreme Court has also explained
that in those provisions its speaking to choice of forum
clauses in contracts
Individuals and entities are fully empowered to
relinquish the benefit of their home forum and submit to the
10 jurisdiction of particular Mexican court right
11 Correct provided they are afforded the process and
12 the action is allowed to proceed
13 In order to do so the parties must execute written
14 agreement which meets the two basic requirements described by
15 the codes in the Supreme Court of Mexico right which are --
16 Well the Mexican Supreme Court has actually --
17 -- which are unquestionable as you might be able to
18 tell Im reading from an affidavit
19 know exactly what you are talking about
20 Unquestionable relinquishment of the domestic form
21 and precise designation of the selected court
22 Thats correct
23 In other words the parties can execute document or
24 what have you where they agree to jurisdiction in Mexico
25 Yes And after issuing those opinions the Mexican
00990
108
Supreme Court explained that when it was speaking in those
terms it was talking about choice of forum clause
The parties could enter into choice of forum
As far as understand and leave it at that this
is not contract issue They are talking about choice of
forum provisions in contracts so they are -- are
pre they
preselected choice of forum clauses that the Supreme Court has
been talking about And do have to clarify that because the
Supreme Court thereafter -- after prepared that affidavit
10 explained that it is talking about choice of forum clauses in
11 commercial and civil contracts
12 Mexican courts recognize the ability of private
13 parties to determine the courts jurisdiction by mutual
14 consent for instance by including choice of judicial forum
15 clause in an agreement or by otherwise contractually submitting
16 dispute to the dispute to the jurisdiction of the court or
17 arbitrable tribunal
18 Correct
19 MR HESS Thank you no further questions
20 MR FISHER Nothing further Your Honor
21 THE COURT Thank you
22 THE WITNESS Thank you very much Your Honor
23 MR FISHER Your Honor my last evidence is
24 just to request judicial notice of the timing and contents of
25 the pleadings in the case can quickly run through what they
00991
109
are
THE COURT All right
MR FISHER It is Shelby Longorias Contest of
2010 Will filed on believe on June 18th 2013 the Original
Counterclaims of James Thomas Dorsey as Independent Executor
filed on July 18th 2013 Shelby Longorias Amended Will
Contest of 2010 Will they amended their pleading too on
August 30th 2013 Shelby Longorias Third Party Petition filed
on August 30th 2013 and James Thomas Dorsey Independent
10 Executors Original Counterclaims to Shelby Longorias Amended
11 Contest of 2010 Will and those Counterclaims were filed on
12 September 26th 2013
13 THE COURT All right
14 MR HESS Your Honor would add one which is
15 the fi rst thing filed in thi case whi ch P1 ai nti ff
16 Original Petition and Demand for Trial by Jury the Plaintiff
17 there being Mr Dorsey as Executor on May 3rd 2013
18 MR FISHER dont object to the Court taking
19 notice of it but that was not this case That was separate
20 -- docketed as separate case and not part of this case
21 THE COURT But in this court
22 MR FISHER In this court yes sir And
23 dont object to you taking judicial notice of his contest
24 THE COURT So no objection as to between the
25 parties as to all these documents or all these pleadings that
00992
110
were just stated by both attorneys
FIR HESS Correct
THE COURT The Court takes judicial notice of
those pleadings and their documents filed of record
MR FISHER Your Honor we want to declare on
the record that our client Sylvia Longoria will not
voluntarily submit to the jurisdiction of the Mexican courts as
general proposition and we are resting We just renew our
request that the Court sustain the Objections the Amended
10 Objections that were filed last Thursday September 26th 2013
11 Those were objections to the affidavit of Shelby Longoria and
12 to the affidavit of Kristen Schlemmer And with that request
13 we rest Your Honor
14 THE COURT All right
15 MR FISHER Thank you
16 MR HESS Your Honor lot of the objections
17 listed in the Executors written objections from last week have
18 now been withdrawn and we would like the to file
opportunity
19 response to the ones pending
20 THE COURT All right will allow that
21 hate to open the door for flurry of responses and sir
22 responses and sir replies and stuff like that
23 MR FISHER Your Honor they filed long reply
24 brief yesterday dont understand why they couldnt address
25
00993
ill
THE COURT will give you until Friday at five
to supplement or further object to something and then will
give you until Tuesday to respond if necessary My point is
Im going to rule by the end of next week on this want to
give it its due consideration given all the work thats been
done and all the testimony that has been heard want to think
it through one last time But think yall have covered it
Let me put it that way Now let me -- as to now objections
to affidavits etcetera thats all Im really opening the door
10 to is to clarify that to clarify whats still being objected
11 to have the notes as to what is not objected to anymore
12 So as go through your Amended Objections will take that
13 into account And then suppose you want to have one last
14 shot at responding to those objections
15 MR FISHER Yes Your Honor think that
16 lot of them relate to the affidavit of the attorney in our
17 office who that kind of you know sent them through as summary
18 judgment motions and attached bunch of documents and we are
19 little concerned about not about the affidavit itself but the
20 admissibility of the documents
21 THE COURT Correct
22 MR HESS And for what its worth some of
23 these documents were offered by the Executor today
24 THE COURT Okay
25 MR FISHER We might be able to submit
00994
112
something thats not brief but that actually just clarifies
and tells ultimately what we believe to be the lay of the land
THE COURT Thats fine will read it
mean the bottom line is as you know on this one Im the
decision maker so will be reading things Ill be taking
into account whats been objected to and what might not be
admissible obviously but get the big picture of what have
got to decide and what to take into consideration so thank
yall Anything further
10 MR FISHER No Your Honor
11 MR HESS No Judge
12 THE COURT Thank yall very much
13
14
15
16
17
18
19
20
21
22
23
24
25
00995
113
CERTI Fl CATE
COUNTY OF HARRIS
STATE OF TEXAS
Donald Pylant Official Court Reporter in and for
Probate Court No of Harris County State of Texas do hereby
certify that the above and foregoing contains true and
correct transcription of all portions of evidence and other
proceedings requested in writing by counsel for the parties to
be included in this volume of the Reporters Record in the
above-styled and numbered cause all of which occurred in open
court or in chambers and were reported by me
further certify that this Reporters Record
truly and correctly reflects the exhibits if any admitted
tendered in an offer of proof or offered into evidence by the
respective parties
further certify that the total cost for the
10 preparation of this Reporters Record is __________ and will be
paid by ___________________
11
Given under my hand and seal of office this the day
_____
12 of
_____________ 2013
13
14
15 Donald Pylant C.S.R
Official Court Reporter
16 in and for the County of
Harris and the State of
17 TEXAS
18 Certification No 668 Exp Date 12-31-2014
Probate Court No One 201 Caroline Street 6th fi
19 Houston Texas 77002 713 368-6692
20
21
22
23
24
25
00996
CkSE NIJIvER 14.270
IN TI-rE ESTATE OF IN PROBATE COURT NO ONE
DOROTHY LOUISE LONGO.RIA
DECEASED HARRIS COUNTY TEXAS
ORDER DENYThG MOTION OF SHELBY LONGORJA
TO DISMISS OR TO ABATE COTJNTEkCLAIMS
On October 2013 the Court-heard Counter-Defendant Shelby Longorias Motion
To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending
Resolution of Will Contest and Mexican Litigation the cMouons Having considered the
Motion the brief filed in support of the Motion the
response to the Motion the evidence
admitted during the hearing on the Motion and the record of this case the Court has
concluded that the Motion should be denied
IT IS THEREFORE ORDERED that Counter-Defendant Shelby Longorias Motion
To Dismiss Counterclaims for Porum Non Conveniens or Alternatively To Abate Pending
Resolution of Will Contest and Mexican Litigation be and herthy Is DENIED
SOOBDEREID onthis/11A_day of OcSsoher 2013
PRESIDING fIJI
PRoBATE COURT Nwan ONE
His Cotmrry Thns
ORDER DENYING MOTION OP SHELBY LONGOflA
TO DISMISS OR TO ABATE COUNTERCLAIMS Solo Page
00997
JUDGE LOVO WRIGHT
Harris
County Probat Court No
201 Carolino 8th
Floor
Houston Texas 7700
Phone 7133.68-67DO
Fax 7136873oo
FIOM
Judge Loyd Wright
Kimberly Hightower Susie owky
Ruth Ann Stiles
Hilda Riiey Cres Machicek
Betty -Iazlewood
Puige Compton Don Pylant
Anthi Pavlicek
Pam Speer
To
Date
RE
Comments
PAGE OP
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00998
ACCEPTED
234EFJ01 7816390
FOURTEENTH COURT OF APPEALS
HOUSTON TEXAS
141 3_OO99t_rV l3Novemberl2A927
Christopher Prine
CLERK
NO ___
FILED IN
iN IRE OUR OI APPFAJ I4thCOURTOFAPPEALS
HOUSTON TEXAS
HOUSTON TEXAS 11/12/2013 92706 AM
CHRlSTOEPRNE
Clerk
IN RE SHELBY LONGORIA
Original Proceeding from the
Probate Court Number One Harris County
Texas Cause No 414270
PETITION FOR WRIT OF MANDAMUS
Johnny Carter
State Bar No 00796312
cartersusrnangodfrey.corn
Richard Hess
State Bar No 24046070
rhesssusrnangodfrey.com
Kristen Schiemmer
State Bar No 24075029
kschIemrnersusrnangodfrey corn
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713 654-6666
Robert MacIntyre Jr
State Bar No 12760700
macintyre@rnrnlawtexas.com
MAcINrYRE McCuLL0CH STANFIELD YOUNG
3900 Essex Lane Suite 220
Houston Texas 77027
Telephone 713 547-5400
Attorneys for Shelby Longoria
2927935v1101 3774
00999
IDENTITY OF PARTIES AND COUNSEL
Relator
Shelby Longoria
Represented by
Johnny Carter
State Bar No 00796312
cartersusmangodfrey.com
Richard Hess
State Bar No 24046070
rhesssusmangodftey.com
Kristen Schiemmer
State Bar No 24075029
kch1emmersusmangodfrey corn
SUSMAN GODFREY L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002
Telephone 713 651-9366
Facsimile 713 654-6666
Robert Maclntyre Jr
State Bar No 12760700
macintyre@mmlawtexas corn
MACINTYRE MCCULLOCH STANFIELD YOUNG
3900 Essex Lane Suite 220
Houston Texas 77002
Telephone 713 547-5400
Respondent
Hon Loyd Wright Probate Court No Harris County Texas
Real Party in Interest
James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise
Longoria Deceased
01000
Represented by
James Austin Fisher
State Bar of Texas Number 07051650
jfisher@fisherwelch.com
Shannon L.K Welch
State Bar of Texas Number 90001699
swelch@fisherwelch corn
FISHER WELCH
Professional Corporation
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Telecopier 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
wes@weshoirnes.com
THE HOLMES LAW FIRM
1000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9267
Third-Party Defendants
Sylvia Longoria Dorsey
Adriana Longoria
Represented by
James Austin Fisher
State Bar of Texas Number 07051650
jfisherfisherwelch.com
Shannon L.K Welch
State Bar of Texas Number 90001699
swelch@fisherwelch.com
11
01001
FISHER WELCH
Professional Corporation
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Telecopier 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
wes@wesholmes.com
THE HOLMES LAW FIRM
1000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9267
ill
01002
TABLE OF CONTENTS
STATEMENT OF THE CASE ix
STATEMENT OF JURISDICTION .................
ISSUES xi
STATEMENT OF FACTS
Dorothy and Eduardo Sr Plan Their Estates and Partition Their
Property
II Shelby Manages the Mexican Businesses and Sylvia and Adriana
Receive Money
III Eduardo Sr Puts His Assets in Trust and Enters into Private
Agreements with Sylvia and Adriana
IV Shelby Supports His Mother and Sisters
Sylvia and Adriana Procure New Wills from Dorothy
VI Tommy Brings This Suit to Recover Money for His Wife from
Shelby
VII Tommy Sylvia and Adriana Sue Shelby in Mexico
VIII Tommy Repeatedly Repleads in Order to Avoid Dismissal
ARGUMENT
The Trial Court Abused Its Discretion by Denying Dismissal
Tommys Case Is About Mexican Property Agreements and
CourtOrders 10
Tommy Relies on Procedural Smoke and Mirrors 13
Mexico is an Available and Adequate Alternative Forum 14
Mexico is an Available Forum 15
iv
01003
The
Mexico
Private
is
Interest
an Adequate Foru
Factors Weigh in Favor of Mexico
17
21
Access to Evidence is Much Greater in Mexico 22
The Availability of Compulsory Process Supports Trial
in Mexico 23
Costs Will be Less in Mexico 24
There Is No Need for View of Any Premises 25
Trial Will Be More Expeditious and Inexpensive in
Mexico 25
Tommys Arguments Are Meritless 25
The Public Interest Factors Weigh in Favor of Mexico 28
II The Trial Court Abused Its Discretion by Denying Abatement ...... 32
PRAYER 34
CERTIFICATE OF SERVICE 35
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3j 36
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.41 37
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 4e6 38
01004
INDEX OF AUTHORITIES
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Aguinda Texaco Inc
20
Benz Group Barreto
404 S.W.3d 92 Tex App Houston Dist 2013 no pet 22 25 26
Del Jstmo Assurance Corp Platon
2011 WL 5508641 S.D Fla Nov 2011 20
Develo-Cepts Inc City of Galveston
668 S.W.2d 790 Tex App Houston Dist 1984 no writ 33
DTEX LLC BBVA Bancomer S.A
508 F.3d 785 5th Cir 2007 15 19 2223 25 32
Dunsby Transocean Inc
329 Supp 2d 890 S.D Tex 2004 20
Gallego Garcia
2010 WL2354585 S.D Cal.June92010 18223031
Givens Ward
272 S.W.3d 63 Tex App Waco 2008 no pet 33
Gomez de Hernandez Bridgestone /Firestone Am Tire L.L
204 S.W.3d 473 Tex App Corpus Christi 2006 pet denied 15
Ibarra OricaUSA
493 Fed Appx 489 5th Cir 2012 1526
In re Air Crash Over the Mid-Atlantic on June 2009
792F Supp 2d 1090 N.D Cal 2011 1617
In re BPZ Resources Inc
359 S.W.3d 866 Tex App Houston Dist
2012 orig proceeding 1523242629
vi
01005
In re Ensco Offshore Intl Co
311 S.W.3d 921 Tex 2010 9172326
In re Ford Motor Co
591 F.3d406 5th Cir 2009 1516
In re General Elec Co
271S.W.3d681Tex.2008 24
In re Mantle Oil Gas LLC
2012 WL 5323584 Tex App Houston Dist 2012 no pet ......... 20
In re Pirelli Tire L.L
247 S.W.3d 670 Tex 2007 15 16 18 1923
In re Prudential Ins Co ofAmerica
148 S.W.3d 124Tex 2004 .9
In re SXP Analytics LLC
2012 WL 1357696 Tex App Houston Dist Apr 13 2002 orig
proceeding ...... 222931
Israel Discount Bank Ltd Schnapp
505 Supp 2d 651 C.D Cal 2007 14
ISTIL Group Inc Masood
2004 WL948376D Or 2004 14
Koster Am Lumbermen Mut Cas Co
330U.S.5181947
Miralda Tidewater Inc
2012 WL 3637845 E.D La Aug 23 2012 27
Morales Ford Motor Co
313 Supp 2d 672 S.D Tex 2004 2027
Navarrete de Pedrero Schweizer Aircraft Corp
635 Supp 2d 251 W.D.N.Y 2009 20
Paolicelli Ford Motor Co
289Fed.Appx387llthCir.Aug.202008 27
vii
01006
Paulownia Plantations de Panama Corp Rajamannari
793 N.W.2d 128 Minn 2009 20
Perry Del Rio
66S.W.3d239Tex.2001 33
Rustal Trading US Inc Makki
17 Fed Appx 331 6th Cir Aug 21 2001 27
Megga Telecommunications Ltd Lucent Technologies Inc
1997 WL 86413 Del 1997 14
Seguros Comercial America S.A de American President Lines Ltd
966 S.W.2d 652 Tex App.San Antonio 1998 no pet.. ... 23
SES Prods Inc Aroma Classicjue LLC
2013 WL 2456797 Tex App Houston Dist June 62013 no pet 26
Sonat Exploration Co Cudd Pressure Control Inc
271 S.W.3d 228 Tex 2008 30
Transunion Corp Pepsico Inc
811 F.2d 1272d Cir 1987 ......... 26
United Bank for Africa PLC Coker
2003 WL22741575 S.D.N.Y 2003 14
Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de
336 S.W.3d 664 Tex App Houston lstDist 2010 no pet.... 10 15 18 22
23 24 25 26 28 29 30
Wasson Interests Ltd Adams
405 S.W.3d 971 Tex App Tyler 2013 no pet 21
Yoroshii Invs Mauritius Pte Ltd BP Intl Ltd
179 S.W.3d 639 Tex App El Paso 2005 pet denied 29
Statutes
Texas Govt Code 22.221b
Texas Probate Code 149C 33
viii
01007
STATEMENT OF THE CASE
James Thomas Dorsey Independent Executor of the Estate of Dorothy
Louise Longoria filed an action against Shelby Longoria in Harris County Probate
Court Number One Hon Loyd Wright presiding The executor alleged breach of
fiduciary duty and sought an accounting
Shelby Longoria then filed will contest in the same court alleging that the
executors wife Sylvia Longoria Dorsey together with her sister Adriana Longoria
exercised undue influence in order to procure Dorothy Longorias will and that
Dorothy Longoria lacked capacity to execute the will Shelby Longoria also sought
removal of James Thomas Dorsey as executor The executor then nonsuited his
claim and refiled it as counterclaim to Shelby Longorias will contest
On August 2013 Shelby Longoria filed motion seeking either to dismiss
the counterclaim for forum non conveniens or to abate the counterclaim pending
resolution of the will contest On October 2013 the trial court held an
evidentiary hearing on the motion On October 11 2013 the trial court denied the
motion without explanation
ix
01008
STATEMENT OF JURISDICTION
This Court has jurisdiction over this Petition for Writ of Mandamus under
Section 22.22 1b of the Texas Government Code
01009
ISSUES PRESENTED
Did the probate court abuse its discretion by refusing to dismiss in
favor of Mexican forum lawsuit brought by the estate of Mexican citizen
which seeks to recover half the value of Mexican businesses by challenging the
validity of trust holding those businesses as well as the validity of Mexican
probate proceedings and Mexican separate property agreement which was
entered as judgment of Mexican court
Did the probate court abuse its discretion by refusing to abate the
estates claims pending resolution of whether the executor could properly assert
those claims
xi
01010
STATEMENT OF FACTS
This case concerns the long marriage of the decedent Dorothy Longoria
Dorothy to her husband Eduardo Longoria Sr Eduardo Sr and the attempt
by Dorothys and Eduardo Sr.s daughters Adriana Longoria Adriana and
Sylvia Dorsey Sylvia to use Dorothys estate to recover money from their
brother Shelby Longoria Shelby
Dorothy and Eduardo Sr Plan Their Estates and Partition Their Prop
In the early 1940s Eduardo Longoria Sr married Dorothy Kowaiski they
obtained marriage certificates in both Texas and Mexico.1 Eduardo Sr came from
prominent family in northern Mexico that had considerable success in business
Dorothy was from Ft Worth but she later became Mexican citizen.2 Over the
course of their 62-year marriage Dorothy and Eduardo Sr lived in Nuevo Laredo
Mexico and later in Laredo Texas.3
In 1983 Eduardo Sr and Dorothy decided to partition their community
property and have Mexicos separate-property regime govern their marital
property.4 Dorothy and Eduardo Sr formalized this
Spanish-language agreement
by applying to court in Tamaulipas Mexico for entry of judgment partitioning
Record 00313 00315 00317 01160
Record 00320-24 00854
Record 00894 at 5-6 10 00853-54
Record 00094 at
01011
their property.5 The Mexican court entered the requested judgment and the
couples marriage certificate was amended to reflect their election of the separate-
property regime.6 Less than two years later Dorothy executed Spanish-language
Mexican will in which she expressly declared that she is married under
Separate Property Regime.7 Dorothy repeatedly acknowledged the couples
agreement to maintain separate property in various documents she executed over
the next decades.8
IL Shelby Manages the Mexican Businesses and Sylvia and Adriana Receive
Money
Of Eduardo Sr and Dorothys four children only one Shelby the youngest
expressed any real continuing interest in living and working along the Mexican
border to help his father manage the businesses there on day-to-day basis.9 After
graduating from college in 1975 Shelby moved to Nuevo Laredo to assist his
father It was hard work The companies struggled through devaluations of the
Mexican peso in 1976 1982 1988 and 1994
Record 00103-48
Record 00103-48
Record 00335
Record 00094 at Record 00150-56
Record 0083 8-39
10
Record 00094 at 00861
Record 00837-38
01012
Eduardo Sr consistently made clear that his Sons Shelby and Eduardo Jr
would inherit interests in the nearly-insolvent Mexican businesses.12 In contrast
his daughters Sylvia and Adriana would receive money during his lifetime.13 In
1992 Eduardo Sr signed Spanish-language Carta de Voluntad Wish
Letter which granted each daughter $3000000 in cash and properties to be
distributed over time.4 Despite the Wish Letter Sylvia and Adriana continued to
ask for even more money Dorothy and Eduardo Sr pleaded with them to become
self-sufficient to no avail.5
III Eduardo Sr Puts His Assets in Trust and Enters into Private Agreements
jylvia and Ad
In October 2002 Eduardo Sr transferred the shares of his two Mexican
holding companies to trust administered by Mexican bank pursuant to Mexican
law.16 He designated Shelby and Eduardo Jr to be beneficiaries upon his death.7
Eduardo Sr also executed new Spanish-language Mexican will in October
2002 The will affirmed the Spanish-language trust agreement and appointed
Shelby as executor of Eduardo Sr.s estate.9
12
Record 00094 at 00096 at 17 00849-50
Record 00851
Record 00095 at 12 00178-83
Record 00185-88
16
Record 00095 at 14 00 190-252
Record 00851 01010-11
18
Record 00095-96 atlI 15 00254-68
Record 01039-53
01013
Two months later Eduardo Sr entered into Spanish-language Acuerdos
Privados Private Agreements with Sylvia and Adriana.2 The Private
Agreements stated that payments of $150000 year would be made to Sylvia and
Adriana from the Mexican companies held in the Mexican trust until the full $3
million was paid.21 Both Sylvia and Adriana acknowledged the validity of the
Mexican Trust agreed to application of Mexican law and subjected themselves to
venue in the courts of the city of Reynosa Tamaulipas Mexico.22
IV Shtlby Supports His Mother and Srstcis
Eduardo Sr died in 2005.23 Dorothy then moved to Houston and Sylvia
took over managing her financial affairs Sylvia obtained signatory rights to
Dorothys American bank accounts which were funded by transfers arranged by
Shelby from the Mexican businesses through Dorothys accounts in Mexico.24
Following Eduardo Sr.s death the Mexican companies held by the trust
continued to pay Sylvia and Adriana.25 Around 2006 Sylvia asked for the
acceleration of her payments.26 Shelby arranged for all remaining amounts to be
20
Record 00096 at 16 00272-87
21
Record 00277 at 00285
22
Record 00277 at 278 at 00285-86
23
Record 00096 at 17 00370
24
Record 00097 at 11 20-21 00857-58
25
Record 00096-97 at 18 00855
26
Record 00097 at 19 856
01014
paid to Sylvia ahead of schedule.27 In return Sylvia acknowledged signed an
agreement releasing all claims against Shelby or Eduardos estate.28
Sylvia and Adriana Procure New Wills from Dorothy
Meanwhile Shelby was reviving the Mexican businesses and making them
profitable.29 At the same time Adriana and Sylvia had run through their money
and wanted more Mexican court had probated Eduardo Sr.s will found it to be
valid appointed Shelby as executor and entered final judgment.3 Therefore
Sylvia and Adriana focused on their mothers estate
Dorothy had two wills 1989 will for her Mexican property and 1988
will for her U.S property Shelby was beneficiary under both wills The
Spanish-language Mexican will designated Shelby as executor and the U.S will
designated Shelby and Eduardo Jr as co-executors.31
In December 2009 when Dorothy was ninety years old Adriana had
Dorothy sign will which left all of Dorothys remaining estate to Adriana.32
When Sylvia found out she had Dorothy execute new will in January 2010 that
divided Dorothys estate equally between Adriana and Sylvia.33 The January 2010
27
Record 00097 at 19
28
Record 00289 at
29
Record 00096 at 17 00839
30
Record 00095 at 11 00164-76 00373-99 00954-66
Record 00095 at 11 00157-62 00947-52
32
Record 00401-06
Record 00409
01015
will named Sylvias husband Tommy as executor and thus opened the door for
Tommy to sue Shelby after Dorothys death.34
Tommy now purports to act as executor pursuant to the January 2010 will
which both he and Sylvia represented to the probate court as Dorothys last will
and testament.35 But Dorothy executed her last will in July 2011 This will left
most of her estate to Adriana and designated Adriana to be executor.36
VI Tommy Bi ings his Suil to Recovei Money for His Wife from Shelby
Dorothy passed away on April 26 2012 Two months later Sylvia applied
to probate the January 2010 will.37 On October 2012 the trial court admitted the
2010 will to probate and granted letters
testamentary to Tommy as its executor.38
On May 2013 Tommy filed lawsuit against Shelby.39 He alleged that
Dorothy was somehow deprived of community property interest over the course
of her marriage to Eduardo Sr.4 Tommy alleged that this resulted from the
influence supposedly exercised on Eduardo Sr by Shelby.4 Tommy challenged the
validity of the 1983 separate property agreement which was entered as an order of
Record 00409
Record 00002 at 00010 at 33
36
Record 00777-88
Record 00001
38
Record 1208-09
Record 00004
40
Record 00008 at 21
Record 00007 at 20 00008 at 21
01016
the Mexican court the validity of the Mexican trust and the validity of the
Se
Mexican probate proceedings relating to Eduardo Sr.s estate.42
VII Tommy Sylvia and .Adriana Sue in Mexico
Tommy Sylvia and Adriana also sued Shelby in Mexican federal court.43 In
June 2013 they filed amparo proceedings alleging that they had been denied their
rights because they said they had not received notice of the probate of Eduardo
Sr.s will in state court in Tamaulipas.44 Tommy has not pursued his amparo but
Sylvias and Adrianas amparo is still pending in Mexican court.45 Shelby has
appeared and consented to personal jurisdiction in that proceeding.46
VIII Tommy Repeatedly Repleads in Order to Avoid Dismissal
Shelby answered Tommys probate court petition on June 17 2013 and
asserted forum non conveniens as defense.47 On June 18 2013 Shelby filed
petition contesting the will pursuant to which Tommy was appointed as
independent executor of Dorothys estate.48
42
Record 00006 at 11 00008 at JJ 22-23 00009 at 24 28-29
Record 00310 00416-75 00477-8
Record 00877-80 00902
Record 00901-02
46
Record 00858 00905 00907
Record 01211
48
Record 00020
01017
On July 18 2013 after reviewing Shelbys answer asserting forum non
conveniens defense Tommy nonsuited his claims and refiled them as
counterclaims to the will contest.49
On August 30 2013 Shelby filed third-party petition seeking contribution
from Sylvia and Adriana.50
On September 26 2013 one week before the forum non conveniens hearing
Tommy filed another set of counterclaims which were rewritten to minimize the
references to Mexico and accentuate the references to Texas.5
The probate court conducted an evidentiary hearing on Shelbys motion on
October 2013 and denied the motion on October 11 2013
Record 00033 00036
Record 00649-54
Record 00655-73
01018
ARGUMENT
The trial court abused its discretion in denying dismissal and in denying
abatement
The Trial Court Abused Its Discretion by Denying Dismissal
An appeal is not adequate when motion to dismiss on forum non
conveniens grounds is
erroneously denied so mandamus relief is available if it is
otherwise warranted In re Ensco Offshore Intl Co 311 S.W.3d 921 923 Tex
2010
There is
very well-developed body of case law concerning the standards
for forum non conveniens dismissal especially in cases brought in Texas
concerning Mexican transactions Tommys arguments against dismissal are
squarely contrary to that law trial court has no discretion in determining what
the law is or applying the law to the facts In re Prudential Ins Co of America
148 S.W.3d 124 135 Tex 2004
Texas takes its common-law forum non conveniens doctrine from the
equivalent federal doctrine Benz Group Barreto 404 S.W.3d 92 96 Tex App
Houston Dist 2013 no pet.
First the court must determine whether there exists an alternative
forum Pzper Aircraft 454 U.S at 255 n.22 102 Ct at 265 The
court considers the amenability of the defendant to service of process
and availability of an adequate remedy in the alternative forum
Second the court must determine which forum is best suited to the
01019
litigation In performing this second step court must consider
whether certain private and public interest factors weigh in favor of
dismissal
Vininar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d
664 672 Tex App Houston Dist 2010 no pet.
Tommys Case Is About Mexican Property Agreements and
Court Orders
Tommy alleges breaches of fiduciary duty against Shelby and seeks an
accounting of business dealings which took place in Mexico Until the eve of the
motion to dismiss hearing Tommy expressly made three broad allegations
Tommy challenged Eduardo Sr and Dorothys 1983 Agreement to
Partition Community Property alleging that Eduardo and Dorothy
did not enter into any legally valid agreement that modified
Dorothys community-property rights under Texas law.52
Tommy alleged that Shelby induced Eduardo Sr to enter into the
2002 Mexican trust agreement and execute his 2002 will to divest
Dorothy of her community-property interests and divert the marital
estate to Shelby to Wayo Jr and to one or more trusts
for their benefit.53
Tommy alleged that Shelby initiated and pursued the probate of his
fathers will in Mexico in order somehow to cheat his mother out
of community property interest.54
Tommy sought to avoid dismissal by completely rewriting his pleadings
right before the hearing Tommy asserted contrary to his original petition and his
52
Record 00006 at 11
Record 00008 at 21-23 00009 at 24
Record 00009 at IJ 26-29
l0
01020
original counterclaim that he was not contesting Eduardo Sr.s Mexican will or the
fact that Eduardo Sr signed the Mexican trust agreement.55 But Tommys counsel
at the motion to disthiss hearing made clear that Tommy was not abandoning his
effort to invalidate the Mexican trust agreement When he cross-examined Shelby
many of his questions related to the trust and its Mexican businesses.56
Just five weeks before the hearing Tommy filed an Inventory
Appraisement and List of Claims asserting that the estate has claim for
$49011050 for shares of stock in the two Mexican companies which Eduardo Sr
conveyed to the Mexican trust.57 The inventoiy is the only live pleading which
clearly describes what the estate is after in this case
Tommys amended counterclaim is not substantive change at all Re is
still attacking Mexican agreements and Mexican court orders but now he is trying
to do it sub silentio In order to prevail Tommy still will have to persuade court
to invalidate the trust holding the Mexican businesses and to invalidate the orders
of the Mexican court probating the will of Eduardo Sr which provided for his
property to be passed to Shelby and Eduardo Jr through the trust
Tommy also will have to overcome the agreed 1983 order of Mexican
court partitioning the property of Eduardo Sr and Dorothy Tommy attacked this
Record 00688-89
56
Record 00862-64 00870-73
Record 00626
01021
foreign judgment at the hearing and in post-hearing filing in which he argued that
it was somehow invalid because it
purportedly was not signed by the parties.5
In an effort to create the appearance that this case is not primarily about
Mexican property trusts and court orders Tommy added allegations to his new
amended counterclaim about two letters sent to Dorothy in Texas The merit of
Shelbys motion is illustrated by the weakness of Tommys new allegations
First Tommy alleged Shelby promised Dorothy in 2007 that he would pay
$100000 each to Sylvia and Adriana upon Dorothys death.59 Tommy admits that
Shelby tendered this
money to Sylvia and Adriana but complains that Shelby
requested them to release any claims against him in return for receiving this
substantial gift.6 It is mystery how these facts are supposed to support claim
by the estate against Shelby
Second Tommy pointed to letter that Eduardo Jr sent to Dorothy more
than thirty years ago on August 1983 over his and Shelbys signature.6 The
handwritten letter which Tommy grandiosely characterizes as establishing
private trust states in full
Dearest Mom
Shelby and are writing you this letter with great deal of love and
respect We want you to know that the assets that Dad has willed to
58
Record 00696 00832-33 01203
Record 00659 at 17 01162
60
Record 00659 at 17
61
Record 00658 at 16
12
01022
us as long as you live we will hold them as if they were yours We
will make the fruits available to you for your direction as to their use
This letter has value to only you because of our commitment to your
well-being and happiness More importantly than the worldly goods
is our promise to always care for you and to provide for your spiritual
needs We hereby pledge to you our unending devotion
Your sons
Eduardo Longoria Shelby Luis Longoria62
It is absurd for Tommy to maintain that he is seeking to recover for the
estate based on an obviously unenforceable 30-year-old pledge of devotion while
implausibly asserting that his case has nothing to do with the Mexican
subsequent
agreements and Mexican court orders that actually governed the arrangements for
of the Mexican property that made bulk of the
disposition up the assets separately
owned by Eduardo Sr and Dorothy
In his inventory of claims Tommy told the trial court what he is
seeking
recovery of half of the value of the businesses transferred to the Mexican trust
Tommys new allegations did not change the substance of his claims and were
transparently designed just to get him past the motion to dismiss
Tommy Relies on Procedural Smoke and Mirrors
Tommy also relied on artful repleading by nonsuiting his claim and
repositioning it as counterclaim Tommy made this centerpiece of his argument
against dismissal He asserted without support that the court could not dismiss his
62
Record 00770
13
01023
counterclaim while maintaining jurisdiction over Shelbys claim.63 This argument
was wrong as matter of law See Israel Discount Bank Ltd Schnapp 505
Supp 2d 651 662 C.D Cal 2007 dismissing counterclaim for forum non
conveniens in favor of an Israeli forum while remanding the plaintiffs claim to
California state court affd 321 Fed Appx 700 9th Cir 2009 ISTIL Group Inc
Masood 2004 WL 948376 at 67 Or 2004 dismissing only the
counterclaim because Channel Islands were superior forum report and
recommendation adopted 2004 WL 1173134 Or May 26 2004 United Bank
for Africa PLC Coker 2003 WL 22741575 at 4_6 S.D.N.Y 2003 dismissing
employees employment related counterclaims on grounds of forum non
conveniens or judicial deference while permitting employer to pursue RICO and
other claims related to defendants former employment Megga
Telecommunications Ltd Lucent Technologies Inc 1997 WL 86413 Del
1997 dismissing for forum non conveniens counterclaims which would
unnecessarily burden the trial of plaintiffs claims
Mexico is an Available and Adequate Alternative Forum
Tommy Sylvia and Adriana have already conceded the availability and
adequacy of Mexico as an alternative forum by suing Shelby there on some of the
same factual issues they raise in this case Nevertheless Tommy apparently
63
Record 00675
01024
convinced the trial court to deny dismissal based upon arguments which have
uniformly been rejected in the case law
Mexico is an Available Forum
There is nearly airtight presumption that Mexico is an available forum
In re Ford Motor Co 591 F.3d 406 413 5th Cir 2009 Numerous Texas and
federal cases have found Mexico to be an adequate and available forum DTEX
LLC BBVA Bancomer S.A 508 F.3d 785 796 5th Cir 2007 Ibarra Orica
USA 493 Fed Appx 489 493 5th Cir 2012 In re Ford Motor Co 591 F.3d
406 412 5th Cir 2009 In re Pirelli Tire L.L.C 247 S.W.3d 670 677-78 Tex
2007 Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336
S.W.3d 664 675 Tex App Houston Dist 2010 no pet Gomez de
Hernandez Bridgestone Firestone Am Tire L.L.C 204 S.W.3d 473 483
Tex App Corpus Christi 2006 pet denied
Tommy argued that Shelby would not be subject to personal jurisdiction in
Mexican courts But Shelby has agreed to submit himself to personal jurisdiction
in Mexico in connection with this matter.64 If defendant submits to jurisdiction
there is presumption of forum availability In re Ford Motor Co 591 F.3d 406
413 5th Cir 2009 see also In re BPZ Resources Inc 359 S.W.3d 866 873 Tex
App Houston Dist 2012 orig proceeding We conclude that Peru is an
Record 00097 at 23 00804 00858
15
01025
alternate forum in which this action may be tried based relators agreement to
upon
submit to personal jurisdiction in Peru.
Shelby has already himself to personal jurisdiction in the
subjected amparo
proceeding The Tarnaulipas court has acknowledged Shelbys submission and
accepted his appearance.65 For this reason too Mexico is an available forum as
matter of law In re Ford Motor Co 591 F.3d 406 413 5th Cir 2009
Tommys Mexican law expert han Rosenberg opined that Mexican court
might dismiss sua sponte for lack of personal jurisdiction upon seeing Shelbys
U.S address in Tommys Mexican court filings.66 But he had to agree on cross-
examination that Mexican courts recognize the ability of private parties to
determine the courts jurisdiction by mutual consent.67 The probate court should
have conditioned dismissal on Shelby giving that consent Tommy could not then
defeat forum non conveniens dismissal in the United States by engineering sua
sponte dismissal in Mexico as suggested by his expert In re Air Crash Over the
Mid-Atlantic on June 2009 792 Supp 2d 1090 1097 N.D Cal 2011
plaintiff cannot
avoid forum non conveniens by engaging in practices deliberately
designed to defeat jurisdiction in the foreign forum see In re Pirelli Tire L.L
247 S.W.3d 670 677 Tex 2007 the contingency that Mexican court might
65
Record 00772-75 00858 00882-83
66
Record 00920-21
67
Record 00929
Jo
01026
not accept Pirellis waiver does not overcome the important public and private
interests supporting dismissal.
Finally Tommy argued that Mexico was unavailable because his wife and
sister-in-law who are third-party defendants purportedly will refuse to submit to
the jurisdiction of the courts of Tamaulipas But they already have submitted to
the jurisdiction of those courts by filing lawsuits against Shelby there.68 Moreover
both have agreed to submit any disputes concerning the Mexican trust to resolution
courts.69 told the court that he assume
by Tamaulipan Shelby trial is willing to the
very minimal risk that Sylvia and Adriana would somehow be able to evade the
jurisdiction of Tamaulipan courts over his third-party claims.70 But regardless
Sylvia and Adriana who are in league with and share counsel with Tommy
cannot defeat forum non conveniens by engaging in practices deliberately
designed to defeat jurisdiction in the foreign forum in re Air Crash Over the
Mid-Atlantic on June 2009 792 Supp 2d 1090 1097 N.D Cal 2011
Mexico is an Adequate Forum
forum is inadequate if the remedies it offers are so unsatisfactory they
really comprise no remedy at all In re Ensco Offshore Intl Co 311 S.W.3d 921
924 Tex 2010 The substantive law of the foreign forum is presumed to be
68
Record 00537-38 00881-82
69
Record 00278 at 14 00286
70
Record 00749
17
01027
adequate unless the plaintiff makes some showing to the contrary or unless
conditions in the foreign forum made known to the court plainly demonstrate that
the plaintiff is highly unlikely to obtain basic justice there Vinmar Trade Fin
Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 674 Tex App
Houston Dist 2010 no pet
Tommy argues that there is not cause of action in Mexico for breach of
informal fiduciary relationships or private trusts.71 But as matter of law
Mexico is not an unavailable forum just because it does not recognize all causes of
action that may be available in the United States In re Pirelli Tire L.L.C 247
S.W.3d 670 678 Tex 2007 Mexican law permits actions in damages to redress
purported injuries such as the one claimed by Tommy.72
An illustrative case is Gallego Garcia 2010 WL 2354585 S.D Cal June
2010 Gallego involved the estate of Francisco Jose Gallego Garcia Sr
Francisco Sr who died in San Diego California in 1995 The personal
representatives of his estate were Francisco Sr.s wife Rosa Eugenia and one of
his sons Francisco Jr. They sued Francisco Sr.s other son Hector Manuel
Gallego Garcia Hector Manuel alleging that he engaged in series of
Record 00684-85 008 13-15
72
Record 00539-40 00884-85 00913-14
18
01028
fraudulent transfers involving Mexican corporations before Francisco Sr.s death to
deprive Rosa Eugenia and Francisco Jr of their inheritance rights Id at
Hector Manuel moved to dismiss for forum non conveniens The court
concluded that Mexico was an available and adequate alternative forum for Rosa
Eugenia and Francisco Jr to assert their claims on behalf of Francisco Sr.s estate
Hector Manuel demonstrated that legal representatives of the Estate could
initiate legal action in Mexico asserting claims similar to those asserted here
that Mexican courts regularly hear disputes over ownership of assets within
Mexico including but not limited to real property business interests and stock
ownership and that if
plaintiffs were successful Mexican court could award
damages to the extent they have been deprived of the profits due to them if
any
from the operation of those businesses Id at
Gallego together with Texas Supreme Court and Fifth Circuit precedent
demonstrate that Mexican courts are available and adequate In re Pirelli Tire
L.L.C 247 S.W.3d 670 678 Tex 2007 DTEX LLC BBVA Bancomer S.A
508 F.3d 785 796 5th Cir 2007 These claims do not belong in United States
court
Tommy asserts that Mexico is inadequate because limitations has run on his
claims in Mexico But the trial court could have conditioned forum non
conveniens dismissal on Shelbys agreement not to assert limitation defenses in
19
01029
Mexico In re Mantle Oil Gas LLC 2012 WL 5323584 Tex App Houston
Dist 2012 no pet Dunsby Transocean Inc 329 Supp 2d 890 895-96
S.D Tex 2004 Shelby has assented to this agreement.73
Tommys Mexican law expert han Rosenberg opined that Tamaulipan
courts would not have subject-matter jurisdiction over Tommys claims because of
purported Tamaulipan statute which supposedly would divest Tamaulipan courts
of jurisdiction due to the prior filing in the United States.74 However the concept
of preemptive jurisdiction under Mexican law does not prevent Mexican court
from asserting subject-matter jurisdiction over case dismissed from court in the
United States Navarrete de Pedrero Schweizer Aircraft Corp 635 Supp 2d
251 261 W.D.N.Y 2009 And courts both state and federal have refused to
recognize foreign laws that purport to make the home forum unavailable because
of prior U.S filing Del Istmo Assurance Corp Platon 2011 WL 5508641
S.D Fla Nov 92011 see Morales Ford Motor Co 313 Supp 2d 672 676
S.D Tex 2004 Aguinda Texaco Inc 142 Supp 2d 534 546 S.D.N.Y
2001 affd 303 F.3d 470 2d Cir 2002 Paulownia Plantations de Panama
Corp Rajamannan 793 N.W.2d 128 134-35 Minn 2009
Record 00804 00858
Record 00712
20
01030
Mr Rosenberg abandoned his subject-matter jurisdiction opinion while on
the stand at the motion to dismiss hearing.75 In its
place he substituted new
argument that Mexican court would decline to address the merits while
Tommys standing as executor was unclear due to the will contest.76 On this
score
Mexican law is the same as Texas law See Wasson Interests Ltd Adams 405
S.W.3d 971 973 Tex App Tyler 2013 no pet standing is threshold
question When the issue is raised it should be addressed first. Mr Rosenbergs
argument supports either outright dismissal for forum non conveniens or abatement
of the counterclaim pending resolution of the will contest
The Private Interest Factors Weigh in Favor of Mexico
The private interest factors strongly support dismissal in favor of trial in
Mexico The factors pertaining to the private interests of the litigants include the
following the ease of access to evidence the availability of compulsory
process for the attendance of unwilling witnesses the cost of obtaining
attendance of willing witnesses the possibility of view of the premises if
appropriate and any other practical factors that make trial expeditious and
inexpensive Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de
336 S.W.3d 664 676 Tex App Houston Dist 2010 no pet.
Record 00926-27
76
Record 00916-18 00926-27
21
01031
Access to Evidence is Much Greater in Mexico
Dismissal is warranted where as here most of the documents and witnesses
are located in another jurisdiction Vininar Trade Fin Ltd Utility Trailers de
Mexico S.A de 336 S.W.3d 664 677 Tex App Houston Dist 2010
no pet Benz Group Barreto 404 S.W.3d 92 98 Tex App 1-louston
Dist 2013 no pet In re SXP Analytics LLC 2012 WL 1357696 at Tex
App Houston Dist Apr 13 2002 orig proceeding DTEX LLC BBVA
Bancomer S.A 508 F.3d 785 798 5th Cir 2007 Gallego Garcia 2010 WL
2354585 at S.D Cal June 2010
On June 21 2013 Tommy served 194 requests for production of documents
on Shelby and in July he served 248 requests Both sets of requests make clear
that the documentary evidence in this case is overwhelmingly in Mexico He seeks
documents related to Mexican businesses Mexican bank accounts and the
Mexican trust.77 Not only are these documents in Mexico but Mexico is also the
location of all court files for and lawyer files relating to the Mexican judgments
challenged by Tommy in this case such as the 1983 Agreement to Partition
Community Property and the 2010 judgment approving the probate of Eduardo
Sr.s will and distribution of his estate
Record 00483-528
22
01032
The vast majority of witnesses are in Mexico The witnesses to Eduardo
Sr.s will and the execution of the trust agreement reside in Mexico So do Eduardo
Sr.s legal advisors the Banca Afirme employees who managed the trust and the
employees of the trusts Mexican businesses.78
The Availability Compulsory Process Supports Trial
in Mexico
Witnesses in Mexico cannot be compelled to testify in case in Texas In re
Ensco Offshore Intl Co 311 S.W.3d 921 926 Tex 2010 In re Pirelli Tire
L.L.C 247 S.W.3d 670 678 Tex 2007 In re BPZ Resources Inc 359 S.W.3d
866 879 Tex App Houston Dist 2012 orig proceeding Seguros
Comercial America S.A de American President Lines Ltd 966 S.W.2d
652 656 Tex App San Antonio 1998 no pet. But they can be compelled to
testify in Mexico where the Dorseys recently-filed lawsuit is
pending
The lack of compulsory process in Texas for reaching the great majority of
witnesses would be substantially unjust In re BPZ Resources mc 359 S.W.3d
866 875 Tex App Houston Dist 2012 orig proceeding To fix the
place of trial at point where litigants cannot compel personal attendance and may
be forced to try their cases on deposition is to create condition not satisfactory to
litigants DTEX LLC Bancomer S.A 508 F.3d 785 799 5th Cir 2007 The
78
Record 00093-97 00 103-48 00190-252 00254-67
23
01033
supreme court has determined that requiring parties to litigate case in Texas
until it becomes clear that it is
impossible to defend the case due to the
unavailability of evidence and fact witnesses because they are beyond the reach of
compulsory process is waste of private and public resources in re BPZ
Resources Inc 359 S.W.3d at 875 quoting in re General Elec Co 271 S.W.3d
681 689 Tex 2008
Costs Will be Less in Mexico
Because the majority of the pertinent evidence and witnesses are in
Mexico it follows that the expense of litigating in Texas will be greater than it
would be to litigate in Mexico Vinmar Trade Fin Ltd Utility Trailers de
Mexico S.A de 336 S.W.3d 644 677 Tex App Houston Dist 2010
no pet. For those witnesses who are willing to testify in Texas and who can
obtain the necessary visas to do so there will be costs in bringing them to Houston
to testify and housing and feeding them while here In re BPZ Resources Inc
359 S.W.3d 866 879 Tex App Houston 2010110 pet.
Continuing Tommys lawsuit in the United States will mean both sides will
incur significant costs in translating Spanish-language documents and interpreting
testimony of Spanish-speaking witnesses In contrast the costs of translation and
interpretation in Mexico will be minimal The great majority of the relevant
documents are in Spanish and most of the witnesses speak Spanish including both
24
01034
Sylvia and Shelby as well as their siblings Adriana and Eduardo Jr..79 For many
courts the need to translate documents and interpret witness testimony has been
consideration in concluding that the private interest factors weigh in
significant
favor of dismissal See Benz Group Barreto 404 S.W.3d 92 98 Tex App
Houston Dist 2013 no pet Vinmar Trade Fin Ltd Utility Trailers de
Mexico S.A de 336 S.W.3d 664 678 Tex App Houston Dist 2010
no pet Dtex LLCv BBVA Bancomer S.A 508 F.3d 785 7995th Cir 2007
There Is No Need for View of Any Premises
The possibility of view of the premises is irrelevant in this case
Trial Will Be More Expeditious and Inexpensive in
Mexico
All practical factors overwhelmingly favor trial in Mexico The witnesses
documents contracts and court proceedings at issue are largely based in Mexico
It makes no sense to try this case in the United States
Tommys .Aiguments Are Meritless
Tommy argues that the parties reside in Texas But the deference afforded to
resident plaintiffs forum choice is not absolute
Citizens or residents deserve somewhat more deference than
foreign plaintiffs but dismissal should not be automatically barred
when plaintiff has filed suit in his home forum As always if the
balance of conveniences suggests that trial in the chosen forum
00103-24 00150-69 00178-79 00185 00190-221 00254-60 00272-75 00281-83
00313 00326-32 00342-67
25
01035
would be unnecessarily burdensome for the defendant or the court
dismissal is
proper
Vinmar Trade Fin.Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664
673 Tex App Houston Dist 2010 no pet. Texas courts have dismissed
claims for forum non conveniens even where
Texas residents have been plaintiffs Benz Group 404 S.W.3d 92
99-100 Tex App Houston Dist 2013 no pet Vinmar
Trade Fin Ltd Utility Trailers de Mexico S.A de 336
S.W.3d 664 668 Tex App Houston Dist 2010 no pet.
Texas residents have been defendants In re Ensco Offshore Intl
Co 311 S.W.3d 921 927-28 Tex 2010 In re BPZ Resources
Inc 359 S.W.3d 866 869-70 Tex App Houston Dist
2012 orig proceeding
Both plaintiffs and defendants have included Texas residents
Ibarra Orica USA 493 Appx 489 491 5th Cir 2012 SES
Prods Inc Aroma Classique LLC 2013 WL 2456797 at
Tex App Houston Dist June 2013 no pet.
Tommys second private interest argument is that Tamaulipas is
dangerous But as matter of law dangerous or violent conditions in foreign
forum do not weigh against dismissal in favor of that forum unless those conditions
have adversely impacted the judicial system See In re BPZ Resources Inc 359
S.W.3d 866 879 Tex App Houston Dist 2012 orig proceeding
Allegations of political unrest have generally been unsuccessful in courts
determinations that forum is inconvenient Transunion
foreign Corp
Pepsico Inc 811 F.2d 127 129 2d Cir 1987 no showing was made that
26
01036
unrest in the has had an adverse effect the
political Philippines upon judicial
system there Paolicelli Ford Motor Co 289 Fed Appx 387 391 11th Cir
Aug 20 2008 plaintiff Bonilla alleges that the political instability in Colombia
risks for the but absent evidence the unrest has
poses safety parties political
affected the Colombian judicial system or would affect litigation of this case this
fact is not sufficient to outweigh the other factors that weigh in favor of
dismissal Rustal Trading US Inc Makki 17 Fed Appx 331 337 6th Cir
Aug 21 2001 forum non conveniens dismissal was warranted despite State
Department travel advisory concerning hazards of travel in Sierra Leone in the
absence of some credible evidence indicating that the conditions in Sierra Leone
would prevent the parties from accessing the courts in Freetown Miralda
Tidewater Inc 2012 WL 3637845 at ED La Aug 23 2012 several
federal appellate courts have uniformly concluded that the political unrest of the
alternative forum does not per se render this forum inadequate in the forum non
conveniens context absent some showing that this unrest negatively affects the
judicial system of the country or the litigation at issue Morales Ford Motor
Co 313 Supp 2d 672 682 S.D Tex 2004 convincing argument
against forum non conveniens dismissal premised on delay due to political unrest
and the like should involve exact evidence for the length of the delay and delay
of many years Such evidence is lacking in this case.
27
01037
Tommy relies only on State Department travel advisory which does not
even hint that judicial relief has been foreclosed due to conditions in Tamaulipas.8
Sylvia Adriana and Tommy all have been able to hire attorneys and file claims
against Shelby in Tamaulipas in the last few months.81 It is
undisputed that
Tamaulipas has fully functioning judicial system.82 Tommys own expert
witness has handled dozen tort cases in the courts of Tamaulipas.83
The Public Interest Factors Weigh in Favor of Mexico
The public interest factors easily support trial of this matter in Mexico
Harris County court and jurors should not be burdened with resolving dispute
over Mexican court proceedings contracts and business transactions
The relevant public interest factors are as follows the administrative
difficulties flowing from court congestion the local interest in having localized
controversies decided at home the interest in having the trial of diversity case
in forum that is at home with the law that must govern the action the
avoidance of unnecessary problems in conflict of laws or in the application of
foreign law and the unfairness of burdening citizens in an unrelated forum with
jury duty Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336
S.W.3d 664 678 Tex App Houston Dist 2010 no pet
80
Record 00689-90 00721-30
81
Record 00876-77 00880
82
Record 00876
83
Record 00910
28
01038
Within the public interest factors litigating the suit in the forum that is at
home with the governing law is an important consideration In re BPZ Resources
Inc 359 S.W.3d 866 876 Tex App Houston Dist 2012 orig
proceeding An action generally should be tried in court familiar with the law
governing the case Yoroshii Invs Mauritius Pte Ltd BP Intl Ltd 179
S.W.3d 639 646 Tex App El Paso 2005 pet denied see also In re SXP
Analytics LLC 2012 WL 1357696 at Tex App Houston Dist Apr
13 2002 orig proceeding There is
strong interest in having localized
controversies decided at home in forum that is familiar with the state law that
must govern the case. Even the possibility that foreign law applies to
dispute is sufficient to warrant dismissal on forum non conveniens grounds
Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d
664 678 Tex App Houston Dist 2010 no pet. Further Mexico has
strong interest in regulating Mexican companies conducting business and
allegedly perpetrating fraud within its boundaries Id at 679 As result
Mexican law is
applicable even when Texas resident alleges that he was the
target of fraud when the fraud occurred in the context of Mexican business
transactions with Mexican companies Id
Tommy addresses choice of law principally by arguing that he has not pled
cause of action under Mexican law But choice of law is not pleadings issue
29
01039
instead choosing the applicable law is obviously question of law Sonat
Exploration Co Cudd Pressure Control Inc 271 S.W.3d 228 231 Tex 2008
Tommy has not even attempted to make cogent argument that Texas law
somehow could apply to challenge to the order of the Mexican court partitioning
community property the Mexican trust agreement and to orders of the Mexican
court probating Eduardo Sr.s will Instead he argues that Texas law would govern
whether there was fiduciary duty relating to property and trusts located in
Mexico and that Texas law would govern whether the marital estate was
community property despite an agreed order of Mexican court that it was not He
does not and cannot cite single case in support of these arguments much less
refute the possibility that foreign law applies to the dispute
Tommys principal public-interest argument is that Dorothy lived in
Houston But he cannot distinguish Gallego Garcia 2010 WL 2354585 S.D
Cal June 2010 case almost directly on point in which the court dismissed for
forum non conveniens an action brought by representatives of an estate appointed
by United States court to recover for fraud involving Mexican businesses which
was directed at decedent who resided in the United States
The only basis for San Diegos interest in this litigation is the fact that
the Decedents Estate is being probated here as result of the fact that
Decedent died here It is
undisputed however that Decedent himself
had significant connection to Mexico that the Defendants are from
30
01040
Mexico that the assets in dispute are in Mexico and most if not all of
the evidence and witnesses are located inMexico
Gallego 2010 WL 2354585 at
This case is also similar to In re SXP Analytics LLC 2012 WL 1357696
Tex App Houston Dist Apr 13 2002 orig proceeding in which the
Court of Appeals held that the district court abused its discretion in failing to
dismiss case in favor of Wisconsin forum That case centered on plaintiffs
allegations that the defendant had mismanaged and breached fiduciary duties in
connection with Wisconsin corporation Just like the trial court in this matter will
have to apply foreign law to issues relating to the trust the trial court in SXP would
have been required to apply Wisconsins statutory scheme for regulating limited
liability companies Id at This fact was enough to warrant dismissal for
forum non conveniens
should normally be declined where determination of
the rights of the litigants involves regulation and management of the
internal affairs of the laws of the
corporation dependent upon the
foreign State or where the relief sought may be more appropriately
adjudicated in the courts of the State or country to which the
corporation owes its existence
Id quoting Koster Am Lumbermen Mist Cas Co 330 U.S 518 530-31
1947
Mexicos interest in this matter is
particularly strong because Tommy
alleges that Shelby defrauded the Mexican court system through his probate of
31
01041
Eduardo Sr.s will in Mexico and challenges the validity of the 1983 Mexican
court order partitioning Eduardo Sr.s and Dorothys community property In
DTEX LLC BBVA Bancomer S.A 508 F.3d 785 5th Cir 2007 allegations
concerning Mexican judicial proceedings led the Fifth Circuit to conclude that
dismissing on forum non conveniens grounds favored the public interest DTEX
the plaintiff alleged that defendant Bancomer filed allegedly unlawful lawsuits in
Mexican courts Id at 802 DTEX and Bancomer disagreed over whether the
Mexican courts previous decisions are binding Id at 803 Concluding that
Mexican law likely will apply to this
case or at minimum be critical the Fifth
Circuit dismissed for forum non conveniens The court explained that
Mexican courts have greater interest than an American court in
deciding whether Mexicos court system was systematically abused or
manipulated to frustrate and delay DTEXs ability to take possession
of property purchased in Mexico in an auction arranged by the
Mexican government
Id at 802
This is Mexican dispute over Mexican agreements property and
businesses all relating to Mexican man whose Mexican estate was probated in
Mexico Mexico is an adequate and available alternative forum and the private and
public interest factors favor dismissal The trial court abused its discretion by
denying dismissal
II The Trial Court Abused Its Discretion by Denying Abatement
32
01042
The trial court abused its discretion by refusing to abate its consideration of
Tommy Dorseys counterclaims while it resolves the will contest and while the
proceedings in Mexico remain pending There could be nothing more wasteful or
disorderly than proceeding to litigate case which the plaintiff may be divested of
his authority to pursue because of the outcome of parallel proceeding Givens
Ward 272 SW.3d 63 73 Tex App Waco 2008 no pet quoting Periy Del
Rio 66 S.W.3d 239 252 Tex 2001 The obvious reasons for abatement are
the conservation of judicial resources avoidance of delay comity convenience
and the necessity for an orderly in the trial of contested issues.
procedure
Shelbys contest of the 2010 will raises issues antecedent to Tommys
claims The will contest asks the trial court to remove Tommy as executor because
Tommy was appointed pursuant to an invalid will and ii he has material
conflict of interest which makes him incapable of properly performing the
independent executors fiduciary duties pursuant to Texas Probate Code 149C.84
It is well-established that case should be abated pending determination of
plaintiffs standing or capacity to sue Develo-Cepts Inc City of Galveston
668 S.W.2d 790 793 Tex App Houston Dist.J 1984 no writ If the will
contest is successful Tommy would lose his capacity to pursue claim against
Record 00633-48
33
01043
Shelby Further resolution of the Mexican lawsuits against the Dorseys would
foreclose any right to the relief they seek through their counterclaims
PRAYER
The Court should grant the writ of mandamus and compel the dismissal or
abatement of the counterclaims asserted by James Thomas Dorsey Independent
Executor of the Estate of Dorothy Louise Longoria Deceased
Respectfully submitted
SUSMAN GODFREY LL.P
By /s/ Johnny Carter
Johnny Carter
State Bar No 00796312
cartersusmangodfrey corn
Richard Hess
State Bar No 24046070
rhesssusmangodfrey corn
Kristen Schlemmer
State Bar No 24075029
kschlemmersusmangodfrey.com
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713 654-6666
34
01044
Robert Maclntyre Jr
State Bar No 12760700
macintyre@mrnlawtexas.com
MACINTYRE MCCULLOCH STANFIELD
YOUNG
3900 Essex Lane Suite 220
Houston Texas 77027
Telephone 713 54T5400
Attorneys for Shelby Longoria
CERTIFICATE OF SERVICE
This is to certify that on this the 12th day of November 2013 true and
correct copy of the above and foregoing instrument was properly forwarded to the
following counsel of record in accordance with Rule 21 of the Texas Rules of Civil
Procedure as indicated below
James Austin Fisher Via Electronic Mail
FISHER WELCH
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Email jfisherfisherwelch.com
Wesley Holmes
THE HOLMES LAW FIRM
1000 North Central Expressway Suite 400
Dallas Texas 75231
Email wes@wesholmes.com
Attorneys for James Thomas Dorsey Sylvia Dorsey and Adriana
Longoria
/s/Johnnv Carter
Johnny Carter
35
01045
CERTIFICATEOF COMPLIANCE WITH APPELLATE RULE 52.3j
This certifies that the undersigned has reviewed this Petition and concluded
that factual statement in it is evidence included
every supported by competent in
the Appendix or record as required by Appellate Rule 52.3j
/s/Johnnv Carter
Johnny Carter
36
01046
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4i
certif that this document contains 7515 words as indicated by the word-
count function of the computer program used to prepare it and excluding the
caption identity of parties and counsel statement regarding oral argument table of
contents index of authorities statement of the case statement of issues presented
statement of jurisdiction statement of procedural history signature proof of
service certification certificate of compliance and index as provided by
Appellate Rule 9.4i
/s/ Johnny Carter
Johnny Carter
37
01047
CERTIFICATEOF COMPLIANCE WITH LOCAL RULE 4e6
This certifies that this document has been checked for viruses and maiware
/s/ Johnny Carter
Johnny Carter
38
01048
NO _____________
IN THE COURT OF APPEALS
HOUSTON TEXAS
IN RE SHELBY LONGORIA
Original Proceeding from the
Probate Court Number One Harris County
Texas Cause No 414270
APPENDIX TO PETITION FOR WRIT OF MANDAMUS
Johnny Carter
State Bar No 00796312
Richard Hess
State Bar No 24046070
Kristen Schlemmer
State Bar No 24075029
SUSMAN GODFmY L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002
Telephone 713 651-9366
Facsimile 713 654-6666
Robert Maclntyre Jr
State Bar No 12760700
MAcINTYRE MCCULLOCH STANFIELD YOUNG
3900 Essex Lane Suite 220
Houston Texas 77002
Telephone 713 547-5400
Attorneys for Shelby Longoria
01049
CASE NUIvER 414.270
IN THE ESTATE OF IN PROBATE COURT NO ONE
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
ORDER DENYING MOTION OF SHELBY LONGORIA
TO DISMISS OR TO ABATE COUNTERCLAIMS
On Ootober 2013 the Court-heard Counter-Defendant Shelby Longot-las Motion
To Dismiss Counterclaims for Porunt Non Convenlens or Alternatively To Abate Fending
Resolution of Will Contest and Mexican Litigation the Motion Having considered the
Motion the brief filed in support of the Motion the response to the Motion the evidence
admitted the on the Motion and the record of this case the Court has
during hearing
concluded that the Motion should be denied
IT IS THEREFORE ORDERED that Counter-Defendant Shethy Longorias Motion
To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending
Resolution of Will Contest and Mexican Litigation be and herby Is DENIED
SO ORDERED on this// _day of OC.tfpAcr 2013
PROBATE COURT NUlvSfl ONE
Eaauus CoUNTY Thns
ORDER DEN21N0 MOTION OP SHELBY LONGOLIA
TO DISMISS OR TO ABATE COUNTERCLAIMS Solo Page
01050
CASE NUMBER 14-13-00996-CV
IN THE FOURTEENTH COURT OF APPEALS
HOUSTON TEXAS
IN RE SHELBY LONGORIA
Original Proceeding
Arising from Cause Number 414270 in
Probate Court Number One Harris County Texas
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
James Austin Fisher Wesley Holmes
State Bar of Texas Number 07051650 State Bar of Texas Number 09908495
Shannon L.K Welch THE HOLMES LAW FIRM
State Bar of Texas Number 90001699 10000 North Central Expressway
FISHER WELCH Suite 400
Professional Corporation Dallas Texas 75231
2800 Lincoln Plaza Telephone 214.890.9266
500 North Akard Street Facsmile 214.890.9295
Dallas Texas 75201
Telephone 214.661.9400
Facsimile 214.661.9404
ATTORNEYS FOR RESPONDENTS
JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF THE ESTATE OF
DOROTHY LOUISE LONGORIA DECEASED
AND SYLVIA DORSEY
01051
TABLE OF CONTENTS
INDEX OF AUTHORITIES iv
ISSUES PRESENTED
STATEMENT OF FACTS
Objections to Petitioners Statement of Facts
Respondents Statement of Facts
ARGUMENT 13
The Trial Court Did Not Abuse Its Discretion by
Declining To Dismiss the Executors Counterclaims 13
To Show Himself Entitled To Dismissal Shelby
Was Required to Bear Heavy Burden To
Clearly Show Facts That Strongly Favor
Specific Available and Adequate Alternative Forum
While Giving Substantial Deference To This Forum 13
The Standard for Dismissal Under the Common Law
Is More Stringent Than the Standard Under the Forum
Non Conveniens Statute Which Is Inapplicable Here 18
Shelbys Argument Depends Entirely on Documents
That Were Not Admitted into Evidence and Testimony
That the Trial Court Was Not Obliged to Accept 19
The Petition Relies on Affidavits and Exhibits That
Were Not Admitted Below and Are Inadmissible 19
The Petition Relies on Testimony That the
Trial Court Was Not Required To Believe 23
01052
Shelby Failed To Prove That Any State in Mexico
Is an Adequate and Available Forum for This Case.. 25
The Courts of Tamaulipas Would Not Have
Jurisdiction over the Executors Claims
Against Shelby or His Third-Party Claims 26
Tamaulipas Is Not an Adequate Alternative
Forum Because It Provides No Remedy
for the Executors Causes of Action 29
Tamaulipas Is Not an Available Alternative Forum
Because the Executors Claims Against Shelby Would
Be Barred by an Unwaivable Statute of Repose There 30
Shelby Failed To Prove That the Private-Interest
Factors and Public-Interest Factors Favor Litigation
of the Executors Claims in Any Other Forum 32
All of the Private-Interest Factors
Point to This Forum or Are Neutral 33
Access to Relevant Evidence
Is Far Better in This Forum 33
Compulsory Process for Attendance of Unwilling
Witnesses Is Available in This Forum But Not in
Mexico and the Cost of Obtaining Attendance
of Willing Witnesses Is Less Here 40
No View of Any Premises Will Be Needed 40
Judgment of The Trial Court Would Be
Fully Enforceable as to All Parties But
Judgment of Mexican Court Would Not 41
11
01053
The Practical Problems and Expense of
Proceeding in Mexico Are Far Greater 42
All of the Public-Interest Factors Point to This Forum 44
The Dispute Originated Here and
There Are No Greater Administrative
Difficulties Here Than in Tamaulipas 44
This Community Has the Strongest
Relationship to the Litigation So the
Burden of Jury Duty Belongs Here 45
The Dispute Arose in Texas Between Texans
So This Forum Has the Stronger Interest
in Deciding the 45
Controversy
Maintaining the Litigation Here
Avoids an Issue of Conflicts of Law 48
II The Trial Court Did Not Abuse Its Discretion by
Declining To Abate the Executors Counterclaims 50
CONCLUSION AND PRAYER 57
SIGNATURE OF ATTORNEY 59
CERTIFICATE UNDER TEX APP 9.4i 60
CERTIFICATE UNDER TEX APP 52.3j and 52.4 61
CERTIFICATE OF SERVICE UNDER TEX APP 9.5e 62
111
01054
INDEX OF AUTHORITIES
Adams Merck Company Inc
353 Fed Appx 960 2009 26
Alpine View Company Ltd Atlas Copco AB
205 F.3d 208 5th Cir 2000 27
American Dredging Company Miller
510 U.S 443 1994 15
Bank of Credit and Commerce International OVERSEAS Ltd
State Bank of Pakistan
273 F.3d 241 2d Cir 2001 31
Benz Group Barreto
404 S.W.3d 92 Tex App Houston Dist 2013 no pet 14 11.54
Binder Shepards Inc
133 P.3d 276 Okia 2006 31
Boston Telecommc ns Group Inc Wood
588 F.3d 1201 9th Cir 2009 17 29 42 43
Brady Fourteenth Court ofAppeals
795 S.W.2d 712 Tex.1990 23
City of Keller Wilson
168 S.W.3d 802 Tex 2005 23
Continental Oil Co P.P Industries
504 S.W.2d 616 Tex Civ App Houston Dist 1974
writ ref n.r.e disapproved on other grounds
In re Smith Barney Inc 975 S.W.2d 593 Tex 1998 n.6 20
Delfosse C.A C.I Inc.-Federal
267 Cal Rptr 224 227-29 1990 31
iv
01055
Develo-Cepts Inc City of Galveston
668 S.W.2d 790 Tex App Houston Dist 1984 no writ 50 51
52n.117
DiFederico Marriot International Inc
714 F.3d 796 7th Cir 2013 16 25
Dole Food Company Inc Watts
303 F.3d 1104 9th Cir 2002 17
Duha Agrium Inc
448 F.3d 867 6th Cir 2006 16
Fasules DDB Needham Worldwide Inc
No 89 1078 1989 WL 55373 N.D Ill 1987 36
Founding Church of Scientology of Washington D.C Verlag
536 F.2d 429 D.C Cir 1976 17
Gallego Garcia
No 07-CV-1185 2010 WL 2354585 S.D Cal June 92010 4647
Gomez de Hernandez
Bridgestone/Firestone North American Tire L.L
204 S.W.3d 473 Tex App Corpus Christi 2006 pet denied 19 n.55
Guidi InterContinental Hotels Corp
224 F.3d 142 2d Cir 2000 16
Gulf Oil Corp Gilbert
330 U.S 501 1947 17 18 32 33 36
Howeth In vestments Inc City of Hedwig Village
259 S.W.3d 877 Tex App Houston Dist 2008 23
01056
In re Angelini
186 S.W.3d 558 Tex 2006 orig proceeding 23
In re BPZ Resources Inc
359 S.W.3d 866 Tex App Houston Dist 2012 19 n.55
In re ENSCO Offshore International Company
311 S.W.3d 921 Tex 2010 18 19n.55
In re Old Republic National Title Insurance Co
No 141001219CV 2011 WL345676
Tex App Houston Dist Feb 2011 orig proceeding 17
In rePirelli Tire L.L.C
247 S.W.3d 670 Tex 2007 19 n.55
In re Smith Barney Inc
975 S.W.2d 593 Tex 1998 n.6 20
Jessop ACF Industries LLC
859 A.2d 801 Pa Super 2004 .. 31
Jiali Tang Synutra International Inc
656 F.3d 242 4th Cir 2011 16 25
Jones Prince Georges County
378 Md 98 835 A.2d 632 2003 31
Kedy Chesterton Co
946A.2d1171R.I.2008 31
Kennecott Holdings Corp Liberty Mutual Insurance Company
578 N.W.2d 358 Minn 1998 31
Kontoulas A.H Robins Company Inc
745 F.2d312 4th Cir 1984 31
vi
01057
Koster American Lumbermens Mutual Casualty Company
330 U.S 518 1947 15 1632
Liberty Mutual Insurance Company
Transit Mix Concrete and Materials Company
No 06-12-00117-CV 2013 WL 3329026
Tex App Texarkana June 28 2013 pet denied 18
Manu International S.A Avon Products Inc
641 F.2d 62 2d Cir.1981 49
Marchman NCNB Texas National Bank
898 P.2d 709 N.M 1995 31
Mercier Sheraton International Inc
935 F.2d 419 1st Cir 1991 31
Mowrey Johnson Johnson
524 F.Supp 771 W.D Pa 1981 36
Omni Hotels Management Corp Round Hill Developments Ltd
675 F.Supp 745 D.N.H 1987 36
Piper Aircraft Company Reyno
454 U.S 235 1981 15 16 28 29 32 40
Quixtar Inc Signature Management Team LLC
315 S.W.3d28 Tex 2010 141518323340
Reid Walen Hansen
933 F.2d 1390 8th Cir 1991 17
Sanwa Bank Ltd Kato
734 So.2d 557 Fla Dist Ct App 1999 31
vii
01058
Schexnider McDermott International Inc
817 F.2d 1159 5thCir
rehg denied 824 F.2d 972 5th Cir
cert denied 484 U.S 977 1987 49
SES Products Inc Aroma Classique LLC
No 01-12-00219-CV 2013 WL 2456797
Tex App Houston June 62013. 183350
Shewbrooks A.C and Inc
529 So.2d 557 Miss 1988 31
Sinocheni International Company Ltd
Malaysia International Shipping Corp
549 U.S 422 2007 14 15 18
SME Racks Inc Sisteinas Mecanicos Para Electronica S.A
382 F.3d 1097 11th Cir 2004 16
Texas Custom Pools Inc Clayton
293 S.W.3d 299 Tex App El Paso 2009 orig proceeding 24
Tuazon R.J Reynolds Tobacco Company
433 F.3d 1163 9th Cir 2006 43
Varo Owens-Illinois Inc
948 A.2d 673 N.J Super 2008 31
Vicknair Phelps Dodge Industries Inc
767 N.W.2d 171 N.D 2009 31
viii
01059
Statutes
TEx Civ PRAC REM CODE ANN 71.051 West 2005 18
TEx Civ PRAC REM CODE ANN 71.051i West 2005 18
TEx PR0B CODE ANN 4A West 2013 Supp 46
TEX PROB CODE ANN 4B West 2013 Supp 46
TEx PROB CODE ANN 4F West 2013 Supp 46
TEx PROB CODE ANN 5B West 2013 Supp 46
Rules
TEX App 9.41... 60
TEX APP 52.3j.. 61
TEX App 52.4b 61
TEX App 52.4b
TEX Civ 176 40
TEX CIV 205 40
TEX Evrn 802 2n.620
Miscellaneous Authorities
HAGUE CONVENTION ON TAKING OF EVIDENCE
ABROAD IN CIVIL OR COMMERCIAL MATTERS
23 U.S.T 2555 1968 42
ix
01060
ISSUES PRESENTED
Was it an abuse of discretion for statutory probate court in Harris County
Texas to deny motion to dismiss certain claims for forum non conveniens
based on the contention that court in Tamaulipas Mexico would be more
convenient venue for litigation of those claims where
the claims involve four parties none of whom resides anywhere in
Mexico all of whom reside in Texas and three of whom reside in Harris
County Texas
the claims were pleaded by the duly appointed executor of an estate
pending in the same probate court
the claims were pleaded as counterclaims in will contest in the
pending
same probate court and presenting common issues of fact
the claims seek relief only from party who has lived in Texas for 34
years and who commenced the proceeding in the same probate court in
which the counterclaims were pleaded
the claims are based on the rights under Texas law of decedent who
lived in Texas for the last 25 years of her life lived in Harris County
Texas for the last seven years of her life and died in Harris County
Texas
the claims are expressly based on causes of action that are recognized in
Texas law but unrecognized in Mexican law
the counter-defendant pleaded third-party claims against two individuals
who are not subject to the jurisdiction of the courts in Tamaulipas and
the party seeking dismissal had failed to identifr in response to formal
request for disclosure single witness who resides in Mexico
01061
Was it an abuse of discretion for statutory probate court in Harris County
Texas to deny motion to abate certain claims where
the claims were pleaded by the duly appointed executor of an estate
pending in the same probate court
the claims were pleaded as counterclaims in will contest in the
pending
same probate court and presenting common issues of fact
the party seeking abatement had not filed verified plea in abatement
the first asserted for abatement was the claimants lack
ground supposed
of capacity to serve as executor of the estate but the Trial Court had
already made finding of capacity in the manner prescribed by the
Texas Probate Code
the second asserted ground for abatement was supposed conflict of
interest that would disqualify the claimant from serving as executor but
no evidence proving the existence of conflict was offered and
the third asserted for abatement was need to await
ground supposed
the outcome of proceedings in Mexico but the movant offered no
evidence proving that those proceedings which involved different
decedents estate would affect the outcome of the executors
counterclaims or any other reasonwhy the litigation in Mexico should
be given priority over the litigation here
xi
01062
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE COURT OF APPEALS
Respondents James Thomas Dorsey as Independent Executor of the Estate of
Dorothy Louise Longoria Deceased the Executor and Sylvia Dorsey Sylvia
through counsel respectfully submit this response to the Petition for Writ of
Mandamus the Petition filed herein by Shelby Longoria Shelby
STATEMENT OF FACTS
Objections to Petitioners Statement of Facts
While we would prefer not to burden the Court with competing statements of
facts we are compelled to do so by the impropriety of the statement submitted by
Shelby It includes over 35 citations to documents that were not admitted into
evidence below These improper references to extraneous materials include citations
to inadmissible affidavits1 and citations to exhibits that were attached to the affidavits
but not separately offered and admitted into evidence.2 Respondents timely objected
See Petition at n.4 nn.8 1012141618 nn.2023-26 nn 2729-31
n.43 15 n.64 23 n.78 n.43 These are citations to affidavit testimony of
Shelby and affidavit testimony of one of his attorneys Kristen Schlemmer
See Petition at n.2 citing Exhibits 3.1 and 3.2 to the Affidavit of Shelby
Longoria n.5 citing Exhibits B.1 and B.2 to the Affidavit of Shelby Longoria
n.6 same n.7 citing Exhibit 4.2 to the Affidavit of Kristen Schiemmer n.8
citing Exhibits C.l and C.2 to the Affidavit of Shelby Longoria n.30 citing
Ethibit 5.2 to the Affidavit of Kristen Schlemmer n.32 citing Exhibit to the
01063
to the affidavits and their attached exhibits3 and none of them was admitted into
evidence save few exhibits to which Respondents withdrew their objections during
the hearing.4 Shelby presented in the lower court and he presents in his Petition no
argument or authority in response to Respondents objections except as to single
exhibit Exhibit which was not admitted.5
despite Shelbys arguments
Respondents objections are valid and it would have been harmful error to consider
the affidavit testimony and associated exhibits cited in the Petition.6
Affidavit of Kristen Schlemmer n.33 citing Exhibit to the Affidavit of Kristen
Schlemmer n.34 same 23 78 citing Exhibits B.1 and B.2 25 n.79 citing
Exhibits B.1 B.2 C.1 and C.2 to the Affidavit of Shelby Longoria and Exhibits 4.1
and 5.1 to the Affidavit of Kristen Schlemmer
Record 00732-3
Record 00830-31 The exhibits that were attached to affidavits and admitted
into evidence by agreement were Exhibits and which can
be found at Record 00943-1073
Record 01183-1201 Shelby Longoria Response to Executors Amended
Objections to Single Exhibit to the Affidavit of Shelby Longoria Oct 2013
01202-05 Reply Brief in Support of Objections to Exhibit to Affidavit of Shelby
Longoria Oct 2013
6The affidavit testimony is inadmissible on several grounds including hearsay
See TEX EvID 802 Continental Oil Co P.P.G Indus 504 S.W.2d 616 622
Tex Civ App Houston lst Dist 1974 writ refd n.r.e disapproved on other
grounds In re Smith Barney Inc 975 S.W.2d 593 597-98 Tex 1998 affidavits
inadmissible as hearsay in proceedings on motion to dismiss for non
forum
conveniens
01064
Another reason why Respondents are justifiably dissatisfied with Shelbys
statement of the facts is that it is highly argumentative and filled with assertions that
have no relevance to the issues before the Court but are
transparent attempts to cast
Respondents in bad light Notable examples are Shelbys assertions that the
Decedent Dorothy Louise Longoria Dorothy was induced by her daughters to
sign wills in 2009 2010 and 2011 Neither the wills in question nor evidence that
the Decedent was induced to sign them was admitted below Shelbys assertions of
undue influence are gratuitous slurs and irrelevant to the issues before this Court
Also irrelevant are wills supposedly signed by Dorothys husband Eduardo
Longoria Sr Eduardo Wish Letter signed by him and so-called Private
Agreements between him and his daughters.8 None of these documents purports to
be signed by Dorothy and none of them purports to affect her property or her rights.9
She is not even mentioned in the Wish Letter or in the Private Agreements.1 But
this case involves her estate not that of her husband The wills Wish Letter and
Petition at 5-6
Petition at 3-4
00967-73 Ex F.l F.2 01038-53 Exs 1.11.2 1054-62 Exs
K.2 01063-70 Exs L.1 L.2
10
Record 00967-73 Ex F.l F.2 01054-62 Exs K.1 K.2 1063-70 Exs
L.1 L.2
01065
Private Agreements of Eduardo Longoria Sr have no relevance to the issues sub
judice
Finally Respondents are dissatisfied with Shelbys statement of facts because
it persistently misrepresents the content of the counterclaims which Shelby seeks to
have dismissed For example Shelby discusses the formation of Mexican trust by
Eduardo Longoria Sr and repeatedly asserts that the counterclaims contest the
validity of the trust To the contrary the counterclaims do not seek decree setting
aside the trust.2
For these reasons Respondents exercise their prerogative under TEX APIP
52.4b to submit statement of facts in lieu of that submitted by Shelby
Respondents Statement of Facts
Procedural Posture of the Litigation This original proceeding arises from
will contest that was filed by Shelby on June 18 2013 in statutory probate court
Probate Court Number One Harris County Texas the Trial Court.3 Shelby is
Petition at 3-4 11 30
12
The Executor contends that Dorothy owned community-property interest
in shares of stock that were placed in the trust and he contends that Shelby breached
his fiduciary duty to Dorothy in the course of his management of the companies that
issued the shares but the Executor does not seek decree setting aside the trust
Record 00020-32 Shelby Longoria Contest of2O 10 Will June 182013
01066
the validity of will signed his mother Dorothy on January
contesting by 21 2010
over two years before she died on April 2012.14 estate in the
Dorothys is pending
Trial Court because she was resident of Harris the time of her death she
County at
died in Harris County and her will was admitted to probate in Harris County.5
Respondent James Thomas Dorsey the Executor is the duly appointed
Independent Executor of Dorothys estate.6 In that capacity he pleaded on July 18
2013 set of counterclaims against Shelby the of which that Shelby had
gravamen is
breached fiduciary duties owed by him to Dorothy.7 On August 30 2013 Shelby
as Counter-Defendant pleaded third-party claims his sisters Adriana
against
Longoria Adriana and Sylvia Dorsey Sylvia.8 On the same day Shelby
amended his will contest and thereafter on September 26 2013 the Executor
14
Record 00022 00025
Record 00001-3 Application for Probate of Will and Issuance of Letters
Testamentary June 28 2012 01208-09 Order Admitting Will to Probate and
Authorizing Letters Testamentary Oct 2012
16Record 01208-09 Order Admitting Will to Probate and Authorizing Letters
Testamentary Oct 2012
Record 00036-48 Original Counterclaims of James Thomas Dorsey
Independent Executor of the Estate of Dorothy Louise Longoria Deceased July 18
2013
18
Record 00649-54 Counter-Defendant Shelby Longorias Third-Party
Petition Aug 30 2013
01067
amended his counterclaims Shelby Those counterclaims
against against Shelby
and the related third-party claims of Shelby against and Adriana are the
Sylvia
subject of this original proceeding
Shelby filed in the Trial Court motion to dismiss the Executors
counterclaims based on the doctrine offorum non conveniens.2 The counterclaims
said Shelby would more conveniently be litigated in the United Mexican States
Mexico The motion did not identify particular Mexican state that supposedly
would be more convenient forum than Harris Texas but an accompanying
County
affidavit suggested that the Mexican State of Tamaulipas was where according to
the Executor should be required to As
Shelby pursue the claims against Shelby.2 an
alternative to the remedy of dismissal Shelby asked the Trial Court to abate the
Executors counterclaims until Shelbys will contest was fully adjudicated and until
case that Adriana and Sylvia had filed in Mexican federal court was concluded.22
19
Record 00633-00648 Shelby Longorias Amended Contest of 2010 Will
Aug 30 2013 Record 00655-73 Original Counterclaims of James Thomas
Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased
to Shelby Longorias Amended Contest of 2010 Will Sept 26 2013
20
Record 00049-57
21
Record 01080 1083-85
22
Record 0005 3-54
01068
An evidentiary hearing on the motion to dismiss or to abate was convened on
October 2013 23 On October 10 2013 the Trial Court issued an order denying the
motion in its entirety.24
On November 12 2013 Shelby commenced this
original proceeding Shelby
urges this Court to issue writ of mandamus commanding the Trial Court to dismiss
the Executors counterclaims against Shelby for forum non conveniens In the
alternative Shelby seeks writ compelling the Trial Court to abate the counterclaims
pending the outcome of his will contest and the case in Mexico.25
Residence of the Parties Shelby the party insisting that for the sake of
convenience the Executors counterclaims against him must be brought in Mexico
does not live in Mexico He lives in McAllen Texas and has lived there for 34
years.26
The Executor who is the Counter-Plaintiff who is asserting the claims which
Shelby seeks to have dismissed lives in Harris County Texas.27
23
Record 00792-93
24
Record 1206-07
25
Petition at 34
26
Record 00861
27
Record 0063 3-34 The address has been redacted but appears in the original
pleading filed by Shelby in the Trial Court
01069
Sylvia whom Shelby named as Third-Party Defendant with respect to the
Executors counterclaims lives in Harris County Texas.28
Adriana whom Shelby named as Third-Party Defendant with respect the
Executors counterclaims lives in Harris County Texas.29
Thus every party to the litigation which Shelby insists must take place in
Mexico lives in Texas and three of the four parties live in Harris County Texas
Residence of Witnesses In response to formal request for disclosure Shelby
did not identify single potential witness who lives anywhere in Mexico.3 Nor did
he name one in his testimony during the hearing on his motion to dismiss.3 He did
however identify in his disclosures twelve potential witnesses who live in Texas.32
Those identified by Shelby as potential witnesses include his brother Eduardo
Longoria Jr also known as Wayo Longoria Wayo who is another of Dorothys
28
Record 00649 The address has been redacted but appears in the original
pleading filed by Shelby in the Trial Court
29
Record 00649 The address has been redacted but appears in the original
pleading filed by Shelby in the Trial Court
30
Record 00859-60 01153-59 Ex D-3
31
Record 00834-73
32
Record 01154-56 Ex D-3
01070
children Wayo lives in Austin Texas and has lived there for about 35 years.33 He
is an important witness because in 1983 Wayo and Shelby both of whom were
residing in Texas sent to Dorothy letter in which they promised to hold certain
assets as they were and promised to make the fruits available to
for direction as to their use.34 In his counterclaims the Executor
avers that this letter evidences fiduciary relationship between Shelby and Dorothy
and that Shelby breached his fiduciary duty to his mother.35
Another example of fact demonstrating Wayos as
importance witness is
transaction between him and Shelby in 2007 in the United
Following negotiations
States with the assistance of American counsel they agreed to redemption of shares
of stock in two Mexican holding companies in which the Executor claims Dorothy
owned community property rights Wayo and Shelby agreed that to redeem forty-
percent interest in the shares one of the companies would pay $24000000 in
currency of the United States into trust for Wayos benefit.36
Record 00861
Record 00844-45 01074-75 Ex P-i
Record 00658-59
36
Record 00862 00870-72 01163-8 Ex D-6
01071
Respondents identified many other potential witnesses who live in Texas
although Shelby failed to identify them in his disclosures.37 They include Shelbys
wife Tita who lives with Shelby in McAllen Texas.38
Residence of the Decedent Dorothy lived in Texas for the last 25 years of her
life She and her husband Eduardo were married in Laredo Texas lived in
initially
McAllen Texas later moved to Nuevo Laredo Tamaulipas Mexico and finally
settled in Laredo Texas in 1986 or l987 When Eduardo died in 2005 Dorothy
moved to Houston where she lived until her death in 20l2
Nature of the Counterclaims Against Shelby The Executors counterclaims
begin with this overview41
These counterclaims are brought by citizen of Texas
against another citizen of Texas Counter-Plaintiff is the
personal representative of an estate pending in this Court
and adjudication of these counterclaims is essential to
administration of that estate The Decedent lived in Texas
for the last 25 years of her life These counterclaims are
based entirely on Texas law None of them is based on any
law of the United Mexican States
Record 00687-8
38
Record 00835
Record 00853 01160-61 Ex.D-4
40
Record 00 855-57
41
Record 00655
10
01072
Thereafter the Executor repeatedly avers that his causes of action are based on Texas
law and only on Texas law.42 In addition he makes numerous averments of specific
facts occurring in Texas.43
The Executor pleads that fiduciary relationship existed between Shelby and
Dorothy and it arose both out of an informal confidential
relationship and by express
agreement.44 Two letters evidencing that relationship and agreement and signed by
Shelby in Texas are specifically identified by the Executor.45 Both letters were
admitted into evidence during the hearing on Shelbys motion to dismiss.46 The
second of them is dated October 2007 when both Shelby and Dorothy indisputably
lived in Texas and it dealt with sum of $450000
specifically large money in
currency of the United States that Shelby was by his own admission holding for the
benefit of Dorothy.47 The Executor avers and proved at the hearing that Dorothy
42RecordOO66O 1922 00663 J33 35 00664 1JJ36-39 00666 144
00668 1JJ 48-49 00669-70 Prayer for Relief
Record 00655 J2 00657 fi 9-10 00658 IJIJ 12 16 00659 17 00660
JJ 19-20 23-25 00661 J26-28
Record 00658 fi 15-16 00659 18 00660 24
Record 00658 16 00659 11 17
46
Record 00844-45 01074-75 Ex P-l 00868 01162 Ex D-5
Record 01162 Ex D-5
11
01073
and Eduardo were married in Texas so all of their property was presumptively
community property48 but the Executor also avers that property that was held or
should have been held by Shelby in trust for Dorothy included not only property that
was or had been her community property but other property as well.49 It is
therefore inaccurate to say as Shelby does that the Executors case depends entirely
on the existence of community property the Executor avers that Shelby breached his
fiduciary duty with respect to Dorothys separate property as well.5 One example
identified Executor
specifically by the is the $450000 referenced in the letter of
October 2007 Finally the Executor avers that Shelby breached in multitude
of ways his fiduciary duty to Dorothy and his express agreements with her.52
48
Record 00657 00660 IJ 22 01160-61 Ex D-4
Record 00657 00658 13-15 00660 19-24 00663
IJIJ 9-1
35
50
Record 00663 11 35
Record 00659 17
52
Record 00660 19-20 24-25 00663 35 00666 IJ 43 00668 48
12
01074
ARGUMENT
The Trial Court Did Not Abuse Its Discretion by
Declining To Dismiss the Executors Counterclaims
To Show Himself Entitled To Dismissal Shelby Was Required to
Bear Heavy Burden To Clearly Show Facts That Strongly
Favor Specific Available and Adequate Alternative Forum
While Giving Substantial Deference To This Forum
In this proceeding Shelby argues that the Trial Court was required as matter
of law to dismiss the Executors counterclaims against Shelby based on forum non
conveniens even though Shelby lives in Texas the Executor lives in Texas the
third-party defendants live in Texas the Decedent who was the victim of Shelbys
torts lived in Texas for the last 25 years of her life and the Decedents estate is being
administered in Texas Even in the face of these facts Shelby insists that the Trial
Court had no discretion to deny his motion to dismiss that dismissal was absolutely
mandatory even though he concedes as he must that the Trial Court has jurisdiction
over the subject matter and all of the parties.53
In making this rather remarkable argument Shelby never mentions let alone
applies the correct legal standard Shelby cites neither the most recent case in
which the Supreme Court of Texas made aforum non conveniens determination nor
the most recent case in which the Supreme Court of the United States did so Though
Record 00811
13
01075
ignored by Shelby both cases are instructive here See Sinochem Intl Co
Malaysia Intl Shipping Corp 549 U.S 422 2007 Quixtar Inc Signature
Mngmt Team LLC 315 S.W.3d 28 Tex 2010
In both cases it was held that defendant seeking dismissal for forum non
conveniens ordinarily bears heavy burden in opposing the plaintiffs chosen
forum Quixtar 315 S.W.3d 2831 Tex 2010 quoting Sinochem 549 U.S at 430
emphasis added.54 But Shelby never acknowledges the heavy burden imposed on
him by common law Instead Shelby jumps ahead to address the adequacy and
availability of Mexican forum and various factors of private and public interest
By considering those criteria without reference to the controlling legal standard
Shelbys argument wanders aimlessly and leads to manifestly unjust conclusion
In direct contradiction of entire thrust of Shelbys argument both the U.S
Supreme Court and the Supreme Court of Texas in their most recent decisions
declared that substantially greater deference must be paid to claimants choice of
In makingforum non conveniens determinations the Texas Supreme Court
has routinely applied the standards enunciated by the United States Supreme Court
Quixtar 315 S.W.3d at 32 we regularly consider United States Supreme Court
precedent in both our common law and statutory forum non conveniens cases
Shelby admits that Texas takes its common-law forum non conveniens doctrine from
the equivalent federal doctrine Petition at citing Benz Group Barreto 404
S.W.3d 92 96 Tex App Houston Dist 2013 no pet yet Shelby largely
ignores the federal case law in his presentation to this Court
14
01076
forum where as here the claimant lives within the forum Sinochem 549 U.S at
430 Quixtar 315 S.W.3d at 31 This requirement of greater deference to the
claimants choice of his own place of residence as the venue of the litigation is deeply
rooted in the common law of forum non conveniens dating at least to Koster
American Lumbermens Mutual Casualty Co 330 U.S 518 1947 in which the
Court wrote
V/here there are only two parties to dispute there is good
reason why it should be tried in the plaintiffs home forum
if that has been his choice He should not be deprived of
the presumed advantages of his home jurisdiction except
upon clear showing of facts which either establish
such oppressiveness and vexation to defendant as to be
out of all
proportion to plaintiffs convenience which may
be shown to be slight or nonexistent or make trial in
the chosen forum inappropriate because of considerations
affecting the courts own administrative and legal
problems
330 U.S at 524 The Supreme Courthas repeatedly confirmedthe continuing validity
of this standard Sinochem 549 U.S at 429 American Dredging Co Miller 510
U.S 443 447448 1994 PiperAircraftCo Reyno 454 U.S 235241 1981
Yet Shelby never mentions it
Even where the plaintiff does not reside in the forum defendant seeking
dismissal for forum non conveniens must make showing that the relevant public
and private interests strongly favor specific adequate and available alternative
15
01077
forum DiFederico Marriotlnt Inc 714 F.3d 796 802 7th Cir 2013 quoting
Jiali Tang Synutra Intl Inc 656 F.3d 242 246 4th Cir.2011 emphasis in
original But when the plaintiff chooses his home forum the plaintiffs choice of
forum is entitled to even greater deference DiFederico 714 F.3d at 802-03 citing
Pzper Aircraft 454 U.S at 255-56 The forum in which the plaintiff is citizen is
presumptively convenient Pzper Aircraft 454 U.S at 256 and should be
overridden only when the defendant establish such oppressiveness and vexation
to defendant as to be out of all proportion to plaintiffs convenience which maybe
shown to be slight or nonexistent Koster 330 U.S at 524 As long as there is
real showing of convenience by plaintiff who has sued in his home forum will
normally outweigh the inconvenience the defendant may have shown Id
Overwhelming authority stands for the proposition that courts must give
substantially greater
deference to the claimants choice of forum when the claimant
is citizen of the forum DiFederico 714 F.3d at 803 citing Duha Agrium Inc
448 F.3d 867 873 6th Cir 2006 See also SMERacks Inc SistemasMecanicos
Para Electronica S.A 382 F.3d 1097 1101 11th Cir 2004 explaining that the
presumption in favor of the plaintiffs initial forum choice is at its strongest when
the of
plaintiffs are citizens residents or corporations this country Guidi
InterContinental Hotels Corp 224 F.3d 142 1462dCir 2000 reversingbecause
16
01078
the district court did not recognize that the is entitled to greater deference
plaintiff
when choosing her home forum Reid Walen Hansen 933 F.2d 1390 1395 8th
Cir 1991 citizens should rarely be denied access of the United
to courts States
Founding Church of Scientology of Washington D.C 536 F.2d 429 435
Verlag
D.C Cir 1976 should require positive evidence of unusually extreme
circumstances and should be thoroughly convinced that material injustice is manifest
before exercising any such discretion to deny citizen access to the courts of this
country
In sum the Supreme Court has admonished that unless the balance is strongly
in favor of the defendant the choice of forum should
plaintiffs rarely be disturbed
Gulf Oil Corp Gilbert 330 U.S 501 508 1947 emphasis added and that
jurisdiction is to be declined only in exceptional circumstances Id at 504 Forum
non conveniens is an exceptional tool to be applied sparingly not doctrine that
compels plaintiffs to choose the optimal forum for their claim Boston Telecomms
Group Inc Wood 588 F.3d 1201 1206 9th Cir 2009 quoting Dole Food Co
Inc Watts 303 F.3d 1104 1118 9th Cir.2002
This Court has acknowledged these well-established principles Unless the
balance weighs heavily in favor of the defendant court should rarely disturb the
plaintiffs choice of forum In re OldRep Nat Titlelns Co.No 14-lO-0l219CV
17
01079
2011 WL 345676 at Tex App Houston Dist Feb 2011 orig
proceeding citing In re ENSCO Offshore Intern Co 311 .W.3 92192829 Tex
2010 Accord SES Prods Inc Aroma Classique LLC No 0l-12-00219-CV
2013 WL 2456797 at Tex App Houston Dist June 2013 citing
Sinochem 549 U.S at 430 Gulf Oil 330 U.S at 508 Quixtar 315 S.W.3d at 31
These black-letter principles are ignored in the Petition yet they constitute the
overarching standard by which courts are to evaluate the various factors relevant to
forum non conveniens determinations Because Shelby considers those factors
without reference to the controlling standard Shelbys analysis is
meaningless
The Standard for Dismissal Under the Common Law Is
More Stringent Than the Standard Under the Forum
Non Conveniens Statute Which Is Inapplicable Here
The argument presented by Shelby contains another material error it fails to
distinguish cases governed by the common law from cases governed by the Texas
forum non conveniens statute TEx CIV PRAc REM CODE ANN 71.051 West
2005 The statute is applicable only to actions for personal injury or wrongful death
TEX Civ PRAC REM CODE Ainr 71.05 1i West 2005 so it has no bearing
here Forum non conveniens cases under the common law are clearly
distinguishable from cases under the statute Liberty Mutual Ins Co Transit Mix
Concrete and Materials Co No 06-12-00117-CV 2013 WL 3329026 at Tex
18
01080
App Texarkana June 28 2013 no pet h. Shelby cites several cases that were
governed by the statute not by the common law but Shelby fails to mention the
statute or advise the Court of this important distinction.55
Shelby had powerful incentive to gloss over the distinction between
and common-lawforum non conveniens
statutory analysis as the Supreme Court of
Texas has observed in cases decided under the common law the private-interest
factors and public-interest factors must strongly favor the movant in order for
dismissal to be warranted but under the statute mere tipping of the balance in favor
of the movant is all that is
required In re ENSCO Offshore International Co 311
S.W.3d 921 928-29 Tex 2010
Shelbys Argument Depends Entirely on Documents
That Were Not Admitted into Evidence and Testimony
That the Trial Court Was Not Obliged to Accept
The Petition Relies on Affidavits and Exhibits That
Were Not Admitted Below and Are Inadmissible
The Petition contains numerous citations to evidence that was not admitted
during the hearing on Shelbys motion to dismiss and that is indeed facially
See Petition 1723 26 citing In reENSCO Offshore International Co 311
at
S.W.3d Tex 2010 15 23 242629 citing In re BPZResources Inc 359
921 927-28
S.W.3d 866 869-70 Tex App Houston Dist 2012 15 16 18 19 23 citing In
re Pirelli Tire L.L.C 247 S.W.3d 670 677-78 Tex 2007 15 citing Gomez de
Hernandez Bridgestone/Firestone North American Tire L.L.C 204 S.W.3d 473 483
Tex App Corpus Christi 2006 pet denied
19
01081
inadmissible There are for example at least 18 instances of improper citations to
the Affidavit of Shelby Several
Longoria.56 days before the hearing the Executor
filed written to this affidavit.57 was not admitted offered
objections It or even into
evidence during the hearing on Shelbys motion to dismiss and with good reason
no statute or rule authorizes consideration of affidavits in support of motion to
dismiss for forum non conveniens and such affidavits inadmissible
are therefore
hearsay See TEX EvID 802 is not admissible except as provided by
statute or these rules or by other rules prescribed pursuant to statutory authority
Continental Oil Co P.P Indus 504 S.W.2d 616622 Tex Civ App Houston
Dist 1974 writ ref n.r.e disapproved on other grounds In re Smith Barney
Inc 975 S.W.2d 593 597-98 Tex 1998 affidavits inadmissible as in
hearsay
proceedings on motion to dismiss for forum non conveniens The Affidavit of
Shelby Longoria was objectionable on other valid grounds as well.58
56
See Petition at n.4 nn.81012141618 nn.2023-26 nn 2729-3
15 n.64 23 n.78 all citing affidavit testimony of Shelby Longoria
Record 00732-3
58
Id
20
01082
The Petition also contains improper citations to the Affidavit of Kristen
Schlemmer who is an attorney for Shelby and exhibits attached to her affidavit.59
The Executor timely filed written objections to this affidavit and some of the attached
exhibits.6 They were neither offered nor admitted into evidence during the hearing
on Shelbys motion to dismiss the Executors counterclaims
All told the Petition cites at least ten exhibits that were not admitted into
evidence.6 The Executor timely objected to admission of these exhibits.62
Stripped of the assertions that are based on inadmissible affidavits and exhibits
that were not admitted into evidence Shelbys statement of facts is reduced to few
Petition
See e.g n.7 citing Exhibit 4.2 n.32 citing Exhibit n.33
citing Exhibit n.34 same n.43 citing testimony of Kristen Schiemmer
25 n.79 citing Exhibits 4.1 and 5.1
60
Record 00735-3
61
See Petition at n.2 citing Exhibits 3.1 and 3.2 to the Affidavit of Shelby
Longoria n.5 citing Exhibits and B.2 to the Affidavit of Shelby Longoria
n.6 same n.7 citing Exhibit 4.2 to the Affidavit of Kristen Schlemmer n.8
citing Exhibits C.l and C.2 to the Affidavit of Shelby Longoria n.30 citing
Exhibit 5.2 to the Affidavit of Kristen Schlemmer n.32 citing Exhibit to the
Affidavit of Kristen Schiemmer n.33 citing Exhibit to the Affidavit of Kristen
Schlemmer n.34 same 23 78 citing Exhibits B.l and B.2 25 n.79 citing
Exhibits B.l B.2 C.1 and C.2 to the Affidavit of Shelby Longoria and Exhibits 4.1
and 5.1 to the Affidavit of Kristen Schlemmer
62
Record 00734-36
21
01083
disconnected points and his entire argument falls apart.63 One important example is
Shelbys argument that entered into an agreement with her
oft-repeated Dorothy
husband Eduardo Longoria Sr to divide their community property into separate
estates and that court in Mexico entered judgment the
partitioning community
property.64 Neither the alleged agreement nor the alleged judgment was admitted into
evidence by the Trial Court so the argument is baseless in this original proceeding.65
Well over half of Shelbys citations to evidence are improper references to
affidavits or exhibits that were not admitted into evidence The Petition does not
assert that it was error to exclude such materials nor does it present any argument or
authority for the proposition that the Executors objections were invalid Needless
to say Shelby has no right to mandamus relief based on evidence that was neither
offered nor admitted in the Trial Court Riddled with inappropriate citations the
Petition is plainly defective and should be denied
63
The few assertions of fact that are supported by admitted evidence rely
almost exclusively on the testimony of Shelby himself or that of his expert witness
Of course the Trial Court had no obligation to believe that testimony See text infra
at 23
64
Petition at 1-2 11-13 22 30 32
65
Interestingly Shelby testified at the hearing on October that the alleged
agreement partitioning his parents community property was seen by himfor the first
time only two months ago Record 00866
22
01084
The Petition Relies on Testimony That the
Trial Court Was Not Required To Believe
the hearing on
During Shelbys motion to dismiss Shelby called two witnesses
himself and an expert witness by the name of Carlos Alberto Enrique Jose Lorenzo
Gabuardi Arreola hereinafter referred to as Carlos The Petition frequently cites
their testimony incorrectly that the Trial Court was obliged to accept
assuming it as
true But trial judge who is charged with resolving issues of fact is to
empowered
make credibility determinations and may choose to believe one witness over another
while reviewing court may not impose its own opinion to the Howeth
contrary
Investments Inc City of Hedwig Village 259 S.W.3d 877 894 Tex App
Houston 2008 citing CityofKellerv Wilson 168 S.W.3d 802 819 Tex
2005 It is not necessary to have testimony from both parties before the trier of fact
disbelieve the trier of fact
may either may disregard even uncontradicted and
unimpeached testimony from disinterested witnesses City of Keller 168 S.W.3d at
819 It is axiomatic that the trier of fact is the sole judge of the credibility of the
witnesses and appellate courts have no authority to make credibility determinations
These principles of course apply in mandamus proceedings In re Angelini 186
S.W.3d 558 560 Tex 2006 citing Brady Fourteenth Court of Appeals 795
23
01085
S.W.2d 712714 Tex.1990 Texas Custom Pools Inc Clayton 293 S.W.3d 299
306 Tex App El Paso 2009 orig proceeding
The Petition relies heavily on the testimony of Shelby and Carlos It contains
at least eleven citations to testimony given the hearing66 and
by Shelby during at least
seven citations to testimony of Carlos.67 The Trial Court was not legally required to
believe any of this testimony Shelby of course is the Counter-Defendant who is
seeking dismissal of the counterclaims against him so he is highly interested
witness whose testimony is inherently suspect Carlos is retained expert witness
whose testimony was both impeached on cross-examination68 and refuted by the
testimony of han Rosenberg the expert called by the Executor.69 The Trial Court had
ample reason to disbelieve the testimony of Shelby and Carlos
That testimony and the inadmissible affidavits and exhibits identified in the
preceding section of this
response constitute virtually all of the evidence on which
the Petition depends The insurmountable problem for Shelby in this mandamus
66
See Petition at nn.9-lO nn.12-1317 n.25 nn.2729
n.46 11 n.56 16n.65
67
See Petition at n.3 n.44 16 n.65 17 n.68 18 72 28
nn.81-82
68
Record 00889-93
Ex D-l
69
Record 00907-22 01125-42
24
01086
is the lack of conclusive evidence on any of
proceeding supporting his position the
criteria for forum non conveniens in case in which he bears the burden of proof
with respect to every criterion The Trial Court was not required to believe the
testimony of Shelby and Carlos and without their testimony Shelby has no colorable
argument that he carried his heavy burden to prove facts that would have required the
Trial Court to dismiss the Executors counterclaims for forum non conveniens in the
face of the substantial deference to be afforded this forum
Shelby Failed To Prove That Any State in Mexico
Is an Adequate and Available Forum for This Case
In order to prevail on motion to dismiss for forum non conveniens the
movant must first demonstrate that there is specific adequate and available
alternative forum DiFederico 714 F.3d at 802 quoting Jiali Tang 656 F.3d at
246 In his motion to the Trial Court as in his Petition to this Court Shelby failed
to identifi the specific forum advocated by him he asserted only that the Executor
must pursue his claims somewhere in Mexico But Mexico has federal system in
which states enact and enforce their own laws and laws vary from one Mexican state
to another.7 Shelbys motion and brief to the Trial Court did not say where exactly
70
Record 01126
25
01087
Shelby contended that the Executor should have asserted his claims71 deficiency
that was fatal in itself in light of the movants burden to demonstrate that specific
alternative forum is available and adequate Shelbys expert witness however made
reference to the laws of the Mexican State of Tamaulipas72 so we will assume for the
sake of argument that Tamaulipas is the alternative forum advocated by Shelby
For three reasons Tamaulipas is not an available and adequate forum for
litigation of the Executors claims first the courts of Tamaulipas would not have
jurisdiction over the Executors claims against Shelby or over Shelbys third-party
claims against Sylvia and Adriana second the causes of action pleaded by the
Executor are not recognized in Tamaulipas or anywhere in Mexico so no remedy
is available there third the Executors claims would almost entirely be time-barred
by an unwaivable statute of repose Each of these three points precludes the relief
sought by Shelby
The Courts of Tamaulipas Would Not Have
Jurisdiction over the Executors Claims
Against Shelby or His Third-Party Claims
foreign forum is available when the entire case and all parties can come
within the jurisdiction of that forum Adams Merck Co Inc 353 Fed Appx
71
Record 00049-57 00058-92
72
Record 01080 01083-85
26
01088
960 962 2009 quotingAlpine View Co Ltd Atlas CopcoAB 205 F.3d 208 221
5th Cir 2000 emphasis added
During the hearing the Court received into evidence without objection by
Shelby the affidavit of han Rosenberg highly qualified expert in Mexican law
Mr Rosenberg also testified in person during the hearing.74 Mr Rosenberg testified
that if the Executor were to file in Tamaulipas the claims that he has as
pleaded
counterclaims here the court in Tamaulipas would almost certainly dismiss those
claims sua sponte for lack ofjurisdiction.75 The Executor would face insurmountable
problems of both subject-matter jurisdiction and personal jurisdiction whether or
not Shelby purports to submit to the jurisdiction of court in Tamaulipas.76
Consequently the alternative forum proposed by Shelby is unavailable and the
Petition must be denied
Even greater jurisdictional problems attend the third-party claims of Shelby
against Sylvia and Adriana The Third-Party Defendants who are represented by the
undersigned attorney will not voluntarily submit to the jurisdiction of the courts of
Record 00911-12 01125-42 Ex D-1
Record 00908-22
Record 01133-34 fi 28-34
76
Record 01134 T1J 28-37
27
01089
Tamaulipas so there can be no argument that the third-party claims could be tried
there Contrary to Shelbys assertions the amparo proceeding filed by Sylvia Dorsey
and Adriana Longoria in federal court in Mexico does not subject them to the
jurisdiction of any Mexican court in other Shelbys
any proceeding.77 third-party
claims against Sylvia and Adriana cannot be tried in Mexico.78
The Supreme Court has held that the inability to implead potential third-party
defendants has bearing on forum non conveniens determination Piper Aircraft
454 U.S at 259 In that case the putative third-party defendants were citizens of the
alternative forum so their citizenship militated in favor of dismissal Id Here on the
other hand Shelby has pleaded third-party claims against two residents of Houston
Texas.79 Neither of them is amenable to service of process in Tamaulipas or subject
to the jurisdiction of the courts of that State.8
But it might be argued Shelbys third-party claims against his sisters may be
pursued in Houston after litigation of the Executors claims is concluded in
Record 01136-38 43-52
78
Record 01134 34
See Record 00649 Counter-Defendant Shelby Longorias Third-Party
Petition Aug 30 2013 at 1111 2-3
80
Record 01133-34
28
01090
Tamaulipas Even if that is true the inconvenience associated with having multiple
proceedings is factor to be weighed in the forum non conveniens analysis
It is true of course that if
defendants were found
liable after trial in the United States they could institute
an action for or contribution these
indemnity against
parties in Scotland It would be far more convenient
however to resolve all claims in one trial
Id see also Boston Telecomms 588 F.3d at 1211 the inabilityto impleadpotential
third-party defendants can be factor So the existence of Shelbys third-party
claims cut against his motion to dismiss and provided valid basis for the Trial
Courts denial of his motion
Tamaulipas Is Not an Adequate Alternative Forum Because
It Provides No Remedy for the Executors Causes of Action
The Executors causes of action for breach of fiduciary duty do not exist in
Mexican law generally or the law of Tamaulipas in particular.81 Unlike Texas
Mexico does not recognize or enforce fiduciary duties based on informal fiduciary
relationships or private trusts In fact Mexican law does not recognize the existence
of private trusts at all Mexican law only recognizes trusts created through federally
licensed financial institutions subject to regulatory directive and oversight Mexico
81
Record 01135 JJ 39-40
29
01091
would provide no recourse or remedy so as matter of law no court in Mexico would
be an adequate forum for litigation of the Executors counterclaims.82
Shelby cites several cases in which Mexico was held to be an adequate
alternative forum83 but in none of them was the cause of action one for breach of
fiduciary duty arising out of either an informal fiduciary relationship or private trust
agreement actions wholly unrecognized in Mexican law so those cases are
inapposite Mexico provides no remedy for the Executors causes of action so
Mexico is not an adequate forum for litigation of the Executors counterclaims
Tamaulipas Is Not an Available Alternative Forum
Because the Executors Claims Against Shelby Would
Be Barred by an Unwaivable Statute of Repose There
The testimony of han Rosenberg also establishes that if the counterclaims
were pleaded in Tamaulipas they would be barred by statute of repose.84 The
82
Id The expert testimony proffered by Shelby on this point is
unavailing
Carlos testified to the general propositions that Mexico allows claims for money
damages and Mexico allows party to seek contractual or extra-contractual
damages Record 01083 J1J 29-30 He did not however state that Mexico
recognizes cause of action for breach of fiduciary duty arising out of an informal
fiduciary relationship or private trust His testimony is too general to be of
consequence Furthermore his testimony was effectively neutralized on cross
examination Record 00889-93 The Trial Court of course was free to disregard it
83
Petition at 17-19
84
Record 00913-14
30
01092
statute of repose is unwaivable so Shelbys agreement to waive any limitations
defense is meaningless This too dooms the Petition As matter of law no
adequate alternative forum is available if the claim would be time-barred in the
proposed alternative forum See e.g Bank of Credit and Commerce Intl
OVERSEAS Ltd State Bank of Pakistan 273 F.3d 241 246 2d Cir 2001
Mercier Sheraton Intl Inc 935 F.2d 419 423-24 1st Cir 1991 Kontoulas
A.H Robins Co Inc 745 F.2d 312 316 4th Cir 1984 Vicknairv PhelpsDodge
Indus Inc 767N.W.2d 171 177-78 N.D 2009 Delfosse C.A.C.I Inc.-Federal
267 Cal Rptr 224 227-29 1990 Sanwa Bank Ltd Kato 734 So.2d 557 561
Fla Dist Ct App 1999 Jones Prince Georges County 378 Md 98 835 A.2d
632 646 2003 Kennecott Holdings Corp Liberty Mut Ins Co 578 N.W.2d
358 361-62 Minn 1998 Shewbrooks A.C and Inc 529 So.2d 557 561-62
Miss 1988 Varo Owens-Illinois Inc 948 A.2d 673 680-81 N.J Super 2008
Marchman NCNB Texas Nat Bank 898 P.2d 709 724 N.M 1995 Binder
Shepard Inc 133 P.3d 276 278-80 Okia 2006 Jessop ACFIndus LLC 859
A.2d 801 803 Pa.Super 2004 Kedy A.W Chesterton Co 946 A.2d 1171
1183-84 R.I 2008
Thus for three independent reasons Tamaulipas is not an available and
adequate forum for litigation of the Executors counterclaims against Shelby
31
01093
Shelby Failed To Prove That The Private-Interest
Factors and Public-Interest Factors Favor Litigation
of the Executors Claims in Any Other Forum
The Petition also must be denied because the relevant private-interest factors
and public-interest factors do not clearly show facts which either establish such
oppressiveness and vexation to defendant as to be out of all proportion to plaintiffs
convenience which may be shown to be slight or nonexistent or make trial in the
chosen forum inappropriate because of considerations affecting the courts own
administrative and legal problems Koster 330 U.S at 524
In Quixtar the Supreme Court of Texas identified the relevant factors after
noting that the central focus of the forum non conveniens inquiry is convenience
315 S.W.3d at 33 quoting PiperAircraft 454 U.S at 249 The well-known Gulf
Oil factors direct courts to consider both public and private interest considerations in
forum non conveniens dismissals 315 S.W.3d at 33 citing Gulf Oil 330 U.S at
50809 Private considerations include the relative ease of access to sources
of proof the availability of compulsory process for attendance of unwilling and
the cost of obtaining attendance of willing witnesses the possibility of view of
premises if view would be appropriate to the action the enforceability of
judgment once obtained and all other practical problems that make trial of
case easy expeditious and inexpensive Id quoting Gulf Oil 330 U.S at 508
32
01094
Public considerations include difficulties for courts
when litigation is piled up in congested centers instead of being handled at its origin
the burden of jury duty that ought not to be imposed upon the people of
community which has no relation to the litigation local interest in having
localized controversies decided at home and avoiding conflicts of law issues
Quixtar 315 S.W.3d at 33-34 quoting Gulf Oil 330 U.S at 50809
Based on the evidence admitted by the Trial Court the Trial Court easily could
have found that none of the relevant factors militates in favor of the alternative forum
proposed by Shelby.85 And Shelby had the burden of proof as to every factor SES
Prods 2013 WL 2456797 at
All of the Private-Interest Factors
Point to This Forum or Are Neutral
Access to Relevant Evidence
Is Far Better in This Forum
The Executor lives in Houston Texas Shelby lives in McAllen Texas The
Third-Party Defendants impleaded by Shelby live in Houston Texas Thus three
of the four parties live in Houston Texas and all of them live in Texas.86 Shelby
85
In his Petition to this Court Shelby does not assert that the Trial Court erred
by excluding any evidence
86
Record 00633-34 00649 00861
33
01095
cites no case and we have found none in which every party was resident of the
forum where the case was filed and it was nevertheless dismissed for forum non
conven iens
Here in addition to the parties many other key witnesses live in Texas The
Executor advised the Trial Court of the following witnesses
Eduardo Longoria Jr also known as Wayo Longoria who is
other child
Dorothys the brother of Shelby Sylvia and Adriana and
who lives in Austin Texas
Adrian Hernandez who served as the personal accountant of both
Dorothy and Shelby and whose office is in Houston Texas
Pepe Treviflo lawyer who provided estate-planning services to
Dorothy and her husband and whose office is in Laredo Texas
Shelbys wife Tita Longoria who lives in McAllen Texas and who has
knowledge of Dorothys relationship with Shelby and transactions
the
affecting property of Dorothy
Carolyn Beckett lawyer in Austin Texas who has represented Shelby
in various matters related to his parents with
estates including dispute
Adriana Longoria over Shelbys performance of the Private
Agreement in 2010
Attorneys accountants and appraisers involved in 2007 transaction
negotiated and consummated in Texas between Shelby and his brother
Wayo Longoria in which Wayo was paid about $24000000 for his
interest in stock
forty percent trust containing formerly held in the
names of Dorothy and her husband
34
01096
Dorothys friends physicians and caregivers with whom she spoke
about her property and about Shelby and her other children during the
last seven years of her life when she lived in Houston
of witnesses claimed in his brief but never
Against this array Shelby proved that
the following witnesses live in Mexico the witnesses to execution of will by
Eduardo the witnesses to execution of trust agreement and Eduardos
by Eduardo
legal advisors all of the Banca Afirme employees who managed the trust and all of
the employees of the Mexican Trusts Mexican businesses.87 The supposed need for
the testimony of these persons is contrived
The Executors counterclaims do not contest the will
signed by Eduardo so
no testimony from those who witnessed the signing of that will is required.88
Likewise the counterclaims do not dispute that Eduardo signed the trust agreement
referenced in the Petition so the testimony of the witnesses to that
signing is
Shelby offered no evidence of the
unnecessary identities whereabouts or
supposedly relevant knowledge of the unnamed legal advisors of Eduardo or the
unnamed employees of Banco Afirme or the unnamed employees of the Mexican
Trusts Mexican businesses Shelby proved neither that such have
persons
knowledge of relevant facts nor that they are located in the State of Tamaulipas
87
Record 00081
88
Record 00655-73
35
01097
Indeed he admitted that the Mexican businesses are in various states in Mexico
not only in Tamaulipas so he provided to the Trial Court no evidentiary basis on
which the Trial Court could base finding as to the number of witnesses in
Tamaulipas or the significance of their testimony.89 Conclusory allegations of need
as to unnamed witnesses and unspecified evidentiary materials are insufficient to
establish the clear showing mandated by Gulf Oil Corp that balancing of
conveniences strongly favors forum non conveniens dismissal Omni Hotels Mgmt
Corp Round HillDevs Ltd 675 F.Supp 745752 D.N.H 1987 citing Gulf Oil
330 U.S at 510-11 Accord Fasules DDB Needham Worldwide Inc No 89
1078 1989 WL 55373 at N.D Ill 1987 Mowrey Johnson Johnson 524
F.Supp 771 777 W.D Pa 1981
Moreover since Shelby controls the Mexican businesses90 the Trial Court
reasonably could infer that Shelby already has or easily can obtain whatever
information might be needed in connection with the Executors counterclaims
The bottom line is this all of the potential witnesses who were specifically
identified in the proceedings below reside in Texas and most of them reside in the
Houston Texas To state the obvious the location of the Trial Court is far more
89
Record 00839
90
Record 00839-41 00861 00863-64
36
01098
convenient for such witnesses than the location of any court in Tamaulipas which is
about 300 miles away and requires an international border-crossing to visit
But distance is not the only obstacle or even the most daunting obstacle to
obtaining in Tamaulipas the testimony of the many witnesses who live in Texas On
12 2013 the United Travel Warning
July States Department of State issued about
the situation in Mexico.9
security copy was admitted into evidence without
objection.92 It provides chilling view of travel in the border region which of
course includes Tamaulipas93
Gun battles between rival TCOs Criminal
Organizations or with Mexican authorities have taken
place in towns and cities many parts of Mexico
in
especially in the border region Gun battles have occurred
in broad daylight on streets and in other public venues
such as restaurants and clubs
The number of kidnappings and disappearances throughout
Mexico is of particular concern Both local and expatriate
communities have been victimized In addition local
police have been implicated in some of these incidents
91
Record 01143-52
92
Record 00893
Record 01144 emphasis added
37
01099
Carjacking and highway robbery are serious problems in
many parts of the border region and U.S citizens have
been murdered in such incidents Incidents have
occurred during the day and at night and carjackers have
used variety of techniques including bumping/moving
vehicles to force them to stop and running vehicles off the
road at high speeds
The situation in Tamaulipas is so bad in fact that employees of the United States
Government have been directed to defer non-essential travel to the state of
Tamaulipas and are prohibited from personal travel on Tamaulipas highways
outside of Matamoros and Nuevo Laredo due to the tenuous security situation.94
When travel for official purposes is essential it is conducted with extensive security
precautions.95 While the general public is not forbidden from visiting places
categorized under defer non-essential travel USG personnel will not be able to
respond quickly to an emergency situation in those areas due to security precautions
that must be taken by USG personnel to travel to those areas.96
Record 01149
Record 01144 emphasis added
961d
38
01100
Shelby himself admits that violence street shoot-outs kidnapping and
extortion have been persistent threats along the Mexican border to this very day.97
For Shelby to claim that Tamaulipas is convenient venue in the face of these
harsh realities betrays again lack of candor to the Court
In light of the indisputable danger of travel in Tamaulipas it is established
beyond peradventure that for the litigants themselves and for many other witnesses
whose testimony is definitely needed Houston Texas is afar more convenient forum
than Tamaulipas
Although this is obvious true Shelby insists that it is legally inconsequential
Based on carefully selected language in the opinions from various cases Shelby
argues that the danger of travel in Tamaulipas could not be given any weight by the
Trial Court in the absence of highly specific evidence as to the effect of the danger
on the legal system there.98 We respectfully disagree In each of those cases the
holding was that dismissal was within the discretion of the trial court notwithstanding
evidence of political unrest or violence and such evidence did not by itself preclude
dismissal None of those cases held that evidence of danger in the proposed
alternative forum could not be considered by trial court as affecting the convenience
Record 00066
98
Petition at 26-27
39
01101
of the parties and witnesses The central focus of the forum non conveniens inquiry
is convenience Quixtar 315 S.W.3d at 33 quoting Piper Aircraft 454 U.S at 249
and the recent warning of the State Department certainly establishes that travel in
Tamaulipas is inconvenient to say the least Since even admits that
Shelby many
witnesses including all of the litigants live in Texas the Trial Court could
reasonably have found that some or all of the most imporant witnesses would be
detered from traveling to Tamaulipas in order to testify there
Compulsory Process for Attendance of Unwilling Witnesses
Is Available in This Forum But Not in Mexico and the Cost
of Obtaining Attendance of Willing Witnesses Is Less Here
All of the witnesses who live in Texas can be compelled by the Trial Court to
testify either in person or by deposition See TEX CIV 176205 None of them
can be compelled to give testimony in Mexican proceeding For those witnesses
who despite the grave danger described above might be willing to travel
voluntarily to Tamaulipas the expense of security precautions is prohibitive As
Shelby has identified no Mexican witnesses whose testimony is relevant to the
Executors counterclaims this factor cuts against dismissal
No View of Any Premises Will Be Needed
There is no need for the trier of fact to view any premises as Shelby admits.99
Petition at 25
40
01102
Judgment of The Trial Court Would Be Fully Enforceable
as to All Parties Judgment of Mexican Court Would Not
Shelby ignores this factor and the reason is obvious it undercuts his
argument Shelby lives in Texas and he filed the will contest which commenced this
litigation The Executor pleaded his counterclaims in to Shelbys will
response
contest Thus if the counterclaims are allowed to proceed in the Trial Court the
judgment of the Trial Court will be fully enforceable against Shelby and of course
the Executor
In addition entered the Trial Court on Shelbys
judgment by third-party
claims against Sylvia and Adriana would be fully enforceable As both of them live
in Houston the Trial Court unquestionably may exercise personal jurisdiction over
them as Shelby admits
If on the other hand the counterclaims are dismissed as demanded by Shelby
he will not be able to pursue his third-party action as no court in Tamaulipas has
jurisdiction over the Third-party Defendants.101 The litigation will become
fragmented Duplicative proceedings and multiple judgments will be required to
achieve final resolution
100
Record 00811
101
Record 01133-34
41
01103
The Practical Problems and Expense of
Proceeding in Mexico Are Far Greater
Shelby has not identified any specific problem that will arise from litigation of
the Executors counterclaims in the Trial Court but will not arise if the Executor
his claims in
pursues court in Tamaulipas Respondents on the other hand have
identified significant problems with litigation in Tamaulipas Respondents have
proven and Shelby has admitted that Tamaulipas is an exceedingly dangerous place
so anyone traveling there must incur unreasonable risk and incur substantial
expense
This factor therefore
away from Tamaulipas
for security.02 points
Shelby argues that the Executors counterclaims against him should be
dismissed because documentary evidence regarding the Mexican businesses in which
Dorothy had owned interests is
kept in Mexico.3 similar situation was faced in
Boston Telecommunications Group Inc Wood Although it was foreseeable that
documents located in Mexico would have to be obtained the court noted that there
are established
legal processes such as the HAGUE CONVENTION ON TAKING OF
EVIDENCE ABROAD iN CIVIL OR COMMERCIAL MATTERS 23 U.S .T 25551968 by
which this can be done and need to invoke those processes does not compel
102
Record 00066 01144 01149
103
Petition at 22
42
01104
dismissal for forum non conveniens Any court will necessarily face some
difficulty in securing evidence from abroad but these complications do not
necessarily justify dismissal 588 F.3d at 1288 quoting Tuazon R.J Reynolds
Tobacco Co 433 F.3d 1163 1181 9th Cir 2006
More importantly Shelbys position is disingenuous because he controls the
entities that own the documents4 and he lives in Texas Cf Boston Telecomms 588
F.3d at 1208 finding it was reasonable to assume that documents which the movant
represented to belong to foreign entities were in the possession of the chief executive
officer who resided in California and effectively managed the companies from there
During the hearing on his motion to dismiss Shelby was evasive about his position
in the Mexican holding companies and even professed ignorance as to whether he
is corporate officer but eventually he conceded that he may be Chairman and that
he had directed the companies to pay hundreds of thousands of dollars to his
mother.105 And Shelby presented no evidence of facts on which the Trial Court could
have based finding that production of the documents would be unduly inconvenient
or expensive His concern about access to documentary evidence is red herring
104
Record 00839-41 00861 00863-64
105
Record 00863-64
43
01105
All of the Public-Interest Factors Point to This Forum
The Dispute Originated Here and
There Are No Greater Administrative
Difficulties Here Than in Tamaulipas
This dispute arose in Texas Shelby has lived in Texas since the 1970s While
living here his fiduciary duty to Dorothy arose under Texas law and the Executor
contends Shelby breached his duty under Texas law Dorothy Longoria lived in
Texas for her last 25 years and lived in Houston for her last seven The
years alleged
acts and omissions of Shelby therefore harmed longstanding citizen of this forum
Dorothys will was admitted to probate in this forum and her estate is pending in this
forum Shelby himself commenced this legal proceeding by filing his will contest in
this forum This litigation originated in Texas and must be decided under Texas law
Shelby has not asserted let alone proven that the Trial Courts docket is more
congested than that of the courts of Tamaulipas As noted in the proceedings below
the Trial Court has issued Docket Control Order the case for trial on
setting May 19
20 14.106 There is therefore concrete reason to believe that the Trial Court will
adjudicate the Executors counterclaims promptly Shelby offered no evidence that
court in Tamaulipas or anywhere else would address the merits of the case more
quickly than the Trial Court or that litigation in Tamaulipas would be
106
Record 00694
44
01106
administratively easier Indeed there is
every reason to believe that the opposite is
true
This Community Has the Strongest
Relationship to the Litigation So the
Burden of Jury Duty Belongs Here
Both Shelby the alleged wrongdoer and Dorothy the alleged victim
resided in this forum for the last 25 years of Dorothys life so this forum has the
the
strongest relationship to litigation Dorothy died in Houston her will was
probated here and her estate is being administered here by an executor who was
empowered here all in accordance with Texas law Imposing the burden ofjury duty
here is justified Doing so in Mexico is not
The Dispute Arose in Texas Between Texans
So This Forum Has the Stronger Interest
in Deciding the Controversy
Because Dorothy lived and died in Texas her estate is
being administered in
Texas and the Executor of her estate has claims based on fiduciary duty owed to
Dorothy by another resident of Texas this State has an interest in deciding the claims
an interest far greater than any that could be articulated for the State ofTamaulipas
The Legislature of this State has enacted an array of statutes designed to ensure that
exercise over matters related to estates
probate courts may jurisdiction all pending in
those courts See e.g TEX PROB CODE ANN sS 4A providing that courts
45
01107
exercising original probate jurisdiction also have jurisdiction over all matters related
to probate proceedings 4B defining matter related to probate proceeding to
include any claim by personal representative on behalf of an estate 4F conferring
on statutory probate courts exclusive jurisdiction over all probate proceedings 5B
authorizing statutory probate courts to transfer to themselves actions pending in
district or county courts if they are related to an estate pending in the probate court
or if the personal representative of such an estate is party Underlying these
statutes is strong public policy in favor of consolidation in the probate courts of
all matters related to the estates administered in those courts The same public policy
in opposition of an executors
stands to dismissal for forum non conveniens claims
pleaded on behalf of an estate in the probate court in which the estate is pending
Shelby does not deny the existence or the importance of this public policy but
he attempts to counter it by citing one case which he claims is almost directly on
point because it involved claims by the personal representatives of an estate
Gallegov GarciaNo 07-CV-1l85 2010 WL2354585 S.D Cal June 201O
While it is true that in Gallego the plaintiffs were personal representatives of an
estate it is not true that they brought their claims in the probate court presiding over
the estate Rather they brought their claims in federal district court with
107
Petition at 30
46
01108
jurisdiction based solely on diversity of citizenship so the policy in favor of
consolidated administration of estates was not implicated Moreover the facts in
Gallego are easily distinguished the defendants were Mexican corporation and
citizens of Mexico Here the defendant Shelby is citizen of this forum and no
claim is asserted against any resident of Mexico Gallego in no way refutes the
proposition that the third public-interest factor cuts against dismissal
And there is still another public policy of the State of Texas that stands against
dismissal of the Executors counterclaims the policy against piecemeal litigation of
related controversies The Executors claims are counterclaims There is substantial
overlap between the subject matter of Shelbys will contest and the Executors
counterclaims both involve inquiry into Dorothys property mental condition and
testamentary intent at various times during her adult life.108 We do not contend that
counterclaims may never be dismissed for forum non conveniens Shelbys
attribution of that contention to us is untrue and an outstanding example of straw
man argument.9 What we do contend is that dismissal of counterclaims that are
1081n his will contest Shelby makes allegations concerning Dorothys property
and her wills dating back to the 1980s Record 00635 1JJ 8-10
109
See Petition at 13-14 Shelby falsely represents that as the centerpiece of
his argument against dismissal the Executor asserted that the Trial Court could not
dismiss his counterclaim while maintaining jurisdiction over Shelbys claim
47
01109
closely related to the plaintiffs claims undercuts the public policy against fragmented
litigation and therefore that public policy is public-interest factor that the Trial
Court could quite properly have taken into account even if it might not have been
dispositive by itself No case holds otherwise
Maintaining the Litigation Here
Avoids an Issue of Conflicts of Law
The Executors pleading states explicitly that it is founded entirely on Texas
law1 and includes numerous allegations of facts occurring in Texas.111 Shelby
asserts that Mexican law might supply the rule of decision but in typical fashion
Shelby fails to explain why that is so or to identify specifically any Mexican law that
would be controlling We repeat by his counterclaims against Shelby the Executor
is not contesting will signed by Eduardo the Executor is not contesting trust
agreement signed by Eduardo the Executor is not asserting cause of action under
Mexican law and the Executor is not seeking relief from any individual residing in
Mexico or any Mexican business entity There simply is no basis for Shelbys
assertion that the Executors counterclaims are governed by Mexican law
110
Record 00655 1J2 00660 JJ 1922 00663 IJIJ 33 35 00664 36-39
666 44 668 JJ 48-49 00669-70 Prayer for Relief
Record 00655 00657 1111 9-10 658 1111 12 16 659 17 660 1111
19-20 23-25 661 J26-28
48
01110
The counterclaims are based on duty undertaken and breached
fiduciary by
Shelby while he was resident of Texas The counterclaims also are based in part
but not entirely on Dorothys community-property rights under Texas law Dorothy
and Eduardo Longoria were married in Texas which establishes that their marital
estate was community estate.112 They were living together in Texas when Eduardo
died.113 The marriage began and ended in Texas Under Texas law all of their
property at the time of Eduardos death is presumed to have been community
property If Shelby contends that it was not community property then it is his burden
to prove so And if he thinks that he can carry his burden by offering contract
supposedly made in Mexico then he is free to try But the issue remains one of Texas
law
Furthermore even if it
may happen that Mexican law comes into play the
need to apply foreign law is not in itself reason to apply the doctrine of forum non
conveniens Schexnider McDermott Intl Inc 817 F.2d 1159 1163645th Cir
rehg denied 824 F.2d 972 5th Cir cert denied 484 U.S 977 1987 Accord
Manu Intl S.A Avon Prods Inc 641 F.2d 62 68 2d Cir.1981 must guard
against an excessive reluctance to undertake the task of deciding foreign law
112
Record 00867 01160-61 Ex D-4
113
Record 00853 856-57
49
01111
In sum no factor militates in favor of Shelbys position and every factor
militates it with one exception and the
strongly against exception is factor that
in neither direction
points Shelby failed miserably to carry his burden to prove all
elements of the forum non conveniens analysis and to establish that the balance of
factors strongly weighs in favor of dismissal SES 2013 WL 2456797 at
II The Trial Court Did Not Abuse Its Discretion by
Declining To Abate the Executors Counterclaims
After 24 pages of fervent argument that the Trial Court was absolutely required
to dismiss the Executors counterclaims and had no discretion to do otherwise
Shelby curiously presents half-hearted one-page argument why the Trial Court was
absolutely required to abate the counterclaims and had no discretion to do
otherwise.14 Shelby asks the Court to issue writ of mandamus compelling the Trial
Court to abate the counterclaims until two things happen Shelbys will contest
is fully adjudicated and the amparo proceeding involving the estate of Eduardo
is fully adjudicated
Shelby cites only one case in support of his argument that abatement of the
counterclaims was mandatory Develo-Cepts Inc City of Galveston 668 S.W.2d
114
Petition at 32-34
50
01112
790 793 Tex App Houston Dist 1984 no writ.115 This single case is cited
for the proposition that is well-established that case should be abated pending
determination of plaintiffs standing or capacity to sue.16 The citation of Develo
Cepts for this
proposition was improper The Court will search the opinion in vain
for any support for the proposition in Shelbys Petition or more broadly any support
for the argument that the Trial Court abused its discretion by denying his motion to
abate the Executors counterclaims
The facts inDevelo-Cepts were as follows Develo-Cepts Inc was for-profit
company that wished to construct on certain tract of land in Galveston facility
for the care and housing of mentally challenged individuals The company did not
own the land but hoped to lease it from couple named Wirth The Wirths did not
own the land either but were trying to purchase it from persons referred to as the
Matthews Ultimately the Wirths efforts to purchase the land were unsuccessful
so Develo-Cepts never acquired any interest in the land While sale to the Wirths
was under consideration however the Matthews filed an application for special-use
permit allowing operation of the facility contemplated by Develo-Cepts The City of
Galveston denied the application filed suit against the City seeking
Develo-Cepts
115
Petition at 33
61d
51
01113
declaratory and injunctive relief as well as money damages caused the
allegedly by
denial of the permit 668 S.W.2d at 792
The City of Galveston moved for dismissal in the abatement
or alternative
The district court dismissed the case On appeal this Court affirmed the dismissal
holding that Develo-Cepts lacked standing because it had never owned an interest in
the land for which permit was denied 668 S.W.2d at 795 Thus Develo-Cepts was
not even an abatement case and its facts bear no resemblence whatsoever to those at
bar Nothing about the holding in Develo-Cepts
suggests even remotely that the
Trial Court was legally obligated to grant Shelbys motion for abatement And
Develo-Cepts is the only authority cited by Shelby for the proposition that abatement
of the counterclaims is absolutely required as matter of law
Neither the will contest nor the ainparo case necessitates abatement of the
Executors counterclaims The Trial Court has already determined that the Executor
had standing and capacity to file suit By order dated October 2012 the Court
admitted to probate Dorothys will dated January 21 2010 and appointed James
Thomas Dorsey to serve as Independent Executor of her estate Both the standing and
the capacity of the Executor to bring the counterclaims are judicially established.117
no colorable that the Executor lacks standing to
Shelby presents argument
pursue the counterclaims against Shelby And Shelby failed to plead lack of capacity
in the prescribed way which is verified plea in abatement See Develo-Cepts 668
52
01114
According to Shelby there are two reasons why the Trial Court supposedly was
required to abate the Executors counterclaims while allowing Shelbys will contest
to proceed to trial First Shelby claims that Tommy was appointed pursuant to an
invalid will Petition at 33 But the counterclaims were not pleaded by Tommy in
his individual capacity They were pleaded by the duly appointed executor of the
Estate of Dorothy Louise Longoria and Tommy was named as executor in will that
was duly admitted to probate Even if the will contest is successful there will be
successor personal representative of that estate and the successor personal
will have the same duty and
representative legal capacity to marshal the assets of the
estate The most valuable assets are the claims against Shelby The will contest
cannot obviate litigation of the counterclaims
The second reason why according to Shelby the Executors counterclaims
should be abated until the conclusion of Shelbys will contest is the claim that the
Executor has conflict of interest which renders him incapable of performing his
fiduciary duties Petition at 33 But Shelbys Petition to this Court does not identify
let alone identify evidence of the supposed conflict of interest In the Trial Court
Shelby asserted that conflict of interest exists based solely on Shelbys self
serving and wholly unsupported assertions that Mr Dorseys wife Sylvia Dorsey
S.W.2d at 793
53
01115
misappropriated funds belonging to Dorothy during her lifetime and Shelbys
self-serving and wholly unsupported assertion that Mr Dorseys son Wayo Dorsey
stole from Shelby electronic files relating to Mexican businesses and Mexican
trust.8 These accusations are irresponsible and categorically
unproven denied but
even if one assumes for the sake of argument that they are true they provide no basis
for abatement of the Executors counterclaims against Shelby
Shelby is not beneficiary of the Estate of Dorothy Louise Longoria Dorothy
left nothing to him in her will which the Trial Court admitted to probate Shelby
therefore has no standing to complain about the Executors supposed failure to
investigate alleged torts by Sylvia against her mother As for the alleged theft of
computer files by Wayo Dorsey Shelby offers no reason why the Executor would be
responsible either to investigate that or to redress it And even if Mr Dorsey were
removed as Executor based on these supposed conflicts of interest the Trial Court
certainly would appoint successor who would be equally responsible to marshal the
assets of the estate including the claims against Shelby There is no logical
connection between the facts creating the supposed conflicts of interest and
abatement of the counterclaims until the will contest is concluded Shelbys argument
makes no sense
118
Record 00089
54
01116
While abatement would serve no it would have
salutary purpose certainly
undesirable consequences To state the obvious the requested abatement would
cause lengthy delay in the disposition of the counterclaims Abatement also would
cause an enormous waste of the resources of the Trial Court and the litigants because
discovery needed for the will contest substantially overlaps with discovery needed for
the counterclaims as comparison of the pleadings demonstrates.19 Both the will
contest and the counterclaims require discovery of the estate planning of the
Decedent the property owned by her at various times in her adult life her evolving
relationships with her children representations made to her by Shelby payments
made to her by Shelby information withheld from her by Shelby her physical and
mental condition at various times and many other topics If the counterclaims are
abated many of the witnesses who are deposed in the will contest will have to be
deposed again And of course second trial will have to be conducted The Trial
Court certainly had rational basis for declining to abate the counterclaims Shelbys
argument that it was an abuse of discretion to deny his motion to abate the
counterclaims pending resolution of the will contest is spurious
119
Compare Record 00633-00648 Shelby Longorias Amended Contest of
2010 Will Aug 30 2013 andRecord 00655-73 Original Counterclaims of James
Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria
Deceased to Shelby Longorias Amended Contest of 2010 Will Sept 26 2013
55
01117
Finally Shelby asserts that the Trial Court abused its discretion by refusing to
abate the Executors counterclaims until the amparo case filed by Adriana and Sylvia
is concluded His argument on this point consists of one sentence Further
resolution of the Mexican lawsuits against the Dorseys would foreclose any
right to the relief they seek through their counterclaims.20 Shelby offers
no explanation whatsoever of how an unfavorable decision in the amparo proceeding
would foreclose any relief sought by the Executor by his counterclaims in the Trial
Court The Petition does not even state what relief is requested in the amparo
lawsuit Thus the Petition fails to present proper argument for mandamus relief.2
The amparo proceeding involves the estate of Eduardo Longoria Sr not the
estate of Dorothy Louise Longoria It was initiated by Sylvia and Adriana and it is
essentially civil-rights action seeking relief known asjuicio de ainaparo from
federal court of Mexico The action is based on the fact that state court of
Tamaulipas did not give Sylvia and Adriana legally required notice of proceeding
in which will of Eduardo Longoria Sr was probated The relief sought is an order
120
Petition at 34
guess what Shelby
121
Neither Respondents nor the Court should have to is
contending And it would be improper for Shelby to explain his position for the first
time in reply brief
56
01118
compelling the state court to issue the notice required by Mexican law.122 Contrary
to Shelbys unsupported assertion an unfavorable outcome in the amparo case cannot
possibly affect the counterclaims pleaded by the Executor in the Trial Court as the
counterclaims are brought on behalf of the estate of Dorothy not the estate of
Eduardo
Having failed to demonstrate that the outcome of the proceeding in
amparo
Mexico might affect the adjudication of the Executors counterclaims in the Trial
Court Shelby has wholly failed to show that the Trial Court was legally required to
abate the Executors counterclaims in deference to the ainparo case Shelbys
argument for abatement is meritless
CONCLUSION AND PRAYER
The Trial Court was entitled to disbelieve the testimony of Shelby and his
expert witness and to disregard the affidavits and exhibits that Shelby filed with his
motion but never offered into evidence Shelby failed to conclusively prove facts that
left the Trial Court no discretion to deny his motion to dismiss the Executors
counterclaims but legally required the Trial Court to dismiss them for forum non
conveniens in spite of the facts that every one of the four parties lives in Texas
and three of them reside in Harris County Texas the Decedent whose estate is at
122
Record 0090 1-02
57
01119
issue lived her last seven years in Harris County Texas and her estate is
being
administered there Shelby failed to identify in the manner required by law
single witness who lives in Mexico the Executors counterclaims are based
entirely on Texas law and he is asserting no rights under Mexican law and the
Executors causes of action are not recognized in Mexican law and are barred by an
unwaivable statute of repose so no remedy is available there Shelby likewise failed
to conclusively prove facts that left the Trial Court no discretion to deny his motion
to abate the Executors counterclaims but legally required the Trial Court to abate
them The record demonstrates that neither dismissal nor abatement was warranted
Accordingly Respondents respectfully request that the Petition be denied
58
01120
DATED December 30 2013
Respectfully submitted
/s/ James Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
Shannon L.K Welch
State Bar of Texas Number 90001699
FISHER WELCH
Professional Corporation
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Facsimile 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
THE HOLMES LAW FIRM
10000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9266
Facsmile 214.890.9295
ATTORNEYS FOR RESPONDENTS
JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF
THE ESTATE OF DOROTHY
LOUISE LONGO1UA DECEASED
AND SYLVIA DORSEY
59
01121
CERTIFICATE UNDER TEX APP 9.4i
hereby certify that this document contains 13214 words to
according
computer program used to prepare it excluding the caption table of contents index
of authorities statement of issues presented signature proof of service certification
certficate of compliance and index as provided in TEX APP 9.4i
/s/ James Austin Fisher
James Austin Fisher
60
01122
CERTIFICATEUNDER TEX APP 52.3j and 52.4
hereby certify that have reviewed this
response and concluded that every
factual statement in this response evidence included in the
is supported by competent
appendix or record
/s/ James Austin Fisher
James Austin Fisher
61
01123
CERTIFICATEOF SERVICE UNDER TEX APP 9.5e
hereby certify that on December 30 2013 true and correct copy of this
document was served on Shelby Longoria through his attorneys of record named
below in the manner indicated and in compliance with Rule 9.5 of the Texas Rules
of Appellate Procedure By agreement of the parties email is an acceptable manner
of service
Johnny Carter Richard Hess and Kristen Schiemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
YEMAIL TOjcarterdjsusrnangodfrey corn rhessdjsusmangodfrey corn and
kschlernrnersusrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO rnacintyre@rnrnlawtexas corn
Is James Austin Fisher
James Austin Fisher
62
01124
ACCEPTED
20 13-00996
FOURTEENTH COURT OF APPEAL
HOUSTON TEXAS
14-13-00996-CV 72648 PM
1/13/2014
CHRISTOPHER PRINI
CLERK
NO 2013-00996
IN THE FOURTEENTH COURT OF APPEALS FILED IN
14th COURT OF APPEALS
Lrrr TcmcKr
jJLJj3 \JIN jjj
ffitiV
HOUSTON TEXAS
_____________________________________________________I iI3/2flj4J64g1%f
CHRISTOPHER PRINE
IN RE SHELBY LONGORIA Clerk
Original Proceeding from the
Probate Court Number One 1-larris County
Texas Cause No 414270
in Further Support of Petition for Writ of Mandamus
Shelby Longorias Reply
Johnny Carter
State Bar No 00796312
cartersusm angodfrey corn
Richard Hess
State Bar No 24046070
rhesssusrnangodfrey .com
Kristen Schiemmer
State Bar No 24075029
ksch1ernmersusmaflgOdfrey.c0m
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713 654-6666
Robert Maclntyre Jr
State Bar No 12760700
rnacintyre@mrnlaWteXas.cOm
M.ACINTYRE MCCULLOCH STANFIELD Youio
2900 Weslayan Suite 150
Houston Texas 77027
713 547-5400
Telephone
Attorneys for Shelby Longoria
3009942v 1/013774
01125
Table of Contents
The Complete Record Was Properly Before the Court
II Mexico Is an Available and Adequate Forum
III The Private Interest Factors Weigh in Favor of Mexico 13
IV The Public Interest Factors Weigh in Favor of Mexico 15
The Trial Court Abused Its Discretion by Denying Abatement 17
VI Conclusion 19
CERTIFICATE OF SERVICE .20
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4i..... 21
3009942v1/013774
01126
Table of Authorities
Cases
Aguinda Texaco Inc
142 Supp 2d 534 S.D.N.Y 2001 affd 303 F.3d 470
2d Cir 2002 11
American Dredging Co Miller
510U.S.443 114S Ct.981 1994 16
Chang Baxter Healthcare Corp
13
599F.3d7287thCir.2010
Continental Oil Co P.P.G Indus
Houston Dist 1973 writ refd
504 S.W.2d 616 Tex App
n.r.e
Cris man Cooper Indus
13
748 S.W.2d 273 Tex App Dallas 1988 writ denied
Del Istmo Assurance Corp Platon
11
2011 WL5508641 S.D.Fla.Nov.92011
Develo-Cepts Inc City of Galveston
668 S.W.2d 790 Tex App Houston 1984 no writ 18
Dolcefino Randolph
19 S.W.3d 906 Tex App Houston Dist.I 2000 pet
denied
DTEX LLC BBVA Bancomer S.A
10
508 F.3d 785 5th Cir 2007
Dunmore Chicago Title Ins Co
12
400 S.W.3d 635 Tex App Dallas 2013 no pet
Duran Henderson
Texarkana 2002 pet denied 12
71 S.W.3d 833 Tex App
Gomez de Hernandez Bridgestone /Firestone Am Tire L.L
2006 pet denied 10
204 S.W.3d 473 Tex App Corpus Christi
3009942v1/013774 ii
01127
Rouw Co Railway Express Agency
154 S.W.2d 143 Tex Civ App El Paso 1941 writ ref
Ibarra Orica USA
493 Fed Appx 489 5th Cir 2012 10
In re Ford Motor Co
591 F.3d 406 5th Cir 2009 10
In re Pirelli Tire L.L
247 S.W.3d 670 Tex 2007 10 12
In re Smith Barney Inc
975 S.W.2d 593 Tex 1998
Morales Ford Motor Co
313 Supp 2d 672 S.D Tex 2004 11
Navarrete de Pedrero Schweizer Aircraft Corp
11
63SF Supp.2d251W.D.N.Y.2009
Nexen Inc Gulf Interstate Eng Co
Dist 2006 no pet 12
224 S.W.3d 412 Tex App Houston
Paulownia Plantations de Panama Corp Rajamannan
11
793 N.W.2d 128 Minn 2009
Pper Aircraft Co Reyno
14
454 U.S 235 102 Ct 252 1981
Quixtar Inc Signature Mgm Team LLC
315 S.W.3d 28 Tex 2010
Sico North America Inc Willis
2009 WL 3365856 Tex App Houston Dist Sep 10
12
2009 no pet
Trailers de Mexico S.A de
Vinmar Trade Fin Ltd.v Utility
336 S.W.3d 664 Tex App Houston Dist 2010 no pet 10 15 16
iii
3009942v1/013774
01128
Statutes
Tex Prob Code 10 17
Texas Civil Practice Remedies Code 6.005
Rules
Tex App 52.7a
Tex Evid 1009b
3009942v1/013774 iv
01129
and he
Tommys strategy is to deny repeatedly vociferously that is doing
what he obviously is doing He told the trial court
me we not contesting the of
Let say with perfect clarity are validity
any judgment of any Mexican court We are not asking you to review
or overturn any Mexican proceeding We are not contesting any will
that was signed in Mexico1
Tommy continues in the same vein in his mandamus response by for example
that he is challenging the validity of the Mexican trust.2
denying
But actions speak louder than words
statement of claims asserts that Dorothys
Tommys operative
estate is entitled to receive $49011050 Tommy says this is the
value of 50% of the stock in two Mexican companies Vertice
S.A de C.V and Inmeubles Terrenos S.A de C.V
Empresarial
in 2002
which Dorothys husband Eduardo Sr transferred to
Mexican trust managed by Mexican bank.3
Tommy served voluminous document requests seeking production
and Mexican businesses.4
of documents relating to the trust
At the hearing Tommys counsel questioned Shelby extensively
held by the trust.5
about the trust and Mexican businesses
admitted in his mandamus that he contends that
Tommy response
in shares of stock
Dorothy owned
interest
community-property
that were placed in the trust6 and that the counterclaims also are
based in part but not entirely on Dorothys community-property
these
rights under Texas law.7 Although Tommy hedged
Record 00812-13
Mandamus Response at
Record 00626
Record 00482-00528
Record 00862-64 0087 1-73
Mandamus Response at
Mandamus Response at 49
3009942v 1/0 13774
01130
admissions by suggesting that he had some other theory that did
not involve proving the existence of community property he was
unable to articulate this theory in any coherent way.8
After defeating Shelbys motion to dismiss Tommy filed motion
seeking to compel production of the Mexican documents sought in
his requests for production.9
What would Tommy have to prove in order to recover the value of 50%
interest in the Mexican businesses which Eduardo Sr transferred in 2002 to the
Mexican trust managed by Banca Afirme
First Tommy would have to prove that the Mexican separate
property agreement was invalid Dorothy and Bduardo
If Sr
agreed in 1983 to divide their property Dorothy would have no
basis to recover half of Eduardo Sr.s property Since the Mexican
was entered as an order of Mexican
separate property agreement
would have order
court Tommy somehow to invalidate that
would have If Eduardo Sr
Second Tommy to invalidate the trust
and transferred the shares of the Mexican
validly properly
businesses to the Mexican trust then Tommy has no basis to claim
that Dorothy can somehow reach those shares Tommy does not
and how he can the trust through an action
cannot explain pierce
in Texas court He cannot even explain how he can obtain
probate
from the trust through an action in Texas probate court
discovery
would have the Mexican court orders
Third Tommy to invalidate
Eduardo Sr.s 2002 will In his will Eduardo Sr recited
probating
in that he transmitted in Trust to the abovementioned
Spanish
the of all his shares
Trustee Afirmej property
the stock of the called
corresponding to capital corporations
VERTICE EMPRESARIAL and INMUIEBLES
TERRENOS1 the same shares of which Tommy seeks to
Mandamus Response at 12
Supplemental Record
Record 00263
3009942v1/013774
01131
recover half for Dorothys estate Eduardo Sr also integrally
ratifies all the other stipulations contained in the referred Trust for
it is his will that the terms of the Irrevocable Trust Agreement
abovementioned be fully respected and performed After
Eduardo Sr.s death Shelby probated this will in Mexican court
the Mexican court declared the will to be valid and Shelby and his
brother inherited the entirety of Eduardo Sr.s estate as result of
the Mexican probate orders.2 Even if Tommy somehow were able
invalidate the Mexican order and pierce the trust he
to partition
half of Eduardo Sr.s estate without also
still could not recover
somehow invalidating the Mexican probate orders which expressly
validate Eduardo Sr.s 2002 will ratifying the terms of the trust
and they compel dismissal or abatement
These are the ineluctable facts
Shelby will show below that
the complete record was properly before the trial court
Mexico is an available and adequate alternative forum
the private interest factors strongly support venue in Mexico
Mexico and
the public interest factors strongly support venue in
should be abated
alternatively Tommys counterclaims pending
resolution of the will contest or the Mexican court proceedings
ihe omjlete Record Was Pi operlyj3cfoi ct
is
The importance of the Mexican separate property agreement highlighted
Wright did not or could not consider the entire
by Tommys argument that Judge
record presented to him Tommy initially objected to everything filed by Shelby.13
Record 002 64
12
Record 00383
13
Record 01186-93
3009942vl/013774
01132
But at the hearing he withdrew his objections except to the Mexican court order
partitioning property and few relatively unimportant documents.4 While Tommy
was withdrawing his objections to most of the documents he doubled down and
asserted even more objections to the Mexican partition order.5 He did this because
he knows that Texas court cannot properly hear case which challenges
Mexican court order like the one which memorializes the Mexican separate
property agreement
Tommys objections to the Mexican partition order underscore the need to
dismiss this case for forum non conveniens
of the order6 This
Tommy objects to the authenticity partition
could be resolved in the
objection easily Tamaulipas by
Tamaulipas attorney who attested to the facts contained in the
Order or by the Tamaulipas Clerk of the Court who certified it or
judge of the Fourth Judicial District of Tamaulipas who
by
signed it
of the Mexican order7
Tommy objected to the translation partition
although he identified no specific inaccuracy as required by Tex
would vanish case were
Evid 1009b This objection if this
dismissed and refiled in Mexico The order is in Spanish and
would need no translation in Tamaulipas court
Mexican order admissible the trial court
Because the partition is
will be required to recognize the judgment unless Tommy can
the for in Texas Civil
prove one of grounds non-recognition
Practice Remedies Code 36.005 This additional mini-trial
14
Record 00830-31
Record 00832-33
16
Record 00832-33
17
Record 00832-33
3009942v1/013774
01133
over satellite dispute would of course be unnecessary in
Mexico
Tommy also objected to the Mexican partition order and other documents
because Shelby submitted them as exhibits to affidavits Tommy argued that no
statute or rule authorizes admission of affidavits in support of motion to dismiss
and such affidavits therefore inadmissible
for forum non conveniens are
did not sustain this objection to the contrary he
hearsay.18 Judge Wright
told the that he would consider the whole record presented to
repeatedly parties
him
counsel that Judge could not rule on
At the hearing Tommys argued Wright
had to hold Judge Wright responded
the papers but instead an evidentiary hearing
and but also explained
that you can certainly have your hearing your evidence
that he was going to consider everything that had been submitted to him
And guess my point is that Im going to you know obviously read
it all and without really objecting you know Im going to take it on
each
its face as that whats being presented to me and by each side is
sides of view as to this issue
point particular
After Tommys counsel withdrew his objections to
opening arguments
of the documents attached to the affidavits and asserted his new authenticity
many
8Record 1187 1189 1190
19
Record 00796
3009942v1/013774
01134
and translation objections to the Mexican partition order Judge Wright
responded that he would take everything into account when making ruling
And Im still going to be in position when review all of this to go
through your objections that are still there to see if they are valid
Thats the process
will go through And taking that into account
will also determine the outcome of the motion itself and taking into
account your response
So Im glad yall agree to some of it But it
consider the and their validity as
is still my task to objections go
through the whole process of this.21
After hearing testimony from several witnesses Judge Wright reiterated this
in his remarks at the conclusion of the hearing
approach
mean the bottom line is as you know on this one Im the decision
maker so will be Ill be taking into account whats
reading things
and what might not be admissible obviously but
been objected to
and what to take into
get the big picture of what have got to decide
consideration so thank yall.22
in his order dismissal stated
as he had promised Judge Wright denying
Finally
that he considered the briefing the evidence admitted during the hearing on the
Motion and the record of/his case.23
document is material to the
The record on mandamus consists of every that
was filed in any underlying proceeding Tex
relators claim for relief and that
Tommy were of the trial court
App 52.7a The documents challenged by part
were considered by Judge Wright and
record are part of the appellate record
20
00830-33
21
Record 00833-34
22
Record 00933
23
Record 01206
3009942v1/0l3774
01135
should be considered by the Court of Appeals Because Tommy did not obtain
ruling on his objections he has waived any right to assert them in this mandamus
proceeding See Dolcefino Randolph 19 S.W.3d 906 925-27 Tex App
Houston Dist 2000 pet denied holding that hearsay objection could not
be on because the trial court ruled on summary-judgment motion
urged appeal
without disclosing its rulings on the objection
cannot consider affidavits and other
Tommys position that trial court
documents filed with the briefs is directly contrary to the law In Piper Aircraft
Co Reyno 454 U.S 235 102 Ct 252 1981 the United States Supreme
even to submit affidavits in order to
Court held that defendant is not required
obtain forum non conveniens dismissal
Such detail is not necessary Requiring extensive investigation
would defeat the of their motion
purpose
454 U.S 102 Ct 267 The Supreme Court noted that the
Pzper at 258 at
for the Second Circuit has expressly rejected such
United States Court of Appeals
In other cases dismissals have been
requirement provide affidavits
failure to provide detailed affidavits Id 454 U.S at 258 n.2
affirmed despite the
102 Ct at 267 n.2
the defendants in Piper did submit
Even though affidavits were not required
the Court held that the district court
them and based on the affidavits Supreme
conveniens id 454 U.S at 258-59 102 Ct at
properly dismissed for forum non
3009942v1/013774
01136
267 Our examination of the record convinces us that sufficient information was
here Both and Hartzell submitted affidavits describing the
provided Piper
evidentiary problems they would face if the trial were held in the United States.
The Texas Court with the United States Supreme Court
Supreme agrees
an extensive investigation to produce evidence for the dismissal
Requiring
would defeat the of the for this type of dismissal
hearing purpose request
altogether Quixtar Inc Signature Mgmt Team LLC 315 S.W.3d 2834 Tex
2010 quoting Piper 454 U.S at 258 102 Ct at 267 forum non
information to enable the trial court to
conveniens movant must provide enough
interests the evidence need not be overly detailed
balance the parties
Trailers de Mexico S.A de 336 S.W.3d
Vinmar Trade Fin Ltd.v Utility
664 676 Tex App Houston Dist 2010 no pet.
clear United States and Texas Supreme Court precedent
In opposition to the
case In Continental Oil Co
Tommy offers only one 40-year-old pre-Piper
P.P.G Indus 504 S.W.2d 616 622 Tex App Houston Dist 1973 writ
that the defendant in this case had the
refd n.r.e the court of appeals stated
dismissal of this
burden of alleging and proving facts which would authorize the
conveniens Had the evidence raised issues offact
case on the theory of forum non
juiy Under such
submitted to conditions
have been
such issues properly could
the required proof cannot be supplied by affidavit
3009942v1/013774
01137
The procedure that the court described in Continental Oil holding jury
trial when forum non conveniens motion raises issues of fact does not resemble
anything authorized by Texas law today and is in fact directly contrary to the
Texas Supreme Courts statement in In re Pirelli Tire L.L.C 247 S.W.3d 670
court should affidavits and
687 Tex 2007 that the trial weigh competing
evidence when deciding forum non conveniens motion No court has ever
applied or even cited Continental Oil for the proposition advanced by Tommy
Oil did not or even reference the controlling
The court in Continental apply
laid out in
Gulf Oil factors Instead it applied forum non conveniens principles
case called Rouw Co Railway Express Agency 154 S.W.2d 143 Tex Civ
Court has now overruled the
App El Paso 1941 writ rerd The Texas Supreme
based in Continental Oil In re Smith
Rouw decision on which the court its analysis
the Court
Barney Inc 975 S.W.2d 593 598 Tex 1998 In doing so expressly
disapproved of Continental Oil Id
II Mexico Is an and Adeq.ate Forum
the that
rebut nearly airtight presumption
Tommy has done nothing to
Mexico is an available forum In re Ford Motor Co 591 F.3d 406 413 5th Cir
Mexico to be unavailable or
case
2009 He has not pointed to single finding
that
He has not distinguished the numerous Texas and federal cases
inadequate
and available forum DTEX LLC BBVA
have found Mexico to be an adequate
3009942v1/013774
01138
Bancomer S.A 508 F.3d 785 796 5th Cir 2007 Ibarra Orica USA 493 Fed
Appx 489 493 5th Cir 2012 In re Ford Motor Co 591 F.3d 406 412 5th Cir
2009 In re Pirelli Tire L.L.C 247 S.W.3d 670 677-78 Tex 2007 Vinmar
Trade Fin Ltd Trailers de Mexico S.A de 336 S.W.3d 664 675
Utility
Tex App Houston Dist 2010 no pet Gomez de Hernandez
Bridgestone Firestone Am Tire L.L.C 204 S.W.3d 473 483 Tex App
Corpus Christi 2006 pet denied
makes the and
Tommy now five spurious arguments regarding availability
of Mexico as an alternative forum
adequacy
Mexican court would dismiss case for lack of
First Tommy says that
over Shelby.24 But as explained in the mandamus petition
personal jurisdiction
himself to in the amparo
Shelby has already subjected personal jurisdiction
and the court in Mexico has accepted jurisdiction over him.25
proceeding
Mexican court would not exercise personal
Second Tommy says that
claims against Sylvia and Adriana.26 But
jurisdiction over Shelbys third-party
availed themselves of the jurisdiction of Mexican
Sylvia and Adriana already have
forum non conveniens by changing their minds
courts They cannot now defeat
about their willingness to go to court in Mexico In any event Shelby is willing to
24
Mandamus Response at 27
25
Mandamus Petition at 15-16
26
Mandamus Response at 27-28
10
3009942v1/013774
01139
accept the minimal risk that Sylvia and Adriana are somehow able to avoid
personal jurisdiction in the same court system in which they already have asserted
claims
Third Tommy says that Mexican court would dismiss for lack of subject-
matter jurisdiction.27 But the only basis for this argument is
purported
Tamaulipas statute which according to Tommys expert would divest Tamaulipas
courts of jurisdiction due to the prior filing in the United States.28 However the
of preemptive jurisdiction under Mexican law does not prevent
concept
Mexican court from asserting subject-matter jurisdiction over case dismissed
from court in the United States Navarrete de Pedrero Schweizer Aircraft
Corp 635 Supp 2d 251 261 W.D.N.Y 2009 And courts both state and
federal have refused to recognize foreign laws that purport to make the home
forum unavailable because of prior U.S filing Del Istmo Assurance Corp
Platon 2011 WL 5508641 S.D Fla Nov 2011 see Morales Ford Motor
Co 313 Supp 2d 672 676 S.D Tex 2004 Aguinda Texaco Inc 142
Supp 2d 534 546 S.D.N.Y 2001 affd 303 F.3d 470 2d Cir 2002 Paulownia
Plantations de Panama Corp Rajamannan 793 N.W.2d 128 134-35 Minn
2009
27
Mandamus Response at 27
28
Record 00712
11
3009942v1/013774
01140
Fourth Tommy complains that Mexico does not recognize cause of action
for breach of fiduciary duty in the specific circumstances of this case.29 But as
matter of law this well-worn argument does not render Mexico inadequate or
unavailable In re Pirelli Tire L.L.C 247 S.W.3d 670 678 Tex 2007
Finally Tommy notes that his expert witness han Rosenberg testified that
the estates claims accrued in 1983 and so are barred in Mexico by non-waivable
five-year statute of repose.3 This argument is unavailing for at least two reasons
dismissal on the
Tommys argument demonstrates that his case to
is
First subject
and therefore he has no claim to lose if the case is
basis of limitations in Texas
transferred to Mexico See Dunmore Chicago Title Ins Co 400 SW.3d 635
of limitations for breach
640 Tex App Dallas 2013 no pet four-year statute
unlike statute of limitations which is
of fiduciary duty claim Second
of substantive right Duran
procedural device statute repose is
Henderson 71 S.W.3d 833 837 Tex App Texarkana 2002 pet denied
Texas court will not automatically apply the Texas statute of repose
Therefore
choice-of-law to determine which
instead the court must employ principles
jurisdictions statute of repose to apply Nexen Inc Gulf Interstate Engg Co
224 S.W.3d 412 421-22 Tex App Houston Dist 2006 no pet Sico
North America Inc Willis 2009 WL 3365856 at Tex App Houston
29
Mandamus Response at 29-30
30
Mandamus Response at 30-31 Record 00924-25
12
3009942v1/013774
01141
10 2009 no pet Crisman Cooper Indus 748 S.W.2d 273
Dist Sep
275-80 Tex App Dallas 1988 writ denied As result Dorsey loses no
substantive or procedural rights due to transfer to Mexico See Chang Baxter
Healthcare Corp 599 F.3d 728 733-37 7th Cir 2010 affirming forum non
conveniens dismissal despite plaintiffs argument that her claims are barred by
Taiwanese statute of because California courts also would apply the
repose
Taiwanese statute of repose to her claims
III The Private Interest Factors Weigh in avor of Mexico
to be that the
Tommys primary private-interest argument continues parties
showed in his mandamus that is merely one
live in Texas But as Shelby petition
have been willing to
factor to be given some weight and Texas courts increasingly
in Texas.3
dismiss even when both plaintiffs and defendants reside
in Texas.32
Tommy argues that Wayo Longoria is key witness living
inform the Court of Appeals that Dorothys estate already has
Tommy neglects to
Mexico.33 Re also neglects to inform the Court of Appeals that Wayo
sued Wayo in
Longoria has already been deposed on December 12 2013 in Austin
trial most of the witnesses will be in
As Shelby explained to the court
with knowledge of Eduardo Sr.s
Mexico The drafters witnesses to and witnesses
31
Mandamus Petition at 25-26
32
Mandamus Response at 8-9
Record 00462
13
3009942v1/013774
01142
will executed in Nuevo Laredo in 2002 the drafters of the Afirme Trust Eduardo
Sr.s advisors relating to the Afirme Trust Banca Afirme personnel responsible for
the trust and attorneys friends court personnel and others with knowledge of the
separate property agreement and partition order entered into in Nuevo Laredo in
983 Tommy already is seeking extensive documents from Mexican companies
documents which belong to the companies not to Shelby.35 Tommy likely will
also seek testimony from executives or employees of these same companies
defendant does not have to provide detailed information concerning each
witness The posture of this case makes clear that most of the witnesses
foreign
that sufficient
will be in Mexico According to the United States Supreme Court is
for the court to determine that this factor points in favor of trial in Mexico
The Court of Appeals found that the problems of proof could not be
because and Hartzell failed to describe with
given any weight Piper
not be able to obtain were
they would
evidence if trial
specificity the
held in the United States It suggested that defendants seeking forum
must submit affidavits identifying the
non conveniens dismissal
witnesses would call and the testimony these witnesses would
they
if the trial were held in the alternative forum Such detail is
provide
not necessary Piper and Hartzell have moved for dismissal precisely
crucial witnesses are located beyond the reach of
because many
and thus are difficult to identify or interview
compulsory process
would defeat the of their
Requiring extensive investigation purpose
motion
Piper Aircraft Co Reyno 454 U.S 235 258 102 Ct 252 267 1981
Record 00080-81
Record 00482-528
14
3009942v1/O 3774
01143
Tommy also continues to argue that Tamaulipas is dangerous place to
bring lawsuit But Tommy as well as Adriana and Sylvia has already sued in
Mexico They already have Mexican lawyer In fact their Mexican lawyer
testified at the forum non conveniens hearing36
Tommy Adriana and Sylvia would not have to travel to Mexico to pursue
the estates lawsuit there.37 If they did travel to Mexico the courthouse is located
few blocks from the United States border and can be reached without traversing
any of the highways as to which there is State Department travel advisory.38
Tommy has not distinguished the many cases which hold that generalized
about danger in an alternative forum do not weight against forum non
allegations
conveniens dismissal.39 He has not cited single case in support of his position.4
He has not offered shred of evidence that violence in Tamaulipas has negatively
impacted the Tamaulipas judiciary In fact he presented the testimony of an expert
witness who claims to have handled dozen tort claims in court in Tamaulipas.4
IV The Public Interest Factors Weigh in Favor of Mexico
show that Texas law apply to his
Tommy does not even attempt to will
claims or to rebut the possibility that foreign law applies Vinmar Trade Fin
36
Record 00900-07
Record 00886-88
Record 00896-97
Mandamus Petition at 26-27
40
Mandamus Response at 37-39
Record 00910
15
3009942v11013774
01144
Ltd.v Utility
Trailers de Mexico S.A de C.V 336 S.W.3d 664 678 Tex App
Houston Dist 2010 no pet. He again asserts that he is
attempting to plead
claim under Texas law42 but he does not even attempt to distinguish cases like
Vinmar Gal/ego SXP and DTEX which demonstrate clearly that Mexican law
will apply.43
Tommy cannot explain why Texas has stronger interest than Mexico in
issues to the Mexican separate property agreement Mexican
adjudicating relating
order Mexican trust and Mexican probate of Eduardo Sr.s will
partition
most of relevant documents
Tommy does not address the fact that the
court orders correspondence etc are in Spanish
wills contracts
has but forum non
Tommy points out that the probate court jurisdiction
conveniens is venue doctrine not jurisdictional doctrine.44 American Dredging
Co Miller 510 U.S 443 453 114 Ct 981 988 1994
will be piecemeal if his claim is
Finally Tommy claims that there litigation
of Mexico But there is piecemeal litigation because
dismissed in favor already
and estate already have sued Shelby in Mexico If
Sylvia Adriana Dorothys
he would have asserted Dorothys
Tommy wanted to avoid piecemeal litigation
42
Mandamus Response at 48
Mandamus Petition at 29-32
Mandamus Response at 45-47
16
3009942v1/013774
01145
right to community property interest in the same court which partitioned her
property thirty years ago
The Trial Court Abused Its Discretion by Denying Abatement
Shelby has standing to challenge the invalid January 2010 will because
among other things he is
beneficiary to Dorothy Longorias last valid wills.45
Tex IProb Code 10 Shelby challenges the actions of Tommys wife and sister-
in-law in taking advantage of Dorothy over the last two and half years of her
life.46 Shelby seeks the removal of Tommy as executor not only because he was
appointed pursuant to an invalid will but because he will not properly represent
the estate by investigating and pursuing claims that the estate has against Sylvia
and Adriana.47
It does disservice to the estate and lays bare his true motivations that
Tommy would argue for the parties to proceed all the way through discovery and
of this matter when the whole proceeding may be invalidated
possibly even trial by
removal of the executor It would be extraordinarily inefficient to allow Tommy to
his claim in the capacity as executor when his position is under such
pursue
cloud
Record 00158-59 00172
46
Record 00636-43
Record 00643-45
3009942v1/013774 17
01146
Tommy that successor executor would pursue the same claim
argues any
against Shelby There is no evidence of this Tommys say-so
is no evidence that
there actually is claim for the estate to pursue against Shelby
Tommy argues that the Develo-Cepts case cited by Shelby was not even an
abatement case In fact the court of appeals in Develo-Cepts overruled point of
error abatement of the case Develo-Cepts Inc City of Galveston
challenging
668 S.W.2d 790 792-93 Tex App Houston Dist 1984 no writ The
case establishes that abatement is
proper remedy when the plaintiff allegedly
lacks or to sue Id That is analogous to our case in which
standing capacity
seeks to go through which may be rendered after-the-fact if
Tommy trial nullity
he is removed as executor due to the success of Shelbys will contest
Tommy cannot explain why the probate court should not await the results of
Mexico and Adriana The estates claims are
the lawsuits filed in by Sylvia
on invalidation of the orders of the Mexican court probating Eduardo
dependent
will That must be resolved the Mexican courts not the Texas
Sr.s issue by
probate court Tommy does not explain how the estate can seek to recover for the
purported conversion of Dorothys community property into separate property held
her so there is valid judgment of the Mexican court
by husband long as
uncontested by Dorothy repeatedly acknowledged by her and entered during her
3009942v11013774 18
01147
lifetime approving the very distribution of her husbands assets which she now
seeks to challenge
VI Conclusion
For the reasons set forth in the mandamus petition and in this reply brief the
Court of Appeals should the writ of mandamus and the
grant compel dismissal or
abatement of the counterclaims asserted by James Thomas Dorsey Independent
Executor of the Estate of Dorothy Longoria Deceased
Respectfully submitted
SUSMAN GODFREY L.L.P
By /s/Johnni Carter
Johnny Carter
State Bar No 00796312
cartersusmangodfrey corn
Richard Hess
State Bar No 24046070
rhesssusrnangodfrey.com
Kristen Schiemmer
State Bar No 24075029
kschlemmersusmangodfrey.com
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713 654-6666
3009942v1/013774 19
01148
Robert Maclntyre Jr
State Bar No 12760700
macintyre@mmlawtexas.com
MACINTYRE MCCULLOCH STANFIELD
YOUNG
2900 Weslayan Suite 150
Houston Texas 77027
Telephone 713 547-5400
Attorneys for Shelby Longoria
CERTIFICATEOF SERVICE
This is to certifr that on this the 13th day of January 2014 true and
correct copy of the above and foregoing instrument was properly forwarded to the
following counsel of record in accordance with Rule 21 of the Texas Rules of Civil
Procedure as indicated below
James Austin Fisher Via E-Service and Electronic Mail
FISHER WELCH
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Email fisher@fisherwelch corn
Wesley Holmes Via E-Service and Electronic Mail
THE HOLMES LAW FIRM
1000 North Central Expressway Suite 400
Dallas Texas 75231
Email wes@wesholmes.corn
Attorneys for James Thomas Dorsey Sylvia Dorsey and Adriana
Longoria
A/Johnny Ca tei
Johnny Carter
3009942v1/013774 20
01149
CERTIFICATE OF cOMPLIANcE THAPPELLATE LE94fi
certify that this document contains 4468 words as indicated the
by word-
count function of the used
computer program to prepare it and excluding the
caption identity of parties and counsel statement regarding oral argument table of
contents index of authorities statement of the case statement of issues presented
statement of jurisdiction statement of procedural history signature proof of
service certification certificate of compliance and index as provided by
Appellate Rule 9.4i
/s/Johnrw Carter
Johnny Carter
3009942v1/013774 21
01150
Petition for Writ of Mandamus Denied and Memorandum Opinion filed
March 2014
In The
1InurtnntI uur uf ppiaI
NO 14-13-00996-CY
IN RE SHELBY LONGORIA Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
Probate Court No
County Texas
Harris
Trial Court Cause No 414270
MEMORANDUM OPINION
On November 12 2013 relator Shelby Longoria filed petition for writ of
mandamus in this Court See Tex Govt Code Ann 22.221 see also Tex
App 52 In the petition relator asks this Court to compel the Honorable Loyd
Wright presiding judge of Probate Court No of Harris County to set aside his
October 11 2013 order denying relators motion to dismiss counterclaims for
01151
forum non conveniens or alternatively to abate resolution of the
pending will
contest and the Mexican litigation and grant the same
Relator has not shown his entitlement to mandamus relief Accordingly we
deny relators petition for writ of mandamus We also lift our stay granted on
February 2014
PER CURIAM
Panel consists of Justices Christopher Donovan and Brown
01152
FILED
1/14/2015 42717 PM
DV Stan Stanart
County Clerk
Harris
County
PROBATE COURT
Case Number 414270
IN THE ESTATE OF IN THE PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
Shelby Longorias Motion to Dismiss Adriana Longorias Claims
3488503v 1/0 13774
01153
Table of Contents
The Private Agreement Should be Construed as Whole
Preamble
Declarations
Clauses
Signature Block
II Adrianas Claims Fall Within the Scope of the Forum-Selection Clause
The Court Must Determine Whether Adrianas Claims Fall Within the
Scope of the Forum-Selection Clause
The Plain Language of the Forum-Selection Clause Encompasses
Adrianas Claims
The Parties Reinforced Their Forum Selection by Making Clear that
They Could Not Sue Outside Mexico
Adrianas Tort Claim Falls Within the Scope of the Forum-Selection
Clause
Shelby Can Enforce the Forum-Selection Clause 11
The Result Is the Same Under Mexican Law 12
III The Court Must Enforce the Forum-Selection Clause 13
IV Dismissal Is the Proper Remedy 16
Conclusion 18
Certificate of Service 19
3488503v1/013774
01154
Table of Authorities
Albemarie Corp AstraZeneca UK Ltd
628 F.3d 643 651 4th Cir 2010 12
AutoNation USA Corp Leroy
105 S.W.3d 190 Tex App Houston Dist 2003 orig proceeding 17
Clark Power Marketing Direct Inc
192 S.W.3d 796 Tex App Houston Dist 2006 no pet 10 14 15
Dean Witter Reynolds Inc Byrd
470 U.S 213 105 S.Ct 1238 1985 17
Deep Water Slender Wells Ltd Shell Intl Exploration Prod Inc
234 S.W.3d 679 Tex App.Houston 2007 pet denied 513 16
Dixon TSE International Inc
330 F.3d 396 5th Cir 2003
Export-Import Bank of the United States Hi-Films S.A de
2010 WL 3743826 S.D.N.Y Sep 24 2010
Fort Worth Indep Sch Dist City of Fort Worth
22 S.W.3d 831 Tex 2000
Hooks Indus Inc Fairmont Supply Co
2001 WL 395341 Tex App Houston Dist Apr 19 2001 no pet 12
In re ADM Investor Svcs Inc
304 S.W.3d 371 Tex 2010 13 18
InreAlUIns Co
148 S.W.3d 109 Tex 2004
In re Automated Collection Technologies Inc
156 S.W.3d 557 Tex 2004
In re Boehme
256 S.W.3d 878 Tex App.Houston 2008 orig proceeding 13
In re Emex Holdings L.L.C
2013 WL 1683614 Tex App Corpus Christi Apr 18 2013 orig proceeding 16 17
In re Fisher
433 S.W.3d 523 Tex 2014
11
3488503v 1/0 13774
01155
In re Harris Corp
2013 WL 2631700 Tex App Austin June 42013 orig proceeding
In re International Profit Assocs
274 S.W.3d 672 Tex 2009 10 15 17
In re International Profit Assocs
286 S.W.3d 921 Tex 2009 15
In re Laibe Corp
307 S.W.3d 314 Tex 2010 13 14
In re Lisa Laser USA Inc
310 S.W.3d 880 Tex 2010 11
In re Lyon Fin Servs
257 S.W.3d 228 Tex 2008 14 15
Inre Weekley Homes L.P
180 S.W.3d 127 Tex 2005 11
In re Zotec Partners LLC
353 S.W.3d 533 Tex App San Antonio 2011 orig proceeding 13
Martinez Bloomberg LP
740 F.3d 211 2dCir.2014 12
Phillips Audio Active Ltd
494 1.3d 378 Zdcir 2007 17
Phoenix Network Techs Europe Ltd Neon Sys Inc
177 S.W.3d 605 Tex App Houston Dist.I 2005 no pet
SEECO Inc KT RockLLC
416 S.W.3d 664 Tex App Houston Dist 2013 pet denied
Smith Kenda Capital LLC
2014 WL 5783581 Tex App Houston Dist Oct 21 2014 no pet 11 13
Southwest Intelecom Inc Hotel Networks Corp
997 S.W.2d 322 Tex App Austin 1999 pet denied
TMI Inc Broolcs
225 S.W.3d 783 Tex App Houston Dist 2007 pet denied 15
Yavuz 61 MM Ltd
465 F.3d 418 10th Cir 2006 12
3488503v 1/0 13774
01156
The Court should dismiss Adriana Longorias claims because she agreed to bring them in
Mexico
Adriana claims that she is owed additional
money pursuant to Spanish-language
Private Agreement she entered into December 2002 In the Adrianas
in Private Agreement
father Eduardo Longoria Sr reiterated his wish that Adriana receive an inter vivos gift of $3
million copy of the Private Agreement is attached as Exhibit to this motion and
translation is attached as Exhibit 2A The Agreement unambiguously provides that claims will
be brought in Mexico
Adriana has sued her brother Shelby Longoria even though Shelby is not to the
party
Private Agreement Adriana claims that Eduardo Sr made Shelby trustee over the
money
promised to her and that Shelby breached his fiduciary duty to her But Eduardo Sr could not
create trust for Adrianas benefit because he had already transferred his assets into trust for
which Shelby and his brother Eduardo Jr Wayo were the beneficiaries The trust was
administered by Mexican bank Banca Afirme Adriana acknowledged the validity of the
Afirme Trust in the Private Agreement The Afirme Trust Agreement is attached as Exhibit to
this motion and an English translation is attached as Exhibit 3A Attached as Exhibit is an
affidavit of Shelby Longoria explaining his fathers estate plan
Adriana asserts that Shelbys influence caused Eduardo Sr to promise only $3 million
to her in the Private Agreement She alleges that Shelby manipulated his parents with
respect to their estate planning and he induced them to enter into various transactions i.e the
Afirme Trust Agreement to increase his own share.1 She claims that she should receive as
damages some unspecified payment of more than $3 million from the proceeds of the businesses
held by the Afirme Trust
Exh First Amended Counterclaims of Adriana Longoria at 14
3488503v 1/0 13774
01157
In Part below Shelby describes the of the Private
parts Agreement Part II shows that
Adrianas claims fall squarely within the of the exclusive forum-selection clause the
scope in
Private Agreement In Part III Shelby shows that the forum-selection clause must be enforced
Part IV addresses the proper remedy dismissal of all of Adrianas claims to the Private
relating
Agreement and Afirme Trust
The Private Agreement Should be Construed as Whole
The Private Agreement is divided into four parts Preamble Declarations Clauses and
Signature Block The Court should examine each of these parts of the Agreement so that it can
be construed as whole SEECO Inc K.T Rock LLC 416 S.W.3d 664 674 Tex App
Houston Dist.1 2013 pet denied contracts are to be construed as whole in an effort to
harmonize and give effect to all provisions of the contract.
Preamble
The Preamble recites that the Private Agreement was executed for two purposes to
recognize the Afirme Trust and to recognize Eduardo Sr.s wish to pay Adriana
EXECUTED BY EDUARDO LONGORIA THERIOT AND ADRIANA
LONGORIA KOWALSKI REGARDING THE ACKNOWLEDGMENT AND
ACCEPTANCE OF THE TERMS AND CONDITIONS OF TRUST NO 194-2
MADE IN BANCA AFIRME S.A INSTITUCION DE BANCA MULTIPLE
AND ACKNOWLEDGMENT OF PAYMENT OBLIGATION IN FAVOR OF
ADRIANA LONGORIA KOWALSKI
Declarations
Eduardo Sr and Adriana then make three declarations First that Eduardo Sr entered
into the Afirme Trust Agreement on October 15 2002 Second that Shelby and Wayo were the
Exh 2A 1st page Preamble
3488503v1/013774
01158
designated beneficiaries of the shares of the Mexican which were contributed to the
companies
Afirme Trust Finally
that just as it is the will of their father that EDUARDO and SHELBY LUIS
LONGORIA KOWALSKI shall receive the ownership of the shares of all
companies it is also the will of her father that ADRIANA LONGORIA
KOWALSKI shall receive the quantity specified in this Agreement under the
conditions indicated herein.3
Clauses
Four clauses are at the heart of the Private Agreement
In the first clause Adriana and Eduardo Sr recognized the Afirme Trust
The parties recognize the validity and scope of the TRUST and in this regard
they are in agreement with all its terms and conditions and therefore declare that
the agreement is the final and definitive will of the and
parties therefore they
comply with all terms and agree that the shares contributed to it are to be
transferred to the designated beneficiaries.4
In the second clause Adriana and Eduardo Sr describe the terms and make
payment
clear that payments to Adriana will be made from the operating cash flow generated by the
companies represented by the shares contributed to the Afirme Trust
It is the will of her father that the amount of $3000000 three million U.S
dollars be delivered to his daughter ADRIANA LONGORIA KOWALSKI from
the operating cash flow generated by the companies represented by the shares
contributed to the TRUST or by their subsidiaries and therefore it is the
obligation of EDUARDO AND SHELBY LUIS LONGORIA KO WALSKI
The clause then states that Adriana will receive $12500 per month
In the third clause Adriana and Eduardo Sr state that this Agreement is the final and
definitive will of the parties and they make clear that the Afirme Trust is responsible for
payments to be made to Adriana
Exh 2A 1st page Declaration
Exh 2A 1st page first clause
Exh 2A 1st page second clause
3488503v1/013774
01159
THE TRUSTs obligation to deliver the mentioned quantitites to ADRIANA
LONGORIA KOWALSKI in the terms set forth herein shall continue in effect
until full after
payment acknowledging that payment of the amounts referred to
in this Agreement ADRIANA LONGORIA KOWALSKI shall be satisfied in
relation to any present or future obligation charged to the TRUST assets or to
those of Messrs EDUARDO and SHELBY LUIS LONGORIA KOWALSKI.6
The fourth clause is titled Jurisdiction and Mexican Law Adriana and Eduardo Sr
selected application of Mexican law and Reynosa as forum to resolve any disputes
This Agreement is established under the jurisdiction and laws of the United
Mexican States Therefore the parties exclusively submit to the laws of Mexico
thus they expressly waive the application of any law regulation provision or rule
of any jurisdiction other than Mexico which might to them due to
correspond
their residence paternity citizenship domicile or commercial
kinship
relationship Therefore in the event of any interpretation dispute or any aspect
related to this Trust they expressly submit to the courts of the city of Reynosa
Tamaulipas Mexico.7
Adriana and Eduardo Sr then agreed that in all cases Mexican will be applicable and
jurisdiction
that any act performed by party outside Mexico seeking to affect the rights set forth in the
Agreement based on law other than Mexican law will not be applicable
Likewise the issuance of any law regulations or provisions in jurisdictions
outside the Republic of Mexico or any act performed outside the national
territory by any party seeking to impose restrictions on this Agreement or to
impose the performance of acts djfferent from the for which it is
purposes
authorized ii impose taxes duties or tax burdens other than those under
Mexican Law iii expropriate limit confiscate seize dispose of freeze or
otherwise affect the rights of the Agreement based on federal state or
municipal laws outside the jurisdiction of the Republic of Mexico shall not
apply to this Agreement in all cases the jurisdiction and laws of the Republic of
the United Mexican States being applicable under the terms of the previous
paragraph.8
Exh 2A 2d page third clause
Exh 2A 2d page fourth clause
Exh 2A 2d and 3d page fourth clause
3488503v1/013774
01160
Signature Block
After the choice-of-law and forum-selection clauses the Private Agreement recites that it
was signed by Eduardo Sr and Adriana on December 17 2002 two months after
only
execution of the Afirme Trust Agreement.9
II
Adrianas Claims Fall Within the Scope of the Forum-Selection Clause
The Court must determine whether Adrianas claims fall within the of the forum-
scope
selection clause The forum-selection clause clearly encompasses Adrianas claims relating to the
Private Agreement and the Afirme Trust The Private Agreement reinforces the selection of
Mexican forum by expressing the parties intent to nullify lawsuits outside Mexico The forum-
selection clause is broad enough to Adrianas tort claim for recovery of more than $3
encompass
million Shelby can enforce the forum-selection clause even he not to the
though is
party
Private Agreement And the result is the same when as is necessary the Court applies Mexican
law to determine the scope of the forum-selection clause
The Court Must Determine Whether Adrianas Claims Fall
Within the Scope of the Forum-Selection Clause
When party seeks to enforce mandatory forum-selection clause court must
determine whether the claims in question fall within the scope of that clause The court bases
this determination on the language of the clause and the nature of the claims that are allegedly
subject to the clause Deep Water Slender Wells Ltd Shell Intl Exploration Prod Inc
234 S.W.3d 679 687-88 Tex App Houston Dist 2007 pet denied This requires
common-sense examination of the claims and the forum-selection clause to determine if the
clause covers the claims In re Lisa Laser USA Inc 310 S.W.3d 880 884 Tex 2010
9Exh 2A 3d page
3488503v1/013774
01161
When addressing the scope and enforceability of forum-selection clause court should
consider Texas state case law the federal case law on which Texas law is based and
cases to arbitration clauses which the Texas Court has
pertaining Supreme characterized as
being type of forum-selection clause In re AIU Ins Co 148 S.W.3d 109 115 116 Tex
2004 In re International Profit Assocs 274 S.W.3d 672 677 Tex 2009 In re Boehme 256
S.W.3d 878 881 Tex App Houston Dist 2008 orig proceeding
In construing forum-selection clause our primary goal is to give effect to the written
expression of the parties agreement .. We must read the provision in its entirety striving to
give meaning to every sentence clause and word to avoid rendering any portion inoperative
Phoenix Network Techs Europe Ltd Neon Sys Inc 177 S.W.3d 605 615 Tex App
Houston 2005 pet Southwest
Dist no quoting Intelecom Inc Hotel Networks Corp
997 S.W.2d 322 324 Tex App Austin 1999 pet denied
The Plain Language of the Forum-Selection Clause Encompasses Adrianas Claims
The second paragraph of the forum-selection clause provides that in all cases the
jurisdiction and laws of the Republic of the United Mexican States is applicable under the
terms of the previous paragraph By agreeing that in all cases the jurisdiction of the
Republic of the United Mexican States is
applicable the parties established Mexico as the
exclusive forum for resolution of disputes See In re Automated Collection Technologies Inc
156 S.W.3d 557 558 Tex 2004 directing dismissal of Texas case where the parties had
consented to the exclusive jurisdiction of the courts of Montgomery County Pennsylvania.
The second paragraph refers back to first paragraph of the forum-selection clause which
states that in the event of any interpretation controversy or any aspect related to this Trust they
Exh 2A 2d and 3d page 4th clause
3488503v1/013774
01162
expressly submit to the courts of the city of Reynosa Tamaulipas Mexico.1 As result the
forum-selection clause encompasses Adrianas claims pertaining to the Afirme Trust including
her claims that Shelby fraudulently induced Eduardo Sr to enter into the Afirme Trust
The forum-selection clause of course also encompasses claims relating to the Private
Agreement in which it is found The first paragraph makes that clear This Agreement is
established under the jurisdiction and laws of the United Mexican States.2
The Afirme Trust Agreement contains similar forum-selection clause to the Private
Agreement Moreover of The Afirme Trust Agreement was attached to the Private
copy
Agreement.3 By applying the forum-selection clause to Adrianas claims based on both the
Private Agreement and Afirme Trust the Court will effectuate the Texas Supreme Courts
directive that when applying forum-selection clause documents pertaining to the same
transaction may be read together even if they are executed at different times and do not
reference each other and courts all the documents they were of
may construe as if part single
unified instrument In re Laibe Corp 307 S.W.3d 314 317 Tex 2010 quoting Fort Worth
Indep Sch Dist City of Fort Worth 22 S.W.3d 831 840 Tex 2000 see In re Harris Corp
2013 WL 2631700 Tex App Austin June 2013 orig proceeding Smith Kenda Capital
LLC 2014 WL 5783581 Tex App Houston Dist Oct 21 2014 no pet both
applying forum selection clause because plaintiffs claim relates to the contract which
contains the clause even though the plaintiff disclaimed an intent to recover pursuant to the
contract
Exh 2A 2d page 4th clause
12
Exh 2A 2d
page 4th clause
1a
13
Exh 2A 1st page Declaration
3488503vl/013774
01163
The Parties Reinforced Their Forum Selection
by Making Clear that They Could Not Sue Outside Mexico
Adriana has run afoul of the forum-selection clause lawsuit
merely by filing this seeking
to recover under Texas law The Private Agreement provides that any act performed outside
Mexico such as filing this lawsuit shall not apply to this Agreement i.e will be nullity
if it seeks to affect the of the Agreement based on federal
rights state or municipal laws
outside the jurisdiction of the Republic of Mexico.4
Adriana makes no secret of the fact that she is seeking to affect the rights of the
Agreement based on Texas law
Under Texas law Adriana is entitled to and hereby requests entry of
judgment against Shelby for actual damages in an amount to be determined by
the trier of fact in accordance with Texas law.5
Under Texas law Adriana is entitled to and hereby requests entry of
judgment against Shelby for exemplary damages in an amount to be
determined by the trier of fact in accordance with Texas law.6
Under Texas law Shelby breached his fiduciary duty to Adriana
The Private Agreements forum-selection clause thus backs up the choice of exclusive
forum by preemptively nulljing lawsuit such as this one which seeks to apply non-Mexican
law in non-Mexican forum Moreover the parties used very broad language to provide that
any provisions in jurisdictions outside Mexico such as any judgment in this case also
shall not apply to this Agreement.8 This works hand-in-glove with Adrianas agreement to
waive the application of any law regulation provision or rule of any jurisdiction
expressly
14
Exh 2A 2d page 4th clause
Exh at 39 44 50 56
161d 40 45 51
171d
18
43
Exh 2A 2d page 4th clause
3488503v 1/0 13774
01164
other than Mexico.19 hard to imagine how could have
the expressed more
It is
parties strongly
their intent that any lawsuits be brought in Mexico
Where as here the parties agree to submit to venue in one jurisdiction while waiving
venue in other locations they have made selection of an exclusive forum for resolving claims
In re Fisher 433 S.W.3d 523 532 Tex 2014 finding that forum-selection clause was
mandatory even when the selected jurisdiction was non-exclusive when the contract stated
that agrees not to proceeding out of or relating to this
party bring any arising Agreement in
any other court In re Emex Holdings L.L.C 2013 WL 1683614 at Tex App Corpus
Christi Apr 18 2013 orig proceeding finding that the following clause was enforceable and
exclusive The parties agree that for the construction and compliance herewith they expressly
submit themselves to the Jurisdiction and Competence of the Common Affairs Laws and Courts
seated in Mexico waiving to any other that may correspond to them due to their
present or
future domiciles Dixon TSE International Inc 330 F.3d 396 397 5th Cir 2003 finding
that the following clause was enforceable and exclusive The Courts of Texas U.S.A shall
have jurisdiction over all controversies with respect to the execution interpretation or
performance of this Agreement and the parties waive any other venue to which they may be
entitled by virtue of domicile or otherwise Export-Import Bank of the United States Hi-
Films S.A de CV 2010 WL 3743826 at S.D.N.Y Sep 24 2010 forum selection clauses
are mandatory even though they do not expressly use the word exclusive because the parties
waived other jurisdictions
Adrianas Tort Claim Falls Within the Scope of the Forum-Selection Clause
The Agreement is particularly clear with respect to Adrianas tort claim by which she
seeks to recover more than $3 million from the cash flow of the companies which were conveyed
9Exh 2A 2d page 4th clause
3488503v1/013774
01165
into the Trust The Agreement preemptively nullifies any act performed outside Mexico by
any party seeking to .. impose the performance of acts different from the purposes for which it
is authorized.20 This lawsuit an act outside Mexico
is
performed seeking to impose the
performance of payments other than those which the Agreement authorizes
Adriana also seeks to vitiate entirely the first clause in the Private Agreement by which
she recognizes the validity and scope of the TRUST agrees with all its terms and
conditions declare that the
agreement is the final and definitive will of the parties and
compl with all terms and agree that the shares contributed to it are to be transferred to
the designated beneficiaries.21 Adriana now claims through this lawsuit that the Trust is invalid
and that the shares contributed to the Trust should be held at least in part for her benefit and not
the benefit of the designated beneficiaries She therefore is seeking to impose restrictions on
this Agreement and limit the rights of the Agreement based on non-Mexican law an act
which also is
nullity pursuant to the forum-selection clause.22
party cannot avoid application of forum-selection clause by artful pleading of its
claims as tort claims instead of contract claims In re International Profit Assocs 274 S.W.3d
672 677 Tex 2009 Adrianas claims arise from the Private Agreement not any general tort
duty owed by Eduardo or Shelby independent of the contract therefore all of these claims are
within the scope of the Private Agreements forum-selection clause Id at 677-78 if claim
seeks benefit which is found in contract instead of general obligations imposed by law the
claim arises under the contract even if it is pled in tort In particular forum-selection clause
can encompass claim of tortious conduct relating to the contract in which it is found even if
the plaintiff is challenging conduct which predates the contract See Clark Power Marketing
20Exh 2A 2d page 4th clause
Exh 2A 1st
page 1st clause
22
Exh 2A 2d page 4th clause
10
3488503v 1/0 13774
01166
Direct Inc 192 S.W.3d 796 799 800 Tex App Houston Dist 2006 no pet agreeing
with the Dallas Court of Appeals rejection of the argument that forum-selection clause cannot
encompass pre-contractual tort claims
Shelby Can Enforce the Forum-Selection Clause
Since Adriana relies on the Private Agreement and seeks to hold Shelby to its terms
Shelby can enforce its forum-selection clause against her even though he is not party to it
In In re Lisa Laser USA Inc 310 S.W.3d 880 Tex 2010 the Texas Supreme Court
rejected plaintiff HealthTronics attempt to avoid the application of the forum-selection clause to
its claims against non-signatory Lisa Germany plaintiff cannot both have his contract and
defeat it too In other words HealthTronics cannot claim that Lisa Germany has obligations
to HealthTronics under the Distribution Agreement and simultaneously claim that the forum-
selection clause does not apply to those claims In re Lisa Laser 310 S.W.3d at 886 quoting In
re Weekley Homes L.P 180 S.W.3d 127 135 Tex 2005
person who has agreed to resolve disputes with one party in particular forum may be
required in some circumstances to resolve related disputes with other parties in the same forum
Smith Kenda Capital LLC 2014 WL 5783581 at Tex App Houston Dist Oct
21 2014 no pet h. One circumstance allowing enforcement by nonsignatory against
signatory involves direct benefits estoppel Id at This species of estoppel applies when
signatorys claim against nonsignatory references or the existence of the written
presumes
agreement containing the clause Id quoting In re Trammell 246 S.W.3d 815 821 Tex App
Dallas 2008 no pet.
Direct benefits estoppel analysis focuses on whether contract containing the clause at
issue also includes other terms on which the signatory plaintiff must rely to prosecute its claims
11
3488503v 1/0 13774
01167
Id at For example in Smith the plaintiff was estopped from arguing that the forum selection
clause was inapplicable to its claims against the non-signatory defendant because the agreement
containing the clause does indeed include other terms on which Smith must rely to pursue his
claim Id Similarly here Adriana from
is
estopped arguing that the forum selection clause is
inapplicable because the Private Agreement containing the clause includes the payment terms on
which she relies to pursue her claim
The Result Is the Same Under Mexican Law
All of this clear when read with reference
is in English to American law But it is doubly
clear when read in Spanish with reference to Mexican law When contract contains choice-of-
law clause the Court must the law chosen
apply by the parties to determine the scope of the
forum-selection clause Hooks Indus Inc Fairmont Supply Co 2001 WL 395341 at Tex
App Houston Dist Apr 19 2001 no pet Martinez Bloomberg LP 740 F.3d 211
224 2d Cir 2014 Albemarle Corp AstraZeneca UK Ltd 628 F.3d 643 651 4th Cir 2010
Yavuzv 61MM Ltd 465 F.3d 418 428 10th Cir 2006
Here the parties chose the application of Mexican law Attached as Exhibit to this
motion the of Carlos Gabuardi respected Mexican
is Affidavit
lawyer and academic Professor
Gabuardi explains that Mexican law recognizes forum-selection clauses23 that the forum-
selection clause here is written to express the parties intent that all lawsuits concerning the
Private Agreement and Trust will be brought in Mexico24 that Adriana agreed that lawsuit
outside Mexico can have no effect on her rights under the Private Agreement25 and that Shelby
can enforce the forum-selection clause.26
23
Exh at 11 15-18
241d atjf 11-14
25
Jd
Id at 19
12
3488503v 1/0 13774
01168
III
The Court Must Enforce the Forum-Selection Clause
court must that mandatory forum-selection clause is valid and
trial presume
enforceable In re Boehme 256 S.W.3d 878 881 Tex App Houston Dist 2008 orig
proceeding emphasis in original The trial court gives full effect to forum selection clause
absent that the court should set aside the clause because
strong showing by the resisting party
the clause is invalid based on reasons such as fraud undue influence or overweening
bargaining or enforcement would be unreasonable and unjust Smith Kenda
power
Capital LLC 2014 WL 5783581 at Tex App Houston Dist Oct 21 2014 no pet
Slender Ltd Shell Intl Exploration Production Inc 234
quoting Deep Water Wells
2007 Enforcement can be
S.W.3d 679 692 Tex App Houston Dist pet denied
avoided in extreme circumstances that courts cannot presently anticipate or foresee In re
only
ADM Investor Svcs Inc 304 S.W.3d 371 376 Tex 2010
does matter Adriana views as inconvenient Inconvenience to
It not if Reynosa
witnesses is not sufficient to overcome forum selection clause In re Zotec Partners LLC 353
For example choice-of-
S.W.3d 533 537 Tex App San Antonio 2011 orig proceeding
forum clause was enforced over objection even when the plaintiff who lived in east Texas
was nearing 80 old suffered chronic health problems
would be forced to litigate in Illinois years
heart often had difficulty walking and had been
including fibromyalgia and problems
hospitalized several times in recent months In re ADM Investor Svcs Inc 304 S.W.3d 371 375
Tex 2010
small business which
In In re Laibe 307 S.W.3d 314 Tex 2010 the manager of
would cease if it were
sought to avoid trial in Indiana testified that daily operations basically
13
3488503v 1/0 13774
01169
required to pursue lawsuit in Indiana Laibe 307 S.W.3d at 17-18 The Texas Supreme Court
rejected this out of hand If merely stating that financial and logistical difficulties will preclude
litigation in another state suffices to avoid forum-selection clause the clauses are practically
useless Id 318 Fin
at quoting In re Lyon Servs 257 S.W.3d 228 234 Tex 2008
Financial difficulties on behalf of one or the other are typically of the reason litigation
party part
begins In re Lyon Fin Svcs Inc 257 S.W.3d 228 234 Tex 2008
By entering into an agreement with forum-selection clause the parties effectively
represent to each other that the agreed forum is not so inconvenient that the clause will
enforcing
either of court whether reasons
deprive party its day in for cost or other In re Lyon Fin Svcs
Inc 257 S.W.3d 228 234 Tex 2008 Adriana should be held to her representation that
litigation in Reynosa will not be so inconvenient as to deprive her of her day in court
It also does not matter if Adriana claims that she was unsophisticated or counsel
lacking
at the time she signed the Agreement giving her $3 million In In re Lyon Fin Svcs Inc 257
S.W.3d 228 Tex 2008 the plaintiff tried to avoid forum-selection clause by claiming that he
was not able to obtain any legal advice he does not have formal business school training he was
unaware of the contract provision when signed it and that the documents were presented
to him on take-it-or-leave-it-basis Lyon 257 S.W.3d at 233 The Texas Supreme Court
rejected these pleas bargain is not negated because one party may have been in more
advantageous bargaining position Id The forum selection clause was obvious in the agreement
and the plaintiff had an obligation to protect himself by reading what he signed Id
Any claim of fraud by Adriana is also unavailing Simply alleging fraud in the
inducement of contract is not sufficient to make forum-selection clause unenforceable Clark
Power Marketing Direct Inc 192 S.W.3d 796 799 Tex App Houston Dist 2006 no
14
3488503v1/013774
01170
pet. court determining whether or not to enforce forum-selection clause will not inquire
into the enforceability of the contract in which that clause is found Id at 800 Fraudulent
inducement to sign an agreement containing resolution such
dispute agreement as an arbitration
clause or forum-selection clause will not bar enforcement of the clause unless the
specific clause
was the product of fraud or coercion In re Lyon Fin Svcs Inc S.W.3d 228
257 232 Tex
2008 Adriana has not claimed nor could she claim that the forum-selection clause itself was
the product of fraud or coercion
Adriana claims that she was not able to read the Private Agreement before she signed
it and that she did not know what was written on these pages.27 But also unavailing for
it is
Adriana to claim ignorance of the document she signed It is
presumed that signatory to
contract understood and agreed to the contents In re International 274 S.W.3d
Profit Assocs
672 679 Tex 2009 Parties to contract have an obligation to protect themselves by reading
what they sign and absent showing of fraud cannot excuse themselves from the consequences
of failing to meet that obligation In re International Profit Assocs 286 S.W.3d 921 924 Tex
2009 party must exercise reasonable diligence for the protection of his or her own interests
and failure to do so is not excused by mere confidence in the honesty and integrity of the other
party TMI Inc Brooks 225 S.W.3d 783 795 Tex App Houston Dist 2007 pet
denied
There was nothing hidden about the forum-selection clause It was found right above the
signature block and was printed in the same font as every other paragraph of the three-page
Private Agreement In In re International Profit Assocs Inc 274 S.W.3d 672 679 Tex 2009
the Texas Supreme Court found that forum-selection clause was not procured through fraud or
overreaching because among other things the clauses were part of agreements that were each
27
Exh Adriana Longoria deposition at 20092019 20220 2033
15
3488503v 1/0 13774
01171
two pages in length were located in close to the and
proximity signature elements were in the
same font style and size as all other provisions
Adriana denied in the Private Agreement that there was any bad
itself mistake fraud
faith or any defect of will that might affect their or decision
understanding regarding the
content.28 In she
her deposition reiterated that she was not claiming the Private Agreement
pursuant to which she has received over one million dollars of payments was invalid.29 In In re
Emex Holdings L.L.C 2013 WL 1683614 at Tex App Corpus Christi 2013 orig
proceeding the parties agreement that there was no fraud bad faith injury or any other cause
of nullity established by the Law helped to rebut challenge to Mexican forum-selection
clause found in the parties contract
Iv
Dismissal Is the Proper Remedy
motion to dismiss is the proper procedural mechanism for enforcing forum-selection
clause that party to the
agreement has violated in filing suit Deep Water Slender Wells Ltd
Shell Intl Exploration Production Inc 234 S.W.3d 679 687 Tex App Houston
Dist 2007 pet denied
Adriana has only one claim which is potentially unaffected by dismissal Specifically she
seeks to recover $100000 which Shelby purportedly told Dorothy he would give to Adriana after
Dorothys death.3 As Shelby will show in forthcoming summary judgment motion he did give
Adriana the money but she refused it Nevertheless this claim and this one alone arguably
does not relate to the Private Agreement or Afirme Trust
28
Exhibit 2A 2d page third clause
29
Exh Adriana Longoria deposition at 2028-19
30
Exh at 29-33
16
3488503v 1/0 13774
01172
It is immaterial that of the forum-selection
application clause may result in Adriana
pursuing one claim in Houston and her other claims in Reynosa The fact that the challenger
might have to pursue two lawsuits one in Mexico and one in Texas does not meet the
standard for avoiding the forum-selection provision In re Emex Holdings L.C 2013 WL
1683614 at Tex App Corpus Christi 2013 orig proceeding
An argument that if the clauses are enforced the plaintiff will have to two
pursue
suits is not the type of unusual and special circumstances that show litigating the contracted-
for forum will be so gravely difficult and inconvenient that the will be of
plaintiff deprived its
day in court In re International Profit Assocs Inc 274 S.W.3d 672 680 Tex 2009
forum selection clause is like an arbitration clause Piecemeal is
litigation
required when some claims fall within the
scope of an arbitration clause and others do not
AutoNation USA S.W.3d
Corp Leroy 105 190 201 Tex App Houston Dist 2003
orig proceeding Arbitrable claims must be arbitrated even if it
may result in the possibly
inefficient maintenance of separate proceedings in different forums Dean Witter Reynolds Inc
Byrd 470 U.S 213 217 105 S.Ct 1238 1241 1985
The Second Circuit Court of Appeals addressed this situation in Phillips Audio Active
Ltd 494 F.3d 378 2d Cir 2007 In that case plaintiff Phillips asserted some claims which were
subject to an English forum-selection clause and other claims which were not The only choice
was to dismiss some claims in favor of an English forum while retaining the other claims in the
United States
We are aware that the commencement of separate proceedings in two countries is
likely inconvenience to the parties We have considered that the parties
intent and continued interests may lie in treating Phillips five claims uniformly
but our twin commitments to upholding forum selection clauses where these are
found apply and proper choice of forum us
to to constrain in
deferring plaintiffs
the present context to treat Phillips claims separately
17
348 85 03v 1/0 13774
01173
PhiIlis 494 F.3d at 393
It is similarly immaterial that Sylvia Longoria and the Estate of Dorothy
Longoria are
unaffected by this motion The presence of other parties does not defeat the of the
application
forum-selection clause See ADM Investor Svcs Inc 304 S.W.3d 371 375 Tex 2010
enforcing forum selection clause against the affected even one defendant was
parties though
not subject to it because the mere existence of another defendant does not compel joint
litigation even if the claims arise out of the same nucleus of facts
Conclusion
The Court should enter the proposed order submitted with this motion dismissing all of
Adriana Longorias claims relating to the Private Agreement or Afirme Trust
Respectfully submitted
SUSMAN GODFREY L.L.P
By /s/ Johnny Carter
Johnny Carter
State Bar No 00796312
jcarter@susmangodfrey.com
Richard Hess
State Bar No 24046070
rhess@susmangodfrey.com
Kristen Schlemmer
State Bar No 24075029
kschlemmer@susmangodfrey.com
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713 654-6666
18
3488503v 1/0 13774
01174
Robert Maclntyre Jr
State Bar No 12760700
rnacintyre@rnrnlawtexas.com
MACINTYRE MCCULLOCH STANFIELD YOUNG
2900 Weslayan Suite 150
Houston Texas 77027
Telephone 713 547-5400
Attorneys for Shelby Longoria
CERTIFICATE OF CONFERENCE
Johnny Carter counsel for Shelby Longoria conferred with James counsel for
Fisher
Adriana Longoria on January 13 2015 Mr Fisher stated that Ms Longoria is
opposed to this
motion
/s/ Johnny Carter
Johnny Carter
CERTIFICATE OF SERVICE
This is to certify that on this the 14th day of January 2015 true and correct of the
copy
above and foregoing instrument was properly forwarded to the following counsel of record in
accordance with Rule 21 of the Texas Rules of Civil Procedure as indicated below
James Austin Fisher Via E-Service
FISHER WELCH
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Email jfisherfisherwelch.com
Wesley Holmes Via E-Service
THE HOLMES LAW FIRM
1000 North Central Expressway Suite 400
Dallas Texas 75231
Email wes@wesholmes.com
Attorneys for James Thomas Dorsey Sylvia Dorsey andAdriana Longoria
/s/ Johnny Carter
Johnny Carter
19
3488503v1/013774
01175
EXHIBIT
01176
Case Number 414270
JN THE ESTATE OF IN THE PROBATE COURT
DOROTHY LOUISE LONGORIA NUMBER ONE
DECEASED HARRIS COUNTY TEXAS
Affidavit of Shelby Longoria
in Support of Motion to Dismiss Adriana Lonorias Claims
STATE OFt1-
COUNTY OFj
BEFORE ME the undersigned authority on this day personally Shelby Longoria who
being by me first duly sworn stated the following
am of of sound
My name is Shelby Longoria over twenty-one years age
mind and qualified to make this affidavit have personal knowledge of the facts stated herein
and am competent to testify thereto
am one of four children of Eduardo and Dorothy Longoria My parents were
Mexican citizens and lived most of their married lives in Mexico My father was member of
of Mexican businessmen Through series of transactions in the 1970s and
prominent family
he and his brothers had jointly owned Around the
1980s my father split up the businesses that
father these businesses
same time assumed greater responsibilities for helping my to manage
brother Wayo and me
My father always expressed the desire that his sons my
the Mexican all of the risk associated with those
would receive businesses including
he wanted receive cash
He daughters Adriana and
his to in
businesses often stated that Sylvia
their lifetimes For example he executed Wish Letter in 1992 describing his wish that Adriana
and each receive $3 million during their lifetimes The total to be received by my sisters
Sylvia
exceeded the value of the businesses that time
$6 million between them likely at
3489791v11013774
01177
Over time the businesses were consolidated under two Mexican holding
companies Vertice Empresarial and Inmuebles Terrenos S.A ITSA In 2002 my father
decided to transfer the shares of these companies to trust held by Mexican bank called Banca
Afirme Consistent with my fathers consistently-expressed wishes the shares would be held in
that trust for the benefit of Wayo and me and our families On October 15 2002 the same day
that the Afirme Trust became effective my father executed will recognizing the Afirme Trust
Agreement
Two months after entering into the Aflrme Trust Agreement my father
executed Private Agreement with Adriana Consistent with the wishes previously expressed by
the Private Aeement for Adriana to receive $3 million over time
my father provided
My father passed away in Januaiy 2005
FURTHER AFFIANT SAYETH NOT
Shelby Longona
SUBSCRIBED AND SWORN TO BEFORE ME this
____ day of January 2015 to
which witness my hand and seal of office
certif
Notary Public State of
l-ame
Commisston Expnes ____________________
348979 v1fO 13774
01178
CaUforna Jurat CerUficate
or other only the who
notary public officer completing this certificate verifies of the individual the
Identity signed
which
Lcumt to this certificate attached and not the
Is
truthulness accuracy or validity of that document
State of California
s.s
County of7 fYi
2115
Subscribed and sworn to or affirmed before me on this
20 by and
______________________________________________ proved to me on the basis of
satisfactory evidence to be the who appeared before me
person7
________ Noryp SOhOMArOt$41y
Ihr 1un
Srl
OPTIONAL INFORMATION
Alt huh tic ii Horn a/ion in this 500101 10 1101 UiiiIod by /iiw 1/ coik potif IrS1K/U/0fl/ to/novel iii id n/eachwunI of
this J1fl/ tO 1111 iiiiziuthil/izd 1lcixrocitd iimy pmve nooful In
poisons yinc on ho sttachscf document
Description of Attached Document
The certificate is attached to document titled/for the of Method of Afflant Identification
purpose
2fe /4 rormsoftdenUflcaflonOcredibettness
Notarial ventja detailed in notary Journal on
Pagej.3_ Entry..L._.
Notary conbct zA
13 2015 Other
containing ______ pages and dated
Afftants Thumbprints Describe ________
c1 1e oF tiii toro l.nl ooi vjt
01179
EXHIBIT
01180
ACUERrO PRIVAGO
CUE CELEBRAN ED1IARDO LONGORIA THEROT ADRIANA LONGORIA
KOWALSKI RESPEOTO DEL RECONOCM1D1TO ACEPTACIONDE LOS TERMINOS
CONDICONES DEL FIDEICOMISO NO 194-2 CONSTITUIDO EN BANCA APIRME
S.A JNSTfrUCION DE BANCA MULTiPLE DEL RECONOCIMIENTO IDE LA
OBUGACON DE PAGO FAVOR IDE LA S6JORA ADRIANA LONGOR1A
KOWALSICI DE ACUERDO LO SlGUIENTE
ECLARACIONES
Dec4aron las panes
Quo en tetha otubre 15 del .preserte ao se celebr un controo de
fidelomiso donde ctu como Fideicomlfene el seæor Eduordo Longotlo
Ttet coma ldeIcomisaros los seæores Eduardo Shelby Luls Longoric
Kowaiskl coma fJduclarla Ia irsljtuciri do crØdfto Banca Affrrne SA
frsfituci6n do Banca MIple el cuai so reglslro con el ntrn era 194-2 del
cucil se Onexa und copia al presente Acuerclo en Ia suceslvo et
FIDEICOMISO
Que en dicho FIDEtCOM1SO se designaron coma benatlctar$os los
seæores EDUARDO SHaBY WIS LONGORA KOWALSKI respec$o de l
propledod do occlans aporfados ol mlsrno
Que de lgual mQnera quo es voluntad su padre que 8DUARDD
SHELBY LUS LONGORIA KOWALSKI reciban propledocl de las acciones do
tolcriidcid de ecnprescis es voluniad
los de su padre que ADRIANA
LONGORIA KOWALSKI reciba Ia ccrnttdad quo se eslciblece en ete
Acuerdo los condlclones aqut Indlcodas
CA US AS
Prirnera Del tDECOM1O.- Los partes reconocen Ic vaujdez cilcance del
FJDElCOMISO en Id sentldo stÆædo ccuefdo en toos sos IØrrrlnos
condlcicnas par to lonto manffies1ar que ditho contrato es Ia votuntad Tinol
defirætWa do pot quo esfn conforrnes en todas sos fØrminos
las panes Ia
es1n conformes qua lc acclones apoi-tadas so franzmitan favor do los
beneficicirios deslgnados
ADRIANA 00119
01181
Segunda Pao ci AbtAWA LOWGORIA KiQWAL$KL voluniod tie su padre
que so Jo eriiregue Jo canfidad do US$3000000.00 ties millones do dolores
americanos su hija ADRIANA LONGOR1A KOWALSKI Cl cargo tie los flujos tie
opeiocTr q.ie generon las empresas quo representon las ocdones aporlodos
en FIDEICOMiSO sus subsidlarics par Jo quo es obligoclon tie EDUARDO
SHELBY WIS LONGORLA KOWALSKI en los fØrmirios quo so menaionari
continuaciOn
Ia fecha do firma del preserite Acuerdo el saldo por eniregar ADRIANA
LONGORIA KOWALSJJ on tØrminos del pÆrrafoanteilor aciende Pa canlidad
do US$20 10000 dos miRones sesenta nueve mit den dlares cmericcinosj
segCtri estodo do cuento quo so anexo to presenlo
En virfud tie to anterior se to entreQcirÆ ci ADRIANA LONGORIA KOWAtSKt una
carfidad anucil do US$150000.00 ciento cincuenlo rnll dolores omericonos
de capital inlereses or mensuauidodes tie US$12500.00 doce ml quinientos
dlares cimeiloanas hasla Pa complefa liquidactOn delsaldo quo se reficie oP
pÆrrafo anterior De iguci manero el saldo pr pogar cousarO un interØs
normdl del 75% seienia cinco por cionlo del 0prinie rate4 publiccido pot el
Wail Street Journal
So estabtece quo podrOn hocere pogos en bienes en cuyo caso so
acordOrah los importes par ambcis panes
Los cantidades sern eritregados estrico apego las dlspresiciones legales
fiscoles oplicables at momenta de pago
Tercera Condlcn DefemIriarte do Ia Vourifad.- Las panes rndnitJestan quo
el presenie Acuerdo es voluntad final deflniitlvo do los portes par to quo
estir conformes en fodos sus tØrminos rncirrifesfando oderncts quo nb existe
error dolo mob fe cualquler viola de Pa voluntqd quo pudiere afeclar su
en1ordimionto dedsiOn respect cii
coniido del mismo
La obligaciOn enfregor las cantidades mendonadas en favor tie ADRIANA
LONGOR1A KOWALSKI cargo del FIDEICOMISO en los lØrminos aqut
seaPodos continuorO vigente hasta su cornpteto iiquidcicin en Jo
lnteligencia quo uno vez llquidados las contidades quo se refle.ren el
presente AcUerdo ADRIANA LONGOR1A KOWALSKI so dar6 par satisfecho
respecto do oualquier obligociOn presenle ci tulura cargo del potrirnonlo del
FIDEICOMISQ de los senores EDUARDO SHELB WIS LONGORIA KOWALSKP
PÆg
ADRIANA 00120
01182
Cuort iursdccl6n Lelslaclr loana.- presnte Acuerdo so
establece bo Ia jurIsdiicln eyes do los Blados linidos Meicanos Par lal
motlvo los pcirlesse someten exciusivamente las byes do MŁxco par quo
renuncian expresamenie Ia opilcaciÆn do cuakuler Ley reglamenf
dsosicln norma do otra Jurlsdbccin diferente Ia mexJcana qtiepudere
corresponderbe par mat Ivo do su residencia paerndad cludadon1a
doniicUlo pcirentesco relacfn comerdczl par Jo quo en caso de
inlerprelocic3n con1roveia cualquier ospecto reloclonado con el presenie
Adelcomiso so somelen expresarnente los Iribunoles de Ia ciudd do
Reynoscz IcmouJipcis Mexico
De Iuol rnanera Jo ernisin do cucdqulor Ley reglomerilo disposlciones en
jurisdicciones fuera de Ia Repiblica Melcona cualqUier ado recilizadp
fuera del ierrflodo noclonal par cuolqulera do Ids purfes que preiendci Ii
lrnparier restricdones al presente Acuerdo 1mporer Jo reoHzodn do actos
dfversos los lines parc los quo estÆ auiotizdo que preienda Imponer
Jrnpuestos derechos cargas frbukiros d1farertes los previstas en
Legisiacin Mexlcana Iii quo prelenda exproplor rwnor coniscar
ernbargar disponer congelor do cuciquler orrno dectar los derechos del
Acuerdo en base dispasiciones 1egaIe tanto fedetcdes estotalos
mundpobos fuera do La urisdlccin do Jo RpObc Mecana no es rd serÆ
cpllcable cii
presenie Acuerdo debierido en todo caso ciplicarse Jo
Jurciicdn beglsbacin Ia Repib1co de bs stados Unidos Medconos en
tØnninos del pnfo anterior
Vsto lekio Ia ant erlar to rzan las pte.s en Ic do Reynaso
Tamouflpc el dk 17 do DICIMR del 2002
Edudo Longorla Tkerlat
c4
fTna ogoi\ Kowalsld
Pde3
ADRIANA 00121
01183
EXHIBIT 2A
01184
1k \1
1o
January 12 2015
Cerlification
Park IP Translations
This is lo certify that the attached iranslations are to the best of my knowledge
and belief true and accurate translation from Spanish into of the
English
Irrevocable Trust Agreement
Sarah Dunham
Project Manager
Pojec 1umber SUGOj 5OjO3
35 37th Street 8th floor
New YorkjJY 10018
212.581 .8870
ParklP.cotr
01185
PRIVATE AGREEMENT
EXECUTED BY EDUARDO LONGORIA THERIOT AND ADRIANA LONGORIA KOWALSKI REGARDING
THE ACKNOWLEDGMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF TRUST No
194-2 MADE IN BANCA AFIRME S.A INSTITUCION DE BANCA MULTIPLE AND
ACKNOWLEDGMENT OF PAYMENT OBLIGATION IN FAVOR OF ADRIANA LONGORIA KOWALSKI
ACCORDING TO THE FOLLOWING
DECLARATIONS
The parties declare
On October 15th of this year trust agreement was executed with Mr Eduardo
Longoria Theriot acting as Trustor Messrs Eduardo and Shelby Luis Longoria
Kowalski as trust beneficiaries and Banca Afirme S.A Institucion de Banca
Multiple acting as trust credit institution which was registered with number
194-2 copy of which is attached to this Agreement hereinafter the TRUST
That in such TRUST Messrs EDUARDO and SHELBY LUIS LONGORIA KOWALSKI
were designated as beneficiaries regarding the ownership of the shares
contributed to it
That just as it is the will of their father that EDUARDO and SHELBY LUIS
LONGORIA KOWALSKI shall receive ownership of the shares of all companies it is
also the will of her father that ADRIANA LONGORIA KOWALSKI shall receive the
quantity specified in this Agreement under the conditions set forth herein
CLAUSES
First Regarding THE TRUST The parties recognize the validity and scope of the TRUST and
in this regard they are in agreement with all its terms and conditions and therefore declare
that the agreement is the final and definitive will of the parties and therefore they comply
with terms and that the shares contributed to it are to be transferred to the
all
agree
designated beneficiaries
Second Payment to ADRIANA LONGORIA KOWALSKI It is the will of her father that the
amount of 3000000.00 three million U.S dollars be delivered to his daughter ADRIANA
LONGORIA KOWALSKI from the operating cash flow generated by the companies represented
by the shares contributed to the TRUST or by their subsidiaries and therefore it is the
obligation of EDUARDO AND SHELBY LUIS LONGORIA KOWALSKI in the terms mentioned
below
Error Unknown document property name
01186
On the date this Agreement is
signed the balance to be delivered to ADRIANA LONGORIA
KOWALSKI in terms of the preceding paragraph amounts to the sum of USD 2069100.00
two million sixty-nine thousand one hundred U.S dollars according to the statement of
account that is attached hereto
By virtue of the foregoing an annual amount of 150000.00 one hundred fifty thousand U.S
dollars of principal and interest will be given to ADRIANA LONGORIA KOWALSKI in monthly
installments of 1250000 twelve thousand five hundred U.s dollars until the complete
payment of the balance referred to above In addition the balance payable shall earn normal
interest rate of 75% seventy-five percent of the prime rate published by the Wall Street
Journal
It is
hereby established that payments may be made in the form of goods in which case both
parties shall agree to the amount
The amounts will be delivered in strict compliance with applicable tax and legal provisions
when they are due
Third Final and Definitive Will of the Parties The parties state that this Agreement is the final
and definitive will of the parties therefore they are in agreement with all its
terms further
stating that there is no mistake fraud bad faith or any defect of will that might affect their
understanding or decision regarding the content
The TRUSTs obligation to deliver the mentioned quantities to ADRIANA LONGORIA KOWALSKI
in the terms set forth herein shall continue in effect until full payment acknowledging that
after payment of the amounts referred to in this Agreement ADRIANA LONGORIA KOWALSKI
shall be satisfied in relation to any present or future obligation charged to the TRUST assets
or to those of Messrs EDUARDO and SHELBY LUIS LONGORIA KOWALSKI
Fourth Jurisdiction and Mexican Law This Agreement is established under the jurisdiction and
laws of the United Mexican States Therefore the parties exclusively submit to the laws of
Mexico thus they expressly waive the application of any law regulation provision or rule of
any jurisdiction other than Mexico which might correspond to them due to their residence
paternity citizenship domicile kinship or commercial relationship Therefore in the event of
interpretation dispute or any aspect related to this Trust they expressly submit to the
any
courts of the city of Reynosa Tamaulipas Mexico
the Issuance of or outside the
Likewise any law regulation provisions in jurisdictions Republic
of Mexico or any act performed outside the national territory by any party seeking to
impose restrictions on this Agreement or to impose the performance of acts different from the
for which authorized ii impose taxes duties or tax burdens other than those
purposes it is
under Mexican Law iii expropriate limit confiscate seize dispose of freeze or otherwise
affect the rights of the Agreement based on federal state or municipal laws outside the
of the of Mexico shall not apply to this Agreement in all cases the
jurisdiction Republic
Errorl Unknown document property name
01187
jurisdiction and laws of the Republic of the United Mexican States being applicable under the
terms of the previous paragraph
Having seen and read the foregoing the parties sign it in the city of Reynosa Tamaulipas on
DECEMBER 17th 2002
Longoria
Eduardo Longoria Theriot
Longoria Kowaisk
Adriana Longoria Kowaiski
Errors Unknown document property name
01188
EXHIBIT
01189
Fldeicorniso No 94-2
4AFTRME DE FIDEICOMISO IRRBVOCABLE IDE ADMINISTRACION PATRIMONIAL
CONTP.ATO
QtIE CELEBRAN POR DNA PARTE COMO FIDEICOMITENTE EL SEOR EDtIARDO
LOIORIA THERIOT QtJIEN EN LO STJCESIVO SE LE DBNOMIARA COMO EL
FIDEICOMITENTE COMO FIDtICIARIO BANCA AFIR1E 8A XNSTITUCIN
DE BANCA NLTIPLE AIRNE GIWPO FITXER DIVISIoN FXDLICIARXA
QUIE EN LO STJCESXVO SE LE DENOMINAR$ COMO EL xDt1CzArro
REPRESENTADO EN ESTE ACTO POR SUB DELEGADOB FIDUCIARIOS LOS
LICENCIADOS ADRM JO1GE LOZANO LOZANO M7tRWEA BEATRIZ QARZA
LONORIA ACTO IORfDIco UB SUJETAN AL TENOR LAS SIGtJIENTES
DECLARACIONES CLATJSDLAS
DECLARACIONES
Dec.ara el Sr Eduardo Theriot en oslidad de
Longoria
FIDEICOMITENTE quet
Es una peropna fisica do naciorialidad mexicana con capacidad
suficiente .para oe.ebrar el presente contrato
.b Que estd casado con su esposa la sefiora Dorothy Kowalsid do
habjŒ.ndoae celebrado su natrimonic en la ciudad do
Longoria
Nuevo Laredo Tajnaulipas habindooe casado bajo el regimen do
separncin do bienea
Quo en su matriinonio con su esposa procre hijos Adriana
Eduardo Silvia Shelby Luis todo do ape.lido Longoria
Kowaiski quo ellos son su nica descendencia
do las ACCZONES quo se describexi
Es legItimo propietario
continuaciri emitidas per las sociedades igualmerite descritas
en la sucesivo identificadas en su totalidad comb las
ACCIONES
CONFIDENTIAL SLONGORIA 000172
01190
Fldelcomiso No 194-2
F3ANCA
Para efectos del preseite Ocatrato so identificarÆn lae
sociedades emisoras de las ACZONs indistintamente en SU
conjunto aomo las EMPRESAS
Obran en su poder los tItubca representatives de las ACCIONES
referidas en eb inciso que precede mianan se encuentran
quo
librea do todo gravanen
LEZMHDO1Af Es su voluntad el afetar en fidejoomiso las ACCIONEL COII el
propsito do quo eJ IDUCIARIO en ba tÆrininos quo 50 aealan
en este contrato las conserve fiduciaria el
enpropiedad quo
FIDUCIARIO disponga de eblas conforme be dispuesto en ete
coat rate
1IDUCIRIO 10 ha explicado en fornia inequlvoca el valor
consecuencias begales del precepto legal contenido en el inciso
do la fraccin XIX diecinueve del articulo 106
romano
ciento seis do la Ley do Instituciones de CrØdito asI come
del alcance contendo do este contrato
II. Declara el FIDUCI.RIO par cenduco da sun Debegados
Fiduciarios que
Su representada es una aociodad legalmente constituida onforine
las ieyes mexicanas quo est debidamente autorizada para
celebrar operacioxies fiduciarias
EstÆ do acuerdo en actuar como Xnstjtucjn fiduciaria on
presente contrato
Son Delegados Piduciarias de Banca Afirme SA Instituci6n do
Danca Md.ltiple Afirme Grupo Finanoicro Divisia iducia4a
con facultadea nuficientes J.levar cabo la finna do ese
para
contrato las cuales no lee ban sido revocadas xii modificadas
en fozma aigwia
Do conforirnidad con be estabbecido en ci inciso de la
fracci6n XIX diecthueve romano del articubo 106 ciento oem
de la Ley de Instituciones do Cr6dito declare ha
quo explicado
en forma inegulvoca las doings ci valor
partes
consecuencias begabes dcidcha fraccin quo la letra dices
CONFIDENTIAL SLONGORIA 000173
01191
Fldcomiso No 94-2
.1
BANCA
2AFIRME
ArtIculo 106 las Znstituaiones do Crdito los eatarÆ
prohibido
XIX.
Responder los fideiaomitentes maadantes coniienes
del incuznplimientode los los arØditos
deudores par quo so
otarguen do los emLoaros par las valores se adquiorari
quo
salvo quo sea par su culpa aogn en Ia
.Io dispuasto parte
final dl ar.culo 356 a22ora 391 do le Jey General do Tltulos
Opera ci ones do CrØdito garantizar la parcepcidn do
rendirniontos par lo fondos auya inyersidn so lea encoxn.iende
Si al tØnnino del fideicomiso mandato comiai6n conatituido
para el otorgwnienta do adito stos no rnbieren sico
liquidados par los deudores la institucin deberi
tranaferjrlos al fideicomjtenje fideiaomigario segth Øl
al xnandanto comitente abstezaiØndose do auhrir Eu
Cualguier pacto contrario lo los dos
dispuesto en prrafos
auteriores noproducir otecflo legal alg-uno
En los cant ratos do ideicornisc so
maridato aomiei6n
insertarÆn en toxma notoria los pÆrraos anteriores do eate
inc.fso.y unadoolaracin do la fiduaiar.ia en ci sentido do quo
hizo sabr ineguIvocamente su cantenido las de
persoxas
quienes baya recibido bienes su invoroin
para
Visto lo a.narior las pa2tes manifiestan tiexen conocimiento
qua
do las dclaracionea anteriores todas ellas
quo son ciertas par
lo que es su voluntad celebrax ci contrabo do fideicoiniso
prosento
conforme lao iguientes
CIjAUSLAS
PRIXERA- CONSTITUCI6N DEL FIDEICOMIO- El Sr Eduardo Longoria
Theriot en su calidad do FIDEICOMITE1rE en eote acto transmite
en fideicomiso FIDtICIARIO l.a de lao ACCIONES
propledad
detalladas en el ixiciso de la Declaracjn del presonte/
contrato
\5
y\
CONFIDENTIAL SLONGORIA 000174
01192
FIcicomlso No 194.2
/\
\4AAFRME
IC0MIN en eate acto hace entega fisica al FXDUCIJRIO
do
debidanente
los tItuJ.os que amparaxi .as ACIo fjdeicomjtldas
enclosados en favor de dst itimo
los drminos del artlcuJ.o 129 dela Ioy General de ociedades
Mercantiloa el PIICoNxEE so oompe riotificar
Adxninjstrador nico al ecretarjo del Conseo de Adzninjstraci6n
1en su de las
caso EI4PRESAS emisoras do la transmIsin
respecto
do las ACI.ONES al presente contrato do Fideicem de
fin que
se realice la Inacrpci6n correspondiento en ci Registro de
Acciorijetas de dichas EMPREBAS remitiendo FIcIjIo la
eertifioacjdn dentro
correspondierite de plazo do 30 treinta
dias hbiles contadog partir do la oelehracj6n del presente
contrato En case do quo no se reciba la certificacin del
Secrotario del Consejo FXt1CIARIO podrÆ solicitarla
directanente
zuciuio recibe en este acto los titulos quo ainparan las
ACCIONB debidamente endosadas sin asunfr responsabilidad alguna
por autenticidad 1egitiinida do dichos tItules per be
viaios que soperten consacuentemente aeÆ ci FIDEIcOMINrE
guieri deberi responder do is autentic3dad do lea t1tulo del
saneanliento para de
ci aaso eviccj6 Aixni.smo ci FIUCIARI0
per medio del presente coritrato otorga FIDEICOMITENTE
recibo mÆs ainplio en
quo derocho proceda
El FXEtICIARIO en este acto xnaxiifiesta la do
acØptacin su cargo
protestandosu fiel legal deseinpefio
SEGtJNDA
Son parteg en ol presente
Contrato do Fideicomiso las siguientes
FIDEICOMITENTEI Se1or Eduardo Longoria Theriot
FIDIYCIARIO BanoaAfjrme LA Instjtucjn do flanca
Mitipla Afirrno Orupo Financiero Divisidn
Fiduciaria
Deaignacion do PIDEICOMxaMIos En este acto ci FIDEIC0MITEE
designs come FI1DEICOMISARIOS EN PRIMER Lt7GAi sustittos pars
caso do su fallecimiento
Eduardo Shelby Luis anibos do apellidos
RN PRIMER LtJGAR Longoria Kowaiski en las siguientes
CONFIDENTIAL SLONGORIA 000175
01193
F1decomIo No 194-2
BANCA
\tAFIRME
proprciones Shelby Luis xongoria
Kowaleld en tin 6O aesenta por ciento de
los dereohos de fjdeicxiavib derivados
del prasente Fideiconjiso yj iEd.1-iardo
Longoria Kpwalski en tin 4O cuarenta por
ciento de los dereohos de fideicomisario
derivados de eate Fideicorniso
1ZMENDOZsiIfliGUo para el caso de fallecimiento de los IDEICONXSUIOS EN
RIdER LIt7GAR aualqid.era cia ellos simultÆneamente antes de
reothir los beneftcio qte le correspondieran del presente
ideicomiso el FXDEICOMXENTE designa somo IDEICOMXARIOS EN
SZQD1WOLUWR
FIDEICOMISARIOS Los hijos esposa en caso cia los
EN SEGt1WO LUGAR pizr LOAR en caso de
que ocurra el deceso de algiirio de ellos
cuyos nombres se sienoionan en la Clusula
Quinta inciso clÆusula Sexta
clÆusula Bptima
Los Fideicomisarios podrdn ear referidos en presente contrato
conia FXDEXCOMIS.RIOS refiriidose todas los designados como
fideicomisarios en conjunto en particular refiriudose cada
paz-ta designada
El FZDUCIARIO llavar registro contable qua acredite los
FXDZICOMXSARIOS P1IMER LO como beneficiaries 4e1 patrimonlo
del Fideicemiso en la proporci6n qua para oada uno se eeæal en la
presexite clÆusula mediaxite la apertura da una subcuenta para cada
uno de alice El registro de los rIflEOKISAXIOS ER SEDO LTJGAR
se realizarÆ dentro de la subcuenta cada uno de alias
que
corresponda
TERCERA PATRIMONTO DEL IDEICOMIQ ConstituirÆ la materia del
presente contrato
Las ACCIONES descritas en el incise cia la Declaraci6n del
presente contrato
Las futuras ACCIONES quef por cualguier causa ilegaren
del patrinionlo de este contrato sea
paz-ta ya par
emjsjn cia nuevas ACCIONES ci ejercicio cia
por
CON FIDENTIAL SLONGORIA 000176
01194
Pldelcornjso No 94-2
AFRME derivado de
patrimoriiales las propias ACCZO2ES asI coino los
titulos que pudieran recibirse caxithIo vrtud de
en ocurrir la
fusi6n esciain transformacin de oualquiera las emisoras
cia laa ACCZOlS qua conforinen eJ patrmonio dci presente asi
como e1 inoremento ci IDEICOMITENTE
ciue podr haoer raspecto
ACCIONES representativas del social de otras
capita
sociedades siempre qua las eniisora.s sean sociedades mextcaxias
EZ ME1DOZAC Cualquier otro tipo de valor titulos de rdito parte
socialee bienes qua
97 par cuaiqujer forms se aporteri a3
Fideicomiso para quedaz afeotas los fines de este contrato
En este supuesto an iiingthi caso se afactarÆ al patrimonio dci
valoras
presente qua se negocien en mercados de valorea
arijroa ya qua siempre saran valoreg qua se negocien en ci
mercado de valores znexicano
ci Tambin formarn parte de la inateria dcl praaexite fideicomiso
lo dividendos pagados en efectivo en ACCIONES en otros
bienes muebles inxnueblas de las ACCI01ES aportadas
Los rendimientos qua generen las inversieries afectuadas por el
PIDUCXARXO con los recursos en diners que formen parte del
patrimonio del ideicomiso
Cualguier aportacin adicional en ci futuro rea.lce ci
que
FIDEICOENrE cia
cuaiq-uier clase ya sea efectivo especie
derechos
Cualquier otra aportaci6n en efectiv especie derechos que
adquieza el propio Fideicomiso en ci ounuplimiento de sue fines
CTARTA OBJETO DEL FIDEICOMISO El presente Fideicomiso tiene por
obj eta que el FIDTCIAIIO conserve la propiedad cia las ACCIONES en
los tØrminos del propio coxltxato efecito de quepoateriornnente
al fallocimiento del PXDEICOXTENTE en los tØrminos
condiciones pactados en ci presente tranemita la
contrato
propiedad las ACCIONES favor de 1OF FIDPfl.COMISAiIOS
QUINTA FINBS DEL FXDEXCOIS0 Son fines del presente contrat de
.4
fideicomiso que
CONFIDENTIAL SLONGORIA 000177
01195
FdeIcomiso No 194-2
BANCA
AHRME
El FIDUCIARIO reciba mantenga la titularidad de las ACCIOIES
fideicomd.tidas
El FIDUCIARZO invierta los recurnas en efectivo ne
que
encuentren dentro dcl patrimonie fideicomitido conforme lo
establecido en l.a ClÆusula Dcma Tercera del presente
contrato
El FIDUCIARXO ejerza los dareches corporativo patrimonialen
de las ACCXONES nefiaindose en forma enunciativa mda no
lm limitativa ion siguientes de voto ci de recibir accionen
capitalizadas come dividendos ci de suscripci6xi de acciones
ci de pagar recibir nuevan accoues en ejercicio del derecho
de preferencia ci de reeinbo.so total parcial de dichas
acciones ci cobra de dividendos en efectivo etcetera
niguiendo en todo caso las instrucciones encrito reetha
qua par
del Comite Teonico
Para ci ejercicio de ion demchos corporativos patrimonialen
inherentes las ACCIOT2B se obser-varÆn las siuientcs
disposiciones
El FIt1CIARIO otorgarÆ ion poderesque sean necesarios en
favor de las personas que designe ci Comit Tcnico
para ci ejercicio de los derechon antes mencionados En
aunencia de instrucojones el FZCARZO estarÆ facuitado
podrÆ solicitar las instxuociones correspondienten al CornitØ
Tcnico para ci ejersicic de ion derechos corporativos
patrirnoniale da las AccXONE debiendo obrar come
siempre
buen padre de fainilia protegiendo en todo cano el
patrimonio fideicomitido
En caso de aumenton de capital de l.a einisora de lan ACCIONES
fideicmitidaa ci flUCXARXO llevarÆ cabo la suscripci6n
correspondiente1 previa aportaai6n de los fondon auficientes
para bal efecto guedando entablecido que de existir
recursos suficientes para ello dentro dcl patrimonio
fidaicomitido ci rIDEZCOMXTENTB Comit Tcnco podr
instruir al FXnCThRIO para que la nuncripci6n dcl aumento
de capital correspondiente se realice con al
cargo
patrimorilo fideicomitido
.1
Asiminmo1 queda establecido qua los veernboisos de eapai
parcial total de ian ACCIONES asi coma los pagan
CONFIDENTIAL SLONGORIA 000178
01196
HdecomIso No 94-2
i2AFIRME ofectivo
divideridos en especie qu en su case decreten las
emisoraa do las ACCZONZB incrementar el del
patrimonio
presente fideiciomiso para su posterior apli.cci6n los
fines del mismo
dtL IDCARI0 aonornie instruaciones escritas qI.i le expida
el Comit TØcnico enajenne afecte grave por oualquier medic
la
perinitido per Ley tranomita las ACCIONES parto do silas
\persona que designe el Comit Thcxjjco en cuyo ease la
contraprestaai6n quo corresponda dictha transmisi6u la
97 /recibirÆ el FZDZIC0MITNTE en su case los FIDEICOMISA1IOS Be
conviene expresamente en quo el establecimiento do las
condiciones do enajenaoi6n serÆ facultad exalusiva del
\Tcnico so dard sonocer detalle per escrito
iruCIAflIo
Previe la formalizaei6n do la enajenaci6zi tanthin
eorrespondorÆ.ai ComitØ TØcniao verifisar quo la enajenaci6n do
las ACCIONES en su case cumpla con las reglas corporativas
doreahos de otros sosios establecidos en los estatutos de la
emisora do Ia Ley obligØndose acreditarios al FIDUCIRIO
cuando Øste lo solicits
En caso do yenta de las ACCIONES en los tØrminos expuestos
InEIC0MITENTE deberd cuinplir con las obligaciones fiscales
aplicabies su cargo bien en easo de faliecimiento do
ste las personae quien le corresponida do acuerdo las
disposiciones apj.ica.bies en su case
El EInCARI0 conforms instruociones quo reciba del Comit
recnico enitregard las cantidades de dinero quo is inatruyaxi al
propio 7XBICOMITENTE los ZDEZCO1I5ARIOS siempre que
hubiere fondos suficientes en el fideicomiso
En caso do fallecimiento del PIIJEICOMrTENTZ io doberÆ ser
quo
acreditado PIUCIAIIO con la exhibici8n del acta do
defunciØn correspondiente el presente fideicomiso continuard
vigents el derecho de los IDEICOMISARTOS recibir los
beneficios estara auborciinado hasta en tanto el Comit
TØcniao instruya al FIDCIARIO para entregue ica
quo
FIDEZCOMISARIOS los recursos exiatentes en el patrirnonio 1el
Fideicomiso las ACCIONES fideicomitidas en las proporci4es
seialadas cada uno do indica en
pan ellos aegdrn se la
Cl.usula Sogunda extinguiØndose en see memento el fideicomi4o
1nn
CONFIDENTIAL SLONGORIA 000179
01197
FIdelcomISO No 194-2
Bin taxito Los XDBitCoMISZog eciben las ACCXQNES
Los recursos axistentes on ci fideicomiso
fjdeiond.tida8
producto de La yenta do las ACCXON$ en su caso el presente
continuar XDUCIAZIO ejercitard Los
ideicomiso vigente ci
de las ACCIONES conforme
derechos corporativos patrimoniaJ.os
lo instruyaei Con1it Tcniao
do ocurra el deceso del Fidaicomisario Eduardo
En caso quo
los dareolios La correspondlan an el
r1ongoria Kowalsid qua
Fideicomiso sern para los ouatxo XDEIcOMX8ARIOS
jMENflOV presente
do nornbres Michelle Bernardo
SEGUNDO X1tIGAR Alejandra
Biduardo todos do apellidos Longoria Hernndez Sophi
en las bajo los trxnthoo
Longoria Zyiiont proporiones
condiciones qua so refiere La clÆusula Sptirna
de falleaiiniento do los ZflEXCoEISAIOS EN
En ci supuesto
LUGAI Bernardo Eduardo Longord.a Hernndez Sofia
SEGUNDO
mencionados en el inciso anterior en
Longoria Zygrnont
oualquier tiempo durante La vigancia dcl presexito Fideicoiniso
La participaci6n qua Leo correapondia sara distribuid ntre
todos los demÆs FXDEICOMXSARIOS SEGUZWO LTGAR qua queden en
vida qua se refieie el inciso anterior increinantando por lo
tenth su participacin en el pzesente Fideicomiso Bin
supuesto do fallecimiento cia Aleandra Michelle Longoia
Hern.ndez en durante La vigencia del presente
cualquier\tiernpo
La La correspcnd.a sara
Fideicoittio par4cipacion qua
distribulda en partos Juales entre sua hijos Alfonso IlLn
Alejandro Diego axnhcn apeilido Argtzindagtii Longoria
En caso do ocurra al deceso del Fideicomiaario Shelby Luis
quo
Los derechos La corraspondlan del
Lorigoria Kowalaki quo
presente fideicomiso sern pare los cuatro FXDEICOMI5ARIOS
EN SEGUNDO IUGA do nombre Enriqucta Chapa de Longoria Shelby
Sarah Louise Adriana Dorothy do apellidos Longoria Chapa en
partes iguales bajo be tdrmiuos condiciones quo so
ref iere la cidusula Sexta
En eJ aupuesto de falieciuiiento de algurio do los cuatro
FIDBICOMISARXOS EN SEGUNDO LUGAR mencionados en el inciso
anterior en cualql2ier tiempo duranta La vigencia del presete
Fideicomiso La partiaipaoi6n qua Le correspondla sard
distribuida entre Los EDEXCOMISARXOS EN SEGUNDO TJUGAR
queden cxi vida incrementando por lo tanto su participacifl
ci presenbe rideicomiso
CON FIDENTIAL SLONGORIA 000180
01198
F1deIcornso No 194-2
JPI2AHRME
SEXTA DISPOSICIONES ESPECIALES EN CASO 1E FALLECIMIENTO IDE SHELBY
LtlIS LONORIA KOWALSKI En caso de fallecimiento del sellor Shelby
Luis Lorigoria Xowalski en cualquier tiempo durante la iigenoia del
presents fideicomiso se estarÆ lo dispuesto aeta clÆusula
par
TJ FXEICOMISARXOS ZN SEGtTZqDO LAR- Cbmo se eata.b.ece en la
clÆusula Segunda los FZDZXCOMI$AgIOg EN SZGWO LIDGAR
designados para el caso de fallecimiento del ZICOMISARIO ZN
PRIMER LUcAR Shelby Iui Longoria iowaleid aerÆn su esposa
arias de
MZOOZA Enriqueta Chapa Longoria sue hijos Adriana Sarah
Shelby todos de apellido Longoria Chapa en partes iguales
Zn case de fallecimiento de cualquiera de los YXIEICOMISARXOS
ZN SEGUNDO LUGAE en cualq-uier tiempo durante la dl
vigencla
presente Fideicomiso la participacin .e
qiie corroapozidia serf
distrlbuida enitre ba IDEIC0MISARIOS EN SEIDNDO LtIGAR que
queden en vida incrementando bo tanto
per su participactOn en
el presente Fideicorniso
daso de los FISEICOMISARIOS EN SEGUNDO LUGAP menores de
edad detos serxi rapresentados per sue tutores
representantes designados de acerdo las dispoeicioz-ies
civiles aplicables
SPTIMA DISPOSICIONEff ESPEIATES EN CASO IDE FALLECIMIENTO IDE
EDUARDO TjONGORIA IOWALSKI En caso de fallŁcijexito del seller
Eduardo Longoria Kowaleki en cualguier tiempo duzante la vigenciia
del presents fideicomiso se estar bo dispuesto per eata
cliusula
FIIDEICOMISARIOS ZN SEGUNDO TjUC.R- Como se establece en la
clÆusula los
Segunda FIZICOI4ISA1Ios ZN SEGUDO LUGAR
designados para el caso de fallecimiento del FIIDEICOMISARIO ZN
PRIMER LUGAR Eduardo Longoria Kowalski ser.n sue cuatro
hijos Eduardo Alejandra Bernardo odos de apellido Longoria
IernÆndez Sophia Longoria Zygrnont en las siguientes
proporciones
FIDEICOMISAEIO EN SEGUNDO Lt7GAR PORCENTMZS
EDTJARDO LONGORIA HERNANDEZ 37 5%
BERNAIZDO LONGORIA HERNANDES 375%
ALEJANDRA LONGORIA HJLRNANDEZ 12 5%
SOPHIA LONGORIAZYGMONT 125%
Total 100%
CONFIDENTIAL SLONGORIA 000181
01199
FidelcomlsoNo T94-2
It BANCA
En e3 supueato de fa.lecimiento de los FI.EICOlIARX0S EN
sEGmwo LtIQAR Bernardo Eduardo Longoria HernÆndez Sophia
Iongoria Zygmont antee mencionados en cualquier tiempo durante
la vigencia del preoente ideicomieo que lea
.a participacin
1uI correspondla serÆ distribuida entre todo los demÆs
FIDEXC0MXSA1IOa EN 6EGNDO LGAR quo queden en vida
incrementando por lo tanto su en presents
partioipacin
Fideicomiso En e3 supuesto de fallecimiento do lejandra
dirante la
MENDOZA Michelle Longoria HernÆndez en cualquier tiempo
T4o.97 vigencia del presente Fideicomiso le
la participacidn quo
coreepondia serd distribuida en partes iguales entre sus hijos
Alfonso ZllÆn IUejandro Diego axnboa de apellido Arguindegui
Longoria
DISPOSICZONES ESECIALES PAP.A LOS FIDEICOMISAEIOS EN SEGUNDO
LUcAR Desde este momento desigriados los
quedan
FXDEICOMISARIOS ZN ZUDO LUGAR que so refiere el inciso
anterior en los porcentajes indicados sin embargo los
EDEXCOMXSARZOS EN SEGUNDO LUQAR Eduardo Bernardo Longoria
Hern.ndoz tendrdxi la opcin do disponer en su calidad do
FIDEICOMXSARIOS EN SEGUNDO LUGAR do 25% veinticinco
porciento que le corresponderla Alejandra Michelle Longoria
Herndndez Sophia Longoria Zygmont contra la entrega en
efectivo de dicho 25% en an favor do acuerdo valor de las
ElPRESAS calculado en tØrminos do la c.usula DØcima Primela
Dicha opci6ri ser ejercida da la siguiente inanera
La opci6n do los FIDEICOMISARIOS EN SEGUNDO t1GAR Eduardo
ernardo Longoria Kowalaki para recibir del presente
fidetcomiso el 25% veinticinco porciento que le
corresponderia Alejandra Michelle Longoria Hernndez
Sophia Longoria Zygmont es otorgada en forma autoniÆtica
solo podrn ejercerla ms tardar dentro del primer aæo
calendario si.guiente del fallecimierito do Eduardo
Longoria Kowalski En caso do no querer ejercerla debern
de notificar por escrito do tal intenciOn tanto al
FIDUCIARIO como Alejandra Michelle Longoria HernÆlldez
Sophia Longoria Zygmont en cuyo caso stas tendrÆrx derecho
su 25% veinticinco porciento do las ACCIONES esto
iltimo tambidn ocurrirtarito en caso de que notifiquenu
intencin do no ejercitar dicha opcin aol coma en e3
4.o
do que no ejerciten la opcin dentra del plazo an
aeflalado
CON FIDENTIAL SLONGORIA 000182
01200
Hdefcomlso No 194-2
/A CA
AFERME
La deterunaci6n del valor del 25s veinticinco porciento
que les corresponda Alejandra Michelle Longorla HernÆxidez
Sophia Longoria Zygmont se efeotuarÆ la fecha de
fallecimiento del PZEICOZfISAIO EN PIMEP LUGJi Eduardo
Longoria Iowalaki de acuerdo al procedimiento de valuaci6n
establecido en la clusula Dcima Priu1era
tJna vez determinado el valoi- del 25 veinticiiico
MENDOZA trminos del Eduardo
porciento en inciso anterior
ala 97
valor
tdo Tm Bernardo Longoria Kowalsid entregarn dicho
Alejandra Michelle Longoria flernÆndez Sophia Longoria
zygmont en u.n plazo de 10 diez aæos co u.n interds del
siete porciento anual en d6lares de los Etados Unidos
de America
El primer pago daberÆ ser nia tardar en el primer
aniversario del fallecimiento del IDEICOMSAXO EN PRXNE
Zt7GAR Eduardo Lorigoria Kowaiski asi sucesivainente eada
silo hasta cubrir totalmente la cantidad establecida en el
plazode 10 diez aiio
Conforme se vaya realizaiido cad page se entenderÆ
liberadas las ACCI0ES correapondintes favor cle Eduardo
BØrnardo Longoria Hern.ndez en paxtes igualas
En tanto se eate oump.iende con la enhregas favor da
Alejandra Michelle Longoria Her.nØ.ndez Sophia Longoria
Zygmont en los t6rminos apuntados en los inoisos
a.nteriores ci ejercicio de los derechos patrimonia.les
corporativos de las ACCIONES qua les corresponden Østas
25% seren ejarcidos en an totalidad por Eduardo
Bernardo Longoria HcrnÆdez en partes igualea en su calidad
de IflEICOMISARIOS EN EGmDO LGAR En caso de
incumplimiento en mac de doe pagos cousecutivos
Alejandra Michelle Longoria Rernndez Sophia Longoria
Zygniont1 Øctas tendre.n derecho al remanente de las ACCIONES
no cubiertas podr.n per lo tanto ejercer sue derechos
pÆtrimoniales corporativos derivados de dichas ACCIONES
en los tdrxninos previstos en este contrato
QUda axpresamente etablecida la obligacin de notifir
al IDUCIARTO dcl ejercicio de la opci6n establecidÆ en
punto anterior bien de la decisi6n de no ejereicio
CONFIDENTIAL SLONGORIA 000183
01201
Rdeicomtso No 94-2
BANCA
la misma asi come del incuinplimiento en cualqi.iiera de los
pages cargo de Eduardo Bernardo Longoria Iernndez
bien del cuinplimiento total de la obligacixf de pago
fin de gus el FEDCIARIO estd en poaibiJ.idad de reasignar
los dereehos de Fideicomisarlo de acuerdo lo previsto en
aste punte Salvo acuerdo expreso entre las partes
interesadas en caso de gus per cualguier causa no se
ejerza la opcin dentro del primer aio calendario sigi.ente
al del fallecimiento de duardo Longoria Kowaleld la
textdrÆ porno el FIDUCIARZO asignar
ENDOZ opcin
defixiitivamente
se
Aleandra
ejercida
Michelle Longoria HernÆndez
Tarn
Iongoria Zygmoxlt el porthentaje de participacin de
sophia
___
los derechos de Fideicornisario de confoinidad con lo
establecido en el punto 1-uno de esta misma clÆusula
OBLACIONES CAIWO DE LOS FXDEICOISARIOS EN 8ZGU2DO LtYQAK
olamente en el case de qiie los FIEICOMISARXOS SEDO
LUQAR Eduardo ernardo Longoria Hernndez no ejerzazi la
de recibir el 25% veinticirico porciento cia las
opci6n
ACCIOES de Alejandra Michelle Longozia Herng.ndez Sophia
Longoria Zygmoxit lo cual debern hacaii del conocimiento del
FXDUCXAgIO los FIDEICOMISARIOS $EVNDO LTJGAR deberÆri
entregar directaiuente sin intervencin del FXDCIAEIO la
cantidad de US$100000.00 cien mu d6lare de los Estados
nido de Axnrica Sophia tiongoria Zygmont ef sate de que
data realice sus estudios universitarios Diaha cantidad ser
su Colette ella la
entregada macire Zygmont para qua
administre en beneficio de Sophia Longoria Zygmont
El FIDUCIARIO podrÆ con la autorizacin expresa del Cornitd
Tdcnico con cargo al patrimonio lquido del FideicomisO
hasta donde el mismo alcance una vez le sea notificado
que
no ejercicio de la opcidn per parts de los FIDEICOMISARXOS
EZ SEGU1D0 LUGAR bien en caso de gus La opc6n as tuviera
por no ejercida per ha.bar tranecurrido el plaza para ello
3.a cantidad antes indicada en Ia forma tdrminos
exitregar
eatablecidos en el pdrrafo anterior sin responsabilidad alguna
per el destino real gus as is llegue dar dicha cantidad Zi
FIDUCIARXO no asunie responsabilidad a.guna la imposibi.idad
per
de cumplir con este fin en ran no oxistir fondes lN.quidos
para cubrir la cantidad bien en caso de gus detos fuan
insuficientes en cuyo case podrA hacer pago parcal
.13
CONFIDENTIAL SLONGORIA 000184
01202
Ffdelcomiso No 94-2
JLJ
AHRMtE
oCTAV ADMINISTRACI6N DE LAS EMPESAS Las ACCIONES quo ornan
del patrimouio del ideicomiso
parte presente correeponden
quo se encuentran operando diversos negocio mercanties
ininobiliarios do diversa Indole directamente trav
ye sea
empresas 8Ubsidiarias La adminiatraoidn de dichos negocios la
echa la ha ilovado Shelby Luis Lorigoria icowaleki quien
coritinuarÆ hacidndclo durante Ia vigencia del prosente
Fideicomiso en los tØrxninos condicicziee las asainbleae do
quo
accionistas lo acuerde Eu eBte senido Shelby Iuis Longoria
TMEN1OZ.ICowalski ewigira como Adininiatrador nico Presidente del ConSeo
do las PRESAS sue eubsidiarias
Tim
En caso do fallecimiento incapacidad do do los dos
cuaJ.quera
FIDZICOMISARIOS EN PRIMEE LUGJ Eduardo Shelby IuiS Longoria
Kowaleki la adniinistracin de lee EMPRESAS ens subsidiarias
pasarÆ maos do un ConitØ Ejecutivo en tØrminos do la cJ.Æusula
siguiente el cual entrarÆ en funcionee temporalmente hasta Se
que
determine la administraci6n definitive de lea EMPRESAS sue
subsidiaries en en caso la eeparaci6n do los socios en
trniinoa do las clueuias Novena Ddcima
En el evexito de failecimiento incapacidad do Eduardo Shelby
Luis Longoria Kowaiski ci ComitØ TØCUiCO instruirl lo conducento
fin do liamar inmediatamente tine asa.rnblea do accionistas de
las EMPRESAS sue aubsidiaria acciones son materia del
cuyaa
presente Fideicomiso efecto do lievar eabo la integraai6z del
Comitd Ejecutivo quo so ref lore la cliusula siguiente en en
caso de ael considerarlo necesario so lee otorgue poderes do
administraci6n sufic1ente lievar cabo su funciEn
El failecimiento do Eduardo Luis Kowaleki se
Shelby Longoria
acreditard mediante acta do defuncin correspondiente En caso
do incapacidad sta serd deteniinada po el ComitÆ Tcnico con eJ
voto unnime do ens niembros tomando como base la opinin por
escrito de 3-tree medicos particulares ael lo determine Los
quo
3-tree medicos antes menci.onados sordn elegidos ci
por propio
Conite Tdcnico sin ixitervencin ni responsabilidad el
alg-una para
FIDUCIARIO quien solo tendr la obligacidn do recibir la
comunicacin escrita por parte do ComitØ TØcnico en la quo se
determine la incapacidad Cuando el FZDUCIARXO obre do Æcuerdo
las instrucciones del ComitØ TØcnico no incurrirØ en
responsahilidad alguna do conformidad con establecido el
artIciiio 80 do la boy do Instituciones do Credito
\1
CONFIDENTIAL SLONGORIA 000185
01203
Fldelcomlso No 194-2
AF1RME
NOVZNA
EYEcuIYQ.-
Shelby Zuis
__RA En
Longoria
oaso de fdlleoimiento
iCowaleki la
Ta.1thp
incapacidad.de
administaci6n de
UE
las
UN
Eduardo
C0M
2HPRESAB
paaarÆ manos cle Un Coinit Ejeoutivo de acuerdo 10 siguiente
El ComitØ Ejecutiro eatard integrado asia 6 mierttbros
por
con U5 respectivos auplentes Cada mIonthro del CORIIt
Ejecutivo serd zeaponaabls de una de la xsaa .cle xiegocio
del grupo de EMPRESZtL En sate acto el ZENTE
designa los aiguientea miembros del Comit Ejcutvo
ritular uplexitea Area de Negocio
Eduardo Longoria Eduardo Longoria Direccin eueral
Kowal ski Herndndez
Shelby Luis Loagoria Enriueta Chapa de Direcci6n General
Kbwalski Longoria
Rafael de Je5is Marta Morttelonge Inmobiiiario
Carbajal_Galindo
SaJ Garza Molina NØstor S.nchez Automotrz
Edilic Luis Madrigal Marco ..ntonio Industrial
Cepeda Torres Garza
Ral Jess Rasnhrez Hugo JimØuz Restaurantes
Vola V.zquez
Se deaigna aomo Presidents del Comit Ejasutivo en caso de
fallecimiento incapacidad de Eduardo Longoria owalski
Shelby Luis Longoria Kowaiski En caso de fallesimiento
incapacidad de Shelby Luis Longoria Kowaleki fungirÆ como
Presidents del ComitØ Ejecutivo Eduardo Longoria KowaLski
En caso de renimcia incapacidad fallesimiento del
presidente designado en los tØrminos del pdrrafo anterior
fungir como presidents su respective suplente
ii El Presidente del Comit Ejecutivo tendrd roto de calidad en
cao desinpate
iii El ConitØ Ejecutivo as enoargard 1e las operaciones de las
EMRESAS aus subidiarias deberd rendir cuentas al
Comjt Tcnico del pres9ite Fideicomiao
iv HL Comt Ejecutivo s6lo podr celebrar actos
adniniatracin sin que pueda disponer de bienea activos
15
CONFIDENTIAL
SLONGORIA 000186
01204
FIdeIconilSO No 194.2
\AL monos Ge
deredhos de las EHPRESAS GUS susidiaria qiie
10 indique el Comit6 TØcnico
1c deber continuar las operaciones
El ComitØ Ejecutivo
Ge
normales do las EUR8AG sus aubsjdjarias tal coma
en todo momento
venianopezafldo con axiterioridad procurando
con las
no poner en riego las mismas cuxnpliendo
l.egales aplicablea cada unade cl4\
disposiciofles
efecto do tomar
vi El Comt EjecUtiva so reunirÆ cada lunes
4ENDOZA cada asu.nto par tratar
decisiones en corijunto respecto
ci
Cads miembro resporisable do un area do negocio preseritaxa
el cual sara
do trabajo seguir por l.a semana1
plan
do los del Coinit
par el resto integrantes
aprobado
minuta serd
Do cada reuni6n so levantard una quo
Ejecutivo
del Comit6
firniada por los asitentes cada junta
podrdn asistir los FXDEICOISARXOS
EjeCutivo
texidrn derecho mao no
representantes guienos opinar
votar
inf.crme monsual al CornitØ
presentar un
vii El ComitØ Ejecutivo
EMRESAS sus
TØcnico do laa operaciones de las
do cada junta Dicho
aubsidiarias anexando las minutas
tal of ecto
informe so preaeritarÆ en una junta anvoaada para
do cada mes cada
deritro do los primeros 15 quince- dias
los YIDZICOMXSARIOS auG
junta podran asitir
tendrØn derecho opinar mÆs no
representantes quienos
votar
ref iere el anterior deberd
viii El informe quo se punto
cuando menos Un desglo8e de los 3ngresos egresos
contener
balance
do cada uria de las PRE8AS sus subsidiarias
estado de pdrdidas ganancias eatado de origen
general1
do recursos flujo de efectivo
ap.icacin
externos para
ix El ComitØ Ejecutivo podra apoyarse en aseSores
l.a toma do decisionas Igualmente dichos aseSores podrdn
ComitØ estime
asistir las juntas que el propio
convexiientes
libremente remover los mjembrt5e
El ComitØ TØcnico podr
en caso de considerarlo necesaric
del Comitd EjecutiVo
estabiecido en l.a clÆusuia DØcima Tercer
los tØrminos
CONFIDENTIAL SLONGORIA 000187
01205
Fidelcomiso No 194-2
AF1RME _____
Ig-ualmente en case do cOnsiderarj.osneceaarjo podrÆ designar
un auditor exterrio quo audito las MPRZSAS
Queda expresamente establecido corisentido las
per partes que en
este contrato gue intervieneri qua IDt7CIARIO adquiere la
titularidad do las ACCIOEg obeto del presente Fideicomiso solo
estar obligada otorgar los poderes quo resu.ten necesarios para
ejercicio do los darechos inherantes las favor do
miamas
la las al afecto deterjne
personas que ComitÆ Tcnico aol
como aunipllr con las instrucciorxea
MENDOZA qua en su ciaso le dicte
ComitØ TØinico en este sentido per 10 quo la partes expreaainente
sin reser-va alguna dede eate nomento roleva.n FXDUCZARIO do
cualcruier responsa.blidad thligaa6n de si ice
ejerciar por
derechos corporativos inherentes las ACCIONES aol como do .a
forma sentido tØrminos en que apoderado que so designe
represento vote las ACCIONES en asaxnbiea aol como sri el ciaso
do quo los tØrrninos condicionee quo FIXEICOMITENTE eta.blece
en esta c.Æusula aol eomo en la cAuaizla ctava anterior dØc.ima
do este Fideicomiso no se llevaran cabo total parcialniexite
Los lineamlentos eatabieoidos en la clÆusu.a.octava asi conic en la
presente clÆusula so realizan ICOMXENTE
por para ser
observados exo.usivamente por los integrantes del Comitd TØcnicio
sin intex-verxcin reaponsabilidad obligacidu aigima para
FxrrncIARro en la inteligencia do qua acuerdo quo agul Se
etablece debezØ ser observado tanth6n en ou los
uiomento per
FIDEICOMI$ARZOS
spc6x DE LOS SOCIOS Al faliecar encontrarae en
estado de incapacidad de
cualquiera los FIDEICOMISARI0$ EN PIMEP
IjtTQAR el Fl ICOWRIO EN PRIMER LUGAR quo sobreviva juntaznente
con los FIDEICOMISARI0S EN BEGUDo LUGAR sus representantes
tendrn la opcin de contirxuar con la sociedad las EMLRESAS
en
separarge cono socios quodÆndose cada uno de ellos con diferentes
EMRESAS en base su valor calculado do acuerdo la clÆusula
DØcima Prmniera sig-uiente El acuerdo de separaciOn so ilevari
conforme lo siguiente
Ii Para efectos do la separacin so considerari dos uno
grupos
per cada familia de los FIDEICONZSARIOS EN PRIMER LJUThR
ii En caso de fallecmmiento de Shelby Luis Longoria Kowaloki
toda vez quo los FIDEICOMISARIOS EN SEGUNDO LGAR designado
CONFIDENTIAL SLONGORIA 000188
01206
FldeIcomISO No 194-2
en la
en SU lugar esposa hijos no participan
los ni de la
admiflistracfl de negocios opezando gozan
efectos de 1a presents
experiencia para nianejarlos para
LUGM de Shelby Luis
clusula los IDEIC0MISARIO$ EN sEGrmmo
iowalaki tendrÆn referencia sobre los negocios
Longoria
nmobiliarios en el proseso d.e separaci6n
buscarÆ la sepaaci6n de lea scios se
iii En todo caso se gue
cuanta al valor de las
lieve con jueticia equidad en
valor sara determinadc de
EPRESAS El de las empresas
ZMENBOZA
o.97 acuerdo al proceso iridicado en la clAusula aigi.1iente
zealizan el
Los liziesmientos establecidos en esta olausula se por
exclusivannte los
FIDEXCOMITENT para ocr observados por
integranteo del ComitØ TØcnco sin ntervenoin responsabilidad
la inteligencia de qu.e
obligaci6zi alguna para el XDUCIAXIO en
eta1lece del3erÆ aer observado tainbiØn en
ci acuerdo que aqul se
___
su ruomento por los 1IEIaO2IBA1IOS
V1LUACI6 DE EMPESAS- Para efectos de
DCIMA LEIEER.A riAs
determinar ci valor de las EPRESA otis subsidiarias estas
en la
serin valuadas por dos peritos valtadores expertos
externos de ias partes que efecto
materia indepexidientes
ComitØ TØcnico IOs valuaran cada
determine elija ci peritos
mismo igØtodo de
EMPRSA otis subsidiarias utilizando el
valuaain En caso de existir uzia dierencia menor del 10% dies
los peritos se tomara como valor
en los vaioxes presentados per
de las dos yaluaciones En case de exiatir
real ci promedio
dieerenoias de mao del 10% diez porciento en lo valoras
los Sc deaigrzara un tercer perito
presentados per peritos
tercer avaldo ne los tres avalos
valuador quien praczticarÆ tin
tomarÆ como valor de los dos avalilos
practioados se prozuedio
mao cercanos
El resultado de la valuaci6n efeotuada ser riotificado al
FIDUCIARIO travds del ComibØ TØcnico
DE INVERSION Los recursos en numerario que
DECIMA SEGUNDA FORMA
de eats fideicomiso se invertirn per
integren patrimonio
instrucciones escrito le remita
FIDUCIARIO conforms las que per
$1 ntezidido falta do ias
ComitØ TØcnico en que
instrucciones correspondientes DUCIARlO inverti
custodiarÆ en forma discrecional el
adrninistrarÆ patrimoro
is
CON FIDENTIAL SLONGORIA 000189
01207
8ANcA Hdeicomjso No 942
AJRNFE
fideicomjtjdo en oualguiera de los
insumentog Itu1os valore
g.ze C0fltinuac6n se
Instruinentos de deuda instx-uje05 del mercado de
Sociedades de di.nero
Invarsj6n en instru1flent de
En deuda
cualciujer otro instruniento t.tuJ.o
la docuxnento que durante
vigenaja do esto cozitrato
Posterior la firma del
aparezc en el mercado mismo
con las caractertjcas mencionadas
aflterjornaute
Lon strwiteno tiIu1 Valoree docunientos en
in inveraj6rj podn quo se rea1ic
estar
nsoritos no en el
do Va1ot Intenodjarjas
Registro Nacional
no debjondo
comerjai sin adqi.iirjrse papel
avai baucarjo
El ICOMITNrE libera do toda respanaajjjj en onto acto
par al
FIDUCZARo cualquier menoncabo quo pudiaren derivar do
m.inunvafla in
ousensjon do la cotjza6n do ion valore1
documenton adqu ido tituio
al del
celebracjn
asnpa.ro
Oorato do invruj6x cuya
so realice
fi.deicomjtjdo en
para in iverj dcl patrinionjo
quo nu anna gonere daiio perjujcjos
sean consecuenaja quo
do in Buspenj do
.ncumpUm3nto del lo ernisor en aa como
pagan qiiebra
oporacjn par el tipo do
realizada cono.r al Ooxltrato
do
de inversn su
Invernj6n cualenqujera
tipo do quo Øsa sea aol corno del
valores tituio document05 aaignad
Asirnjgmo
IIC0ZIE no se reserva accj6
presente utuo quo ejercjtar derecho
InStitucj6 do Banca MClitiple
en
Afirnie
contra de Banca Afirme SA
celabxacj6n Grupo Financiero par in
del referjdo contrato do inversjn
El ICIA no ser responsj9 de los menoscaIos
de cuando actde
coneorjdad Oon lo quo eatablece el artlclo 391 de in
General de Tltuj.os Ley
Operacjonen do Crclito
T2nCJs De confoznjdad
do in con el articulo 80
Ley do InstitUcjoen de Credit0 el IDEZC0M.ENTE
coflstituy5 un Camitd
Lan zion gue procedan
.Tdcnjco
ion
dan
cason
al rIDCIo
provistos en
Iidejaomjso ste
CONFIDENTIAL SLONGORIA 000190
01208
RANCA Fldelcomlso No 194-2
AFIRM
El comitØ Tcxiico estarÆ ifltegxado
propietarog per -res- iniembros
con sue respectiveg Suplentes quienee son designados
en este acto por elFZDExcoMxrrrE de is sigiiiente Inaura
arLoe
uie Lonoria Trr
Lz
iZ lENDozA
En is toina de sue decisiones de acuerd las faculadee
se refiere la qua
presente el
olÆusula ComitØ Thcnjco deberi
todo en
memento respetar curaplir ice derechos de los
en tdznd.noe del presenta Fidejoomiso asimisxno
debar obserirar eti .o qua le corresponds lo establecido en las
c.iueulas octava novena dØciina de este Fidejconjso so
de ncurrjr en pena
responsabilidad persona
La deaignacj6n de miembroe del cpmit TØcnico an eate
rea.jza qua acto
FIbZICOMflENeE se egactua con base en lo
en todo Giguiervte
morne1to Conijtd Thnico debari estar
dos integrado per
xuienthros nus respective3 sup1efeg
FIDEXC0i4ZSARIQ correspojente
EN PRIMER UGAJ Shelby Luis Longoria
deslgndose en ICowaiski
coneacuencia Shelby Luis Longorja Kowaiski
su respectivo suplente Enriqueta Chaps Farlas de Longoria
su reepectivo supiente Asimiarno Comitd Thcnico deber
estar integrado por Un inienibro su respectivo
corraspondiente suplenta
FIEicoMIguIo Lusi Eduardo
Longorla Kowalskj designÆndoe en coneecuencia
Lorigoria Eduardo
rcowalskj su respective auplanta
En auserioja defjnjtjva inoapacjdad del FIXDMICOMXTENTE ice
FIDEICOMISARZOS EN PRIMER LUGAR en su caco sue respect3.vos
FIDEIOMISARIOB EN SZGUflO LUGAP podrÆn designar
cambiar revocar
lee miembros del Ccmit Tcnjco .e
de gus corresponda
acuerdo purito anterior medjante oojnuxljcado
escrito qua por
dirijan FXDucro en is qua se
nontbre haga consear el
firxns de los iutagrantea del ComitØ
la Ucnico ael Como
aceptacj6n del cargo gue Se lee confjera
El Comit Tdcnico sesionar VÆlidaxflote reunirse
de la mayoria
sun miembros propietarjos sue reepeotjvoa suplentea
deciejones ne tomar srÆ.n vdjdas inicamente de
Votes por mayor5
lit
CONFIDENTIAL SLONGORIA 000191
01209
Ffdelcomlso No 942
BANCA
AFIRME
El nombrainiaxito de los mlenthros del Conit Tcnico as de
carÆcter honorUioo por lo qua no tendr deracho parcibir
retrthuci6n alguna por en desempeo
En caso do ausencia incapacidad nuerte renuxioia do alguno
do los mieinbroa del ComibØ Tonico Øste serÆ sustituido par l.a
persona quo designe el IDEICOMIgAxzo EN PRXMER LGAR gue
corresponda
El Comit Tcnico deberÆ reunirse cada vaz quo so requiera do
dichas reuniones se deber levantar un acta en l.a que se
cansignen los acuerdos tomados Las reuniones del CoinitØ
Tcnico debern ser en l.a ciudad de Reynosa Taxnaulipas
pudiendo reunirse en otro lugar en Mxico en el extrsnj era si
aol lo acuerdan por mayorla
Las convocatorias las reuniorzes
para del CoxnitØ TØonico podn
ear realizadas por dualquiera de sue integrantes iuediarxte
carta con acuse do recibo telegrams resto los
dirigido cia
iuiembros propietarios auplentes del Comit6 TØcnido par
aorreo electr6nico dahiendo confirinar el receptor BU reoepci4n
cualquier otra forma acredite fehacientemeute los
cue qua
mienibros han sido notificados Con unaanticipacin de par lo
menos 5-cinoo dias naturaea l.a focha de l.a reuni6n
convocada adjuntando l.a ordan del cia qua sea objeto do l.a
reuni6n Las reuriiones del ComitØ Tcnico so ofectuar.n en l.a
feoha hora domieilio sefialado en l.a propia corxvocatozia En
caso do que cualquiera de los iiienbros del asista
ComitØ no
l.a reun6n por tal motivo no so toxnar decii6n
pueda una
resecto so llevar cabo una convocatoria
aegwida para
reuxiirae los tree dias hbiles siguientes en caso de
iriasistexioja so l1avar cabo ix1a terder convocatoria para
rounirse dia hÆbil siguiente En cualquiera de los casos
axiteriores so requerir de l.a mayorIa los miembros del Conit
Thcuico para l.a tona do decisiones
En el caso do encontrarse reunidos la mayozia do los miembros
propiatarios sue respectivos auplentes dcl ComitØ TØcnico
podrÆ seionar sue acuerdos ser.n vÆlidos sin necesidad de
convocatoria algu.na
10 El ComitØ T6cnico tendn la faaultades so en
que establece4\
este Contrato ncluive l.a do modificar dar par terminad el
21
CON FIDENTAL SLONGORIA 000192
01210
8ANC
\AFRME presents Fideicomiao facultades en sate acto el
qie
FIDEICO4ITENI le confiere expreaaente
.1.En cada reuni6n del Comit Thcnco un
podrÆ comparecer
representante del YXCIARIO quien participarÆ con voz pero
sin vote
12.E FIDUCIARIO quadarÆ libre de toda reaponsabilidad cuando
actteajustndoae las inatrucciones acuer1os adoptados por
el Comit TØcnico
l3E3 Comib TØcnico reunr cuando lo considers neoesario
mediante la convocatoria realizada de aouerdo los puntos
a.nteriores
14.En caso de que estuviere en operaciones Comit Ejecutivo El
ComitØ Tcnico se reuxiirÆ mensualmente dentro de los primeros
15 q.iince dias de cada mea revisar dicutir
para
inforine gue pmaentax si Comt6 Ejecutivo
ECIMA CUARTA POLTICAS EcLAS DE COMPORTN4IENTO PAM EL COMIT
TCL.TICO COMT Et7ECtJTIVO Los integrants del Comit TØcnico
del ComitØ Ejecutivo deberÆn actuar en odo memento totnando en
conaideraci6n que amboa PIDEICOMIsRIoB EN PRXMER LtIGAP en su
case sus respectivos IDEXCOMIBARIOS EN SEGUNDO rjtlGAR reciban en
todo memento trato juato eitativo entre ellos el
ya que
objetivo del presente instruinento es cada quien tenga derecho
que
sea titular de lo bienea fideicomjtjdoa en las proporcines
establecidas Por ta motive en case de alguna duda controversia
cualquier deeisi6n que tengan qile tomar se deber hacer tomando
en cuenta siempre en primer lugar bajo el citado principio de
equidad igualdad
Dc igual manera cualquier accin que tome el Coinit Tcnico
deber aer sieinpra en beneficio de los YZDEICONIa7RIOS
Los Comits mencionado podrÆn apoyarse en la opinin de expertos
asasores para l.a bourn de dciaiones
DECIMA QUINTh YRISDXCCIN LGISLACIN MEXICANA El preo4te
Fideiccmiio se establooe bajo l.a jurisdiccin de los
Unidos Mexicanos participando en ØJ ciudadans mexicanos re
CONFIDENTIAL SLONGORIA 000193
01211
Fldeicomlso No 194-2
BANCA
\AFRME
/\
biene ubicados dentro del terrjtojo nacional Per tal motivo el
presonte Fideicomiso el IICOMITEN los XDICOISARIOB so
someten excusivamente las leyes de lo las
Mexico per que
parte renuiwian .a
expresalnente aplicacin do cualquier Ley
reglamento disposicin norma do otra jurisdicci6n diferexite
la mexicana que pudiere correapoderje per motive de su
residericia paternidad ciudadanla domicilie parentesco
relacin comercial presente futura por le gue en case de
iziterpretacin doxltroversia cualguier relacionado con
aspecto
presente Fideicomiso so someten expresamente los tribnna.les
de la ciudad de Reynosa Tanaulipas Mexico
Do igual manera la emisin do cualquier Ley roglamento
disposiciones en rJuriadiccionea fuera de la Rep.blica Mexicana
cualqiiier acto realizado fuera del erritorIo nacional sea
ya por
el FIDEXCOMITNTE FXDZXCOZ4XSAEI0B cualquier persona
relacionada que tenga relacin con el Fjdeicomjsp mientbros
del Cornit TØcnico Comite mjecutivo que pretanda imponer
restricciones al
al
presente Fidoicomiso realizacj6rde
prabia
actos diveraos los finea ou imponer.a1a
estautajzado
control der ecem so per parte
del FInECoXITENTE DZCOMXSAioS del ComitØ TcUCOJ ii quo
pretenda imponer impuestos dereci-jos cargas trflutarias
diferentea las previstas en la Legislac.6n Mexicana iii que
pretenda exprepiar limitar confiacar embargar disponer
congolar do cualqtzier fomna afectar el patrimonlo del
Fideicomiso en base dipoicionee legales tanto federales
estatales muxiicipales fuera do la jurisdiccjn do la Repbliaa
Mexicana no es ni ser aplicab.e al presente Fideicomiso
debiendo en todo case aplicarse La urisdjecj6n legislacin de
la Replblica do las Bistados Unidos Mexicanoc an terminos del
pÆrrafo anterior
CIMA SEXTA MANIFPSTACI6N INITIvA LA VOLUNTD Tanto el
FIDZICOMITNT come los nEICOMISARI0S del Fideicomiso
presente
manifistan qua el presente contrato es la voluntad final
definitiva de la partes per lo quo estÆn conformea en todos sus
terthinos manifestando adems quo no existe error dab mala fe
cualquier vicio do la voluntad quo pudiere afectar su
entondimiente decisi6n al
respeato contenido del miamo
23
CONFIDENTIAL SLONGORIA 000194
01212
FIcIecomIso No 194-2
\\AFJRME
DCIM SPTMA MODIICACIONES DEL IDEICOMISO- El pesente
contrato podrd darse por terminado moclificarse nicainente previo
acuerdo instrucci6n del Comit T6cnico el IDt1C1O mediante
la ausoripcidn del convenjo correspondiente
DECIM7 OCTAVA CLAUSULA DE NO AFECTACION- Para todos los efectos
legales gue hubiere lugar en base l.a propia naturaleza del
preeente Fideicomiso ningn FXDZXCOMISAEIO .bsneficiario del
mierno tondrÆ derecho alguno sobre parte l.a totalidad del
patrimonio del presente Fideicomiso liasta en tanto so haya
MENDOZstriuido eJ patrimonio del Fideicomiso medjante su ejecuci6n
parcia total favor del PXDEICOMTSAR1O oorrespondiente En
UcoO97
ningdn caso riingn FXDEICOMISAEIO beneficiario del fidoicomiso
tendrÆ el derecho do transferir asignar gravar hipoteoar
afectar sue derechos interesee aui contenidos ya sean
presentes futuros do igual manera no serd el presente
Fideicomiso ni los interoses derechos do cua1uier
FIEICOMISAPXO beneficlarie aujeto reclainos demandas do
sue acreedores do lee acreedores del DEICOMITENTE ni serÆ.n
sujeto gravamen embargo ejecuci6n do riingn proceso de Ley
Tarto los ingresos gezierados como el patrixnoriio mismo del
Fideicomiao no podrn aer sujetos prerida embargo garantia
tranaferencia yenta do oualquier manra aer comprometidos
afeotados por cualquier FZDEIcIOXIBARIO beneficiario xii aer el
patrinonio iii cualguier ingreso derivado del presente Fideicomiso
manera afectado contratos
cxi cualquier eujeto pox actos deudas
cualguier otro acto do oualuier FIZCOMIBAF.IO berieficario
del FIDZICOMITE1T por cualquier reclaino de alirnentos
mauutencin de cualguier FIDEICOMXARXO beneficiario del
propo FIDEICOMITENTE derivado do cualquier acuerdo do
separaci6n ni son eujeto cualquior cesi6n otro acto
voluntario involuntario do diaposicin afectacin derivado de
un proceso legal previo l.a distribucidn del patrimonio do
Fideicomiso mediante l.a ejocuci6n do parcia total del
Fideicomiso favor del FIDEXCOMISARI0 correspondiente
FIDEICOMISARXO le
En los casos do ue algxi beneficianlo so
haya otorgado algn derecho bajo el amparo del presnte
Fideiconipo mientras tanto no se haya ejecutado el
parcialment
presente el mismo en su favor el FIDt7CIA1IO continrÆ
conaervando la propiedad deli patninionlo de dicho FXDEICOHX$JU
beneficiario ii
24
CONFIDENTIAL SLONGORIA 000195
01213
Fidelcomiso No 194-2
BANCA
iAFIRME
DCIMA NOVENA VALIxiEZ DE LO9 TOLOS DE PROPIEDAD El PIDUCARO
la de los bienes
adquiere propiedad derechos pie inegran el
patriinonio fideicomitido en base los titulos representativos de
las ACCIONEB gus en sets acto le sea entregados per el
FIDEICO4ZTENTE consecuentemente no ser responsable en forma
i\j9 algima xii frente los XEC0MISAJOS xii frente terceros
incluyendo aqiØllos en cuyo favor se liegue traxismitir parte
la totalidad del patrimonio fideicomitido per defectos vicios
del titulo de propiedad correspondiente las impugnaciones
por
qua $8 hicieran los derechos los misinos
gus amparen
ZDOZA responsabilidad cjue an todo case asulne el InEIcoMxTENrE
VIGSIMA .17PJJ4IENTO PAPA CAO VICCI6N El PXDEXCOMXTENT
as obliga al saneamiento para el caso de evioci6n en tdrminos da
lay respeoto los bienes derecthes gus hubiere aportado al
patrimonio de eats fideicomiso
Cuando WInUCIARIO en cuinplimiexito los nes da eats contrato
transmita parts la tobalidad del patrimonlo fideicoinitido el
__ FIDEICOI4ITENTE responderÆ al sansainiento para el caco de evicciOn
en tØrminos de ley facultando en eats atto al FIDUCIARIO para
obligarlo en dichos tirniinos ante las .perscrias fIsicas morales
quienes conforms site contrato se lee trasmita la
parts
totalidad del patrmozxio fideicomitido
VGSIA RIMERA RESPONSAILDAO DEL FIDUcIARIO Cuando el
FIDUCIARIO actde en
aumplirniento las instrucciones del Comt
Tcnico estarÆ libre de toda respoxisabilidad en los trminos de
.o dispuesto en el artIculo 80 ochexita de la Ley de
Institucionea de CrØdito
El FIDUCIAWLO no es responsable de hechos observancias
actos xii
omisiones de las partea contratantes de terceras .personas
autoridades anteriores posteriores esta fecha xii de actos
jurIdicos en los gus no haya intervenido direcstamente
interpretaciones de autoridades canthios en torrto la
legislaci6n vigente gus dificulten contrarlen impidan
sancionen eJ ouxnpliminto de sus funciones la valides cia1
presents Fideicomiso siendo cargo del FIDEZCOMXTZNTZ todas tas
consecuencias lega3.es do lo anterior no siendo respons4l.e
asimismo el FIDUCIARIO del destine final qua se le da
23
CONFIDENTIAL SLONGORIA 000196
01214
FdeicomSO No 154-2
material do los bienes
entregue ni la entrega
cantidades quo
de las
l.eva cabo en cujuplimiento
fideicomitido5 quo
el Comit TcflicO
tntruccion giradas por
en ningn evento
no responde con eu pa.trimonio
FzDcIARIO
relacionada con ci
do cualguier recjlainaci6n
sin excepcin
de Autoridades do terceros
presente ideicomiao proveniente
fidiCOTflitid0
ditima insta-ticia con cargo patrimoflO
aerd en
al El FIDUCTZO
manifestando las partes eli conformidad respecto
laa expresaifleflte pactadas
tiene su cargo mis obligaciones que
ZMENDOZAflb de las cuales no cpiedan
en la icy dentro
oNo.91 en eSte contra-to
fiecales laboralea do ningi.iria indole
incluidas las
si los darechoS
FIDUCIARXO no eati obligado eercer per
El
fideicomitidas s6lo estari obligada
las ACCTONES
inhexeritoS
do la las
resulten necesarios favor
expedir los po4eres ciue
asumir
al efecte le ndque el Comit TcnicO sin
personae quo
la tØrminos en quo
sponsabilidad aigwia per ci entido fozma
consecuencias do ha-her eercido
so voten la ACCIONES ni per lao
IDUCIMIO no rociba inatruociorios para
el vote Cuando ci
tØrminos do .ete pdrrafo quedari
los poderea en los
otorgar del
se derivara
do cualquier rosponeahilidad quo
liberada
del derecho do voto
inejercieio
ni responsabilidad do incidir
El FI1DtICLARIO no tendri obligaei6n
decisiones do
interrenir en las
verificar en foxina alguna
emisoras de las ACCXONE$
do las E.MPREBAS
administracirl
fideicomitidas
cuenbas al tenor del
Al ear requevida el 7XPrICXARIO rendir
do XntitUiOflO$ de
cuatrc do is Ley
artiaulo 84 ochanta
CrØdito
FXDEXCOMITENE El
DEL
VIGESIMA SEGtflDA
en su caso los FIDEICOMISARIOS EN P2ER IJUGAR
FIDEICOMITENTE
salvo reatituir
SE0UW0 LTICAR so obligan sacar en paz
en
esta iitiina hubiere erogado por
FIDt1CZARO las cantidades quo
iniciadas ci
extrajudicialea per
cQncepto
FIDEICOMITENTE
do acciones
yb
judiciales
per terceros en contra do ci IDRO qUO
fuxcionariOS con mot\vo
afectar FIDUCXAEXO sue
pudieren
contrato do fideiomiso
del presente
26
CONFIDENTIAL SLONGORIA 000197
01215
FidelcornisO No 194-2
AFIRME
FIDUCI7tIO El rIDIYCIARIO
VIBXMA TERCERA FACULThDES DEL
patrirnonio fideicomitido con las facultadea
adrninistrarÆ
391 trescientos rioventa
deberes qua etableCefl los artIculos
relativos de la General de Titulos Operaciones
uno demÆa Lay
demÆs do l.a Lay
do Crdd4.to 84 ochenta cuatro aLicableG
cia Tntitucione de Crddito
CtfRT ADTRI11O1t1P iI IQQ CUO
lCR reciba
requerimientos
alguna
de
notifioacin
alguna
de
autoridad
cualqjuier
en
demanda
general
judicial
aviso velacionado con patrixnonio del prasenta
cualguier
eacrito rIDBIICOMITENTE en su caso
contrato lo notif.car por
hbil de aqudl en
Comitd TdcilicO niÆs tardar cia siguiente
hubiare recthido la notificaciri correspondienta
gue
Comitd Tdcnico deberÆ instruir
El FIDEICONITENTE ansu caso
mÆs cia hÆbil de
escrito FIDtCIARXO tardar siguierite
por
notificacin se ref iere el
en que hubiere recibJ-do l.a qua
aqudl
data
pÆrrafo innediato anterior de l.a presente c1usula para qkie
los nacesarios la perstna persoxias quo
otorgue poderes
el DZCQMXTENTE el Cornitd
efecto hubiere desigrxado par
rdcnico efeoto de que so aboqueli uidado cortaervacidt
deferisa del patrirnonio este contrao
legal cia
sara de las gestiones del apoderado
El WIDUCXARIO rio responsable
aostas Ge derivexi de los
ni del pago de honorarios gastos quo
juicios roapectivos los cuales en todo caso sern con cargo
su caso el Comitd
patrimonio fideicomitido El Fl ICOHITENTE en
Tcnico inatruir FIDCZARZO para qua con cargo
podrÆ
se los honorarios gastos en
patrimoxiio fideicomitldo paguen
derivada del cuidado conservaci6n
general cualesquier expensa
defensa cia patrimonio de esta contrato
los pleitos cobianzas qua Be expidan par
En todos poderes para
los tdrminos del fideicomiso so deber
el IDUCIARIO en presente
anterior de la
transcribir el contextido del pxrafo inmediato
presente clÆusu.a
FIDUCIARIO El FIDUCIA1IO
VXGSIM QtINTA INFORNE DEL
an forina mensual YZDEICDITENTE cii si caso Comitd Tcnio
inforxne las operaciones rea.izadaa con patrirno
un respecto
fidaicomitido
27
CONFIDENTIAL SLONGORIA 000198
01216
FidelcorniSO No 194-2
TcniCO gozar da un
su aaao el Couitd
El FIEICOMITENTE en
de la fechÆ do
dIas iaturales contados partir
plazo de 15 qunCe
del citado inorme para realizar la obervaCi0ne9
ecpediciii
quedando
as aclaraoiones que juzgue pertinentea
solicitnZ
XCOITENTE no realica
on caso do qua el PX
eatablecido quo
dentro del plazc antes
aolioite aclaraciories
observaciofleS
ttcitalnente el infone
so entenderd quo ha aprobado
citado
correspondi0flt
El
.LZMENDOZrIGSIZfA SEXTA
conferido en el presente
renunciar al oargo
FDUCXRXO podrd
de un juez do prinera
causas graves juicio
contrato per
establece el
domicilic conorme lo
del lugar do su
instancia do
General de Titulos Opracicfl0a
391 de la Lay
articulo
Crdito
ustituir al
en ualqizier tiempe
Eli podrd
aviso Østa con yeiute dias bbiles do
un
IUCIARIO pasando
cabo dicba
fecha en so pretenda lievar
anticipaoin La quo
conducente par La
5utituci6fl eecto do qua prepare
sustituci6ri del XLUCXAXtIO podrd
do La misxna Dicha
formalizaciri
otras institicionoe nacionalea
con otra
realizarse
in legal par desetflpeflar
siempre quo tengall capaidad
extranjeras fiduciarLa
procederd La austitucidfl
el cargo 1i rIIUCIARIO
honoraries quo do
su satisfacc6n do Los gastos
previo page
esto coTitrato tenga derecho percibir
eonforuidad
estard facultada en
El FIDUCIARIO
VXGSIRA 5PTIMA NPtJESTQS
fideicoutitido los
cargar al patrirnonio
cualquier tiempo para
media do
quo so realicen por
quo graven Las operaciones
impuestos el
en riesg
fideicomiso do tal forma quo no se ponga
este
do las obligaciofles fiscales correspondientes
cumplimiento
fines de este contrato
en cumplimiento los
Eara case do quo
do las ACCXONES quo
La transmisi6ii total parcial
so roalice
estarÆ La
do este fideicomiso so
integran 01 patrimcnio
la legialacin fiscal aplicabie
dispuesto par
VIG5XMA OCTAV IQ lios gastos cue
do lea fines do ete contratO sedn
so originen en cumplimiento
fideicoTnitidO EL 1dIJ1IO crnrgard \al
con ctrgo al patrimonia
honorarias de tercercis quo hubi4ke
Udeiconhitido lea
patrinionio
el contrato
conforme La quo establece presente
contratado
CONFIDENTIAL SLONGORIA 000199
01217
No
ANCA
Fldelcomiso 194-2
AflRM
Sean r2ecesarios para ci cuidado conservaci6n deferisa del
patrimonio fideicomitido
VIGSIMA NOVENA DtTRACIN DEL PTDEICOMXSQ- La duraci6n de este
fideicemiso ser la necesaria para la realizaci6n de sus finŁsy
terminarÆ per ualquiera de los en ci articulo
supuestos previstos
392 treecientos noventa .y doe de la Lay Genera de TItulos
Operaciones cia CrØdito que seen compatibles con la naturaJ.ea
fines de este contrato con excepai.6n de la causal establecida en
la fracci6n VZ per no reservarse ci PIDEICOMITENTE en forrna
expresa ci derecho de revocar ci presents Fideiccrniso
TRI8XMA HONOARIOS DEL PIDUOIARIO El iDUCIJXO cobrarÆ
PIDEICOMTENTE per ci desexnpeio del cargo qua aqi.iI se le conflere
los siguientes honorarios
Por aceptaein del cargo estudio eia.boraci6n del cotrato
de fideicomiso la cantidad de $20000.00 veinte mu pesos 00/100
morieda nacional pagader6e per 1nica oaaai6n al memento de firma
dcl contrato de fideicemiso
Per administraain da fideicomiso cantidad mensuai cia
$5000.00 ciaco mu pesos 00/100 M.N pagaderos per trimestres
anticipados una vez ocurrido evento de fallecimiento del
ZDEXCOMITENTE los honorarios vigentes esa fecha por
administraci6n del fidejcomiao se incrementr.n en un 40s
cuarenta por ciento
Per firma de Convenios Modificatorios Contrato de
Fideicomiso la cantidad de $6000.00 seis mi pesos 00/100 M.N
pagaderos momento de firma del Convenlo correspondiente
ci Per otorgaxniento de poderes calebracin cia cualquier otro
acto xiecesario para la consecuai6n de los fines del fideicomiso
la cantidad cia $3000.00 tree mi pesos oo/ioo M.N pagaderos
momertto de firma dcl instruxnento correspondiente
Los honorarios antes mencionados causas ci Impuesto v4or
Agregado de acuerdo .a icy da la materia se ue.taÆn eni
mae de enero de ada aæo ide acuerdo al porcentaje de thf1ac3n
verificado en ci aflo anterior al ajuste determinado per ci Ban
de Mxico el organismo qua lo supla
CON FIDENTIAL SLONGORIA 000200
01218
Fideicomiso No 194-2
LAFRME
TRXGBIMA PRIERA DQ14ICILIOS Las aefIa.aæ como sus
partee
domisilios para cualguier aviso notjfjcacjOn en general para
lee efectos del presente fideicomiso los
v4 siguierites
El FIEXCOMITENE Oaxaca No 620 Cal Rodr1uez 88630
Rayncea Tamaulipas M6d.co
ip pxczzo Averiida Hidalgo ntiuezo 234 Poniento Zona Centro
LEZMENDOZA.Monterrey N.L CP 64000 MØico
No97
El COMIT TCNXCO Oaxaa No 620 Co RodrIguez 88630
Reyrioea Tamaulipas Mxico
CuaJ.quier oambio do domicilio deberg ser comunicado escrito al
per
FIDUCIARIO en la inteligencia do quo toda comunicacin est
quo
dirigida ditlino domicilio seflalado las surtirÆ todos
par partes
los efectos legalee
TRIGSIMA BEGu2WA ASPOS HON0RRIpS DERECHOS IMPtIEHTO8
Todos los gastos derechos
honorarios impuestos quo so causen
en cuinp.imiento do los fines do eSte fidisornjso 8erxx cargo
do FXExco1ITENTE
TRIGSIMA TERCEP MANIFESTACIªN DEFINITIVA DE LA VOLUNTAp- Taxito
FIDEIC0ITENTE como los FIEICoMI8Ios del presente
Fideicomiso maxiifiestan ue el pros onto contrato es la voluntad
final definitiva do las lo
partes par que estxx confozines en
todos sue tØx-minos manifestaxido adenÆa no
quo existe error dolo
n%a3a fe .o cualquier vicio do la vountad quo pudiere afectar su
entendinjento deaisin respecto contenido del mierno
TRIGSXMA CUARTA flqDIZACr6N El FDEIQOMTENTE los
FIDEICOMISARIOB EN PRIMER LUOAR so defender
obligan
solidaziwnante sacaz en paz salvo al FIDtICIARIO ael coma
sue consejeros delogados fiduciarios funcionario emploados
apoderados asesores de toda cualquier responsabilidad daflo
obligaci6ri demanda sentencia transacci6n requarimionto gae.os
y/o costae do cua.quier naturaleza ncluyendo los houcrariede
a.bogados que directa irxdirectazntxnte so hagan valor contra no
CONFIDENTIAL SLONGORIA 000201
01219
SA Fldelcomlso No 194-2
\JLIAAFJRME
resultado de impuesta sabre incurda por con xnotivo
consecuencia da coma
actos realizados par el
onplinjanto do para eJ
lea fines consignados en este
fideicomlso ontrato de
defensa del patrjinonjo
fideioomj4do por
reclamaciones multas penaa cualquer otro adeudo de
naturaleza en cua.quier
rolacjn con patrimonjo fidej.coinjtjdo con este
coritrat de fideicorniso ya sea ante autoridadea
Judicialos tribuales adminjstravas
arbitrales ciua.quier otra
barito de carcter local instancia
fedal aol como de la
Mexicana Rep.blica
extranj eras
En el caso qua so genera cualguier situaoj8 de hacho acto do
autorjdad Sonsecuenoja de lndoj.e
legal qua produzea
responsabjlidadas pecunjarias sobre el Fidelaomiao
patrjrnonjo yb ci
del iduaiazjo qua hubieren sido
omisiones genarados por actos
de las partes do eSte oontrato de
PZDcIIO en culnpl.jnjento do ba
fidejcoznjso por el
fines del pr050ute contrato
per tercerea incluyedo erogaciones relacionadas con los actos
conceptos quo so mencionaji el p.rrafo
do anterior a-i
pago derivado
dicIas responaabjljdades pecimiarias correr
del aoljdarjaje
cargo FnE.ICONITE1
PRIMER LUQAR compronetjndooe
en an caso do zcoJg
responder il.jmjtadanae con su
proplo patrimonjo do pago quo so hubieto efecbuado
efectuar vaya
ci
IDUCIZO renurxcjando Gflefjjos do orden
ecciuajn quo pudiraxi corresponderles
ci rixco en ecte acto
conforme
autorjza
la
FIDUCIARIO
ley
para que do lan cant idades
quo integre el
de1comjj realice las
patrimonic
abl.igaojones do
apljcacjoues ara aunplir las
pago derivadao do obl acion pecunjarias
le hbjer impuegt derivadas do
quo so
ion conceptos
en el quo so menclonan
contenido do los dos p.rrafos de esta
inteligencia de clÆusula en Ia
qua dichaa aplicaciones
oar equiparadas
por ningn motivo podrÆri
asimiladas boa honoraries
Sc eotal en ante coritrato
del Fiduojarlo qua
La sola aceptaoi6n tÆcita
expresa do los derechos do
lIDEICOMISARXO implicar l.a aceptacj.n dc lan
en esta obligaajoues que
clusula so oStablecen para las partes
Qt1INT I1I8DICcT. Xara la
CUaLp.jmjento interpretacidu
ejecuojn dcl presente las
someton
contrato partes se
expresamente lea tribuzzalea
competentes do l.a ciudad do
Reioaa Tamau1jpa renunojando aualqujer otra jurisdjcc6n
2c
32
CONFIDENTIAL SLONGORIA 000202
01220
No
BANC\ Fldelcomrso 194-2
AFIRME
fuera competenoja gte pudiera correspondej.1ea en razxi de su
doutcilo preeeæte futuro
fizma el prasente instrijinento en res tantoa en original
eJ dSa de 15 gtince
hay de octu.bre del 2002 dos mu dos ante
in presencia de dos testigos en 1a.ojudad de Nuevo Laredo
Tamaulipaa
Z1YARiO LOG0PIA THERIO
ZXCOMITENTE
PZDUCIARIA
BANCA APXRZ4Z a.A
XNSTITUcIN DE BANCA MLTXPL
AFIRNE GRUPO INANCXERo
Ziviai6n iduoiarja
Rapresentada pc
LIC AX JORGE LOZANO LOZARO LIC MkR1L2t BArRxz GARZA
DELEGADO PIDTICIARIo
LOGQR
EXIEGADO
41
MARTA MOTELONO GA1ZA PEDRO RAMREZ DE ALSA ALDAPE
32
CONFIDENTIAL SLONGORIA 000203
01221
EXHIBIT 3A
01222
Trust No 194-2
Banca Afirme
IRREVOCABLE TRUST AGREEMENT FOR ASSET MANAGEMENT ENTERED
INTO BY MR EDUARDO LONGORIA THERIOT ACTiNG AS TRUSTOR
HEREiNAFTER REFERRED TO AS THE TRUSTOR AND BANCA AFIRME
FULL-SERVICE BANKiNG INSTITUTION AFIRME FiNANCIAL GROUP
FIDUCIARY DIVISION ACTING AS TRUSTEE HEREINAFTER REFERRED TO AS
THE TRUSTEE AND REPRESENTED BY ITS FIDUCIARY DELEGATES LIC
ADRIAN JORGE LOZANO LOZANO AND LIC MARTHA BEATRIZ GARZA
LONGORIA THIS LEGAL ACT IS SUBJECT TO THE FOLLOWING
REPRESENTATIONS AND CLAUSES
REPRESENTATIONS
Mr Eduardo Longoria Theriot acting in his capacity of TRUSTOR represents that
He is an individual of Mexican nationality and with legal capacity to enter into this
agreement
He married to Ms Dorothy Kowalski de Longoria with whom he entered into
matrimony in the city of Nuevo Laredo Tamaulipas under separate property system
During his marriage to his wife he fathered four children Adriana Eduardo Silvia and
Shelby Luis all surnamed Longoria Kowalski They are their only descendants
He is the legitimate owner of the SHARES described hereinafter issued by the
companies also described hereinafter hereinafter collectively referred to as the SHARES
SHARES
Issuing entity SERIES SERIES TOTAL
VØrtice Empresarial de 50 684 734
C.V
Inmuebles Terrenos 49.000 4.375.350 4.424.350
deC.V
For purposes of this agreement the companies that issued the SHARES will be referred to
interchangeably as the COMPANIES
He has in his possession the certificates of the SHARES mentioned above which are free
of liens and encumbrances
01223
Trust No 194-2
Banca Afirme
It is his will to place all SHARES in trust so that the TRUSTEE pursuant to the terms of
this agreement may hold them in fiduciary ownership and use them in accordance with the
stipulations of this agreement
The TRUSTEE has unequivocally explained to him the value and legal consequences of
the legal provision included in item of section XLX nineteen in Roman numbers of
article 106 one hundred and six of the Credit Instimtions Act as well as the scope and
content of this agreement
II The TRUSTEE through its
Fiduciary Delegates represents that
They represent legally established company formed in accordance with Mexican laws
which is
duly authorized to enter into fiduciary transactions
It to act as fiduciary institution under the terms of this agreement
agrees
They are the Fiduciary Delegates of Banca Afirme Full-Service Banking
Institution Afirme Financial Group Fiduciary Division and they have sufficient authority
to sign this agreement which has not been revoked nor modified in any way
Pursuant to the provisions of item of section XIX nineteen in Roman numbers of
article 106 one hundred and six of the Credit Institutions Law the other parties have been
provided with an unequivocal explanation of the value and legal consequences of that
section which states
Article 106 Credit Institutions may not
XIX..
Respond on behalf of trustors principals or consignors for breach by debtors for the
credits granted or for the issuers for the acquired values unless as result of wrongful
acts pursuant to the provisions of the final part of article 356 now 391 of the Securities
and Credit Transactions Law or guarantee receipt of revenue on the invested funds
established
If upon termination of the trust mandate or commission for granting credits
these have not been liquidated by the debtors the institution will be required to transfer
them to the trustor or trustee as appropriate or to the principal or consignor refraining
from covering the amount
the provisions of the previous two paragraphs will be null and
Any agreement contrary
void
In mandate or commission the above paragraphs of this section will be
trust agreements
with statement the trustee that he or she has
clearly inserted together by stating
01224
Trust No 194-2
Banca Afirme
unequivocally communicated its content to the person from whom he or she received assets
to invest
After reviewing the aboye provisions the parties acknowledge that they are aware of the
previous representations and hold all of them to be true Therefore it is their will to enter
into this trust agreement pursuant to the following
CLAUSES
CREATION OF THE TRUST Mr Eduardo Longoria Theriot in his capacity of
TRUSTOR hereby transfers in trust to the TRUSTEE the ownership of the SHARES listed
in item of Representation of this agreement
The TRUSTOR hereby physically gives the TRUSTEE the certificates of the SHARES
held in trust duly endorsed in favor of the TRUSTEE
According to the terms of article 129 of the Law of Business Corporations the TRUSTOR
to notify the Sole Director or the Secretary of the Board of Directors as appropriate
agrees
of the issuing COMPANIES regarding the transfer of SHARES to the Trust agreement
described herein in order to carry out the corresponding inscription in the Stock Ledger of
such COMPANIES sending the TRUSTEE the corresponding certificate within 30 thirty
business days from the date of execution of this agreement If the certification is not
received from the Secretary of the Board the TRUSTEE may request it directly
At this time the TRUSTEE receives the certificates covering the SI-IARES duly endorsed
without assuming for the authenticity and legitimacy of such certificates or for
any liability
any defect they may have Consequently the TRUSTOR is liable for the authenticity of the
certificates and for the corresponding remedies in the case of dispossession Moreover the
TRUSTEE hereby grants to the TRUSTOR the broadest receipt allowed by law
The TRUSTEE hereby acknowledges acceptance of its position and agrees
that it will
faithfully and diligently perform its duties in accordance with the law
PARTIES TO THE TRUST.- The parties to this Trust Agreement are the following
TRUSTOR Mr Eduardo Longoria Theriot
TRUSTEE Banca Afirme Full-Service Banking Institution
Afirme Financial Group Fiduciary Division
Designation of BENEFICIARIES The TRUSTOR hereby names the following persons as
PRIMARY BENEFICIARIES or alternates in the event of their death
PRIMARY BENEFICIARIES Eduardo and Shelby Luis both surnamed Longoria
Kowalski in the following proportions Shelby
01225
Trust No 194-2
BancaAfirme
Luis Longoria Kowaiski with 60% sixty percent of
the beneficiary derived from Trust and
rights this ii
Eduardo Longoria Kowaiski with 40% forty percent
of the beneficiary rights derived from this Trust
Likewise if any of the PRIMARY BENEFICIARIES die at the time of or before receiving
the benefits derived from this Agreement the TRUSTOR appoints the following
persons as
SECONDARY BENEFICIARIES
SECONDARY BENEFICIARIES In the event of the death of either of the above the
children and spouses as applicable of the PRIMARY
BENEFICIARIES whose names are specified in
Clause Five items and Clause Six and Clause
Seven
For purposes of this agreement Beneficiaries shall be referred to as BENEFICIARIES
when referring to all beneficiaries in general in specific cases each beneficiary shall be
named individually
The TRUSTEE will keep an accounting record to accredit all PRIMARY
BENEFICIARIES as beneficiaries of the Trust assets in the proportion corresponding to
each beneficiary as specified in this clause sub-account will be opened for each party
The accounting record of SECONDARY BENEFICIARIES will be recorded in the sub-
account corresponding to each of them
TRUST ASSETS The following items constitute the material object of this agreement
All SHARES described in item of Representation of this agreement
All future SHARES that may be added to the trust assets because they are purchased
because new SHARES have been issued or because of the exercise of ownership rights
derived from the same SHARES also all certificates received under the terms of merger
demerger or transformation of any of the issuing entities that make up the patrimony of this
agreement and all SHARES purchased by the TRUSTOR representing the capital stock of
other companies if and when those issuing entities are Mexican companies
Any other type of security or credit deed or company shares or properties that for any
reason are added to the TRUST to be covered by this agreement In such case under no
circumstance shall the current assets be modified since the assets must always consist of
securities traded on the Mexican stock exchange
All dividends paid in cash in SHARES or in other personal or real properties from the
contributed SHARES will also be incorporated into the trust assets
01226
Trust No 194-2
Banca Afirme
All obtained from
profits investments made by the TRUSTEE using cash resources
included in the Trust assets
Any additional contribution that the TRUSTOR may make in the future either in cash in
kind or in rights
Any other contribution in cash in kind or in rights acquired by the Trust to achieve its
stated purposes
OBJECT OF THE TRUST.-.- This of
object this Trust is to guarantee that the TRUSTEE
will hold the ownership of all its SHARES under the terms of this so
agreement that
subsequently upon the death of the TRUSTOR these SHARES may be inherited by the
BENEFICIARIES under the terms and conditions set forth in this agreement
PURPOSES OF THE TRUST The purposes of this Trust agreement include the
following
Guarantee that the TRUSTEE receives and holds ownership of all SHARES incorporated
into this trust
Guarantee that the TRUSTEE invests all cash resources incorporated into the trust assets
according to the stipulations of Clause Thirteen of this
agreement
Guarantee that the TRUSTEE exercises all
corporate and ownership rights corresponding
to the SHARES including but not limited to the following right to vote to receive
capitalized shares or dividends subscribe and
to shares to pay receive new shares in
exercise of of first refusal receive or
rights to total partial reimbursement for such shares
and to collect dividends cash others In
in among all cases the written instructions received
by the Technical Committee should be followed
To exercise and
corporate ownership rights of these SHARES the following provisions
must be complied with
The TRUSTEE will grant powers of attorney to all persons appointed by the Technical
Committee so they exert mentioned above
may all rights If no instructions are provided
the TRUSTEE will have the right to ask the Technical Committee to these
provide
instructions to exercise and
all
corporate ownership rights related to the SHARES always
acting with all reasonable care and diligence to protect the trust assets in all situations
If the capital stock of the issuing of trust SHARES the TRUSTEE
entity increases will
execute the corresponding subscription once sufficient funds are contributed for that
purpose If sufficient resources are available in the trust assets the TRUSTOR or the
Technical Committee shall inform the TRUSTEE that the subscription of the corresponding
increased capital shall be covered using trust assets
01227
Trust No 194-2
Banca Afirme
Likewise it is hereby agreed that all partial or total reimbursements of SHARES as well as
dividend payments in cash or in kind that issuing entities of SHARES decree will increase
the trust assets which will then be used for the of the trust as stated herein
purposes
If the TRUSTEE based on the written instructions of the Technical Committee conveys
offers as collateral encumbers or transfers by any means allowed by the Law all or part of
the SHARES to another party appointed by the Technical Committee the consideration
from such transfer will be received by the TRUSTOR or when appropriate by the
BENEFICIARIES It is
expressly agreed that the Technical Committee will be exclusively
authorized to establish the conditions for the conveyance and that detailed written report
in that regard will be sent to the TRUSTEE
Before the conveyance is formalized the Technical Committee shall also veri1 that the
conveyance of the SHARES complies with all corporate regulations and the rights of other
shareholders as stated in the regulations of the issuing entity and the Law and shall accredit
compliance to the TRUSTEE upon request
If SHARES are sold under the terms mentioned above the TRUSTOR must comply with
all corresponding tax obligations If the TRUSTOR dies this obligation must be complied
with by the parties responsible to comply with those obligations under applicable law
Based on the instructions received from the Technical Committee the TRUSTEE will
transfer the amount of money it is instructed to transfer by the TRUSTOR or the
BENEFICIARIES if sufficient funds are available in the trust for that
purpose
If the TRUSTOR dies this will be accredited to the TRUSTEE through submission of the
corresponding death certificate so that this trust may remain valid The right of
BENEFICIARIES to receive benefits will remain subordinated until the Technical
Committee asks the TRUSTEE to deliver to the BENEFICIARIES all existing resources
from the trust assets and trust SHARES in the proportions stated for each party in Clause
Two at which time the trust will be terminated
Until such time as the BENEFICIARIES receive the trust SHARES or until the existing
resources in the trust or the proceeds from the sale of the SHARES are distributed as
applicable in each case this Trust shall continue to be valid and the TRUSTEE shall
exercise the corporate and asset rights corresponding to the SHARES pursuant to the
instructions of the Technical Committee
In the event of the death of Beneficiary Eduardo Longoria Kowalski the rights
corresponding in this Trust shall be transferred to the four SECONDARY
named Michelle Bernardo and Eduardo surnamed
BENEFICIARIES Alejandra all
01228
Trust No 194-2
Banca Afirnie
Longoria Hernandez and Sofia Longoria Zygmont in the proportions and under the terms
and conditions described in clause Seven
in the event of the death of the SECONDARY BENEFICIARIES Bernardo and Eduardo
Longoria Hernandez or Sofia Longoria Zygmont mentioned in the previous section at any
time during the validity of this Trust the share that corresponded to them shall be
distributed among the other surviving SECONDARY BENEFICIARIES to which the
section refers thereby increasing their share in this Trust In the event of the death
previous
of Alejandra Michell Longoria Hernandez at any time during the term of this Trust the
share that corresponded to her shall be distributed in equal parts to her children Alfonso
Than and Alejandro Diego both surnamed Arguindegui Longoria
In the event of the death of the Beneficiary Shelby Luis Longoria Kowaiski the rights
corresponding to this trust shall be transferred to the four SECONDARY
BENEFICIARIES named Enriqueta Chapa de Longoria Shelby Sarah Louise and Adriana
Dorothy all surnamed Longoria Chapa in equal parts under the terms and conditions
described in clause Six
In the event of the death of any of the four SECONDARY BENEFICIARIES named
in the previous section at any time during the term of this Trust the shares that
corresponded to them shall be distributed to the surviving SECONDARY
BENEFICIARIES increasing their share in this Trust
thereby
SIXTH SPECIAL PROVISIONS IN THE EVENT OF THE DEATH OF SHELBY LUIS
LONGORIA KOWALSKI In the event of the death of Mr Shelby Luis Longoria
of of this clause will
Kowaiski at any time during the term this trust the stipulations apply
SECONDARY BENEFICIARIES.- As established in clause Two the
SECONDARY BENEFICIARIES named in the event of the death of the
PRIMARY BENEFICIARY Shelby Luis Longoria Kowalski will be his wife
Enriqueta Chapa Farias de Longoria and his children Adriana Sarah and Shelby all
surnamed Longoria Chapa in equal parts
01229
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In the event of the death of any of the SECONDARY BENEFICIARIES at any time
during the term of this Trust the share that corresponded to him her shall be
distributed to the surviving SECONDARY BENEFICIARIES thereby increasing
their share in this Trust
Minor SECONDARY BENEFICIARIES shall be represented by their legal
guardians or representatives appointed pursuant to the applicable civil provisions
SEVENTH SPECIAL PROVISIONS IN THE EVENT OF THE DEATH OF EDUARDO
LONGORIA KOWALSKI In the event of the death of Mr Eduardo Longoria Kowalski at
any time during the term of this trust the stipulations of this clause will apply
SECONDARY BENEFICIARIES.- As established in clause Two the
SECONDARY BENEFICIARIES named in the event of the death of the
PRIMARY BENEFICIARY Eduardo Longoria Kowalski will be his four
children Eduardo Alejandra Bernardo all surnamed Longoria Hernandez and
Sophia Longoria Zygmont in the following proportions
SECONDARY BENEFICIARY PERCENTAGES
EDUARDO LONGORIA HERNANDEZ 37.5%
BERNARDO LONGORIA HERNANDEZ 7.5%
ALEJANDRA LONGORIA HERNANDEZ 12.5%
SOPHIA LONGORTA ZYGMONT 12.5%
Total 100%
In the event of the death of the abovementioned SECONDARY BENEFICIARIES
Bernardo and Eduardo Longoria Hernandez or Sophia Longoria Zygmont at any
time during the term of this Trust the share that corresponded to him her shall be
distributed to all other surviving SECONDARY BENEFICIARIES thereby
increasing their share in this Trust In the event of the death of Alejandra Michelle
Hernandez at time during the term of this Trust the share that
Longoria any
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Trust No 194-2
Banca Afirme
corresponded to her shall be distributed in equal parts to her children Alfonso Illan
and Alejandro Diego both surnamed Arguindegui Longoria
SPECIAL PROVISIONS FOR THE SECONDARY BENEFICIARIES From this
time forward the SECONDARY BENEFICIARIES to which the previous section
refers are designated in the percentages indicated however the SECONDARY
BENEFICIARIES Eduardo and Bernardo Longoria Hernandez shall have the option
of deciding upon the disposition of the 25% twenty five percent that would
correspond to Alejandra Michelle Longoria Hernandez and Sophia Longoria
Zygmont in their capacity as SECONDARY BENEFICIARIES against the delivery
in cash of said 25% in their favor pursuant to the value of the COMPANIES
cakulated in accordance with the stipulations of clause Eleven Said option shall be
exercised in the following manner
The option of the SECONDARY BENEFICIARIES Eduardo and Bernardo
Longoria Kowalski to receive from this Trust the 25% twenty five percent that
would correspond to Alejandra Michelle Longoria Hernandez and Sophia
and exercise it
Longoria Zygmont is granted automatically they may only
within the first calendar after the death of Eduardo Longoria Kowalski If
year
do not wish to exercise this right they shall give written notice of their
they
intent both to the TRUSTEE as well as to Alejandra Michelle Longoria
Hernandez and Longoria Zygmont in which case they will have the
Sophia
right to their 25% twenty five percent of the SHARES this shall also occur if
notice of their intent to not exercise the option as well as if they do
they give
not exercise the option within the abovementioned term
The calculation of the value of the 25% twenty five percent that corresponds to
Michelle Longoria Hernandez and Sophia Longoria Zygmont shall be
Alejandra
performed on the date of the death of the PRIMARY BENEFICIARY Eduardo
Kowalski pursuant to the valuation procedure established in clause
Longoria
Eleven
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Once the value of the 25% twenty five percent has been calculated in
accordance with the previous section Eduardo and Bernardo Longoria Kowaiski
will deliver said amount to Alejandra Michelle Longoria Hernandez and Sophia
Longoria Zygmont within term of ten 10 years with an interest of seven
percent annually in United States dollars
The first payment shall be made not later than the first anniversary of the death
of the PRIMARY BENEFICIARY Eduardo Longoria Kowalski and so on
successively each year until the amount established is
totally covered within the
10 ten year term
As each payment is made the corresponding SHARES in favor of Eduardo and
Bernardo Longoria Hernandez shall be understood to have been released in
equal parts
As long as the deliveries in favor of Alejandra Michelle Longoria Hernandez
and Sophia Flernandez Zygmont are being complied with under the terms
indicated in the previous sections the exercise of the equity and corporate rights
of the SHARES corresponding to this 25% shall be exercised completely by
Eduardo and Bernardo Longoria Hernandez in equal parts in their capacity as
SECONDARY BENEFICIARIES In case of nonpayment of more than two
consecutive payments to Alejandra Michelle Longoria Hernandez and Sophia
Longoria Zygmont they shall be entitled to the remainder of the unpaid shares
and therefore exercise their and derived from said
may equity corporate rights
SHARES under the terms provided by this contract
The obligation to notify the TRUSTEE of the exercise of the option established
in the previous number is expressly established or else the decision to not
point
exercise that well as the of any of the payments Eduardo and
option as nonpayment
Bernardo Longoria Hernandez are obligated to make or else full compliance with
the payment obligation so that the TRUSTEE may be able to reallocate the rights of
the Beneficiary pursuant to the provisions of this paragraph Unless the interested
01232
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Banca Afirme
parties expressly agree otherwise and if for any reason the option is not exercised
within the first calendar after the death of Eduardo Longoria Kowalski the
year
option will be considered to have not been exercised and the TRUSTEE will
definitely allocate to Alejandra Michelle Longoria HernÆndez and Sophia Longoria
Zygmont the percentage of participation in the Trust rights that has been agreed in
item one of this same clause
OBLIGATIONS OF SECONDARY BENEFICIARIES.- Only if SECONDARY
BENEFICIARIES Eduardo and Bernardo Longoria HernÆndez do not exercise the option
of receiving 25% twenty-five percent of the SHARES of Alejandra Michelle Longoria
HemÆndez and Sophia Longoria Zygmont which should be reported to the TRUSTEE the
SECONDARY BENEFICIARIES should directly and without the intervention of the
TRUSTEE deliver the amount of US$ 100000.00 one hundred thousand US dollars to
Sophia Longoria Zygmont so that she may receive her university education This sum will
be delivered to her mother Colette Zygmont who will be responsible to administer the
funds for the benefit of Sophia Longoria Zygmont
With the authorization of the Technical Committee and charged to the net Trust
express
assets the TRUSTEE after being notified of the non-exercise of the option by
SECONDARY BENEFICIARIES or if the option has been considered non-exercised
because the deadline for exercising the option has expired the TRUSTEE may deliver the
amount of money mentioned above in the manner and under the terms agreed in the
previous paragraph without being liable for the actual use of the funds The TRUSTEE
assumes no liability for the impossibility of complying with this purpose if there are
insufficient liquid assets to cover the amount in such case partial payment may be made
ADMiNISTRATION OF COMPANIES.- The SHARES that are incorporated into the
Trust assets correspond to COMPANIES that are operating various commercial and real
estate ventures either directly or through subsidiaries To date the administration of such
businesses has been the responsibility of Shelby Luis Longoria Kowalski who will
continue to perform those duties during the term of this Trust or under the terms and
conditions agreed upon in shareholders meetings In that regard Shelby Luis Longoria
Kowalski will serve as Sole Director or Chairman of the Board of the COMPANIES and
their subsidiaries
In the event of the death or incapacity of either of the PRIMARY BENEFICIARIES
Eduardo or Shelby Luis Longoria Kowaiski the administration of the COMPANIES and
their subsidiaries will become the responsibility of an Executive Committee under the terms
of the following clause This Committee will perform its duties provisionally until the
definitive administration of the COMPANIES and their subsidiaries is determined or until
Nine and Ten
the separation of the shareholders occurs under the terms of clauses
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Banca Afirme
In the event of the death or incapacity of Eduardo or Shelby Luis Longoria Kowaiski the
Technical Committee will take the necessary measures required to immediately call
meeting of the shareholders of the COMPANIES and their subsidiaries whose shares are
the subject matter of this Trust in order to form the Executive Committee referred to in the
necessary grant them
following clause and if sufficient authority to perform their duties
The death of Eduardo or Shelby Luis Longoria Kowalski will be accredited by the
death certificate In the case of incapacity this will be determined by the
corresponding
Technical Committee with the unanimous vote of the members based on the written
of three private confirming the incapacity These three physicians will
opinion physicians
be chosen by the Technical Committee itself without the participation of or liability
attributable to the TRUSTEE whose only obligation will be to receive the written
notification from the Technical Committee reporting the incapacity When the TRUSTEE
acts in accordance with the instructions of the Technical Committee it will incur no
liability pursuant to the provisions of article 80 of the Credit Institutions Law
ADMINISTRATION OF COMPANIES THROUGH AN EXECUTIVE COMMITTEE
In the event of the death or incapacity of Eduardo or Shelby Luis Longoria Kowalski the
administration of the COMPANIES will become the responsibility of an Executive
Committee pursuant to the following
The Executive Committee will be composed of six members with their
alternates Each member of the Executive Committee will be responsible
respective
for one of the business areas of the group of COMPANIES The TRUSTOR hereby
appoints the following persons as members of the Executive Committee
Member Alternate Business Area
Eduardo .Longoria Kowalski Eduardo Longoria General Directorate
HernÆndez
Shelby Luis Longoria Enriqueta Chapa de General Directorate
Kowaiski Longoria
Rafael de Jesis Marta Montelongo Real Estate
Carbalal Galindo Garza
Saul Garza Molina NØstor Sanchez Automotive
Edilio Luis Marco Antonio Industrial
Madrigal
Cepeda Torres Garza
RaUl Jesus Ramfrez Hugo Jimnez Restaurants
Vela VÆzguez
of Eduardo the Chairman
In the event of the death or incapacity Longoria Kowalski
Committee will be Shelby Luis Longoria Kowalski In the event of
of the Executive
01234
Trust No 194-2
Banca Afirme
the death or incapacity of Shelby Luis the Chairman
Longoria Kowaiski of the
Executive Committee will be Eduardo Longoria Kowaiski
In the event of the resignation incapacity or death of the chairman appointed under
the terms of the previous paragraph the corresponding alternate will serve in that
capacity
ii The Chairman of the Executive Committee will cast the deciding vote in the
event of tie
iii The Executive Committee will be responsible for the operations of the
COMPANIES and their subsidiaries and will be required to render accounts to the
Technical Committee of this Trust
iv The Executive Committee shall only perform administration acts without the
authority to convey property assets or rights of the COMPANIES or their
subsidiaries unless the Technical Committee indicates otherwise
The Executive Committee shall continue the normal of the
operations
COMPANIES and their subsidiaries in the same way they were operated previously
always ensuring that COMPANIES are not at risk and that they are operating in
compliance with the legal provisions applicable in each case
vi The Executive Committee will meet every Monday in order to make decisions
together regarding each issue Each member responsible for business area will
present the work plan for that week which should be approved by the rest of the
members of the Executive Committee Minutes will be prepared of each meeting to
be signed by all attendees BENEFICIARIES or their attend
representatives may
each meeting of the Executive Committee and they will be entitled to offer their
opinions but not to vote
vii The Executive Committee will submit monthly report to the Technical
Committee about the operations of the COMPANIES and their subsidiaries
attaching the minutes of each meeting Such will be
report presented during
meeting called for that purpose within the first 15 fifteen- days of each month
BENEFICIARIES or their representatives may attend each meeting and they will
be entitled to offer their opinions but not to vote
viii The report referred to in the previous paragraph shall include at least an
itemization of the income and expenditures of all COMPANIES and their
subsidiaries balance sheet profit and loss statement statement of changes in
financial position and cash flow statement
01235
Trust No 194-2
3anca Afirme
on external advisors decisions
ix The Executive Committee may rely in making
such external advisors attend meetings if the Committee believes it
Similarly may
is appropriate for them to do so
The Executive Committee may freely remove the members of the Executive
if considers according to the stipulations of Clause
Committee it it
necessary
Thirteen
Likewise if the Committee believes it is necessary it
may appoint an external
auditor to audit the COMPANIES
The parties to this agreement expressly establish and agree that the TRUSTEE acquires the
ownership of the SHARES which are the subject of this Trust and will only be bound to
the inherent
grant the powers of attorney that may be required in order to exercise rights to
the the Technical Committee designates for that
the same to person or persons that
Committee
purpose as well as complying with the instructions that in its case the Technical
issues and that reason the parties expressly and with no reservation
in that regard for
whatsoever from this moment release the TRUSTEE from any responsibility or liability to
exercise on his own the corporate rights inherent to the SI-IARES as well as the form
which the to and exercise voting
manner and terms in agent that is
appointed represent
rights corresponding to the SHARES in meetings of shareholders as well as in the case that
the terms and conditions that the TRUSTOR establishes in this clause as well as in clause
Eight and Ten of this Trust were not fully or partially complied with
The established in clause Eight as well as in this clause are established by the
guidelines
TRUSTOR and will be strictly complied with by the members of the Technical Committee
without any intervention responsibility or liability whatsoever for the TRUSTEE with the
understanding that the agreement established herein shall also be complied with by the
BENEFICIARIES at the appropriate time
TEN SEPARATION OF THE SHAREHOLDERS Upon the death or incapacity of any of
the PRIMARY BENEFICIARIES the surviving PRIMARY BENEFICIARY along with
have the to
the SECONDARY BENEFICIARIES or their representatives shall option
of the COMPANIES or to each one of them remaining with
remain shareholders separate
01236
Trust No 194-2
Banca Afirme
different COMPANIES based on their value calculated pursuant to clause Eleven below
The separation agreement shall be carried out pursuant to the following
For purposes of the separation two groups are considered one per each family
of the PRIMARY BENEFICIARIES
ii In the event of the death of Shelby Luis Longoria Kowalski and provided that
the SECONDARY BENEFICIARIES designated to assume his place wife and
children are not involved in the administration of the businesses in operation or
do not have the experience required to manage those businesses for purposes of
this clause the SECONDARY BENEFICIARIES of Shelby Luis Longoria
Kowalski shall have the right of first refusal to receive the real estate businesses
during the separation process
In all the will seek to conduct the separation based on principles of
iii cases parties
fairness and equality regarding the value of the COMPANIES The value of the
companies shall be calculated using the described in the following
process
clause
The guidelines established in this clause are provided by the TRUSTOR to be complied
with exclusively by the members of the Technical Committee without the intervention
responsibility or liability whatsoever for the TRUSTEE with the understanding that the
agreement established herein shall also be complied with by the BENEFICIARIES at
the appropriate time
ELEVEN VALUATION OF THE COMPANIES For purposes of determining the
value of the COMPANIES and their subsidiaries these shall be appraised by two
external appraisal experts who are independent of the parties that the Technical
Committee determines and chooses for that purpose The experts shall appraise each
COMPANY and its subsidiaries using the same appraisal method If there is
difference of less than 10% ten in the values presented by the experts the average of
both shall be taken as the real value If there are differences of more than
appraisals
10% ten percent in the values presented by the experts third appraisal expert shall
be appointed who will conduct third appraisal Of the three appraisals the average of
the two closest appraisals shall be taken as the value
01237
Trust No 194-2
Banca Afirme
The results of the appraisal shall be reported to the TRUSTEE through the Technical
Committee
TWELVE INVESTMENT METHOD The cash resources that make up the assets of this
trust shall be invested by the TRUSTEE pursuant to the instructions that the Technical
Committee sends in writing with the understanding that if no such instructions are
provided at its discretion the TRUSTEE shall invest manage and safeguard the trust assets
using any of the instruments bonds securities or documents indicated below
Debt instruments or currency market instruments
Investment Companies in debt instruments
Any other instrument bond or document which during th term of this contract and
after the signature of the same become available on the market with the previously
mentioned characteristics
The instruments bonds securities or documents in which the investment may be made
may not be registered with the National Securities and Brokers Registry and no
or may
commercial paper will be acquired without bank endorsement
The TRUSTOR hereby releases the TRUSTEE from any liability for damages derived
from the depreciation or suspension of the trading of securities bonds or documents
under the protection of the investment contract signed for the investment on
acquired
and which damages or are consequence of the
the trust property may result in
or breach of the issuers as well as for the types of
payment suspension bankruptcy
transactions conducted under the terms of the investment contract and its Investment
the be as well as the of bonds securities or assigned
Policy as case may type
documents
Likewise the TRUSTOR reserves no present or future action or right to act against
Banca Afirme S.A Institucion de Banca Multiple Afirme Grupo Financiero based on
the signature of the aforementioned investment contract
01238
Trust No 194-2
Banca Afirme
The TRUSTEE shall not be liable for diminishment of the value of the assets when it
acts in accordance with the provisions of article 391 of the Securities and Credit
Transactions Law
THIRTEENTH TECHNICAL COMMI1TEE.- Pursuant to article 80 of the Credit
Institutions Law the TRUSTOR hereby forms Technical Committee and agrees to
provide the TRUSTEE with the applicable instructions regarding the scenarios
described in this Trust
The Technical Committee shall be made up of three- regular members with their
respective alternates who are hereby appointed by the TRUSTOR as follows
Regular Members Alternate Members
Shelby Luis Longoria Kowalski Marta Beatriz Montelongo Garza
Enriqueta Chapa Farias Rebeca Ortiz
Eduardo Longoria Kowalski Eduardo Longoria Hernandez
In making decisions in accordance with the authority referred to in this clause the
Technical Committee must at all times respect and honor the rights of the
BENEFICIARIES under the terms of this Trust also in matters for which it is
responsible it will comply with the provisions of clauses eight nine and ten of this
Trust under penalty of incurring personal liability
The appointment by the TRUSTOR of the members of the Technical Committee by
means of this act is based on the following at all times the Technical Committee
shall be composed of two members and their respective alternates corresponding
to the PRIMARY BENEFICIARY Shelby Luis Longoria Kowaiski consequently
appointing Shelby Luis Longoria Kowalski and his respective alternate and
Enriqueta Chapa Farias de Longoria and her respective alternate Likewise the
Technical Committee shall be composed of one member and his respective
alternate corresponding to the PRIMARY BENEFICIARY Eduardo Longoria
01239
Trust No 194-2
Banca Afirnie
Kowaiski consequently appointing Eduardo Longoria Kowaiski and his respective
alternate
In event of the definitive absence or disability of the TRUSTOR the PRIMARY
BENEFICIARiES or their respective SECONDARY BENEFICIARIES as
each case appoint revoke or change the members of the
applicable in may
Technical Committee as applicable in accordance with the previous section through
written notification sent to the TRUSTEE reporting the name and signature of the
members of the Technical Committee as well as the acceptance by the member in
question of the position conferred
The Technical Committee will hold valid meeting when the majority of its
regular
members or their respective alternates are in attendance and decisions will be made
by majority vote
The appointment of the members of the Technical Committee is honorific in nature
therefore not be receive for their services
and they will entitled to any remuneration
In the event of the absence disability death or resignation of any of the members of
the Technical Committee the member shall be replaced by the person appointed by
the corresponding PRIMARY BENEFICIARY
The Technical Committee shall meet every time it is required to do so and minutes
of each the decisions made The meetings of
will be prepared meeting setting forth
the Technical Committee are to be held in the city of Reynosa Tamaulipas
members may meet another location in Mexico or abroad if the
however the at
majority of the members agree
01240
Trust No 194-2
LOGOJ Banca Afirme
Invitations th of the Technical Committee
to meetings may be sent by any of its
members through letter with confirmation of receipt telegram sent to the rest of
the regular members and the of the Technical
alternates Committee who will be
required to confirm receipt through an e-mail or by any other means by which it can
reliably be verified that the members have been notified ahead of time at least 5-
five calendar days before the date of the meeting in question enclosing the agenda
points for the meeting The meetings of the Technical Committee will be held on
the date the time and the address
any member of
at at indicated on the invitation If
the Committee meeting and
fails to attend the if for that reason decision cannot be
made regarding matter on the agenda second invitation will be issued so that
meeting may be held three business days after the date of the original meeting
in case of an absence third invitation will be issued be
to meeting to held on the
next business day In any of the previous cases the majority of the members of the
Technical Committee will be required for the decision
making
If the majority of the regular members or their alternates
respective on the Technical
Committee are gathered hold and be
they may meeting their agreements shall
valid and no prior invitation will be required in this case
10 The Technical Committee shall have the established in this
powers Contract
including the authority to amend or terminate this Trust powers that the TRUSTOR
hereby expressly grants to them
11 In each meeting of the Technical Committee representative of the TRUSTEE may
appear who shall participate with voice but without vote
12 The TRUSTEE will be released from all liability when it acts in accordance with
the instructions or resolutions adopted by the Technical Committee
01241
Trust No 194-2
Banca Afirme
13 The Technical Committee shall gather when deemed necessary through invitations
issued in accordance with the previous points and
14 If the Executive Committee is in operation the Technical Committee shall gather
monthly within the first 15 fifleen days of each month so as to review and discuss
the report that the Executive Committee shall present
FOURTEENTH BEHAVIOR RULES AND POLICIES FOR THE TECHNICAL AND
EXECUTIVE COMMITTEE The members of the Technical Committee and the Executive
Committee shall act at all times taking into consideration that both PRIIvIARY
BENEFICJARIES and their corresponding SECONDARY BENEFICIARIES as
applicable in each case will at all times receive fair and equal treatment since the purpose
of this instrument is to ensure that each of them has the right or is the holder of the trust
in the proportions established For this reason in the event of any dispute
property
controversy or if any decision is to be made the above principle of equality and equity will
always be the basis for any such decisions
Likewise any action taken by the Technical Committee should always be made to benefit
the BENEFICIARIES
The abovementioned Committees consultants
may be supported by the opinions of expert
in their decision-making
FIFTEENTH MEXICAN JURISDICTION AND LEGISLATION This Trust is
established under the jurisdiction of the United Mexican States its
parties are Mexican
citizens and its assets are located within the national territory Therefore this Trust the
TRUSTOR and the BENEFICIARIES are exclusively subject to the laws of Mexico thus
the waive the application of any Law regulation provision or rule of any
parties expressly
jurisdiction other than Mexico to which they may be entitled due to their present or future
residence citizenship domicile kinship or commercial relationships therefore
paternity
01242
Trust No 194-2
BancaAfirme
any interpretation dispute or any aspect related to this Trust will be expressly subject to
the courts of the city of Reynosa Tamaulipas Mexico
Likewise the issuance of any Law regulation or provision in jurisdictions outside the
of Mexico or any act performed outside the national whether
Republic territory it is
by the
TRUSTOR BENEFICIARIES or any person related to the Trust or members of the
Technical Committee or Executive Committee for the of imposing restrictions
purpose
on this Trust imposing the performance of acts different from the purposes for which it is
authorized or which attempts to change or impact the control of the Trust by the
TRUSTOR BENEFICIARIES or the Technical Committee ii that attempts to impose
taxes fees or tax charges other than those allowed by Mexican Law iii that attempts to
expropriate limit confiscate seize take freeze or offer as collateral the assets of the Trust
based on federal state or municipal legal provisions outside the jurisdiction of the Mexican
Republic are not and shall not be applicable to this Trust and in all cases the jurisdiction
and legislation of the Republic of the United Mexican States will be applied under the
terms of the previous paragraph
SIXTEEN DECLARATION OF WILL Both the TRUSTOR as well as the
BENEFICIARIES of this Trust declare that this contract is the final and definitive will of
the parties therefore they agree to all of its terms and they also represent that no error
fraud bad faith or any defect exists that may affect their understanding or decision
regarding its contents
SEVENTEEN TRUST AMENDMENTS This contract may terminated or amended solely
based on the and instructions of the Technical Committee and the
prior agreement
TRUSTEE through the signature of the corresponding agreement
EIGHTEEN NON-TRANSFERABLE CLAUSE For all the corresponding legal effects
and based on nature of this Trust no BENEFICIARY of the same shall be in any way
entitled to part or the totality of the assets of this Trust until the assets of the Trust have
been distributed through its partial or total execution in favor of the corresponding
already
01243
Trust No 194-2
Banca Afirme
BENEFICIARY In no case whatsoever will any BENEFICIARY of the trust be entitled to
transfer appoint tax mortgage or pledge their present or future rights or interests contained
herein likewise this Trust or the interests or rights of any BENEFICIARY may not be
subject to claims or lawsuits from their creditors or the creditors of the BENEFICIARIES
nor will they be subject to taxes seizures or enforcement of any ruling in any legal
proceeding
Both the income generated as well as the assets of the Trust itself may not be subject to
pledges seizures guarantees transfers or sale or in any way be compromised or offered as
collateral by any BENEFICIARY nor will the assets or
any income derived from this Trust
be subject to or offered as collateral in any way by acts debts contracts or any other act of
any BENEFICIARY or the TRUST or by any claim for alimony or child support by any
BENEFICIARY or the TRUSTOR himself or derived from any separation agreement
neither shall it be subject to any transfer or any other voluntary or involuntary act of
disposition or conveyance derived from legal process prior to the distribution of the
assets of the Trust through the partial or total execution of the Trust in favor of the
corresponding BENEFICIARY
In the cases in which any BENEFICIARY is
granted any right under the terms of this Trust
and while the same has not been totally or partially executed in his/ her favor the
TRUSTEE will continue to maintain ownership of the assets of said BENEFICIARY
NINETEEN VALIDITY OF THE PROPERTY TITLE DEEDS The BENEFICIARY
acquires ownership of the assets and rights that make up the trust assets based on the
representative title deeds of the SHARES which are hereby delivered by the TRUSTOR
and consequently the TRUSTOR will not be liable in any way whatsoever to the
BENEFICIARIES or any third parties including those to whom all or part of the trust
assets are transferred for defects or hidden defects in the corresponding property title deed
and be
any such
the covered will
or for challenges to rights thereby in any case liability
assumed by the TRUSTOR
01244
Trust No 194-2
Banca Afirme
TWENTY REMEDY IN THE EVENT OF DISPOSSESSION The TRUSTOR will be
obligated to remedy any dispossession in accordance with the law with respect to the assets
and rights contributed by the TRUSTOR to the assets of this trust
When the TRUSTEE in compliance with the purposes of this contract transfers all or part
of the trust assets the TRUSTOR shall remedy any dispossession in accordance with the
law and therefore hereby authorizes the TRUSTEE to make binding decisions under those
terms before the individuals or legal entities to whom all or part of the trust assets are
transferred under the terms of this contract
TWENTY-ONE TRUSTEE LTABILITY When the TRUSTEE acts in accordance with the
instructions of the Technical Committee it shall be released from all liability under the
terms provided in article 80 eighty of the Credit Institutions Law
The TRUSTEE is not liable for the deeds acts or omissions of the contracting parties or
third parties or authorities prior or subsequent to this date or for legal acts in which the
TRUSTEE has not directly participated or the interpretations of authorities or changes in
applicable laws that hinder oppose prevent or sanction the compliance with their duties or
the validity of this Trust and all legal consequences of the foregoing will be the
responsibility of the TRUSTOR and the TRUSTEE will not be liable for the final use of
the amounts transferred or for the material delivery of the trust assets it carries out in
compliance with the instructions of the Technical Committee
In no case will the TRUSTEE be required to respond using its own assets and without
this Trust from Authorities third shall be in the
exception any claim related to or parties
last instance charged to the trust assets and the parties hereby represent that they are in
agreement in that regard The TRUSTEE does not assume any liability beyond the liability
set forth in this contract or the law excluding tax or labor liability of any type
expressly
The TRUSTEE will not be obligated to exercise the rights inherent to the trust SHARES on
the TRUSTEES own behalf it will only be obligated to issue any powers of attorney
01245
Trust No 194-2
Banca Afirme
which may be necessary to the persons that the Technical Committee indicates for that
purpose without assuming whatsoever with
any liability regard to the manner form and
terms in which the SHARES vote or for the consequences of having exercised the to
right
vote When the TRUSTEE receives no instructions regarding the issuance of powers of
attorney under the terms of this shall be released from any
paragraph it
liability derived
from the failure to exercise the right to vote
The TRUSTEE will not have the liability or responsibility to influence verify or in any
way intervene in the administration decisions of the COMPANIES that issue the trust
SHARES
Upon request the TRUSTEE shall render accounts according to
Article 84 eighty four of the Credit Injtitutions Law
TWENTY-TWO TRUSTOR LIABILITIES The TRUSTOR and the PRIMARY and
SECONDARY BENEFICIARIES as applicable in each case will be obligated to hold the
TRUSTEE harmless and return to the TRUSTEE the amounts that the TRUSTEE may have
incurred as result of legal or extrajudicial actions initiated by the TRUSTOR and br by
third parties against the TRUSTEE that may affect the TRUSTEE or its
officers by reason
of this trust contract
TWENTY-THREE POWERS OF THE TRUSTEE.- The TRUSTEE will manage the trust
assets with the and duties established 391 three hundred
powers in articles ninety one and
other related articles of the Securities and Credit Transactions Law and article 84 eighty
four and other applicable articles of the Credit Institutions Law
TWENTY-FOUR DEFENSE OF THE TRUST PROPERTY.- Whenever the TRUSTEE
receives any notification regarding any judicial lawsuit requirements from any authority
and any notification related to the assets of this contract the TRUSTEE will send written
notice to the TRUSTOR or the Technical Committee not later than the next business day
after the date on which the corresponding notification was received
01246
Trust No 194-2
Banca Afirme
The TRUSTOR or the Technical Committee will written instructions to the
provide
TRUSTEE not later than the next business day after the date on which the notification
referred to in the previous paragraph in this clause was that the
received so necessary
of attorney
power may be granted to the
person or persons appointed by the TRUSTOR or
by the Technical Committee in order for them to focus on the care conservation or legal
defense of the trust assets described in this contract
The TRUSTEE shall not be responsible for the actions taken by the legal representative
nor will it be obligated to pay fees or costs derived from the respective legal proceedings
which will in all cases be charged to the trust assets The TRUSTOR the Technical
or
Committee may instruct the TRUSTEE the
any fees and
to charge to trust assets expenses
derived from the care conservation or defense of the trust assets
The contents of the preceding paragraph of this clause must be transcribed in every power
of attorney for litigation and collections issued by the TRUSTEE under the terms of this
trust
TWENTY-FIVE REPORTS FROM THE TRUSTEE The TRUSTEE shall render report
regarding the transactions involving the trust assets to the TRUSTOR or the Technical
Committee on monthly basis
The TRUSTOR or Technical Committee will have period of 15 calendar days effective as
of the date of issuance of the aforementioned report to comment or request any
clarifications they deem appropriate with the understanding that if the TRUSTOR does not
comment or request clarifications within the aforementioned period it will be understood
that the corresponding has been approved
report
TWENTY-SIX RESIGNATION OR REPLACEMENT OF TH.E TRUSTEE The
TRUSTEE may resign from the position conferred by this contract for serious reasons
01247
Trust No 194-2
Banca Afirme
subject to the of first
ruling instance judge in the TRUSTEES domicile pursuant to
article 391 of the Securities and Credit Transactions Law
The TRUSTOR may replace the TRUSTEE at any time with an advance notice of twenty
business days prior to the date on which the replacement is to
anticipated occur so that all
necessary procedures required for the formalization of the change
may be prepared The
TRUSTEE may be replaced by another international or
foreign institution or institutions if
and when they have the to
legal capacity perform those duties The TRUSTEE will proceed
with the fiduciary replacement the
after payment of the expenses or fees it is entitled to
receive under the terms of this contract
TWENTY-SEVEN TAXES The TRUSTEE will be authorized at any time to charge the
trust assets for any the taxes owed on the transactions the trust
involving assets in such
way as to ensure that compliance with the
corresponding tax obligations is not jeopardized
If with
compliance the purpose of this contract involves full or partial transfer of the
SHARES which make up the assets of this trust all such transfers shall be subject to
applicable tax laws
TWENTY-EIGHT THIRD PARTY EXPENSES AND FEES The expenses incurred in
the compliance with the purposes of this contract will be charged to the trust The
property
TRUSTEE will charge the trust for all fees owed to
property third parties contracted
pursuant to the provisions of this contract and which are for the
necessary care
conservation or defense of the trust assets
TWENTY-NINE TRUST TERM The duration of this trust will be the term to
necessary
comply with its and the be terminated
may any of the situations described
purposes trust in
in article 392 three hundred and ninety of the Securities
two and Credit Transactions Law
that are compatible with the nature and of
purposes this contract with the of the
exception
grounds for termination VI
described in section for faIlure by the TRUSTOR to expressly
reserve the right to revoke this Trust
01248
Trust No 194-2
Banca Afirme
THIRTY TRUSTEE FEES The TRUSTEE shall charge the following fees to the
TRUSTOR for the performance of the duties conferred herein
For the acceptance of the position study and preparation of the trust contract the
sum of $20000.00 twenty thousand Mexican pesos and 00/100 payable one time
only upon signature of the trust contract
For the administration of the trust the monthly sum of $5000.00 five thousand
Mexican and 00/100 payable by quarters in advance and once the death of
pesos
the TRIJSTOR occurs the fees in force as of that date for the administration of the
trust shall increase by 40% forty per cent
For the signature of Amendments to the Trust Contract the sum of $6000.00 six
thousand Mexican and 00/100 payable at the time the corresponding
pesos
Agreement is signed
For the issuance of Powers of Attorney and the execution of any other act necessary
to achieve the purposes of the trust the sum of $3000.00 three thousand Mexican
and 00/100 at the time the corresponding instrument is
signed
pesos payable
The abovementioned fees will be subject to the value added tax pursuant to applicable
be adjusted the month of January of each year based on the inflation
law and shall in
percentage verified during the
year prior to the adjustment and calculated by the Bank
any entity that may replace
of Mexico or it in the future
THIRTY-ONE DOMICILE The parties designate the addresses listed below as their
domiciles for notice and in for any purposes related to this trust
any notification general
THE TRUSTOR Oaxaca No 620 Col Rodriguez Zip Code 88630 Reynosa Tamaulipas
Mexico
01249
Trust No 194-2
Banca Afirme
THE TRUSTEE Hidalgo Avenue number 234 West Central Zone Monterrey Nuevo
Leon Zip Code 64000 Mexico
THE TECHNICAL COMMflTEE Oaxaca No 620 Col Rodriguez Zip Code 88630
Reynosa Tamaulipas Mexico
Any address be reported
change shall in writing to the TRUSTEE with the understanding
that all communications addressed to the last domicile indicated the
by parties shall
produce all legal effects
THIRTY-TWO EXPENSES FEES AND TAXES All
expenses fees and taxes incurred in
the compliance with the purposes of this trust will be the responsibility of the TRUSTOR
THIRTY-THREE DEFINITIVE DECLARATION OF WILL Both the TRUSTOR as well
as the BENEFICIARIES of this Trust declare that this contract is the final and definitive
will of the parties and therefore they agree to all its
terms furthermore that no
declaring
fraud bad or defect of consent has occurred
error faith any that may affect their
understanding or decisions regarding its contents
THIRTY-FOUR COMPENSATION The TRUSTOR and the PRIMARY
BENEFICIARIES are bound to jointly defend and hold the TRUSTEE as well as its
consultants fiduciary delegates officers employees agents or advisors harmless from and
against all and any responsibility damages liability legal action judgment settlement
requirement expense and or costs of any nature including attorneys fees which are
directly or indirectly charged are the result of are imposed upon or incurred by reason of
or as consequence of the acts performed by the
TRUSTEE in the compliance of the purposes contained in this trust contract and the
defense of the trust assets or by claims fines judgments or any other debt of any nature
regarding the trust assets or this trust contract whether it is before administrative judicial
01250
Trust No 194-2
Banca Afirme
court arbitration or any other instance of authorities on the local or federal level in the
Republic of Mexico or in any foreign jurisdiction
If de facto situation or authority act or of nature was
any consequence legal generated
and resulted in fines charged to the Trust and or the property of the Trustee caused by acts
or omissions of the parties to the trust contract by the TRUSTEE in compliance with the
purposes of this contract or by third parties including distributions related to the acts and
concepts mentioned in the previous paragraph the payment derived from said pecuniary
liabilities shall be the joint obligation of the TRUSTOR and if applicable the PRIMARY
BENEFJCIARIES who agree to respond without limitation using their own assets for the
payment that was made or will be made by the TRUSTEE waiving the benefit of order or
exclusion that may correspond to them pursuant to the law Likewise the TRUSTOR
hereby authorizes the TRUSTEE so that from the trust assets it
may allocate the amounts
required to comply with the payment liabilities derived from the concepts mentioned in the
content of the two paragraphs of this clause with the understanding that in no case may
said allocations be equated with or absorbed into the fees of the Trustee that are established
in this contract
The mere tacit or express acceptance of the rights of the BENEFICIARY will imply the
acceptance of the obligations that are established for the parties in this clause
THIRTY-FIVE JURISDICTION For the interpretation compliance and execution of this
contract the parties are expressly subject to the courts with jurisdiction in the city of
Reynosa Tamaulipas expressly waiving any other jurisdiction regional laws or authority
to which they may be entitled by reason of their present or future domicile
01251
Trust No 194-2
Banca Afirme
This instrument in each
is
signed triplicate of the three counterparts having the same
value as an original October 15 2002
today fifteen two thousand two in the presence
of the two undersigned witnesses in the of Nuevo
city Laredo Tamaulipas
Illegible
Mr EDUARDO LONGORIA THERIOT
TRUSTOR
TRUSTEE
BANCA AFIRME S.A
FULL-SERVICE BANKING INSTITUTION
AFIRME FINANCIAL GROUP
Fiduciary Division
Represented by
Illegible Illegible
LIC ADRIAN JORGE LOZANO LOZANO LIC MARTHA BEATRIZ
GARZA
FIDUCIARY DELEGATE LONGORIA
FIDUCIARY DELEGATE
Illegible Illegible
WITNESS WITNESS
MARTA MONTELONGO GARZA PEDRO RAMIREZ DE ALBA
ALDAPE
01252
II
krcti
January 122015
Certillccthon
Park IP Translations
This is to certify that he attached translations are to the best of my knowledge
and belief true and accurate Ironslation from Spanish into English of the
Private Agreement
Sarah Dunham
tATSTI
Project Manager ttaty.puiic
Sta1901 NBWYOIk
N.O1SM36S
Project Number S1iGOJ5O1.OO3 Ou1th In js Qonty
mni$IOfl Lpk Jtrn 50
15 37th Street Bth Floor
New York NY 10018
212.581.8870
PorklP.COm
01253
EXHIBIT
01254
Case Number 414270
IN THE ESTATE OF IN THE PROBATE COURT
DOROTHY LOUISE LONGORIA NUMBER ONE
DECEASED HARRIS COUNTY TEXAS
Affidavit of Dr Carlos Gabuardi
STATE OF TEXAS
HARRIS COUNTY
BEFORE ME the undersigned authority on this day personally appeared Carlos Alberto
Enrique JosØ Lorenzo Gabuardi Arreola who being by me first duly sworn stated the following
My name is Dr Carlos Alberto Enrique JosØ Lorenzo Gabuardi Arreola PhD
am over twenty-one years of age of sound mind and qualified to make this affidavit have
personal knowledge of the facts stated herein and am to testify thereto
competent
have been retained counsel for Shelby
by Longoria as consultant and expert
witness on Mexican law in the above-titled action
In connection with this have been
engagement requested to address several legal
questions under the context of Spanish language document named Acuerdo Privado signed
by Mr Eduardo Longoria Theriot and Ms Adriana Longoria Kowalski
Based review of documents
on my and my expertise in Mexican law have the
following opinions
The Jurisdiction and Mexican Law clause in the Acuerdo Privado referred
to above is valid and enforceable under Mexican
agreement law and more
specifically under the authority of the Civil Code in effect in the
currently
State of Tamaulipas
By the fact that Ms Adriana Longoria Kowaiski actually did execute the
Acuerdo Privado referred to above she expressly and voluntarily submitted
01255
herself to the exclusive jurisdiction of both Mexican law and the courts
located in Reynosa Tamaulipas Mexico waiving other venue
any
whatsoever
Under the terms of the Jurisdiction and Mexican Law clause in the Acuerdo
Privado referred to above the parties therein expressly stated their intent to
bar the issuance of any law regulation or provisions in jurisdictions outside
Mexico therefore barring the applicability of any judicial acts taken outside of
Mexico
Under the terms of the Jurisdiction and Mexican law clause in the Acuerdo
Privado referred to above the parties therein expressly agreed not to perform
acts outside Mexico which would impose the performance of acts different
than the purposes for which the Acuerdo Privado is authorized or which
would affect the rights of the Acuerdo Privado based on laws outside the
jurisdiction of Mexico
If Mr Shelby Longoria is sued upon the basis of the Acuerdo Privado
referred above he seek enforcement of and
to may the the Jurisdiction
Mexican law clauses styled in such agreement
BACKGROUND
have studied practiced and taught law in Mexico and the United States for over
30 years received License in Jurisprudence from Universidad de Monterrey in 1981 Master
of Laws LL.M with distinction from Tulane University in 2001 and Doctorate of Laws
Ph.D from Tulane University in 2007 true and correct copy of my resume is attached to
this Affidavit as Exhibit
have taught law in various law schools in Mexico and the United States Since
1983 have held research and teaching positions at several other universities in Mexico and the
United States For example have been member of the National Researchers System of
01256
Mexico since 2008 served as Professor of Law and researcher at the Instituto Tecnologico
de Estudios Superiores de Monterrey in Mexico 1998-2011 acted as the Head of the Law
Department and served as Professor of Law at the Universidad de Monterrey in Mexico 1990-
1993 was Visiting Professor of Law at St Marys University School of Law in San Antonio
Texas 1993-1994 and held Adjunct Professor of Law positions at both The Washington
College of Law American University Washington D.C Summer 1994 and Universidad
Regiomontana in Monterrey Mexico 1983-1985 As professor have taught courses on
Comparative International Law Private International Law Public International Law
International Business Transactions and the Legal Framework of Doing Business in Mexico
others
among
have maintained law practice since 1980 in various companies and law firms
currently practice law at Gabuardi Abogados in Monterrey Mexico since 2004 have also
worked as lawyer in the legal department of the World Bank in Washington D.C 1994-1996
and as both Corporate Legal Manager and the Assistant Secretary of the Board of Directors of
Grupo Gamesa Mexican manufacturing company 1980-1985 My law practice focuses on
Corporate Law Contracts Business Transactions Private International Law as well as in
International and Domestic Litigation
am member of several legal professional organizations in both Mexico and
internationally including the Barra Mexicana de Abogados Colegio de Abogados CapItulo
Nuevo Leon the Mexican Bar Association Nuevo Leon Inn where was the Chair of the
International and Comparative Law Committee the Colegio de Abogados de Monterrey the
Monterrey Bar Association the Academia Nuevo Leonesa de Derecho Mercantil the Nuevo
Leon Academy of Commercial Law the Asosiacion Nacional de Abogados de Empresa the
01257
National Association of Corporate Lawyers the External Advisory Board of NAFTA the Law
and Business Review of the Americas the Mexican Academy of Private International and
Comparative Law Academia MØxicana de Derecho Internacional Privado Comparado the
Mexican Association of Private International Law Professors the Asociaein Mexicana de
Profesores de Derecho Internacional and the International of Comparative
Privado Academy
Law also was part of the group that founded the US-Mexico Bar Association and later on
served as its Mexican co-chair of the Legal Education Committee
Further have served on the Board of the Centre for
Regional Advisory
Conciliation and Arbitration of St Marys University School of Law San Antonio Texas also
co-planned and administered titled Joint Venture Transnational and
program Study
Training Program for U.S and Mexican Business Lawyers held at the St Marys University
School of Law and Universidad de Monterrey
10 During my academic career have published more than 20 academic articles and
two books in both Mexico and abroad on topics including Commercial Law and Business
Transactions Private International Law and Comparative Law Most recently the Puerto Rico
Supreme Court cited my article on forum non conveniens titled Entre Ia jurisdiccin la
competencia el forum non conveniens originally published in the BoletIn Mexicano de
Derecho Comparado in 2008 in its opinion deciding whether to the common-law
incorporate
doctrine of forum non conveniens in Puerto Rico
IL OPINIONS
11 The first part of the 4l Clause in the Acuerdo Privado Jurisdiction and
Mexican Law reads as follows This Agreement is established under the jurisdiction and
01258
laws of the United Mexican States Therefore the parties exclusively submit to the laws of
Mexico thus they expressly waive the application of any Law regulation provision or rule of
any jurisdiction other than Mexico which might correspond to them due to their residence
paternity citizenship domicile kinship or commercial relationship
12 Then as corollary to that provision the parties set forth that as consequence of
their submission to the jurisdiction and the laws of Mexico the parties submitted to the courts
located in Reynosa Tamaulipas Mexico to hear cases relating to the interpretation disputes or
any other aspect related to the Afirme Trust This language ties together the parties choice of
law and choice of forum and this linkage makes clear that the choice of forum extends to
disputes about the Acuerdo Privado Accordingly any claim by Ms Adriana Longoria
Kowaisky to receive payments under the Acuerdo Privado or alternatively to receive
payments beyond what the Acuerdo Privado provides for would be subject to the forum
selection clause under Mexican Law
13 The 4th clause has second paragraph whereby the parties to the Acuerdo
Privado created legal wall barring any intrusion from non-Mexican law regulation or
provisions of any sort seeking to impose restrictions or impose performance of acts other than
the ones set forth in said instrument ii impose any duties or tax burdens other than those set
forth by Mexican Law iii any act of expropriation limitation confiscation re-possession
disposal or any sort freezing or any other act which may have an effect on the rights derived
from such Acuerdo Privado adding that in any circumstances the jurisdiction and legislation
of Mexico shall be applied to such Acuerdo Privado under the terms of the first paragraph of
the 4th clause
Emphasis added by Affiant
01259
14 This provision shows the parties intent not to seek any provisions from U.S
court which would affect the parties rights under the Acuerdo Privado
15 The clause of the Acuerdo Privado fully complies with the Code of Civil
Procedure of the State of Tamaulipas which under the of Article 1792 sets forth that
authority
the only type of jurisdiction
territorial jurisdiction is
upon which the parties to an agreement may
agree
16 There are similar provisions in other Mexican Statutes providing for the
possibility of entering into agreements on territorial and Mexican Federal Courts
jurisdiction
have settled case law on this matter For example an express clause to extend jurisdiction takes
place when the parties and waive other which be
clearly categorically jurisdictions to they may
entitled and designate the court to which they want to be submitted either or
through public
private document.3 Moreover if defendant submitted himself to the courts of named this
city
fact is sufficient to to those courts as allowed
assign jurisdiction by applicable legislation.4
17 Furthermore the agreement in the 4h clause second paragraph of the Acuerdo
Privado imposes on the parties the obligation to refrain themselves an obligation not do
Article 179 of Code of Civil Procedure of the State of Tamaulipas Territorial jurisdiction is the only of
type
upon which the parties to an agreement may agree
jurisdiction
Question on Jurisdiction 175/81 Controversy between the Second District Court in the State of Morelos and the
District Court inthe State of Hidalgo February 29 1984 Majority of three votes Dissenting opinions Gloria
LeOn Orantes and Jore Olivera Toro Writer of the Opinion Mariano Azuela Gtitron Clerk Jaime MarroquIn
Zaleta Supreme Court of Justice of the Nation Third Chamber Weekly
Judicial or the Federation Seventh
Epoch Volume 181-186 Fourth Section Page 108 Registry Number 240245 Isolated thesis Subject Matter
Civil See Exhibit
Question on Jurisdiction 78/84 Controversy between the Fourth Civil Court of the State of Puebla and the
Twentieth Civil Court of the Federal District May 30 1985 Five votes Writer of the Opinion Ernesto Diaz
Infante Clerk Tarcicio ObregOn Lemus Supreme Court of Justice of the Nation Third Chamber Judicial Weekly
or the Federation Seventh Epoch Volume 193-198 Fourth Section Page 31 Registry Number 240103 Isolated
thesis Subject Matter Civil Seventh Epoch Report 1985 page 16 Question on Jurisdiction 153/84 Controversy
between the Forty Third Civil Court of the Federal District and the Forth Civil Court of First Instance of TorreOn
Coahila May 30 1985 Five Votes Writer of the Opinion Ernesto Diaz Infante Clerk Tarcicio Obregn Lemus
See Appendix to the Weekly or the Federation
Judicial 1917-1985 Ninth Section Thesis 14 page 25 authorized
under the heading CIVIL JURISDICTION BY SUBMISSION EXTENSION OF TERRITORIAL
JURISDICTION AUTHORIZED BY LAW See Exhibit
01260
from seeking to affect the rights of the Acuerdo Privado based on law outside of Mexico The
parties therefore for example not to file lawsuit in Texas of
agreed seeking the application
Texas law to their rights under the Acuerdo Privado
18 The Supreme Court of Mexico has stated that an obligation not to do something
is continuous and enforceable for the parties to an agreement.5
19 If Mr Shelby Longoria is sued upon the basis of the Acuerdo Privado referred
to above he may seek the enforcement of the Jurisdiction and Mexican Law clause in such
agreement against Ms Adriana Longoria Kowakski based upon the principle set forth in article
12596 of the Civil Code of Tamaulipas that that the to contract are bound not
provides
rtps
only to the contractual terms set forth thereby but also to the ications of the same according
to their own nature according to good faith usages and the law
declare under penalty of perjury under the laws of the Ettes of America that the
foregoing is true and correct
FURTHER AFFIANT SAYETH NOT
Dr Carlos Alberto Gabuardi Arreola
Direct Amparo 67647/58 Juan Bringas Zamora October 14 1959 Five votes Writer of the Opinion Mariano
RamIrez VÆzquez Supreme Court of Justice of the Nation Third Chamber Judicial Weekly or the Federation
Sixth Epoch Volume XXVIII Fourth Section Page 224 Registry Number 271744 Isolated thesis Subject
Matter Civil See Exhibit
Article 1259 of the Civil Code of Tamaulipas All contracts are perfected merely by consent unless they required
to observe formalities set forth by statute Contracts are binding to the parties thereto since they are perfected and
they are bound not only to the contractual terms set forth thereby but also to the implications of the same according
to their own nature according to good faith usages and the law
01261
SUBSCRIBED AND SWORN TO BEFORE ME this 13th1
day of January 2015 to certif
which witness my hand and seal of office
eLkS /11naA4
Notary Public aZ74 State of
Printed Name _________________________
My Commission Expires
____________________
01262
EXHIBIT
01263
Executive Summary Curriculum Vitae
Dr Carlos A.Gabuardi Ph.D
Dr Carlos Gabuardi Lic Jur LL.M Ph.D is practicing lawyer He holds License
In Jurisprudence from Universidad de Monterrey Master of Laws with distinction
from of Tulane University and Doctorate of Laws Ph.D from the same university
Doctor Gabuardi has published several articles in Law Reviews and Journals in Mexico
and abroad He is currently member of the National Researches System with Level
Dr Gabuardi was lawyer in the Legal Department of the World Bank Washington D.C
Corporate Legal Manager and Assistant Secretary of Grupo Gamesa He was Professor of
Law and researcher at the Instituto Tecnolgico de Estudios Superiores de Monterrey
Head of the Law Department and Professor of Law at Universidad de Monterrey Visiting
Professor of Law St Marys University School of Law San Antonio Texas co-planner
and administrator of Venture Transuational and
the program Joint Study Training
Program for U.S and Mexican Business Lawyers St Marys University School of Law
and Universidad de Monterrey Adjunct Professor of Law The Washington College of
Law American University Washington D.C Adjunct Professor of Law Universidad
Regiomontana Member Regional Advisory Board of the Centre for Conciliation and
Arbitration of St Marys University School of Law San Antonio Texas
He Is member of the Mexican Bar Association Nuevo Leon inn member of the
Monterrey Bar Association Coleglo de Abogados de Manterrey member of the
Academia Nuevo Leonesa de Derecho Mercantii The Nuevo Leon Academy of
Commercial Law Asoslacin Nacional de Abogados de Empresa A.C National
Association of Corporate Lawyers member of the US Mexico Bar Association where
he was the Mexican co-Chair of the Legal Education Committee member External
Advisory Board de NAFTA Law and Business Review of the Americas member of the
Mexican Academy of Private International and Comparative Law member of the
Mexican Academy of member of the International Academy of Comparative Law
Former President of Province XXVIJJ of the International Legal Fraternity Phi Delta Phi
He was member of the Editorial Board of the National Section of the newspaper El
Norte Grupo Reforma and he represented Monterrey Tech before the Justice
Consortium of the Eurosocial Program and he is also Co-Secretary and numbered
member of the Group of the 100 of the Ceter for Legal Innovation Development and
Research for Latin-America Garrigues Tec de Monterrey Dr Gabuardi has also
produced and conducted los talk-shows The World of Law and the Law in the World
Tec 94.9 FM and Law and Justice AW Noticlas 1280 AM
Dr Gabuard has taught courses on Comparative Law Private International Law Public
International Law and International Business Transactions and The Legal Framework
of Doing Business
Dr Gabuardis law practice focuses on Corporate Law Contracts Business Transactions
as well as on international and Domestic Litigation
01264
EXHIBIT
01265
Jurisdiction Express voluntary extension The clause of the document in which
that is
written cannot be applied to circumstances other that those set forth by
such clause
Article 23 of the Federal Code of Civil Procedure sets forth that territorial
jurisdiction may be extended by mutual consent of the parties either
express or
implied voluntary express clause to extend jurisdiction or express extension of
jurisdiction as it has been improperly been called takes when the
place parties
concerned clearly and categorically waive to the jurisdiction to which be
they may
entitled and accurately designate the court to which they want to be submitted The
decision of be stated
extending jurisdiction may either in public or private
document Now ever since jurisdiction is
procedural requirement that is sine
qua non requirement to begin valid legal process it is without question that
jurisdiction can only be extended when the terms set forth in such extension clause
take place cannot be that the court to
It
accepted is
empowered arbitrarily apply such
clause to circumstances different those included the would
that in same because that
create procedural uncertainty and would trigger larger number of disputes on
jurisdictional issues
Question on Jurisdiction 175/81 Controversy between the Second District Court in
the State of Morelos and the District Court in the State of Hidalgo February 29
1984 Majority of three votes Dissenting opinions Gloria Leon Orantes and Jore
Olivera Toro Writer of the Opinion Mariano Azuela Gtlitron Clerk Jaime
Marroquin Zaleta Supreme Court of Justice of the Nation Third Chamber Judicial
Weekly or the Federation Seventh Epoch Volume 181-186 Fourth Section Page
108 Registry Number 240245 Isolated thesis Subject Matter Civil
01266
Suprema Corte de Justicia de Ia Nacin
SØptima Epoca NUm de Registro 240245
Instancia Tercera Sala Tesis Aislada
Fuente Semanario Judicial de Ia FederaciOn
Volumen 181-186 Cuarta Parte Materias Civil
Tesis
PÆgina 108
COMPETENCIA PRORROGA VOLUNTARIA EXPRESA LA CLAUSULA DEL DOCUMENTO EN EL QUE SE
HAGA CONSTAR NO PUEDE APLICARSE SUPUESTOS NO PREVISTOS EN ELLA
El artIculo 23 del Cdigo Federal de Procedimientos Civiles dispone Ia competencia territorial
que
es prorrogable por mutuo consentimiento de las partes expreso tÆcito La prrroga de
competencia voluntaria expresa prrroga de jurisdiccin coma impropiamente se le
expresa
llama tiene lugar cuando los interesados renuncian clara terminantemente at fuero que Ia
ley les
concede designan con toda precision al juez quien se someten Esta decisiOn de Ia
prorrogar
competencia puede hacerse constar en instrumento piblico privado Ahora bien como Ia
competencia es un presupuesto procesal es decir un requisito sin el cual no puede iniciarse ni
desenvolverse vlidamente un proceso es inconcuso que Ia misma no puede tenerse par prorrogacla
en forma expresa sino cuando se actualicen los supuestos previstos par los interesados en Ia
clusula del documento en que acordaron prOrroga Na es posible aceptar que es facultad del
juzgador Ia de aplicar su arbitrio dicha clÆusula casos distintos de los mencionen en
que Pa
misma pues ello crearla una situaciOn de incertidumbre procesal darla pie al
planteamiento de un
mayor niimero de conflictos competenciales
Competencia 175/81 Suscitada entre los Jueces Segundo de Distrito en el Estado de Morelos de
Distrito en el Estado de Hidalgo 29 de febrero de 1984 MayorIa de tres votos Disidentes Gloria
Leon Orantes Jorge Olivera Toro Ponente Mariano Azuela GQitrn Secretario Jaime MarroquIn
Zaleta
01267
EXHIBIT
01268
Civil Jurisdiction by Submission Extension of Territorial Jurisdiction
Authorized by Law
If the defendant submitted himself to the courts of named in the event of breach
city
of any of the obligations entered into Deed of Mortgage this fact is sufficient to
assign jurisdiction to given court if the of the courts
legislation competing
acknowledge the principle the it is court of competent the one to which
jurisdiction
the parties submitted themselves expressly or impliedly when that jurisdiction can be
waived principle which is
applicable if there was an extension of territorial
jurisdiction as authorized by the law
Question on Jurisdiction 78/84 Controversy between the Fourth Civil Court of the
State of Puebla and the Twentieth Civil Court of the Federal District 1985
May 30
Five votes Writer of the Opinion Emesto Diaz Infante Clerk Tarcicio Obregon
Lemus Supreme Court of Justice of the Nation Third Chamber Judicial Weekly or
the Federation Seventh Epoch Volume 193-198 Fourth Section Page 31
Registry Number 240103 Isolated thesis Subject Matter Civil
Seventh Epoch
Report 1985 page 16 Question on Jurisdiction 153/84 Controversy between the
Forty Third Civil Court of the Federal District and the Forth Civil Court of First
Instance of TorreOn Coahila May 30 1985 Five Votes Writer of the Opinion
Ernesto Diaz Infante Clerk Tarcicio Obregn Lemus
See Appendix to the Judicial Weekly or the Federation 1917-1985 Ninth Section
Thesis 14 page 25 authorized under the heading CIVIL JURISDICTION BY
SUBMISSION EXTENSION OF TERRITORIAL JURISDICTION AUTHORIZED
BY LAW.
01269
Suprema Corte de Justicia de Ia Nacin
SØptima Epoca Nm de Registro 240103
Instancia Tercera Sala Tesis Aislada
Fuente Semanario Judicial de Ia Federacin
Volumen 193-198 Cuarta Parte Materias Civil
Tesis
PÆgina 31
COMPETENCIA CIVIL POR SUMISION PRORROGA DE LA COMPETENCIA TERRITORIAL AUTORIZADA
POR LA LEY
Si Ia demandada se sometl los tribunales de una ciudad para el caso de incumplimiento de alguna
de las obllgaciones contraidas en una escritura de hipoteca esta circunstancia basta establecer
para
Ia
competencia silas legislaciones de los Estados cuyos Jueces compiten reconocen el de
principio
que es Juez competente aquØl aI que los litigantes se hubieren sometido expresa tÆcitamente
cuando se trate de fuero renunciable tiene hubo de
principio que aplicacin si
prrroga
competencia territorial autorizado por Ia ley
Competencia civil 78/84 Suscitada entre los Jueces Cuarto de lo Civil de Puebla Puebla VigØsimo
de lo Civil del Distrito Federal 30 de mayo de 1985 Cinco votos Ponente Ernesto DIaz Infante
Secretario Tarcicio Obregn Lemus
SØptima Epoca
Iriforme 1985 pÆgina 16 Competencia 153/84 Suscitada entre los Jueces CuadragØsimo Tercero de
lo Civil del D.F Cuarto de Primera Instancia de lo Civil de Torren CoahuUa 30 de de 1985
mayo
Cinco votos Ponente Ernesto DIaz Infante Secretario Tarcicio Obregon Lemus
VØase ApØndice al Semanario Judicial de Federacin 1917-1985 Novena Parte tesis 14 pÆgina 25
bajo el rubro COMPETENCIA CIVIL POR SUMISION PRORROGA DE LA COMPETENCIA TERRITORIAL
AUTORIZADA POR LA LEY.
01270
EXHIBIT
01271
Obligations not to do Value of the same
An obligation not to do is continuous its value is valued by the harm damages caused
by its
infringement because under article 2028 of the Civil Code it is set forth that the
one who is obligated not to do something shall be subject to the payment of the harm
and damages caused by its breach and if there is material the creditor
construction
may require that such construction be destroyed at the cost of the party that caused the
breach therefore when the defendant fail to comply with its main obligation not to
compete with plaintiff in selling milk products within given time frame the value of
the main obligation is
represented by the damages that was caused that is that is the
privation of the benefit profit or gain that caused the unfair competition value that
should be considered as the basis to quanti1y the in the
penalty agreed upon third
clause of the contract which the cause of action based not
upon is
Therefore it is
accurate that in the obligations not to do there is no principal obligation refraining
such conducts is the cause of the agreement and it reason to exist in this
additionally
case the party to the agreed clause was entered with or of
independence authonomy
the agreement for the dissolution and liquidation of the company and that is the best
evidence that the amount of capital stock is not the value of the main obligation
Direct Amparo 67647/58 Juan Bringas Zamora October 14 1959 Five votes
Writer of the Opinion Mariano RamIrez VÆzquez Supreme Court of Justice of the
Nation Third Chamber Judicial Weekly or the Federation Sixth Epoch Volume
XXVIII Fourth Section Page 224 Registry Number 271744 Isolated thesis
Subject Matter Civil
01272
Suprema Corte de Justicia de Ia Nacin
Sexta Epoca Nm de Registro 271744
Instancia Tercera Sala Tesis Aislada
Fuente Semanario Judicial de Ia FederaciOn
Volumen XXVIII Cuarta Parte Materias Civil
Tesis
PÆgina 224
OBLIGAC1ONES DE NO HACER VALOR DE LAS
La obligacin de no hacer es de tracto sucesivo su valor es el daæo se causa con
perjuiclo que el
hacer correlativo pues el articulo 2028 del Cdigo Civil establece el estuviere no
que que obligado
hacer alguna cosa quedar sujeto al pago de daIios perjuicios en caso de contravencin si
hubiere obra material podrÆ el acreedor sea destruida costa del
exigir que obligado por tanto
cuando el demandado falt al cumplimiento de Ia obligacion principal de no competir al actor en Ia
yenta de productos lÆcteos dentro de cierto plazo el valor de Ia estÆ
obligacin principal
representado por el del perjuicio que le caus sea Ia privacin del beneficio utilidad lucro le
que
ocasion con competencia desleal mismo valor debe servir de base para cuantificacln de
Ia
que
Ia
pena convencional pactada en Ia clÆusula tercera del contrato fundatorlo de Ia accin
Consiguientemente no es exacto que en las obligaciones de no hacer no existe obllgacln principal
los actos de abstencin son el mvil del pacto razOn de su adems en
Ia
existencia Ia especie Ia
pactada pudo celebrarse con independencia autonomla del convenio de disolucin liquidacin de
Ia sociedad esto es Ia mejor evidencia de que el monto del capital social no es el valor de Ia
obligacion principal
Amparo directo 6764/58 Juan Bringas Zamora 14 de octubre de 1959 Cinco votos Ponente
Mariano RamIrez VÆzquez
01273
EXHIBIT
01274
CASE NUMBER 414270
IN THE ESTATE OF IN PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED
HARRIS COUNTY TEXAS
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA
TO THE HONORABLE JUDGE OF THIS COURT
COMES NOW Adriana Longoria as Counter-Plaintiff and pleads the following
amended counterclaims in
response to Shelby Longorias Second Amended Contest of2O 10
Will or filed
any subsequently pleading making the same or similar allegations against
Adriana Longoria and states the following causes of action against Shelby Longoria as
Counter-Defendant
The Parties
Counter-Plaintiff Adriana Longoria Adriana or Counter-Plaintiff is an
individual who resides in Harris County Texas
Counter-Defendant Shelby Longoria Shelby or Counter-Defendant is an
individual who resides in Hidalgo County Texas Counter-Defendant commenced this
action and has appeared through counsel herein so this pleading be served on him
may
through his attorneys of record
Jurisdiction
Pursuant to Subsection of the
32.001b Texas Estates Codes and other
applicable law the Court has jurisdiction over the subject matter of this civil action The
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page
01275
exercise of pendent and ancillary jurisdiction over these counterclaims is
necessary to
promote judicial efficiency and economy
The Court has in personam jurisdiction over Counter-Defendant Shelby
Longoria by virtue ofhis filing on June 182013 of Shelby Longorias Contest of 2010 Will
and his subsequent of amendments thereto
filing In addition general personal jurisdiction
exists because has had
Shelby Longoria Continuous and systematic contacts with the State
of Texas and specific personal jurisdiction exists because this action arises out of contacts
by Shelby Longoria with the State of Texas as explained below
Venue
Pursuant to Sections 33.002 and 33003 of the Texas Estates Code the venue
of this action is
proper
Conditions Precedent
All conditions
precedent to Counter-Plaintiffs rights to plead and to prosecute
these counterclaims and the
to recover relief requested herein have occurred or been
fulfilled
Facts Applicable to All Causes of Action1
On 1942
July Eduardo Longoria Eluardo also known as Eduardo
Longoria Theriot and Louise Kowaiski
Dorothy Dorothy were married in the City of
Laredo in Webb County Texas
This petition does not recite every fact on which the Counter-Plaintiffs claims are
based It is intended only to be short statement of the cause of action sufficient to give fair
notice of the claim involved as required by TEx Civ P.47
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGOR Page
01276
When they were married Dorothy was citizen of the United States of
America and Eduardo was of the United
citizen Mexican States Mexico but he had
been in the United
living States and after the wedding the couple initially settled in
McAllen Texas
The marriage of Eduardo and was
Dorothy subject to the laws of the State of
Texas including the law of community property
10 Eduardo and Dorothy had four children all of whom are living Their names
are
Adriana Longoria Adriana who is Counter-Plaintiff herein
Eduardo Longoria Jr also known as Wayo Longoria Wayo
Sylvia Dorsey Sylvia
Shelby Longoria Shelby who is Counter-Defendant herein
11 Eduardo and Dorothy amassed considerable wealth through variety of
business activities and investments
12 In the 1970s Shelby began to work in his businesses
parents and he quickly
gained control of them
13 After he gained control of the family businesses and investments Shelby
controlled his parents flow of money
by restricting the to them even putting them on an
allowance and regulating it and them
strictly by deceiving concerning the status of their
businesses and investments over which he had complete control
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page
01277
14 Shelby also manipulated his parents with respect to their estate and
planning
he induced them to enter into various transactions which were shrewdly calculated by Shelby
to reduce the amounts to be inherited by each of Shelbys siblings and to increase his own
share
15 On or about December 17 2002 Shelby induced Eduardo to enter into
contract entitled Acuerdo Privada or Private Agreement with Adriana Although the
Private Agreement does not state that it includes all of the financial benefits that Adriana
would ever receive from her father Shelby fraudulently induced Eduardo to believe that the
amounts to be paid under the Private Agreement would be fair allocation of his estate as
far as Adriana was concerned The truth however was that the amounts contemplated by
the Private Agreement would
even if paid in full represent only tiny fraction of the
value of Eduardos estate Moreover Shelby knew that ultimately he would have the raw
terminate the payments Adriana should he choose do
power to to to so and that she probably
would lack the resources necessary to seek redress for such action
16 According to the terms of the Private Agreement Adriana was to receive
$150000 per year in monthly installments of $12500 until she had received total of
$2069100 plus interest thereon to be calculated at rate equal to 75 percent of theprime
rate published by the Wall Street Journal and with all sums expressed and to be paid in
currency of the United States
17 Shelby was not signatory party to the Private Agreement
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONOORIA Page
01278
18 Shelby was however named in the Private Agreement as an individual who
was responsible to see that the required payments to Adriana were made by the Mexican
businesses and Shelby did in fact control the businesses that generated the cash flow that
was supposed to be used to make payments under the Private Agreement
19 Shelby expressly assumed the contractual obligation to cause the payments to
be made and for some time Shelby caused payments to be made to Adriana but he did so
fraudulently as explained below
19 The Private Agreement created trust relationship and it identified Shelby as
person who was to serve in the role of trustee i.e managing certain property the Mexican
businesses and their cash flow of another
for the benefit Adriana Shelby accepted this
role and thereby assumed fiduciary responsibility to perform the Private Agreement
20 Instead ofperforming his contractual and fiduciary duty to cause the businesses
to pay the amounts owed to Adriana pursuant to the Private Agreement Shelby used his
fathers money to make payments to Adriana After his father died Shelby used his mothers
money to make payments to Adriana Shelby knew that Dorothy intended for Adriana to
inherit some of Dorothys he both defrauded and
money so Dorothy interfered with
Adrianas inheritance rights by using Dorothys money supposedly to satisfy contractual
obligations under the Private Agreementwhich was not signed by Dorothy and indeed does
not even mention Dorothy
21 Eduardo died on January 26 2005 in Webb County Texas
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page
01279
22 After the death of Eduardo Shelby continued to cause payments to be made
to Adriana but he did so deceitfully using Dorothys money to make the payments instead
ofusing the cash flow of the Mexican businesses as contemplated by the Private Agreement
23 Shelby has lived in Texas since 1979 and he was living in Texas when the
Private Agreement was made
24 Adriana and Eduardo also lived in Texas when the Private Agreement was
made and thereafter
25 Shelby and Adriana had an informal fiduciary relationship under which Shelby
had fiduciary duty to see that Adriana received the payments contemplated by the Private
Agreement The informal fiduciary relationship between Shelby and Adriana arose in Texas
pursuant to Texas law
26 Shelby and Adriana also had an express fiduciary relationship arising under the
Private Agreement
27 In or around October 2010 Shelby caused the payments to Adriana to cease
28 Shelby did so with malice toward Adriana based on grudge against her and
without legal justification or excuse
29 Shelby caused further harm to Adriana in 2012 shortly after their mother died
on April of that year by breaching contractual obligation of which Adriana was third
party beneficiary
30 The obligation was set forth in an agreement dated October 2007 between
Shelby and Dorothy The agreement was in the form of letter which Shelby sent from his
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page
01280
home in McAllen Texas to Dorothy at her residence in Houston Texas and which Dorothy
then signed In the agreement Shelby specifically promised that within thirty days after
Dorothy died he would pay $100000 to Sylvia and $100000 to Adriana
Adriana was third-party beneficiary of the October 2007 contract between
Shelby and Dorothy
32 Upon Dorothys death Shelby repudiated and breached his contractual
obligation to pay $100000 to Adriana While he did tender to Adriana check for $100000
he had printed on the check language that if the check was negotiated would have resulted
in release of among other things all obligations which Shelby Longoria may have or is
claimed to have to the estate of Dorothy Longoria or any beneficiary thereof
33 Shelby had no right to impose such self-serving conditions and he did so
maliciously as he knew that Adriana was beneficiary of Dorothys estate and that he had
obligations to Adriana
34 Shelby knew that Dorothy intended for her daughters to receive her entire
estate so he manipulated Dorothy to enter into various transactions which were designed to
benefit Shelby and to reduce the value of Dorothys estate
Respoudeat Superior
35 Whenever it is alleged herein that Shelby acted or communicated in any
fashion then such allegation should be taken to mean
That Shelby himself took such action or made such communication or
in the alternative
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page
01281
That duly authorized agent of Shelby took such action or made such
communication on behalf of Shelby and in the course and scope of the agency or in the
alternative
That such action or communication was by one having apparent
authority to do so on behalf of Shelby or in the alternative
That Shelby ratified and adopted such action or communication as its
own and thereby became legally responsible for it
Statement Pursuant to Rule 47 of the Texas Rules of Civil Procedure
36 Adriana seeks monetary relief over $1000000
First Cause of Action
Tortious Intererence with Inheritance Rights
37 Adriana repeats and incorporates by reference all of the foregoing averments
If averment is inconsistent with this cause of action the averment is
pleaded in the
any
alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
38 Shelby tortiously interfered with Adrianas inheritance rights
39 The tortious interference by Shelby proximately caused compensable harm to
Adriana Under Texas law Adriana is entitled to and hereby requests entry ofjudgment
for actual damages in an amount to be determined by the trier of fact in
against Shelby
accordance with Texas law
40 The tortious interference by Shelby was committed with malice as that term
is defined in Chapter 41 of the Texas Civil Practice and Remedies Code Under Texas law
FIRST AMENDED COUNTERCLAIMS OF ADPJANA LONGORIA Page
01282
Adriana is entitled to and of judgment against
hereby requests entry Shelby for exemplary
damages in an amount to be determined by the trier of fact accordance
in with Texas law
41 Anticipating that Shelby will plead the defense of limitations in to this
response
cause of action Adriana pleads that Section 16.069 of the Texas Civil Practice and Remedies
Code is applicable and precludes of any
application statute of limitations because this
counterclaim arises out of the same transactions or occurrences or least one
at if not more
of the same transactions or that
occurrences are the subject matter of Shelbys claim against
Adriana and this counterclaim does not require for its the
adjudication presence of third
parties of whom the court cannot acquire jurisdiction
Second Cause of Action
Breaches of Fiduciary Duty
42 Adriana repeats and incorporates by reference all of the foregoing averments
If any averment is inconsistent with this cause of action the averment is pleaded in the
alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
43 Under Texas law Shelby breached his fiduciary Adriana
duty to by inter al/a
maliciously causing the monthly payments to her to cease because of held
grudge by
him and asserting fraudulent excuse for the cessation of the monthly payments
44 The breaches of fiduciary duty by Shelby proximately caused compensable
harm to Adriana Under Texas law Adriana entitled and
is
to hereby requests entry of
judgment against Shelby for actual damages in an amount to be determined of
by the trier
fact in accordance with Texas law
FIRST AMENDED COUNTERCLAIMS OF ADRJIANA LONGORIA Page
01283
45 The breaches of fiduciary duty by Shelby constituted fraud and were
committed with malice as those terms are defined in Chapter 41 of the Texas Civil Practice
and Remedies Code Under Texas law Adriana is entitled to and hereby requests entry of
judgment against Shelby for exemplary damages in an amount to be determined by the trier
of fact in accordance with Texas law
46 Pursuant to Section 114.064 of the Texas Trust Code and other applicable
law Adriana is entitled to an award of attorney fees including litigation expenses
reasonably and necessarily incurred in connection with this action
47 Anticipating that Shelby will plead the defense of limitations in response to this
cause of action Adriana pleads that Section 16.069 ofthe Texas Civil Practice and Remedies
Code is applicable and precludes application of any statute of limitations because this
counterclaim arises out of the same transactions or occurrences or at least one if not more
of the same transactions or occurrences that are the subject matter of Shelbys claim against
Adriana and this counterclaim does not require for its
adjudication the of third
presence
parties of whom the court cannot acquire jurisdiction
Third Cause of Action
Tortious Interference with Contract
48 Adriana repeats and incorporates by reference all of the foregoing averrnents
If any averment is inconsistent with this cause of action the averment is pleaded in the
alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
49 Shelby tortiously interfered with the performance of the Private Agreement
between Eduardo and Adriana
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORTA Page 10
01284
50 The tortious interference by Shelby proximately caused compensable harm to
Adriana Under Texas law Adriana is entitled to and hereby requests entry of judgment
against Shelby for actual damages in an amount to be determined by the trier of fact in
accordance with Texas law
51 The tortious interference by Shelby was committed with malice as that term
is defined in Chapter 41 of the Texas Civil Practice and Remedies Code Under Texas law
Adriana is entitled to and hereby requests entry of judgment against Shelby for exemplary
damages in an amount to be determined by the trier of fact in accordance with Texas law
52 Anticipating that Shelby will plead the defense of limitations in response to this
cause of action Adriana pleads that Section 16.069 of the Texas Civil Practice and Remedies
Code is applicable and precludes application of any statute of limitations because this
counterclaim arises out of the same transactions or occurrences or at least one if not more
of the same transactions or occurrences that are the subject matter of Shelbys claim against
Adriana and this counterclaim does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction
Fourth Cause of Action
Breach of Contractual Obligation To Perform Private Agreement
53 Adriana repeats and incorporates by reference all of the foregoing averments
If averment inconsistent with this cause of action the averment is pleaded in the
any is
alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
54 Shelby assumed the contractual obligation to cause the Mexican businesses to
make the payments owed to Adriana under the Private Agreement
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 11
01285
55 Shelby breached his obligations under the Private Agreement first by using
Eduardos money to make payments that should have been thade by the businesses then by
using Dorothys money to make payments that should have been made by the businesses and
finally by cutting off all payments entirely
56 The breaches by Shelby proximately caused compensable harm to Adriana
Under Texas law Adriana is entitled to and hereby requests entry of judgment against
Shelby for actual damages in an amount to be determined by the trier of fact in accordance
with Texas law
57 It was both reasonable and necessary for Adriana to retain attorneys to prepare
and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and
Remedies Code and other applicable law Adriana is entitled to and hereby requests an
award of attorney fees including litigation expenses reasonably and necessarily incurred in
connection with this action
Fifth Cause of Action
Breach of Promise To Pay $100000 to Adriana
58 Adriana repeats and incorporates by reference all of the foregoing averments
If averment is inconsistent with this cause of action the averment is pleaded in the
any
alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
59 In the agreement dated October 2007 Shelby promised Dorothy that within
thirty days of her death he would pay $100000 to Adriana This promise was made by
while he was in Texas and was directed to Dorothy at her residence in
Shelby residing it
Houston Texas Adriana was third-party beneficiary of the promise made by Shelby to
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 12
01286
Dorothy Shelby breached his promise to Dorothy by tendering to Adriana check that she
could not negotiate without her
waiving rights in Dorothys estate and her rights against
Shelby He had no right to impose such
self-serving conditions
60 Based on the doctrines ofbreach-of-contract promissory estoppel and money-
had-and-received under Texas law Adriana is entitled and
to hereby requests of
entry
judgment against Shelby for $100000 in accordance with Texas law
61 It was both reasonable and for
necessary Adriana to retain attorneys to prepare
and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and
Remedies Code and other
applicable Texas law Adriana entitled
is
to and hereby requests
an award of attorney fees including litigation expenses reasonably and incurred
necessarily
in connection with this action
Prayer for Relief
WHEREFORE PREMISES CONSIDERED Counter-Plaintiff Adriana Longoria
prays that upon due notice and by jury
trial or upon hearing on motion for
entry of default
judgment or motion for the Court render judgment for her and
summary judgment against
Counter-Defendant Shelby Longoria awarding the following relief under Texas law
an award of actual damages from and against Counter-Defendant Shelby
Longoria in amounts to be determined by the trier of fact in accordance with Texas law
an award of exemplary damages from and against Counter-Defendant Shelby
Longoria in amounts to be determined by the trier of fact accordance
in with Texas law
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 13
01287
an award of fees
attorney including litigation expenses reasonably and
necessarily incurred by Counter-Plaintiff in connection with her fourth cause of action under
Texas law
an award of prejudgment interest on all actual damages at the rate
highest
authorized by Texas law to the date of judgment
an award of all costs incurred by Counter-Plaintiff in the course of preparing
and prosecuting this civil action
an award of postjudgment interest on all relief the
monetary at highest rate
authorized by Texas law from the date of judgment until paid
all writs and processes to collect the
necessary judgment and
all other relief to which Counter-Plaintiff is entitled under Texas law or which
may deem
the Court appropriate under the circumstances and applicable Texas law
Any inconsistent allegations or prayers for relief are in the
pleaded alternative as
expressly authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
Reservation of Rights To Amend and To Supplement This Pleading
Adriana presently does not know of the specific
all acts and omissions that caused
harm to her or all of the relevant circumstances surrounding such acts and she
omissions so
that
anticipates it
may be necessary to plead additional causes of action after is
discovery
conducted Accordingly Adriana hereby reserves the rights to amend and to supplement this
pleading
FIRST AMENDED COUNTERCLAIMS OF ADRJANA LONGORIA Page 14
01288
DATED December11 2014
Respectfully submitted
/s/ James Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
Shannon L.K Welch
State Bar of Texas Number 90001699
FISHER WELCH
Professional Corporation
Ross Tower Suite 2800
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Facsimile 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
THE HOLMES LAW FmM
10000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9267
Facsimile 214.890.9295
ATTORNEYS FOR COUNTER-PLAINTIFF
ADRIANA LONGORIA
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 15
01289
CERTIFICATE OF SERVICE
hereby certify that on December 11 2014 true and correct copy of this document
was served on Shelby Longoria through his attorneys of record named below in the manner
indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schiemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
BY EMAIL TO jcarter@susmangodfrey.com rhess@susrnangodfrey corn and
kschlernmer@susrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO rnacintyre@rnrnlawtexas.com
/s/.James Austin Fisher
James Austin Fisher
FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 16
01290
EXHIBIT
01291
VOLUME II
ADRIANA LONGORIA 8/26/2014
Page 144
NO 414270
IN THE ESTATE OF IN THE PROBATE COURT
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
ORAL AND VIDEOTAPED DEPOSITION OF
ADRIANA LONGORIA
AUGUST 26 2014
VOL UME II
ORAL AND VIDEOTAPED LEPOSITION OF ADRIANA
LONGORIA produced as witness at the instance of
Counsel for She....by Longoria and duly sworn was
taJen in the abovestyled and numbered cause on the
26th of August 2014 from 208 p.m to 449 p.m
before AMY PRIGMORE CSR in and for the State of
Texas reported by stenographic means at the
offices of SUSMAN GODFREY LLP 1000 Louisiana
Suite 500 Houston Texas pursuant to th.e Texas
Rules of Civil Procedure and the provisions stated
on the record or attached hereto
MERRILL CORPORATION HOUSTON
1-888-513-9800 WWW.MERRILLCORP.COM/LAW
01292
VOLUME II
ADRIANA LONGORIA 8/26/2014
Page 200
This is the one we signed at dinnertime It
was his birthday October
And you see the first clause it says The
parties recognize the validity and scope of the
trust
Do you see that The paragraph right before
the $3 million to you
Uh-huh
Okay So back in 2002 in October you say
10 on your fathers birthday you executed an agreement
11 that affirms the validity and the scope of this
trust referenced in the document right
13 MR FISHER Objection form
14 BY MR HESS Your answer
15 nell was not able to read it before
16 signed it
17 All right Obviously you didnt sign
18 Exhibit 102 but you signed Exhibit 103 the
19 Spanish language one
20 Yes
21 And when you say you were riot able to read
22 it youre not telling me that youre incapable of
23 reading it right
24 No was saying it was too brief amount of
25 time
MERRILL CORPORATION HOUSTON
1-888-51 3-9800 WWW.MERRILLCORP.COM/LAW
01293
VOLUME II
ADRIANA LONGORIA 8/26/2014
Page 201
You feel today that you didnt have enough
time to read Exhibit 103 before you signed it
Yes
You dont dispute that you did sign it
dont dispute that did sign it
You dont dispute that you could have had
the opportunity to read it whenever you wanted
No They they were picked up then and
there
10 see Do you recognize this is the
11 by which youve been paid --
agreement
12 Yes do
13 -- an allowance
14 Yes do
15 every month every year between
16 As had all the years prior in my life
17 MR FISHER You didnt let him
18 finish the question so you dont even know what
19 you were answering
20 BY MR HESS You dont even know what
21 was asking
22 No dont am so terribly sorry
23 Thats all right
24 suppose Ill leave here renegade
25 Just try to do better
MERRILL CORPORATION HOUSTON
18885139800 WW.MERRILLCORP COM/LAW
01294
VOLUME II
ADRIANA LONGORIA 8/26/2014
Page 202
will truly.
You signed an agreement
Yes
-- in 2002 And under the terms of that
agreement you have been paid an allowance monthly
all way up until October 2010
Yes
Are you claiming that this agreement is
somehow invalid
10 No
11 Okay This is valid agreement that you
12 signed and which your father signed
13 Witness nods head
14 MR FISHER Objection form
15 BY MR HESS You nodded before Mr Fisher
16 objected
17 But what is your answer anyway out loud
18 What see here on the paper is my signature
19 and my fathervs signature
20 While you may have some complaints today
21 that you wish you had more time to read it you
22 dont dispute that you signed it and that youve
23 been paid pursuant to this agreement up until
24 October 2010
25 did not know what was written on
MERRILL CORPORATION HOUSTON
1888-5139800 WWW.MERRILLCORP.COM/LAW
01295
VOLUME Ii
ADRIANA LONGORIA 6/26/2014
Page 203
these pages And almost feel that my father at
that time as you can see his signature was quite
ill
You dont dispute
No
-- that you signed it and that youve been
to this agreement all the way up to
paid pursuant
2010
Let me say that do
10 -- right
11 -- not know where those payments came from
12 were they the same payments from the trus hat
13 had been paid for for 50 years monthly
14 When got my morley got it in my account
15 like had been for 50 years prior
Are going to turn around and give all
16 you
17 that money back if this agreement is invalid
18 have no money Ive spent it
the bottom of
19 Well look at page
MR FISHER Which exhibit
20
21 MR HESS Exhibit 102
22 BY MR HESS Where it says The balance
23 to be delivered to Adriana Longoria Kowalski in
24 terms of previous paragraph amounts to 2069100
25 And it carries over onto the second page
MERRILL CORPORATION HOUSTON
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1-8885139800
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VOLUME II
ADRIANA LONGORIA 8/26/2014
Page 234
STATE OF TEXAS
COUNTY OF HARRIS
Amy Prigmore Texas CSR No 3929 do hereby
certify
That the foregoing deposition of ADRIANA
LONGORIA was taken before me at the time and place
herein set forth at which time the witness was put
under oath by me
That the testimony of the witness made at the
10 time of the examination were recorded
11 stenographically by me were thereafter transcribed
12 under my direction and supervision and that the
13 foregoing is true record of same
14 further certify that am neither counsel
15 for nor related to any party to said action nor in
16 any way interested in the outcome thereof
17 In witness whereof have subscribed my
18 name this the day of 2014
____
ANY IGMOR Texas CSR 3929
22 Expiration Date 12/31/14
MERRILL CORPORTION
23 315 Capitol Street Suite 210
Houston Texas 77093
24 Firm No 210
25
MERRILL CORPORATION HOUSTON
1-888-513-9800 WWW.MERRILLCORP.COM/LAW
01297
EXHIBIT
01298
Case Number 414270
IN THE ESTATE OF IN THE PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED
HARRIS COUNTY TEXAS
Affidavit of Johnny Carter in Support of
Shelby Longorias Motion to Dismiss Adriana Longorias Claims
Johnny Carter declare as follows
My name is Johnny Carter am over the age of twenty-one 21 years am
to testify to the matters stated herein have personal knowledge of the facts and
competent
statements in this declaration and each of the facts and statements is true and correct
am an attorney in the law firm of Susman Godfrey L.L.P am licensed to
practice law in the state of Texas and before this Court am counsel of record for Shelby
Longoria in the above-referenced litigation
Attached as Exhibit is true and correct copy of document dated December
17 2002 titled Acuerdo Privado
Attached as Exhibit 2A is true and correct copy of certified translation of the
Acuerdo Privado
Attached as Exhibit is true and correct copy of document dated October 15
2002 titled Banca Afirme Fideicomiso No 194-2
Attached as Exhibit 3A is true and correct copy of certified translation of
Banca Afirme Fideicomiso No 194-2
Attached as Exhibit is true and correct copy of the First Amended
Counterclaims of Adriana Longoria
3498307v 1/0 13774
01299
Attached as Exhibit is true and correct copy of excerpts from the deposition of
Adriana Longoria
FURTHER AFFIANT SAITH NOT
Jhny7 Carter
SUBSCRIBED AND SWORN TO BEFORE ME Notary Public by Johnny Carter
which witness hand
on this 14th day of January 2015 to certify my official and seal of office
Notary Public in and for the State
CElIA HERNANDEZ
State of Texas
Notary Public
Commission Expires 11-10-2018 My Commission Expires.
3498307v 1/0 13774
01300
CASE NUMBER 414.270
IN THE ESTATE OF PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
RESPONSE OF AD1UANA LONGORIA TO SHELBY LONGORLAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS
TO THE HONORABLE JUDGE OF THIS COURT
Adriana Longoria Adriana hereby timely responds to Shelby Longoria Motion
to Dismiss Adriana Longorias Claims the Motion To Dismiss
SUMMARY OF RESPONSE
The Motion To Dismiss should be denied for four reasons
First the Motion To Dismiss is based on forum-selection clause that by its express
terms does not apply to Adrianas counterclaims
Second the forum-selection clause is unreasonable and unjust in light of the pre
existing fiduciary relationship of the parties where the agreement was made where the
parties resided and the manifest unacceptability of the specified forum
Third the forum-selection clause is unenforceable because it was procured through
fraud and overreaching by Shelby Longoria Shelby
Fourth by litigating Adriana counterclaims in this Court for year without invoking
the forum-selection clause Shelby waived his alleged right to do so
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page
01301
EVIDENCE SUPPORTING THIS RESPONSE
Adriana hereby offers the following evidence in support of her response
The Affidavit of Adriana Longoria which affidavit is Exhibit to this
response and is incorporated herein by reference Exhibit to that affidavit letter dated
October 22 2010 from Carolyn Beckett to Adriana is not offered to prove the truth of the
assertions therein except for one passage quoted below
The Affidavit of James Austin Fisher Fisher Affidavit which affidavit is
Exhibit to this response and is incorporated herein by reference Exhibits through to
that affidavit excerpts of depositions and responses to written discovery requests
in this
case are not offered to prove the truth of any assertions therein but to prove what positions
were taken and more importantly what position was not taken by Shelby for full year
after Adriana pleaded her counterclaims against him The only exception is the deposition
testimony of Shelby that he was the one that was instrumental in getting the money sent
Adriana in order to comply with dads wishes That testimony is offered to prove the
truth of the facts admitted by him
The Affidavit of han Rosenberg Rosenberg Affidavit which affidavit is
Exhibit to this response and is incorporated herein by reference
The affidavit of Ilan Rosenberg was originally filed herein on September 30 2013
Exhibit to this response is true and correct copy of it
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGOPJAS CLAIMS Page
01302
In addition Adriana hereby requests that the Court take judicial notice of the contents
and the date of filing of each of the following pleadings
Original Counterclaims of Adriana Longoria submitted for electronic filing
on January 2014 but not file-stamped until January 2014 due to technical failure
Counter-Defendant Shelby Longorias Answer to Original Counterclaims of
Adriana Longoria filed on January 21 2014
First Amended Counterclaims of Adriana Longoria filed on December 11
2014
Counter-Defendant Shelby Longorias Answer to First Amended
Counterclaims of Adriana Longoria filed on January 20 2015
Second Amended Counterclaims of Adriana Longoria filed on February
2015
OBJECTIONS TO EVIDENCE ATTACHED TO MOTION TO DISMISS
Adriana hereby objects to the Affidavit of Dr Carlos Gabuardi which is attached to
the Motion To Dismiss as Exhibit Paragraph subparagraphs and and paragraphs
11-19 of that affidavit contain opinions about the meaning and legal effect of ordinary terms
of contract Adriana to each of them individually and separately because the
objects
construction of ordinary contractual terms is matter of law for the Court and the parol
alters the terms of written
evidence rule prohibits admission of extrinsic evidence that
contract see David Sacks P.C Haden 266 S.W.3d 447 451 Tex 2008 citing
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page
01303
Rincones Windberg 705 S.W.2d 846 849 Tex App Austin 1986 no writ or that
renders them ambiguous Americo Lfe Inc Meyer 440 S.W.3d 18 22 Tex 2014 the
parol evidence rule precludes considering evidence that would render contract ambiguous
when the document on its face is capable of definite legal meaning Sun Oil Co
citing
Del Madeley 626 .W.2d 726 731-32 Tex 1981 The remainder of the Affidavit of
Dr Carlos Gabuardi is by itself irrelevant Accordingly Adriana requests that these
objections be sustained and that the Affidavit of Dr Carlos Gabuardi be stricken and
disregarded
Adriana also hereby objects to Exhibits and 3A which are attached to the Motion
To Dismiss on the ground that they are not authenticated See TEx EvID 602 90 1a
Those exhibits are referenced in Exhibit the Affidavit of Johnny Carter in Support of
Shelby Longorias Motion to Dismiss Adriana Longorias Claims but the affiant is merely
an attorney for Shelby in this proceeding He does not testify that Exhibit is true and
correct copy of the original Nor does he testify that he has personal knowledge of the
execution or terms of the original Exhibit 3A is merely translation of Exhibit so Exhibit
3A can have no better claim of authenticity than Exhibit Consequently Adriana requests
that Exhibits and 3A be stricken and disregarded
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADPJANA LONGORIAS CLAIMS Page
01304
ARGUMENT AND AUTHORITIES
There are four reasons why the Motion To Dismiss must be denied as matter of law
Each is independent of the others and each by itself requires denial
The Forum-Selection Clause Does Not Apply to Adrianas Claims
The Forum-Selection Clause Applies Only to Litigation Regarding
Certain Trust Not Litigation Regarding the Private Agreement
The Private Agreement does indeed contain forum-selection clause but the clause
does not say what Shelby wants it to say
logical first step
in the analysis would be to identif the forum-selection clause in
question but the Motion To Dismiss never does so Instead Shelby argues at length about
other contractual provisions such as choice-of-law provisions which do not speak to the
question of where lawsuits may be brought The one and only forum-selection provision in
the Private Agreement is the third sentence of the first paragraph of the Fourth clause of
the Private Agreement To avoid being accused of taking that one sentence out of context
we quote the entire paragraph in which it
appears
This Agreement is established under the jurisdiction and laws of
the United Mexican States Therefore the parties exclusively
submit to the laws of Mexico thus they expressly waive
application of any law regulation provision or rule of any
jurisdiction other than Mexico which might correspond to them
due to their residence paternity citizenship domicile kinship or
commercial relationship Therefore in the event of any
or any aspect related to this Trust they
interpretation dispute
submit to the courts of the city of Reynosa
expressly
Tamaulipas Mexico
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page
01305
Emphasis added Only the italicized sentence is forum-selection provision There is no
other in the Private Agreement
This forum-selection clause simply does not say that lawsuit to enforce right
conferred by the Private Agreement must be brought in Reynosa Rather it
says that the
parties submitted to the courts of Reynosa with regard to any interpretation dispute or any
aspect related to this Trust Emphasis added The Spanish word that is translated Trust
is Fideicomiso Fideicomiso does not mean Agreement
Fideicomiso is defined term in the Private Agreement It is defined as one
particular trust trust that was created on October 15 2002 by Eduardo Longoria Theriot
the father of Adriana and Shelby as settlor and that named Banca Afirme S.A as trustee
the Afirme Trust Thus it is no accident that the word Fideicomiso is capitalized in
the forum-selection clause it had very specific expressly defined meaning and that
meaning did not include the Private Agreement which did not even exist when the Trust
was formed The capitalization of Fideicomiso leaves no doubt that the reference to it in
the forum-selection clause is reference to the Afirme Trust not to the Private Agreement
The words Acuerdo Privado mean Private Agreement They do not mean the
same thing as Fideicomiso as the translation proffered by Shelby makes clear.2
the parties used the term presente Acuerdo or this Agreement
Significantly
elsewhere in the very paragraph that includes the forum-selection clause but not in the
Motion To Dismiss Ex 2A at
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS AJRLANA LONGORIAS CLAIMS Page
01306
forum-selection clause itself thus showing that the reference to el presente Fideicomiso
in the forum-selection clause was an intentional distinction of the Afinne Trust from the
Private Agreement Nothing in the Private Agreement claims enforce
says that to rights
conferred by the Private Agreement may only be brought in the courts of Reynosa
Counsel for Shelby obviously recognized this problem with their position so they
constructed an elaborate sophistry designed to divert attention from the wording of the
forum-selection clause to other parts of the Private Agreement.3 Hence the Motion To
Dismiss relies heavily on choice-of-law provisions in the Private Agreement
But choice-of-law clause and forum-selection clause are two different things The
first two sentences of the Fourth clause quoted above are quite plainly choice-of-law
provisions notwithstanding Shelbys inadmissible extrinsic evidence to the contrary They
do not require dismissal of Adriana counterclaims in this Court
Likewise claim to enforce the Private Agreement is not an effort to modify it or to
limit it or to set it aside The second paragraph of the Fourth clause therefore lends no
support to Shelbys argument That paragraph does not address actions to enforce the Private
Agreement at all And it does not address where such actions may be brought The fact that
Motion To Dismiss at 6-9 devoting two sentences on pages 6-7 to the forum
selection clause itself and over three pages to other provisions of the Private
Agreement
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORJAS
MOTION TO DISMISS ADRJANA LONGORIAS CLAIMS Page
01307
Shelbys counsel felt the need to devote so much verbiage to plainly irrelevant paragraph
belies the weakness of their of the forum-selection clause itself
interpretation
Two of Adrianas Causes of Action Are Unrelated to the Private
Agreement So the Forum-Selection Clause Cannot Apply to Them
Before moving to the second independent ground for denial of the Motion To
Dismiss it should be noted that even if the forum-selection clause had referred to claims
related to the Private Agreement instead of being limited to claims related to the Trust it
still would not apply to all of Adriana counterclaims The First Cause of Action and the
Fifth Cause of Action pleaded by Adriana neither assert right arising under the Private
Agreement nor depend on its validity or meaning Consequently Shelbys request that those
causes of action be dismissed is frivolous
The First Cause of Action is based on the legal theory of tortious interference with
inheritance rights The gravamen of the claim is that Shelby fraudulently reduced the amount
of be inherited by Adriana Shelby did so in two ways he lied his
money to at least to
parents about the value of the Mexican businesses that Shelby was managing in an effort to
induce his parents to leave the businesses to him and give less money to his sisters and he
misappropriated his parents money some of which would otherwise have gone to Adriana
Neither of on the meaning or enforceability of either the Private
theory liability depends
Agreement or the Afirme Trust Nor do they seek to set aside either the Private Agreement
or the Afirme Trust
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page
01308
The Fifth Cause of Action is based on contract dated October 2007 between
Shelby and his mother Dorothy Adriana is third-party beneficiary of that contract
because it
expressly requires Shelby to pay $100000 to Adriana The contract does not
mention the Private Agreement and is wholly unrelated to it
II The Forum-Selection Clause Is Unreasonable and Unjust
forum-selection clause is unenforceable if it is unreasonable and unjust In re
Automated Collection Technologies Inc 156 .W.3 557 559 Tex 2004 In re AIU Ins
Co 148 S.W.3d 109 113 Tex 2004 If specified forum is remote alien forum in
which there is serious inconvenience. to one or both of the parties that forum may be
considered unreasonable and unjust Carnival Cruise Lines Inc Shute 499 U.S 585 592
1991 quoting The Bremen Zapata Off-Shore Co 407 U.S 17 1972
As construed by Shelby the forum-selection clause in the Private Agreement is
unreasonable and unjust for two reasons first it contravenes pre-existing and
overarching fiduciary relationship between Shelby and Adriana under which she had
subtantial under Texas law and it surreptiously to those rights
rights operates negate
according to Shelby without explicit notice to Adriana that it is doing so thereby
breach of fiduciary duty by Shelby and second it
effectively deprives Adriana
constituting
of any remedy by requiring litigation in remote alien forum that will not recognize her
claims and is so dangerous and corrupt that it is manifestly unreasonable to expect Adriana
to assert her claims there
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page
01309
The Private Agreement was signed in Texas contrary to what it
says about the place
of execution.4 Both of the signatory parties were residents of Texas and both of the other
parties who are identified as having obligations thereunder Shelby and his brother
Eduardo Longoria Kowaiski also resided in Texas.5 The context of the agreement was
longstanding confidential relationship between and Adriana
Shelby as fiduciary as
beneficiary.6 Shelby had assumed the obligation to fulfill his fathers wishes with regard to
payments to be made to Adriana from the revenues of certain businesses which Shelby was
managing The Private Agreement itself recites these facts Eduardo had previously directed
that $3000000 be paid to Adriana from the operating cash flow generated by the
companies represented by the shares contributed to the TRUST or by their subsidiaries
the principal balance owed to Aciriana as of the date of the Private Agreement was
$2069100 and it was the obligation of Shelby and his brother to cause that amount plus
interest to be paid to Adriana by continuing to make monthly payments to her.7 Thus when
the Private Agreement was signed there already was well-established fiduciary relationship
Ex Affidavit of Adriana Longoria at 11
51d at2J4
Motion To Dismiss Ex 2A at 1-2
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 10
01310
between Adriana and Shelby It had arisen in Texas under Texas law and it had existed for
at least ten years prior to the execution of the Private Agreement.8
One of Adriana counterclaims is based on her informal fiduciary relationship with
Shelby But informal fiduciary relationships are not recognized in Mexico.9 If construed in
the manner urged by Shelby the forum-selection clause would have the practical effect of
depriving Adriana of any remedy for violation of her rights under Texas law rights
independent of the Private Agreement and vested before the Private Agreement ever existed
And the forum-selection clause would do so without explicit notice to Adriana of that result
Cf Carnival Cruise Lines 499 U.S at 595 respondents have conceded that they were given
notice of the forum provision and therefore retained the option of rejecting the contract with
impunity It bears emphasis that forum-selection clauses are subject to judicial
scrutiny for fundamental fairness and as part of such scrutiny courts consider whether there
is any indication that the specified forum was selected as means to discourage party
from pursuing legitimate claims Carnival Cruise Lines 499 U.S at 595 That of course
is precisely what Shelby is trying to do
The second the forum-selection misconstrued by Shelby is
reason why clause as
unreasonable and unjust is that the specified forum is one of the most dangerous places in
the world The United States Department of State has issued Travel Warning about the
Lx Affidavit of Adriana Longoria at
Ex Affidavit of Ilan Rosenberg at 10-11
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 11
01311
security situation in Mexico It was last updated on December 24 2014 in order to provide
additional warnings and to impose more restrictions on travel by personnel of our
government It provides chilling view of travel in the border region which of course
includes Tamaulipas
The number of kidnappings throughout Mexico is of particular
concern and appears to be on the rise According to statistics
published by the Mexican Secretaria de Gobernacion SEGOB
in 2013 kidnappings nationwide increased 20 percent over the
previous year While kidnappings can occur anywhere
according to SEGOB during this timeframe the states with the
highest numbers of kidnappings were Tamaulzpas Guerrero
MichoacÆn Estado de Mexico and Morelos Additionally
according to widely publicized study by the agency responsible
for national statistics INEGI the National Institute of Statistics
and Geography Mexico suffered an estimated 105682
kidnappings in 2012 only 1317 were reported to the police
Police have been implicated in some of these incidents Both
local and expatriate communities have been victimized
Emphasis added The situation in Tamaulipas is so bad that employees of the United States
Government have been directed to defer non-essential travel to the state of Tamaulipas
because conflicts between rival criminal elements andlor the Mexican military can
occur in all parts of the region and at all times of the day.2 The warning continues
Matamoros eynosa Nuevo Laredo and Ciudad Victoria have experienced numerous gun
Ex Fisher Affidavit at Ex
Id at
2Id at5
RESPONSE OF ADRIANA LONOORIA TO SHELBY LONOORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 12
01312
battles and attacks with explosive devices in the past year The number of reported
kidnappings for Tamaulipas is among the highest in Mexico and the number of U.S citizens
reported to the consulates in Matamoros and Nuevo Laredo as being kidnapped abducted
or disappearing involuntarilyin 2014 has also increased.3 All U.S government employees
are prohibited from personal travel to Reynosa and most of the rest of Tamaulipas.4
Shelby himself has represented to this Court that artel violence Street shoot-outs
kidnapping and extortion have been persistent threats along the Mexican border.5 And
one of Shelbys lawyers wrote in letter to Adriana that very real threats of kidnapping
torture and murder part of working as businessman in the cross-border areas of
northern Mexico.6 She added street violence and shootouts are an every day occurrence
and is dangerous to travel to many of the areas in which the businesses of the Mexican
Companies as the companies that Eduardo had owned and directed are located
Id emphasis added
4Id
5CoTER-DEFENDT SHELBY LONGORIA BRIEF ll SUPPORT OF His MOTION TO
DISMISS COUNTERCLAIMS FOR FORUM NON CONVENIENS OR ALTERNATIVELY TO ABATE
PENDING RESOLUTION OF WILL CONTEST AND MEXICAN LITIGATION filed Aug.7 2013 at
16
Ex Affidavit of Adriana Longoria Ex at
71d
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 13
01313
For Shelby to claim that Reynosa Tamaulipas is reasonable venue for litigation
of Adrianas counterclaims in the face of the harsh realities that he has acknowledged
elsewhere betrays lack of candor toward the Court
III The Forum-Selection Clause Was Procured by Fraud and Overreaching
It is axiomatic that failure to disclose information fraud where
may constitute there
is duty to disclose Bradford Vento 48 S.W.3d 749 754-55 Tex 2001 duty to
disclose arises where there is confidential or fiduciary relationship Insurance Co North
America Morris 981 S.W.2d 667 674-75 Tex 1998 Texas recognizes that fiduciary
relationships may arise informally from moral social domestic or purely personal
relationships Meyer Cathey 167 S.W.3d 327 330-3 Tex 2005 quoting Associated
Indemnity Corp CAT Contracting Inc 964 S.W.2d 276 287 Tex 1998 Thigpen
Locke 363 S.W.2d 247 253 Tex 1962 Follett 180 S.W.2d 334 337 Tex
1944
When Adriana signed the Private Agreement her relationship with Shelby was already
one of trust and confidence because he is her brother and because for many years before then
he had accepted the responsibility to make payments to her in accordance with her fathers
wishes.8 Eduardo wishes to for Adriana were expressed at various times and in
provide
various ways but one such wish that pre-dates the Private Agreement is described in the
18
Ex Affidavit of Adriana Longoria at IJ
RESPONSE OF ADRIANA LONOORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 14
01314
Private Agreement itself in the second clause.19 For about ten years before Adriana signed
the Private Agreement Shelby had caused businesses in Mexico which he controlled to
make payments to Adriana in accordance with Eduardo wishes.2 Many times Adriana had
heard Eduardo ask Shelby to see that the businesses made payments to Adriana and many
times Adriana had heard Shelby promise to do so.2 Shelby himself admitted was the one
that was instrumental in getting the money sent in order to comply with my dads wishes.22
Moreover Shelby knew that Adriana was in vulnerable position and that Adriana needed
the payments that her father had promised and that Shelby had been sending in order to pay
even her most basic living expenses.23 Throughout this period of time Eduardo Shelby and
Adriana all lived in Texas.24 Thus based on Shelbys own words and conduct in Texas over
period of many years Adriana understood and Shelby acknowledged that they had
relationship of trust and confidence and specifically that Adriana was trusting him to see that
Eduardos wishes were carried out for her benefit.25
Id Motion To Dismiss Ex 2A at 1-2
20
Ex Affidavit of Adriana Longoria at IJ
21
Id
22
Ex Fisher Affidavit Ex ORAL AND VIDEOTAPED DEPOSITION OF SHELBY
LONGORIA Oct 2014 at 156 lines 8-9
23
Ex Affidavit of Adriana Longoria at
251d
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
ADRIANA LONGORIAS CLAIMS Page 15
MOTION TO DISMISS
01315
Thus the fiduciary relationship between Shelby and Adriana predated and
transcended the Private Agreement Because Shelby owed fiduciary duty to Adriana he
had an affirmative duty to disclose facts that might affect her interests If it were the case
that the Private Agreement contained forum-selection clause that prevented Adriana from
seeking its enforcement in the state where Eduardo Adriana and Shelby all lived and
choice-of-law clause that eliminated his then-existing fiduciary duty to Adriana then Shelby
should have disclosed that when he presented the Private Agreement to Adriana for her to
affirmative
sign and discouraged her from reading it His failure to comply with his duty to
disclose these alleged facts would constitute fraud rendering the forum-selection and choice-
of-law provisions unenforceable
IV Shelby Waived His Alleged Right To Invoke the Forum-Selection Clause
forum-selection clause may be waived Perry Homes Cull 258 .W.3 580589-
601 Tex 2008 finding waiver of arbitration clause type of forum-selection clause And
one of the ways in which forum-selection clause may be waived is by substantially
invoking the judicial process different forum to the others partys detriment or
prejudice 258 S.W.3d at 589-90 Whether or not litigant has substantially invoked the
judicial process is determined on case-by-case basis by examination of the totality of
the circumstances but the guiding principle is this party who enjoys substantial direct
benefits an advantage in the pretrial process should be barred from
by gaining litigation
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
ADRIANA LONGORIAS CLAIMS Page 16
MOTION TO DISMISS
01316
turning around and seeking in another forum with the spoils 258 .W.3d at 592-
93 That is precisely what Shelby has done
Adriana first pleaded her counterclaims on January 201 426 She amended them on
December 11 2014 and again on February 2015.27 Those amendments added one cause
of action which is denominated the Fourth Cause of Action in the last amendment.28 What
are now the First Second Third and Fifth Causes of Action all were pleaded in the original
statement of Adriana counterclaims filed on January 201 429 Shelby litigated those four
causes of action for year before he asserted his alleged right to dismissal of them based on
the forum-selection clause
Shelby filed his original answer to the counterclaims on January 21 2014.30 Shelby
did not plead that Adriana counterclaims should be dismissed based on the forum-selection
26See ORIGINAL COUNTERCLAIMS OF ADRIANA LONGORTA submitted for electronic
filing on Jan 2014 but not file-stamped until Jan 2014 due to technical failure
27See FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA filed Dec 112014
SECOND AMENDED COUNTERCLAIMS OF ADRJANA LONGORJA filed Feb 2015
28
See SECOND AMENDED COUNTERCLAIMS OF ADRIArsTA LONGOPJA filed Feb
2015 at 12
29See ORIGINAL COUNTERCLAIMS OF ADRIANA LONGORIA submitted for electronic
filing on Jan 62014 but not file-stamped until Jan 92014 due to technical failure at 7-11
30
See COUNTER-DEFENDANT SHELBY LONGORIAS ANSWER TO ORIGINAL
COUNTERCLAIMS OF ADRIANA LONGORIA filed Jan 21 2014
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
ADRIANA LONGORIAS CLAIMS Page 17
MOTION TO DISMISS
01317
clause of the Private Agreement Shelbys answer did not mention that clause It did
however assert numerous defenses all based on Texas law.3
On April 2014 Shelby amended his disclosures under Rule 194 of the Texas Rules
of Civil Procedure.32 Shelbys disclosure under subpart which requires statement of
the legal theories and in general the factual bases of your claims or defenses did not
mention the forum-selection clause of the Private Agreement nor did it disclose that Shelby
would seek dismissal of the counterclaims based on it
On August 26 2014 Shelbys attorney took the deposition upon oral examination of
Adriana and he asked many questions filling ten pages of the transcript about the Private
Agreement and payments made under it.33
On September 12 2014 Shelby responded to set of requests by Adriana for
production of documents and things.34 The requests included nine categories through
and through 10 of documents related to the Private Agreement and payments made or to
31
were derived from Mexican law
Id Shelby did not plead that any of his defenses
32Ex Fisher Affidavit Ex SHELBY LONGORIA SECOND AMENDED RESPONSE
TO REQUESTS FOR DIsCLOSURE Apr 2014
33Bx Fisher Affidavit Ex ORAL AND VIDEOTAPED DEPOSITION OF ADRIANA
LONGORIA Aug 26 2014 at 197-206
Ex Fisher Affidavit Ex SHELBY LONGORIAS RESPONSES TO ADRi.NA
LONGOR1AS FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS Sept 12
2015
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
CLAIMS Page 18
MOTION TO DISMISS ADRIANA LONGORIAS
01318
be made to Adriana thereunder.35 Shelby did not object to any request based on the
proposition that the litigation of claims related to the Private Agreement should not be
conducted here
On September 15 2014 Shelby responded to set of interrogatories propounded by
Adriana.36 All of the interrogatories dealt with the Private Agreement and the payments that
had been made thereunder.37 Shelby answered some of the interrogatories and objected to
but he did not object Adrianas
others to any on the ground that counterclaims supposedly
could not be litigated in this Court
On October 2014 an attorney for Adriana took the deposition upon oral
examination of Shelby and questioned Shelby extensively about the formation of the Private
Agreement and the payments made pursuant to it.38 Shelby did not object to any of the
questions on the ground that litigation of Adrianas counterclaims in this Court is supposedly
improper
351d at 2.6 For example the first category of items requested was documents
in which the Private Agreement is mentioned Id at
36
Ex Fisher Affidavit Ex SHELBY LONGORIAS RESPONSES TO ADRIANAS
FIRST SET OF INTERROGATORTES Sept 15 2014
371d For example Interrogatory asked Shelby to state what you contend to be the
total amount of money that Adriana has been paid pursuant to the Private Agreement Id
at2
38
Ex Fisher Affidavit Lx ORAL AND VIDEOTAPED DEPOSITION OF SHELBY
LONGORIA Oct 2014 at 133-56
RESPONSE OF ADRIANA LONGORJA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 19
01319
Not until January 14 of this year about year after he first pleaded in to
response
Adrianas counterclaims did Shelby fmally file the Motion To Dismiss asserting for the
first time that Adrianas counterclaims should be dismissed based on the forum-selection
clause in the Private Agreement On the next day however Shelby again amended his
disclosures and again failed to disclose any reliance by him on the forum-selection clause
of the Private Agreement.39
Shelbys delay and ambivalence in asserting his position regarding the forum-selection
clause of the Private Agreement has caused demonstrable prejudice to Adriana She was
subjected to deposition questioning of the subject and she was required to provide written
discovery as well Moreover even if one assumes arguendo that her counterclaims would
be recognized in Tamaulipas at all they would be subject to one-year statute of limitations
there4 so her ability to recover over year of payments due would be barred as result of
Shelbys failure to invoke the forum-selection clause in timely manner That loss of
substantive constitutes prejudice caused directly by Shelbys delay in
rights indisputably
asserting his alleged right to dismissal of Adrianas counterclaims
In sum even if one assumes for the sake of argument that Shelby once had right to
dismissal of Adrianas counterclaims based on the forum-selection clause in the Private
39Bx Fisher Affidavit Ex SHELBY LONGORIAS THIRD AMENDED RESPONSE
TO REQUESTS FOR DISCLOSURE Jan 15 2015
Ex Affidavit of Ilan Rosenberg at 11
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRJANA LONGORTAS CLAIMS Page 20
01320
Agreement the Motion To Dismiss still must be denied because that supposed right was
waived by Shelby He waived it
by litigating the counterclaims in this Court without
asserting that they should be dismissed To allow Shelby to litigate the counterclaims here
and then to invoke the forum-selection clause would cause unfair prejudice to Adriana
because significant portion of her claims are now barred by limitations in Tamaulipas
assuming that contrary to the testimony of Ilan Rosenberg her claims would be recognized
at all in Tamaulipas
CONCLUSION
Adrianas objections to the Affidavit of Dr Carlos Gabuardi should be sustained and
the affidavit stricken Adrianas objections to Exhibits and 3A should be sustained and the
exhibits stricken and the Motion To Dismiss should be denied proposed order
accompanies this
response
RESPONSE OF ADRIANA LONGORTA TO SHELBY LONGORIAS
ADRIANA LONGORIAS CLAIMS 21
MOTION TO DISMISS Page
01321
DATED February 92015
Respectfully submitted
/s/ James Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
email jfisher@fisherwelch.com
Shannon L.K Welch
State Bar of Texas Number 90001699
email swelch@fisherwelch.com
FIsHER WELCH
Professional Corporation
Ross Tower Suite 2800
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Facsimile 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
email wes@wesholmes.com
THE HOLMES LAW FnM
10000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9266
Facsimile 214890.9295
ATTORNEYS FOR
ADRIANA LONGORIA
SYLVIA DORSEY AND
JAMES THOMAS DORSEY AS
INDEPENDENT EXECUTOR OF
THE ESTATE OF DOROTHY
LOUISE LONGORIA DECEASED
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 22
01322
CERTIFICATE OF SERVICE
.1
hereby certifr that on February 92015 true and correct copy of this document was
served on Shelby Longoria through his attorneys of record named below in the manner
indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schiemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
BY EMAIL TOjcartersusmangodfrey corn rhess@susmangodfrey corn and
kschlemrnersusrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO macinre@mmlawtexas corn
/s/ James Austin Fisher
James Austin Fisher
RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS
MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 23
01323
EXHIBIT
01324
CASE NUMBER 414270
IN THE ESTATE OF IN PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
AFFIDAVIT OF ADRIANA LONGORIA
STATE OF TEXAS
COUNTY OF HARRIS
BEFORE ME the undersigned authority on this day appeared in person
Adriana Longoria who is known by me to be the person whose signature appears
below and who being first duly sworn upon oath testified as follows
My name is Adriana Longoria have read this affidavit and the
exhibits attached hereto affirm that the facts set forth in this affidavit are within my
personal knowledge and are true and correct
Eduardo Longoria Theriot was my father He died in January 2005
Dorothy Louise Longoria was my mother Her maiden name was Kowaiski She died
in April 2012 Shelby Longoria is one of my brothers
document entitled ACUERDO PRIVADO is attached to this
affidavit as EXHIBIT My brother Shelby presented the original of this document
to my father and me for signature in Laredo Texas was not in Reynosa
Tamaulipas or anywhere else in Mexico when it was presented to me or when
signed it Shelby discouraged me from reading the ACUERDO PRIVADO He did
not say to me that it contained clause saying that submitted to the courts of the city
of Reynosa Tamaulipas Mexico in the event of any interpretation dispute or other
aspect of the ACUERDO PRIVADO or words to that effect and have had no such
understanding either when signed it or since then To this day do not read the
ACUIERDO PRIVADO as saying that any lawsuit to enforce my rights under the
ACUERDO PRIVADO must be brought in Reynosa Rather the ACUERDO
AFFDAVIT OF ADRTANA LONGORIA Page
01325
PRIVADO says that my father and submit to the courts ofReynosa only with regard
to interpretacin controversia cualquier aspecto relacionado con el presente
Fidelcomiso which understandmean .in English interpretation dispute
to or any
aspect related to this Trust emphasis added The word Fidelcomiso means Trust
and moreover it is capitalized so it seems to me to be referring quite clearly to the
defined term Fidelcomiso which is defined in the DECLARACIONES on the first
page of the ACUERDO PRIVADO The term Fidelcomiso is defined on that page
as certain trust relationship supposedly created by my father with Banca Afirme
S.A on October 15 2002 The words ACUERDO PRIVADO mean PRIVATE
AGREEMENT they do not mean the same thing as Fidelcomiso and the
ACUERDO PRIVADO itself was not dated October 15 2002 but rather it was dated
December 17 2002 see nothing in the ACUERDO PRIVADO saying that claims
to enforce the ACUERDO PRIVADO may only be brought in the courts of Reynosa
When signed the ACUERDO PRIVADO my relationship with Shelby
was one of trust and confidence because he is my brother and because for many years
he had accepted the responsibility to make payments to me in accordance with my
fathers wishes My fathers wishes to provide for me were expressed at various
the second
times and in various ways but one such wish of my father is described in
clause of the ACUERDO PRIVADO which appears at the top of the second page
For about ten years before signed the ACUERDO PRIVADO Shelby had caused
businesses in Mexico which he controlled to make payments to me in accordance
with my fathers wishes Many times had heard my father ask Shelby to see that
payments were made to me and many times had heard Shelby promise to do so
Shelby knew that was in vulnerable position and that needed the payments that
my father had promised and that Shelby had been sending me in order to pay even
my most basic living expenses Throughout this period of time my father Shelby
and all lived in Texas Thus based on Shelbys own words and conduct in Texas
over period of many years understood and Shelby acknowledged that we had
relationship of trust and confidence and specifically that was trusting him to see
that my fathers wishes were carried out for my benefit Because of that relationship
trusted Shelby not to ask me to sign document that contained false representation
such as the representation that it was being signed in Mexico when in fact it was
signed in Texas and trusted Shelby not to ask me to sign document that contained
provisions harmful to my interests such as provision that would essentially nullify
my rights by requiring me to attempt to pursue them in such dangerous place as
Reynosa Tamaulipas
AFFIDAVIT OF ADRIANA LONGORIA Page
01326
The dangers associated with travel in Tamaulipas are well known to
my
family because around 1986 my father was kidnapped and held for ransom there
As result of that traumatic incident my father and mother moved to Texas where
they lived for the rest of their lives
In late October or in November of 2010 received leter from Carolyn
Beckett an attorney for Shelby true and correct copy of this letter is attached
to this affidavit as EXHIBIT There are many assertions in the letter with which
disagree but note and agree with her description on page of the extreme level
of danger associated with travel in Tamaulipas
This concludes my affidavit testimony
Adriana Longoria
SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority
by Adriana Longoria on February 2015
tary Pub ic in and for th ate of Texas
Printed Name of Notary Public
My Commission Expires
AFFDAVIT OF ADRIANA LONGORIA Page
01327
EXHIBIT
01328
EXHIBIT
01329
October22 2010
Ms Adriana Longoria VIA Federal Express
6138 San Feilpe
Houston IX 77057
Re Notice of Request for Resolution and Notice of Intention to Discontinue Future Payments
Under The 2002 Private Agreement Absent Resolution of Issues
Dear Ms Longoria
As you are aware this law firm has represented Shelby Longoria Shelby regarding the demands
you have made to additional funds you claim are due you from your deceased fathers Eduardo
Longoria Theriots Mr Longoria estate Within the last several months you have not only
increased your demands about the manner and the amounts of payments you have received under
the terms of the agreement executed in 2002 the 2002 Private Agreement between you and your
father Mr Longoria but you also have apparently taken to new level the assault on Shelbys
personal reputation personal life and his family by impugning his moral arid ethical character to
numerous of his friends business associates and acquaintances
This letter is intended to communicate to you our firms investigation and review of all the events
concerning Mr Longorias estate planning and the probate of his estate and to state to you in
writing that it is our firms opinion that Shelbys conduct in handling Mr Longorias estate issues has
been further this firms that to arises out
beyond reproach It is opinion Shelbys obligation you solely
of his personal feeling of moral duty to fulfill his deceased fathers wishes and not as result of
any binding obligation under either Mexican law or the laws of the United States to continue to
arrange the scheduled payments to you
Most importantly this letter is to
notify you of the following regarding Shelbys intentions
Shelby is in the process of initiating litigation against you to enjoin your wrongful and
intentional libel and slander of him and his family this litigation will not be handled by
this law firm and this letter will not address your wrongful slanderous conduct and
ii he will
propose to
you and your representative and this firm final solution to deal with
these demands for
money not due under any legally enforceable document and
iii he hereby notifies
you that in the absence of such an agreed solution Shelby will cease
his efforts to arrange for your benefit those payment requests which he has voluntarily
undertaken out of his for his father and his integrity to fulfill his
solely respect personal
fathers wishes that are not reflected or
wishes in any binding legal obligation
undertaking and finally
iv he has requested that this firm prepare and deliver this letter to you in final attempt to
communicate to you his and this firms position regarding each and every document
relevant to the numerous claims you have made to additional millions of dollars you
believe are due from fathers estate
apparently you your
72d 7R7fll si2 27V -7 77J
01330
Ms Adriana Longoria
October 22 2010
Page
As this firm understands your demands you have received to date distributions made both prior to
and after your fathers death pursuant to the Private Agreement the amount of
signed by you in
$3168619.00 In addition to these amounts over time to the Wish
including interest paid pursuant
Letter and Private Agreement you have also received directly from father vehicles home
your your
in Houston large ranch in Mexico and numerous cash gifts You have now additionally demanded
as an unsubstantiated and be $5 and
illogical right to paid up to million more you apparently
claim that these additional millions are due from the fact that
Shelby directly
to
you notwithstanding
your fathers estate was divided in your fathers last will between Shelby and your other brother
Eduardo Wayo Longoria after consideration had been given by your father to payments
previously made to
you and Sylvia It
appears you have directed your wrongful demands and
threats and your slander and libel to only Shelby After reviewing all of the relevant documents we
have concluded that only the terms of the Private Agreement signed on December 17 2002
you
govern the payments your father had committed to
you
The Private Agreement
You are fully aware of both your fathers Wish Letter written in 1992 and the subsequent 2002
Private Agreement with father You are also aware that has
you signed your your brother Shelby
voluntarily attempted to see that payments under the 2002 Private Agreement have continued to be
made to
you although Shelby has never had nor does he now have legal responsibility to make
those payments nor does he have legal right to compel the trust to approve the release of funds
that those
comprise payments
The 2002 Private Agreement was dated December 17 2002 and constitutes valid contract under
Mexican law wherein your father undertook to update the earlier similar but less formal statement
that he referred to as Wish Letter when he had prepared that earlier statement in 1992 Although
the 1992 Wish Letter was signed only by your father the more formal and binding contract
evidenced by the 2002 was signed by both you and your father1
Private Agreement and describes in
some detail the payments your father had made to you under the Wish Letter from 1992 through
2002 and the amounts remaining to be paid as of the December 2002 date he had prepared the
more fomial 2002 Private Agreement
It is clear from the terms of the 2002 Private Agreement that your father was apparently concerned
that he might not live long enough to see all of the payments described in that agreement made to
you but he instructed and was hopeful that his two sons would continue to make those payments to
the extent that they were able to until the terms of the agreement were satisfied The 2002 Private
Agreement while not formal bequest under Mexican law was effectively private directive by your
father to his two sons Wayo Longoria and Shelby to attempt to continue the payments he had made
you during the last 13 years of his life if he had not satisfied the agreements terms by the time of his
death It is also noteworthy that only Shelby has endeavored to fulfill
your fathers wishes by
continuing to request of the trust that payments be set aside for that purpose
While the 2002 Private Agreement does not impose legal obligation on Wayo or Shelby under
either Mexican or US law to continue the payments described in the agreement Shelby alone has
made the significant effort to honor his fathers wishes that payments to you continue under the
Private Agreement Shelby considers the 2002 Private Agreement with you and the similar
agreement he made with Sylvia to represent fathers commitment to his daughters and although
the law does not continue that obligation after his death Shelby made the decision to attempt to
continue to carry out his fathers wishes In fact the Private Agreement between your father and
Tile 2002 Private
Agreement and tile 2002 Will were signed at practically the same lime and although you
claim to be entitled to the payments described in the 2002 Private Agreement you have made allegations that
your father was not of sufficient mental capacity to execute the 2002 Will This is an obvious contradiction and
you cannot have it both ways
01331
Ms Adriana Longoria
October 22 2010
Page
your sister Sylvia was satisfied with combination of lump sum payments the following
year your
fathers death has
at Sylvias request Shelby continued to request that the trust
agree to allow
payments to be made to you since Mr Longorias death often in excess of the amounts in
provided
the 2002 Private Agreement solely to fulfill his moral obligation to your father and his
expressed
desire to provide for you In addition Shelby has arranged to provide 100% of the support for your
mother and has paid off the loan on the condo in Houston currently occupied Mrs Longoria
by
although you and Sylvia are the direct beneficiaries of that loan repayment as the shareholders in the
corporation that owns that condo
One of your ongoing allegations this firm has researched and addressed is the idea that there is
some document or some set of documents that your father may have executed during his lifetime
that was more generous to you personally than the documents which have been recognized the
by
probate court as being Mr Longorias testamentary documents This firm has reviewed each of the
relevant documents and set forth below are our opinions on the legal effect of both the goals
expressed and anticipated in the documents when father executed them and the revisions that
your
he made over the years as his plans for his estate solidified Shelbys in the U.S and in
attorneys
Mexico have researched all of these issues and the information which follows of the
is description
important documents and events which occurred between 1992 and 2010 and our analysis of the
legal enforceability of your 2002 Private Agreement
History of Important Documents and Events Between 1992-2010
The 1988 Wills and the 1992 Wish Letter
Throughout his life Mr Longoria was Mexican citizen He owned and directed the operations of
several companies in Mexico the Mexican Companies and his net worth was at one time valued in
excess of $10 million before he suffered substantial losses in the period from 1989-1995 Two
severe economic events seriously depleted your fathers U.S assets and his total net worth during
that period At some point in the 1980s your brother Wayo moved his residence to Austin Texas to
embark upon various real estate ventures with Mr Longoria and Shelby signing as guarantors
on many of the loan documents Wayo used to buy properties in Austin on leveraged
considerably
debt With the crash of the real estate market in Austin in the late 1980s Mr Longoria and Shelby
suddenly became directly liable on their guarantees for millions of dollars of debt Wayo had incurred
in his real estate speculation Ultimately Wayo filed for bankruptcy protection against his creditors
an option not taken by although available to Mr Longoria and Shelby Multiple claims were made
against Shelby and Mr Longoria as guarantors of the debt and over long period of time
reductions of the debt were negotiated and approximately $4 million was paid out to creditors some
of whom Wayo had been discharged from in his own bankruptcy These legal actions took their toll
on the value of Mr Longorias estate such that the only significant U.S asset was the
remaining
valuable Laredo house which Mr when
Longoria gave to
you and Sylvia in 1995 he transferred
50% of the stock of Casaco Inc to each daughter
In addition to the Austin financial disaster during that same period the Mexican Companies suffered
severe financial setbacks from multiple peso devaluations Mr Longorias net worth dropped
significantly and his estate plan for his family was reconsidered
1992 Mr Longoria
In had two wills in place one executed in Mexico in 1988 the 1988 Mexican
Will providing that upon his death ownership of the Mexican Companies would be divided equally
between his sons Shelby and Wayo The second was will he executed in the United States the
1988 U.S Will The 1988 U.S Will left the property he owned in the United States at the time
including the Laredo home to his wife with remainder to his daughters at his wifes death
However after many of his Mexican and U.S assets were depleted as result of the losses in
Austin real estate and other business/currency reversals that occurred prior to 1992 Mr Longoria
01332
Ms Adriana Longoria
October22 2010
Page
determined to
put in place new plan and program to provide current significant cash transfers to his
daughters Sylvia and Adriana and to have his sons to take care of wife He
agree his clearly
abandoned the idea of separate U.S Will and instead instituted that
gifting program put
immediately available cash in his daughters hands to effect transfer of their share of his estate
over period of time For his sons he earmarked the non-cash business operations requiring
hands-on daily management and work and considerable business experience and risk to maintain
and realize any lone-term value
Because by 1992 Mr Longoria had no appreciable business or investment assets left in the U.S Mr
Longoria implemented his gift giving plan and prepared the 1992 Wish Letter mentioned above
promising to give over period of time $3 million to each daughter The $3 million gift required no
corresponding work on your or your sisters part and gave each of you risk-free source of funds to
be paid out in installments beginning in 1992 Of significance to Shelbys general feeling of moral
obligation to his father is the fact that the Wish Letter provided that in the event of his death the
Wish Letter was to act as non-contractual directive to Mr Longorias sons to use their efforts in
operating and managing the Mexican companies so as to allow those companies to
generate
sufficient income to continue making payments to
you and Sylvia Thus even after
your fathers
death it is clear that he desired his daughters to have flow of cash with no obligation to do
anything to be paid and he intended and desired that his sons receive only the operating
businesses assets that required full-time management and work considerable risk-taking and no
guaranteed cash flow as their share of his total estate
Based on review of these documents It is clear that Mr Longoria Intended the 1992 Wish Letter to
serve as substitute for the earlier 1988 U.S Will and to serve as corollary to his 1988 Mexican
Will The Wish Letter provided series of nter vivos gifts to each of his daughters over time with
the total gifts worth very significant percentage of the value of his entire estate at the time By
preparing the 1992 Wish Letter and making this series of inter vivos transfers to his
daughters Mr
Longoria attempted to create mechanism that could provide you and your sister
Sylvia the ability to
share in his estate his death so as allow not create own
expected prior to to you to only your
investment fund over time from the cash generated from his Mexican holdings through the monthly
payments but also to start immediate distributions to you to protect you from future financial
setbacks similar to those your father experienced in the late 1980s
Beginning with the first payments he made under the Wish Letter Mr Longoria maintained detailed
statement of the amounts he paid each daughter under the Wish Letter--this statement also showed
the remaining balance left to be paid at any point in time from the starting balance of $3 million As
time went on and he became less involved in the businesses he required his sons and ultimately
only Shelby to take over the operation of the Mexican Companies and the maintenance of the
account statements for each daughter
Thus in 1992 the Wish Letter directive represented significant portion of Mr Longorias net worth
It provided that $250000 was to be paid to each of Adriana and Sylvia between 1992 and 1997 in 59
monthly installments of $4000 with final payment of $14000 After these first 60 payments were
made the remaining balance of $2750000 was to be paid annually in 10 equal installments of
capital -- with 120 monthly installments of interest added --
provided funds were available from the
operating cash flows of the Mexican Companies If the provisions of the Wish Letter had been
followed exactly Adriana and Sylvia would have received approximately $300000 each year after
1997 and would have received the full amount of the payments to satisfy the terms of their respective
gifts under the Wish Letter by the year 2007 However as you and Sylvia frequently requested
additional amounts be paid to
you between 1992 and 1997 you were ultimately each paid over
$500000 during that first
year period leaving approximately $2500000 to be paid to each of you
over the next ten years These cash payments in addition to the interest transferred in the Laredo
house were assets that required no time commitment no management expertise and no business
or personal risk of either or your sister
you
01333
Ms Adriana Longoria
October22 2010
Page
The 2002 Mexican Will and the Private Agreements
In November of 2002 Mr Longoria executed new Will in Nuevo Laredo Mexico 2002
the Will0
that be and
proved to his last will testament revoking all prior wills.2 That 2002 Will referenced
transfer Mr Longoria had made to place all of the Mexican Companies in Mexican trust for the
benefit of his sons The trustee took responsibility for the legal of of the Mexican
ownership all
Companies The trust provided Shelby 60% beneficial interest and Wayo 40% beneficial interest
later the value of the interests was equalized by the further transfer of real property to Wayo The
2002 Will referred to and acknowledged his wife and daughters but did not
expressly provide any
further bequest to either of Adriana Sylvia or Mrs Longoria
Instead Mr Longoria updated the terms of the 1992 Wish Letter incorporating its terms into the
more formal 2002 Private Agreements prepared separately for each daughter.3 With the restatement
of the substantial gifts to both you and Sylvia he did not further reference an additional bequest for
his
daughters in the 2002 Will It was Mr Longorias express intent that Shelby and Wayo continue
the Private Agreement payments after his death When he had finished the documentation of his
planning namely the transfer of the Mexican Companies to the trust the restatement of his
to his daughters and the 2002 Will he
gifts/bequests transferring all other properties may have held
at his death to his sons Mr Longoria had completed his final dispositive planning of his estate as it
existed at that time All of these dispositive documents were executed within months of each other
and when read together they clearly demonstrate that your father had carefully provided for all of his
family in manner that he wanted directed and intended.4
On December 17 2002 the two separate private agreements were executed between Mr Longoria
and you and Sylvia Longoria Of course neither daughter has ever claimed that Mr was
Longoria
not competent to enter into these Private Each Private served
Agreements Agreement effectively
as an updated restatement of the Wish Letter and included the precise remaining balance due as of
December 2002 of the original $3 million provided for each daughter in the original 1992 Wish
Letter copy of the statement of each account was included as an exhibit to each daughters
Private Agreement showing the history of payments made with respect to that daughter and verifying
the remaining balance under the agreement the Ledger As payments were later made to each
daughter under the 2002 Private Agreements during his life and after his death through the efforts
Shelby has made the Ledgers were continually updated and the Ledger for Adriana now shows
approximately $725737 as the current remaining balance
As noted above In December of 2002 you and your father negotiated and you and he signed the Private
Agreement and you have never claimed that father was not of sound mind nor too feeble or aged to have
your
had the mental $2.5
capacity to agree to this approximately million payment to you restated tn that agreement
However you have asserted that the month earlier your father was too feeble to have executed the 2002 Will
and you have actually suggested that Shelby exercised influence over father to coerce his
negative your
execution of the new will Your inconsistent is so obvious that no further comment
position is required
At the time that he executed the 2002 Will in addition to his business friends and
multiple relationships family
all agreeing that he was alert and competent Mr Longoria also relied on his friend and physician in Nuevo
Laredo to act as witness in his 2002 Lest Will and Testament There is also signed letter in the family files
from well respected Laredo Texas Physician testifying that he was of sound mind In addition Mr Longoilas
lifelong end very well respected attorney that prepared the 2002 Will has recently restated his opinion that Mr
Longoria was the author of the contents of his own documents very thoughtful of the plans he had established
for each of his children and knew precisely what he intended
His oral bul expressed intent was that Shelby and would care mother death
clearly Wayo for their following his
in manner that allowed her to remain comfortable but without the to the estate
ability dissipate remaining
assets Shelby has honored that directive
01334
Ms Adriana Longoria
October 22 2010
Page
The Private Agreements each daughter and were be
for provided that Shelby Wayo to
responsible
for to sisters the
making payments their in event they had not been fully paid off at the time of Mr
Longorias death The funds to make the payments were to be taken from the cash flow of
operating
the Mexican Companies if available However neither Shelby nor Wayo either
signed private
agreement did the Mexican which Mr has
nor trustee of the trust
Longoria established Wayo
perhaps virtue of his has
by presence in Austin never undertaken to participate in fulfilling his
fathers wishes Shelby undertook that task alone he now the brother
yet is
you have criticized and
threatened
The 2002 Private Agreement between Adriana and Mr Longoria showed an unpaid balance of
$2069100 as of the date it was executed in
December 2002 At the time that agreement was
signed Adriana had requested that her monthly payments be reduced to extend the of time
length
she would receive payments and accrue interest on her remaining balance Therefore the 2002
Private Agreement provided that she was to receive monthly payments of $12500 composed of
principal and interest totaling $150000 annually until the account balance of $2069100 together
with the interest accrued on that amount was paid out Following the execution of the 2002 Private
Agreement Adriana however frequently monthly payments
requested exceeding $12500 Shelby
accommodated these requests as funds were available and Adriana received on average $200000
annually between 2002 and 2010 both prior to and after Mr Longorias death Shelbys staff
recorded each of these payments on the Ledger and the remaining balance after each payment
and forwarded copy of the Ledger to Adriana regularly each month for her review
Gifts of Stock in Casaco Inc and Payoff of Debt on the Houston Condo 1995-
In 1995 Mr Longoria gifted 500 shares in Casaco Inc to each of Adriana and Sylvia constituting all
of the stock of that Texas corporation At the time the corporation owned the Laredo home Mr and
Mrs Longoria used as their U.S residence valued at approximately $600000 in 1995 The
iJ daughters 50% interest in the value of the Laredo home was not deducted from the $3 million
provided in the original 1992 Wish Letter or the later 2002 Private Agreements The transfers of
stock were treated as independent of the gifts from Mr Longorias estate of cash payments under
the Wish Letter
Following Mr Longorias death in
2005 Mrs Longoria established residence in Houston
presumably to be closer to her daughters To accommodate Mrs Lorigorias move Casaco Inc
purchased condo in Houston the Houston Condo in 2005
To make this purchase Casaco Texas Inc formed
Casaco LLC which bought the subsidiary
Houston Condo for $1130065 make the purchase
taking
Shortly mortgage
thereafter loan to
Casaco sold the Laredo house and the loan on the Houston Condo was reduced by the $825353
net sales proceeds received on the sale of the house The loan was completely paid off in
December 2009 with funds from the Mexican Companies operating cash reserves again on
Shelbys request and with no reduction to the amount posted on the Ledger which recorded the
transfers pursuant to the updated Private Agreements As of 2010 the Houston condo was valued
at $1400000 such that each daughter now owns approximately $700000 of the value of the condo
in addition to all of the personal property owned by Mrs Longoria in the condo Again this asset
requires no work no management no risk of loss just as your father intended All risk-taking was
according to his estate plan assigned only to
your brothers and ultimately fell
exclusively on the
shoulders of Shelby
01335
Ms Adriana Longoria
October22 2010
Page7
The Payment of the Remainder of Sylvias Private Agreement in 2006
During the early 2000s Sylvia Longoria requested that the remainder of her balance pursuant to her
Private Agreement the SLI Private Agreement be paid to her in shorter Installments In 2006
Shelby informed you that Sylvia had requested prepayment of the remainder of her balance but
that he would be unable seek consent from the trustee do the same
to to for
you due to lack of
available funds from the Mexican Companies you also wanted of funds under
if
prepayment your
Private Agreement at the same time
You expressed no objection and requested that the balance
Shelby pay you remaining then
$1374262 as of December 2006 in
longer installments so as to last as long as possible and earn
as much interest as possible With the remainder of her balance
your approval Shelby paid Sylvia
and Sylvia signed release on December 29 2006 to the effect that the balance on the SLK Private
Agreement had been paid in full
The Value of the MexIcan Companies from 2002.2010
Beginning in the early 1990s at Mr Longorias direction Shelby began to take more responsibility
for the operation of the Mexican Companies with Mr Longoria playing as time passed more
limited role in managing the companies
Shelby had been involved in one way or another in the businesses in Mexico with his father since he
________
came home from college He started working on full-time basis in 1975 and Mr Longoria had put
him in position of in the 1978-1979 As Shelby became
responsibility managing companies by
increasingly involved in the daily operation of the Mexican Companies Mr Longoria was able to turn
attention to other and Since
his
family matters ranch activities that time Shelby has lived
through all
of the ups and downs of the family businesses including the severe losses sustained in the early
1990s in Austin and the major peso devaluations in Mexico
In addition Shelby has dealt with significant political instability in the region and the real threats
very
of kidnapping torture and murder that businessman
is part of working as in the cross-border areas
of northern Mexico Street violence and shootouts are an every day occurrence It is
dangerous to
travel to many of the areas in which the businesses of the Mexican Companies are located and it is
that environment that Shelby works in
daily to make the businesses successful He feels very loyal
to the employees of the Mexican Companies and wants to make the businesses work for these
employees also but he does so knowing the personal risks involved in
just going back and forth to
monitor the companies activities This Is not safe stable environment and the very real possibility
of governmental nationalization of the businesses is
always on his mind When you contrast the
dangers and instability that Shelby confronts daily with the very stable cash flow that Mr Longoria
had set up for his daughters you begin to see how concerned Shelby is that nether Adriana nor her
advisors understand what he must deal with to ensure that her monthly payments can continue to be
made on regular basis
In 2002 the Mexican Companies conducted several different businesses in different locales Over
Shelbys years as manager of these companies these activities have increased significantly an
increase attributable exclusively to Shelbys diligence and hard work The success of the Mexican
Companies required dedicated full-time active work totally different from the passive flow of funds
your father had arranged for his daughters Mr Longorias thought was that if his sons were to
achieve value from the Mexican Companies they had to earn it
01336
Ms Adriana Longoria
October 22 2010
Page
The Enforceability of the Terms of Adrlana Longorias 2002 Private Agreement
The 2002 Private Agreement Adriana signed with her father is to Mexican
subject law specifically
the law of the State of Tamaulipas Mexico.5 It was executed by Mr Longoria and Adriana and
neither Shelby nor Wayo were involved in its negotiation or in the execution of the agreement
As private agreement to be dealt with independently of the of Mr Longorias 2002 the
probate Will
formal probate Mexico did include
proceedings in appropriately not administration of the 2002 Private
Agreement or consider it
part of the probate of Mr Longorias estate It is what it is labeled
private agreement
Because neither Shelby nor Wayo signed the agreements they would not be to
individually subject
enforcement If payments were not made under U.S or Mexican law After fathers death
your in
2005 however you are certainly aware that payments did not stop It was through Shelbys efforts
that these payments continued He has not only been key person in helping the Mexican
Companies produce sufficient cash flow to fund the monthly payments he has also corresponded
with the trustee of the trust to for transfers
gain approval of the monthly payments
As you well know from conversations over the has always
many years Shelby felt that the Private
Agreements represented commitment made by his father to give each daughter their share of their
parents estate to be paid over period of time as his father had directed Because of his
commitment to his fatheis wishes Shelby alone has made the efforts to his fathers
necessary fulfill
wishes and honor the funds made over
requests for the years Shelby was also the person who
made sure the condo loan was off who
paid Shelby was the person increased the interest rate on
the unpaid balances in the Ledger statement What has motivated him to fulfill an unenforceable
contract and pay more than the contract provided for It was his love for his father and his love for
his
family
In summary Shelby has never been obligated to continue the monthly or to ensure that
payments
they were continued but he has in fact taken to see that there was
all
necessary steps money
available to make the payments and that the payments were the be made
approved by trust to
While he had only what he perceived to be moral commitment to his fathers he has
fulfill wishes in
fact worked tirelessly to fulfill them
Adriana1s Allegations Against Shelby
The 2D02 Will and the 2002 Private Agreements were executed at virtually the same time Neither
sister has ever complained that her father was not competent to enter into the Private Agreements
each have accepted benefits through those Private Agreements and after was
Sylvias agreement
paid out you have continued demand that your
to Private Agreement be honored Interestingly you
now claim that Shelby somehow negatively and unduly influenced Mr exclude
Longoria to you
Sylvia and Mrs Longoria from Mr Longorias last will executed one month before the Private
in 2002 You claim the benefits of the Private
Agreements all
Agreement you negotiated directly with
your father in late 2002 yet you claim that Shelby manipulated Mr Longoria during his failing health
in the execution of the 2002 Will one month earlier
It is this firms opinion that the allegations you make concerning Shelby and your demands for more
money are meritless Given the historical background underpinning the decisions Mr Longoria
made regarding his estate planning and the independent testaments to the of his mental
quality
faculties in 2002 including the letter from his physician testifying that he was of sound mind at the
time that he executed his 2002 Will and the 2002 Private Agreements your allegations regarding
By their terms neither of the Private Adriana and were laws
specific Agreements with Sylvia subject to the of
he United States
01337
Ms Adriana Longoria
October 22 2010
Page
some type of negative influence are groundless It is the case that Mr Longoria excluded you and
Sylvia from his 2002 Will because he had already provided for your bequests in the earlier Wish
Letter which he 2002
updated at the time of his Will by executing the new private agreements with
you and Sylvia in 2002 He intended for his continuing and substantial long-term inter vivos gifts to
provide for his daughters both during his hfe5 and to serve as nest egg for you to use to provide for
death Wish and
yourselves after his
as expressed in both the Letter the Private Agreements
Sylvia both understood and acknowledged your fathers intentions to Shelby it is only you Adriana
that makes and continues to make such meritless claims
Approximately $725737.00 is left on the Ledger under Adrianas 2002 Private Agreement as of this
date The Ledger reflects
payments made over the past 18 years The current projection shows that
payments can be made in the amount of $150000 year for the next years Mr Longoria believed
that the $3000000 provided each daughter in the original Wish Letter and later as the terms were
updated in the 2002 Private Agreements reflected fair
apportionment of his net worth both in 1992
and later in 2002 These payments under these agreements have provided Adriana with 18 years
of an income stream to date with another left total amount sufficient to live
years comfortably
and make plans for the future to provide for your own support your estate planning and your
retirement if used carefully.7
Any increase in the value of the Mexican Companies that has occurred over the years and most
particularly after Mr Longorias death in 2005 has been the result of Shelbys long hours of work
personal sacrifice and resourcefulness and cannot under any rule of law or private agreement
create an additional obligation for
Shelby to provide now larger bequest to his siblings Any such
demand is without merit
Shelby has made every effort to cause the trust to allow the Mexican Companies to continue the
payments to you and Sylvia in accordance with the provisions of your respective Private
Agreements as evidenced by the payment of the balance to
Sylvia in 2006 and the continued
payments to you Adriana through September 2010 He has honored requests by you to provide
amounts exceeding those provided in the payment schedule of the 2002 Private Agreement out of
respect for his fathers wishes and even if misplaced his love and affection for his family Shelby
has taken on the sole financial responsibility of caring for his mother Mrs Longoria and has
provided her with monthly cash payments of approximately $17000 since Mr Longorias death in
2005 In addition he caused the loan on the Houston Condo to be fully paid directly benefiting his
sisters equally from funds provided from the operating cash flows of the Mexican Companies
without further reducing the Ledger balances No one but Shelby has made any effort to
provide for
the women in his family in accordance with his fathers wishes
It also seems clear that after suffering the Austin financial disaster and the several Mexican government peso
devaluations father wanted his daughters to begin to have the benefit of his estate immediately to protect
your
you from the possible future loss of his entire estate He treated your brothers quite differently he left them to
their own work ethics and their own decisions on risk taking and entitled them only to possible future
inheritance through his will after his death for the assets at that time
It Is this firms understanding that Shelby frequently advised Adriana to spend her money wisely and not to
the funds she receives on frivolous consumer purchases He has spoken on numerous occasions to
spend
Hart Adrianas him help Adriana both her choices regarding
Raymond elder sons to enlist to with lifestyle
financial management and her need to accumulate financial reserves rather than spending each monthly
payment as she has received them Unless Adriarias brother Wayo is willing to take on life-long
commitment to support sister who has made consistently poor choices regarding her own fiscal responsibility
to care for her an agreement cannot be reached regarding the Adriana has
it will fall to Raymond if allegations
made and continues to make
01338
Ms Adriana Longoria
October 22 2010
Page 10
Although Shelbys payments to
you and Sylvia including payments made to reduce the loan for the
Houston condo and his continuing support of Mrs Longoria testify to Shelbys willingness to fulfill
and exceed Mr Longorias wishes regarding his fathers that willingness has been
private bequests
destroyed by your intentional threats to harm
Shelby and his family and almost continuous
your
conduct of spreading vicious and false rumors about Shelby and his this
family past year
As result of the false stories and made
allegations you have to Shelbys friends family members
business associates and even strangers which have had the calculated effect of slandering Shelbys
name and good character he is lawsuit to enjoin from further slander and
initiating you libel
Based upon the outcome of that and your response
suit Shelby may continue to try to fulfill his
fathers wishes but only if some definitive agreement is reached resolving the egregious threats and
his concerns about the virulent efforts
you has employed to harm him and his family
In summation Shelby will no longer seek the consent of the trust to
provide cash from the trust
assets the Mexican Companies to continue the This has resulted
monthly payments in
discontinued payments effective October 2010 Shelby will make no further efforts on behalf
your
until
you and your representatives have discussed and resolved your disputes with Shelby or you
decide otherwise how you prefer to proceed
Sincerely
Carolyn ii Beckett
cbeckett@sjbt.com
512.370.2733 Direct
CMBtb
01339
EXHIBIT
01340
ACUERO FRI VAOO
QIJE CELEBRAN EDIIARDO LOGORlA THER1OT ARIANA LDNORIA
KOWALSKI RESPET0 DEL RECONOCIMIENTO
tE LOS TERMINOS ACEPTACIN
YCONDICKNES bEL FIDEICOM1SO NO 194-2 CCSTfl1JIDO EN BANCA AIIRME
SA 4NSTITUCION DE ANCA MULTIPLE Da RECONOCIMIENTO DE
OBUGACIN DE PAGO 1AVOR IE LA SEI4ORA ADRIANA LONGORIA
KOWALSI DE ACUERDO LO lGUlENTE
DECLARACIONE$
.1 Dciran las psjes
ue er ecte otubre 15 del presente qo se cejebr un conirofo de
fldeIoniso doMe octu came Fldeicamflerite el sefor Eduardo Longoilo
Theioi ocirno fldeIaomorios as ses EdUerdo Shelby Luls Longorie
Kowaiski coma liducorle Jo iristjfucn de crØdito Barca AfIrrne S.A
lnsfltucin de ancci MCfllpIe el cuOl se registrocon el nOmero 94-2 del
cud onexa und coplo 01 presente Acuerdo en Ia suceslyo el
F1DEICOMISO
Quo en dicho F1DBCOMISO se desiroron coma benefidartos los
seforesEDUARDO SHELBY WIS LON3ORIA IOWALSKI respecfa de
prpJodad de las acclonos ciportaclcis misrno
c4 Quo do iguat matero quo es l volunad de su padre quo EDtJARDO
SHELBY LyIS LONGORIA KOWA.S1i reciban Ia propIadoi do las acciones do
totalkid do las rnpresas es volunlad do su padre quo ADRIANA
LONGORIA KOWA1.2KI redbu Jo ccnfidcId so establece en e1e
quo
AcuercAo las condlclones oqut 1ndcodas
CIAU.SULAS
Pdrnero DeL EICOMSQ.- Las pcirfes reconacen la vaidez alcunce del
FJDEICOMISO- en tel sentldo stdfi de acuerdo en todos sts iØrrrlros
condlclones par to fanto rnenlfieslaæ quo dko contrato es Ia volunfod linol
defirltve do laspanes pot Jo quo esln conformes en tocios sts tØrmlros
esn conformes quo la oclones ØI aportadas so fransmilan favor do los
neficlorios deslgnados
ADRIANA 00119
01341
Seunda io ADIANA LtGOIA KOWAL$KL Es voluntad su padre
quo so le snireue to fldad do US3OOOOOO.OO sililonos do dlares
arneicanas su ADRANA LONGORIA KOWAISK1 cargo do los flujos do
operod6n quo generon los ampresas quo ropresenan las aoctonos oporlada
en ei FDEtCOM1SO sus sulsldorias par Ia quo as abllgacon do EDUARQ
SHELBY LUIS LONGORIA KOWALSK en los tØrminos quo menclonan ci
canfinuaciri
fech do lirma del presenfe Acuordo of saldo par eniregar AIRIANA
LONGORIA KOWALSll er tØrrninas del pÆrrafo anterIor asclerde confidad
do JS$2.06 ODQD dos mittones sesenta nueve ml cten dolores cimoricanas
segCin estcc4o do cuenfa que so onoxa Ia presene
En yfrtud do to anterior se
le -a eearÆ
ADRIANA LONGORIA KOWAtSKI una
carfidad do
US$hOOoO.QO
ariual ciento cincuenja rnli d4ares amettc.anos
do capita irTterses en mensualidades de US$ 2500.00 cloce mit quinerto
df ares amerlcancs hasci to completa tiquidoc1n del sado quo so roflore el
prraf antetior Do Iguot manera el saldo pr pogar causor un interØs
normal del 75% setenia cinco pat ciorito dot rprirno ral publicado par of
Vial Street Journal
So estbtece quo podrØn hctcerse en bienes en so
pugos cuy coso
acordrah los importes par anbcs panes
Las aantidados sern eniregados en estilcto apego 105 alsosiciones legales
fIscoles aplicabtes qi momenta de pago
Tecero Centnante
Condicln do In Vcrluritad.- Las panes mdniflesiari quo
el Acuerdo as
presenie voluntod final dpllnitWa do las partes par to qua
estÆri confarmes en fodos sus iØrmtnas rncinffestando adernÆs que no exisie
error dc4o maId fe cualquer vtca de to voluntcid qua pudtere afeclar su
enleridimlento decisiOn tespacto at coniido do mismo
La obllgaciOn entegar las conlidades mencionadas en favor do ADRIANA
LONGORIA IOWALSKI cargo del FIDEICOMISO en los lOnninos aqul
selocidos contnuarÆ vigerrie hasto su cornpleia tiquidaoen en Ia
inteligenca quo uno vez Iqudadas los ccxntidodes quo se reftejen at
presente AcUerdo DRIANA LNGORlA KOWALSKl par scntfsfocho se dar6
respecto do ouaquier obtlgaciOn .pnesenle Mura cargo del pafrirnonlo do
HDECOMIO do to seiores EDUARDO SHEt.BY WIS LONGORIA KOWALSKL
PÆg2
ADRIANA 00120
01342
Cucrtc UrStI1I6n Lesloc16n Mex1are.- El presente Acuerdo se
estoblece juflsdidn eyes de los Fslodos Iiniidoz Meioanos For lal
rntlto las partes somefen ecc1vz1vomente las leyes cia MØxiao par to
qua
renurian expresamente Ic apflcacic5n cia cuatular Lay reglamenlo
disposlcin norma de afro jUrlsdicdn dlferante ala .rnecano qua pudlere
con-esponderla por rnallvo cia residendci
su pcilernlciod ciudadanlo
donuioMo parerdesco reIac6n comeralal par to qua en coso cia
1nleire1ocin coniiroveJc cucliquier speato reiaalonado con al preseflie
Hdelcorniso se somalen axpresamente los tib.unles de Ia cludad cia
Reynosa Tcmc$ullpcis MeXico
De Iguol maneia Jo emisln cia cuaqoiar Lay reIomerib en
poslcione
jurlsdiadones fuaro de Ia Repblica MeXicon cuolqui- acto -ealisarJp
fuercr del terriforo nudonal por cualquiera cia Icis paes que pretenda
Impanar restiicclanes cii
presecite Acudo oirnporer eollzcidl6n cia ocios
dlveios los fines parc los qua e cUiodo qua pretenclo imponer
lrnpuestos derechos .cargas frfouorias diererctes ICE en to
previsfas
LegistaclOn Mexlcana fill qua prefenda expropJor ilmitar tonlscar
eribcrgar disponer congelar de cucilqular forrnc aec1ar Los derechas del
Acuerdo en base disposidones legales toniio federcdes e1citoIes
municipoles fuer cia to juæsdlcd6n cia Ia Repbilc MeXiccina no as Ti sara
pIlcabte cii pTesenle Acuordo deblendo en ioda caso aptlcarse Jo
JuscIIc16n LoglsIacln de a RepObflcci de os EsLodos Urildos Medccinos en
tØrrriinos dat prrafoiriterior
VMo tedp enterler Ia thman pfes en Ia citudad de Relnesa
Tcmeupas el dua 17 cia DCIM1E del 2OZ2
Edaii.do ocr Therlof
ADRIANA 00121
01343
EXHIBIT
01344
CASE NUMBER 414270
IN THE ESTATE OF IN PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
AFFIDAVIT OF JAMES AUSTIN FISHER
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME the undersigned authority on this day appeared in person James
Austin Fisher who is known by me to be the person whose signature appears below
and who being first duly sworn upon oath testified as follows
My name is James Austin Fisher have read this affidavit and the
exhibits attached hereto in their entirety and affirm that this affidavit is true and
correct am 58 years old am fully competent to give this testimony
became licensed to practice law in the State of Colorado on October
16 1981 and in the State on August 29 1986 Both
of Texas licenses are in good
standing also have been admittedpro hac vice to practice law in the courts of other
states and have been admitted to appear in many federal courts of the United States
of America including federal courts in all of the districts situated in the State of
Texas have practiced law continuously since 1981 Since 1986 have practiced
law primarily in the State of Texas although have also represented clients in many
other jurisdictions within the United States of America have never been the subject
of any disciplinary action by any court Presently am the President of law firm
named Fisher Welch Professional Corporation
am one of the attorneys for Adriana Longoria in the above-captioned
case In the course of working on this case acquired personal knowledge of the
facts set forth below
EXHIBIT
AFFDAVIT OF JAMES AUSTIN FISHER Page
01345
Attached hereto as Exhibit true and
is correct copy of document
entitled Mexico Travel Warning published on the website of the United States
Department of State and printed on February 2015
Attached hereto as Exhibit is true and correct copy of Shelby
Longoria Second Amended Response to Requests for Disclosure which was served
on April 32014
on August 262014 one of Shelbys attorney took the deposition upon
oral examination of Adriana Attached hereto as Exhibit and
Longoria is true
correct copy of pages 197-208 of the transcript of that deposition
Attached hereto as Exhibit is true and correct copy of Shelby
Longorias Responses to Adriana Longorias First Requests for Production of
Documents and Things which was served on September 12 2014
Attached hereto as Exhibit is true and copy of Shelby
correct
Longorias Responses to Adrianas First Set of Interrogatories which was
served on September 15 2014
On October 2014 took the deposition upon oral examination of
Shelby Longoria Attached hereto as Exhibit is true and correct copy of pages
133-156 of the transcript of that deposition
10 Attached hereto as Exhibit is true and correct copy of Shelby
Longorias Third Amended Response to Requests for Disclosure which was served
on January 15 2015
11 This concludes my affidavit testimony
James Austin Fisher
AFFIDAVIT OF JAMES AUSTIN FISHER Page
01346
SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority
by James Austin Fisher on February
9ry Public State of Texas
u- Nst
PrintŁd Name of Notary Public
My Commission Expires
AFFIDAViT OF JAMES AUSTIN FISHER Page
01347
EXHIBIT
01348
2/7/2015 Mexico Travel Warning
Czrct rid U.s Eban Cct
EXHIBIT
Passports Alerts and Warnings Mexico Travel Warning
ftjjjf Email
Mexico Travel Warning
LAST UPDATED DECEMBER 24 2014
The U.S Department of State warns U.S citizens about the risk of traveling to certain places in Mexico due to
threats to safety and security posed by organized criminal groups in the country U.S citizens have been the target of
violent crimes such as kidnapping carjacking and robbery by organized criminal groups in various Mexican states For
information on conditions of Mexico which can travelers should reference the
security in specific regions vary state-by-state
assessments further below This Travel Warning replaces the Travel Warning for Mexico issued October 10 2014 to update
information about the security situation and to advise the public of additional restrictions on the travel of U.S government USG
personnel
Genera Conditions
Millions of US citizens safely visit Mexico each year for study tourism and business including more than 150000 who cross the
border every day The Mexican government dedicates substantial resources to protect visitors to major tourist destinations and
there is no evidence that organized criminal groups have targeted U.S visitors or residents based on their nationality Resort
areas and tourist destinations in Mexico generally do not see the levels of drug-related violence and crime that are reported in the
border region or in areas along major trafficking routes
Nevertheless U.S travelers should be aware that the Mexican government has been engaged in an extensive effort to counter
organized criminal groups that engage in narcotics trafficking and other unlawful activities throughout Mexico The groups
themselves are engaged in violent struggle to control drug trafficking routes and other criminal activity Crime and violence are
serious problems and can occur anywhere U.S citizens have fallen victim to criminal activity including homicide gun battles
kidnapping carjacking and highway robbery While many of those killed in organized crime-related violence have themselves
been involved in criminal activity innocent persons have also been killed The number of U.S citizens reported to the
Department of State as murdered in Mexico was 81 in 2013 and 85 in 2014 to date
Gun battles between rival criminal organizations or with Mexican authorities have taken place in towns and cities in
many parts of
Mexico Gun battles have occurred in broad daylight on streets and in other public venues such as restaurants and clubs During
some of these incidents U.S citizens have been trapped and temporarily prevented from leaving the area Criminal organizations
have used stolen cars buses and trucks to create roadblocks on major thoroughfares preventing the military and police from
responding to criminal activity The location and timing of future armed engagements is unpredictable We recommend that you
defer travel to the areas specifically identified in this Travel Warning and exercise extreme caution when traveling throughout the
other areas for which advisories are in effect
Mexico concern and be on the According to statistics
The number of kidnappings throughout is of particular appears to rise
published by the Mexican Secretaria de Gobernacion SEGOB in 2013 kidnappings nationwide increased 20 percent over the
previous year While kidnappings can occur anywhere according to SEGOB during this timeframe the states with the highest
Estado de and Morelos to
numbers of kidnappings were Tamaulipas Guerrero MichoacÆn Mexico Additionally according
INEGI Institute of Statistics and
widely publicized study by the agency responsible for national statistics the National
Mexico suffered an estimated 105682 kidnappings 2012 only 1317 were reported to the police Police have been
Geography in
implicated in some of these incidents Both local and expatriate communities have been victimized More than 130 kidnappings
of U.S citizens were reported to the U.S Embassy and consulates in Mexico between January and November of 2014
1/8
http//travel .state.gov/contenl/passports/englishlalertswarnings/mexico-travel-warning.html
01349
2TI2015 Mexico Travel Warning
U.S citizens are encouraged to lower their personal profiles and to avoid displaying indicators of wealth such as expensive or
expensive-looking jewelry watches or cameras U.S citizens are encouraged to maintain awareness of their surroundings and
avoid situations in which they may be isolated or stand out as potential victims
Kidnappings in Mexico have included traditional express and virtual kidnappings Victims of traditional kidnappings are
physically abducted and held captive until ransom is paid for release Express kidnappings are those in which victim is
abducted for short time and forced to withdraw money usually from an ATM then released virtual kidnapping is
an extortion-by-deception scheme wherein victim is contacted by phone and convinced to Isolate themselves from family and
friends until ransom is paid The victim is coerced by threat of violence to remain isolated and to provide phone numbers for
the victims family or loved ones The victims family is then contacted and ransom for the kidnapped extracted Recently
some travelers to Mexico staying at hotels as guests have been targets of such virtual kidnapping schemes
Of particular safety concern are casinos sports books or other gambling establishments and adult entertainment establishments
U.S government personnel are specifically prohibited from patronizing these establishments in the states of Coahuila Durango
Zecatecas Aguascalientes San Luis Potosi Nuevo Leon Tamaulipas Jalisco Colima and Nayarit
Carjackincj and highway robbery are serious problems in many parts of the border region and U.S citizens have been murdered in
such incidents Most victims who complied with carjackers demands have reported that they were not physically harmed
Carjackers have shot at vehicles that have attempted to flee Incidents have occurred during the day and at night and carjackers
have used variety of techniques including roadblocks bumping/moving vehicles to force them to stop and running vehicles off
the road at high speeds There are indications that criminals target newer and larger vehicles especially dark-colored SUVs
However even drivers of old sedans and buses coming from the United States have been targeted While violent incidents can
occur anywhere and at any time they most frequently occur at night and on isolated roads To reduce risk when traveling by
road we strongly urge you to travel between cities throughout Mexico only during daylight hours to avoid isolated roads and to
use toll roads cuotas whenever possible
The Mexican government has deployed federal police and military personnel throughout the country as part of its efforts to
combat organized criminal groups U.S citizens traveling on Mexican roads and highways by car or bus may encounter
government checkpoints staffed by military or law enforcement personnel In some places criminal organizations have erected
their own unauthorized checkpoints at times wearing police and military uniforms and have killed or abducted motorists who
have failed to stop at them You should cooperate at all checkpoints
Demonstrations are common and occur in all parts of the country Even demonstrations intended to be peaceful can turn
confrontational and escalate into violence Protesters in Mexico may block traffic on roads including major thoroughfares or take
control of toll booths on highways U.S citizens are urged to avoid areas of demonstrations and to exercise caution if in the
vicinity of any protests Travelers who encounter protestors demanding unofficial tolls are generally allowed to pass upon
payment Travelers are urged not to exit from major highways U.S Citizens should avoid participating in demonstrations and
other activities that might be deemed political by the authorities as the Mexican Constitution prohibits political activities by
foreigners such actions may result in detention and/or deportation
The imposes restrictions on U.S government employees travel in Mexico Since July 2010 USG employees are
Department
prohibited from driving on non-official travel from the US.-Mexico border to or from the interior of Mexico or Central America
vehicle hours on 15 road between Hermosillo and Nogales on
Personal travel by motor is permitted during daylight Highway toll
45 between Ciudad Juarez and Chihuahua City arid on the main roads between Palomas Chihuahua and Nuevo Casas
Highway
Grandes Chihuahua
U.S and their families are prohibited from personal travel to all areas to which is advised to defer non
government personnel it
essential travel When travel for official is essential is conducted with extensive security precautions U.S
purposes it
and their families are allowed to travel for personal reasons to the areas where no advisory is in effect or
government personnel
where the advisory is to exercise caution While the general public is not forbidden from visiting places categorized under defer
U.S not be able to to an emergency situation in those areas due
non-essential travel government personnel will respond quickly
to precautions that must be taken by U.S government personnel to travel to those areas Travel at night is prohibited
security
for U.S government personnel in some states as indicated below
For more information on road safety and crime along Mexicos roadways see the Department of States Country Specific
Information
State-by-State Asseasm ent
2/8
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2/7/2015 Mexico Travel Warning
Below is state-by-state assessment of security conditions throughout Mexico Travelers should be mindful that even if no
advisories are effect for
in given state crime and violence can still occur For general information about travel and other
conditions in see our
Mexico Country Specific Information
Aguascalientes Exercise caution when traveling to the areas of the state that border the state of Zacatecas as criminal
organization activity in that region continues
Baja California Tijuana Rosarito Ensenada and Mexicali are major cities/travel destinations in the state of Baja
California Exercise caution in the northern state of Baja California particularly at night Criminal activity along highways is
continuing security concern According to the Baja State Secretariat for Public Security from January to October 2014 Tijuana
and Rosarito experienced Increasing homicide rates compared to the same the
period in
previous year While most of these
homicides appeared to be targeted criminal organization turf battles
assassinations between criminal groups have resulted in
violent crime in areas frequented by U.S citizens Shooting which innocent
incidents in
bystanders have been injured have
occurred during daylight hours
Baja California Sur Cabo San Lucas and La Paz are major cities/travel destinations in the state of Southern Baja
California Exercise caution in the state capital of La Paz to the of Interior
According Department of Mexico in 2013 Baja
California Sur registered homicide rate since 1997 these homicides
its highest Many oF occurred in La Paz where there has been
an increase in organized crime-related violence
Campeche No advisory is in effect
Chiapas Palenque and San Cristobal de las Casas are major cities/travel destinations in No
Chiapas advisory is in
effect
Chihuahua Ciudad uarez Chihuahua City and Copper Canyon are major cities/travel destinations in
Chihuahua Exercise caution in traveling to the business and districts the northeast
shopping in section of Ciudad Juarez and its
major industrial parks the central downtown section and major industrial the of
parks in city Chihuahua the town of Palomas the
urban area of the of Ojinaga and the towns of Nuevo Casas Grandes and Casas Grandes and
city their immediate environs Travel
to the Nuevo Casas Grandes area should be through the Palomas port of entry POE on U.S Highway 11 contInuing south until
reaching Mexico Highway west to Nuevo Casas Grandes Travel to Ojinaga should be on the U.S side via U.S 67
Highway
through the Presidio POE Defer non-essential travel to other areas in the state of Chihuahua and travel between cities only on
major highways and only during daylight hours Crime and violence remain serious problems the state of
throughout Chihuahua
particularly in the southern portion of the state and the Sierra Mountains
in including Copper Canyon
Coahuila Defer non-essential travel to the state of Coahuila except the city of where should exercise caution
Saltillo you
Violence and criminal activity along the highways are continuing security particularly the northern border between
concerns along
Piedras Negras and Nuevo Laredo The state of Coahuila continues to experience high rates of violent crime including murder
kidnapping and armed carjacking.
Colima Manzanillo is major city/travel destination in Colima Defer non-essential travel to the areas of the state of
Colima that border the state of Michoacn including the city of Tecoman The situation the Michoacn border
security along
continues to be the most unstable in the state and personal travel by U.S not this
government personnel is permitted in area
Durango Exercise caution in the state of Durango Violence and criminal activity along the highways are continuing security
concern Several areas in the state continue to experience high rates of violence and remain volatile and U.S
unpredictable
government personnel may travel outside the city of Durango only during daylight hours on toll roads and must return to the city
of Durango to abide by curfew of a.m to am
Estado de Mexico Toluca and Teotihuacan are major travel destinations in Estado de Mexico Exercise caution in the
State of Mexico Many areas of the state have seen high levels of crime and insecurity as organized criminal have
groups
expanded their activities from the states of Guerrero and MichoacÆn and have also experienced high levels of street crime The
September 2014 INEGI crime victimization survey indicated that the State of Mexico had the highest incidence of crime in Mexico
with 47778 victims per 100000 Due to high rates of crime and insecurity defer non-essential travel to the municipalities of
Coacalco Ecatepec Nezahualcoyotl La Paz Valle del Chalco Solidaridad Chalco and Ixtapaluca which are eastern portions of the
greater Mexico City metropolitan area located just to the east of the Federal District of Mexico and Benito Juarez airport unless
traveling directly through the areas on major thoroughfares Defer non-essential travel to the municipality of Tlatlaya in the
southwest portion of the state and non-essential travel on any roads between Santa Marta in the southeast portion of the state
and Huitzilac in the state of Morelos including the Lagunas de Zempoala National Park and surrounding areas due to high rates of
http//travel.state.gov/content/passports/englishfalertswarnings/mexjco-travel_warning.html 3/8
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2/7/2015 Mexico Travel Warning
crime and insecurity
Guanajuato San Miguel de Allende and Leon are major cities/travel destinations in Guanajuato No advisory is in
effect
Guerrero Acapulco Ixtapa Taxco and Zihuatanejo are major cities/travel destinations in Guerrero Defer non
essential travel to parts of the state except for the cities of Acapulco Ixtapa and Travel to and
all
Zihuatanejo Acapulco
Ixtapa/Zihuatanejo only by air or cruise ship exercise caution and remain in tourist areas Travel in and out of Acapulco by air
and cruise ship is permitted for U.S government personnel U.S government personnel are prohibited from traveling within
Guerrero state by land including via the 95D toll road cuota to/from Mexico City and Acapulco as well as highway 200
between Acapulco and Ixtapa/Zihuatanejo In Acapulco defer non-essential travel to areas further than two blocks inland of the
Costera Miguel Aleman Boulevard which parallels the popular beach areas Lodging for U.S government personnel is limited to
the hotel zone aona hotelera of Acapulco beginning from the Krystal Beach Acapulco hotel in the north and going south
through Puerto Marquez including the Playa Diamante area and ending at The Resort at Mundo Imperial hotel In general the
popular tourist area of Diamante just south of the city has been less affected by violence Any activity outside the hotel zone for
U.S government personnel is limited to the coastal area from La Quebrada to the beginning of the hotel zone and only during
daylight hours The state of Guerrero was the most violent state in Mexico in 2013 with 2087 homicides and 207 reported cases
of to the Mexican Secretariado Nacional de Seguridad Publica Self-defense
kidnapping according Ejecutivo groups operate
independently of the government in many areas of Guerrero Armed members of these groups frequently maintain roadblocks
and although not considered hostile to foreigners or tourists are suspicious of outsiders and should be considered volatile and
unpredictable
1-lidalgo No advisory is in effect
Jalisco Guadalajara Puerto Vallarta and Lake Chapala are major cities/travel destinations in 3alisco Defer non
essential travel to areas of the state that border the states of MichoacÆn and Zacatecas The security situation along the
MichoacÆn and Zacatecas borders continues to be unstable Exercise caution in rural areas and when using secondary highways
U.S government personnel are authorized to use Federal toll road 15D for travel to Mexico City however they may not stop in
the town of La Barca for any reason U.S government personnel are prohibited from personal travel to areas of 3alisco that border
Zacatecas and are prohibited from intercity travel at night
Mexico City also known as the Federal District No advisory is in effect See also the discussion in the section on Estado de
Mexico for areas within the greater Mexico City metropolitan area
MichoacÆn Morelia is major city/travel destination in MichoacÆn Defer non-essential travel to the state of Michoacn
except the cities of Morelia and Lzaro Cardenas and the area north of federal toll road 15D where you should exercise caution
U.S government employees are prohibited from traveling by land in Michoacn except on federal toll road 15D during daylight
hours Flying into Morelia and Lzaro Cardenas is the recommended method of travel Attacks on Mexican government officials
law enforcement and military personnel and other incidents of organized crime-related violence have occurred throughout
Michoacdn Armed members of some self-defense groups maintain roadblocks and although not considered hostile to foreigners
or tourists are suspicious of outsiders and should be considered volatile and unpredictable Some self-defense groups in
MichoacÆn are reputed to be linked to organized crime
Morelos Cuernavaca destination in Morelos Exercise caution the state of Morelos due to the
is major city/travel in
You also defer non-essential travel on any roads between in the
unpredictable nature of organized crime violence should F-luitzilac
northwest corner of the state and Santa Marta in the state of Mexico including the Lagunas de Zempoala National Park and
surrounding areas Numerous incidents of organized crime-related violence have also occurred in the city of Cuernavaca
Nayarit The Riviera Nayarit coast including the cities of Tepic Xalisco and San Bias is major travel destination in
the border the as well as rural
Nayarit Defer non-essential travel to areas of state of Nayarit that states of Sinaloa or Durango all
areas and secondary highways
Nuevo Leon Monterrey destination in Nuevo Leon Exercise caution in the state of Nuevo Leon
is major city/travel
violence and has decreased dramatically within the
Although the level of organized crime-related general Insecurity in Monterrey
last two incidents of violence have occurred Security services in and around Monterrey are robust and have
years sporadic
and effective violent crimes however instances of violence remain concern in the more remote
proven responsive in combating
of the state U.S and their dependents may travel outside the city of Monterrey only during
regions government personnel
hours on and must return to the city of San Pedro Garza Garcia municipal boundaries to abide by curfew of
daylight toll roads
a.m and am except for travel to the airport after a.m
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2/7/2015 Mexico Travel Warning
Oaxaca Oaxaca Huatulco and Puerto Escondido are major cities/travel destinations in Oaxaca No advisory is in
effect
Puebla No advisory is in effect
Queretaro No advisory is in effect
Quintana Roo Cancun Cozumel Playa del Carmen Riviera Maya and Tulum are major cities/travel destinations in
Quintana Roo No advisory Is in effect
San Luis Potosi Exercise caution In the state of San Luls Potosi U.S government personnel may travel outside the City of San
Luis Potosi only during daylight hours on toll roads and must return to the city of San Luis Potosi to abide by curfew of am
to am
Sinaloa Mazatlan is major city/travel destination in Sinaloa Defer non-essential travel to the state of Sinaloa the
except
city of Mazatlan where you should exercise caution particularly late at night and in the early morning One of Mexicos most
powerful criminal organizations is based in the state of Sinaloa and violent crime rates remain of the state
high in
many parts
Travel off the toll roads in remote areas of Sinaloa is especially dangerous and should be avoided We recommend that any travel
in Mazatlan be limited to Zona Dorada and the historic town center as well as direct routes to/from these locations and the
airport
Sonora Nogales Puerto Peæasco Hermosillo and San Carlos are major cities/travel destinations in Sonora Sonora
is key region in the international drug and human trafficking trades and can be extremely dangerous for travelers Travelers
throughout Sonora are encouraged to limit travel to main roads during daylight hours The region west of Nogales east of
Sonoyta and from Caborca north including the towns of Saric Tubutama and Altar and the eastern edge of Sonora bordering
Chihuahua are known centers of illegal activity and non-essential travel between these cities should be avoided Travelers should
also defer the
non-essential travel to eastern edge of the state of Sonora which borders the state of Chihuahua all points along
that border east of the northern city of Agua Prieta and the southern town of Alamos and defer non-essential travel within the
city of Ciudad Obregon and south of the city of Navojoa You should exercise caution while transiting Vicam in southern Sonora
due to roadblocks that can be instituted ad hoc by local indigenous and environmental groups U.S citizens visiting Puerto
Peuiasco should use the Sonora border crossing and to hours
Lukeville Arizona/Sonoyta limit driving daylight
Tabasco Villahermosa is major city/travel destination in Tabasco- No advisory is in effect
Tamaulipas Matamoros Nuevo Laredo Reynosa and Tampico are major cities/travel destinations in
Tamaulipas Defer non-essential travel to the state of Tamaulipas All U.S government employees are prohibited from personal
travel to all but the central zones of Matamoros and Nuevo Laredo and on Tamaulipas highways outside of Matamoros Reynosa
and Nuevo Laredo due to the risks posed by armed robbery and carjacking particularly along the northern border While no
highway routes through Tamaulipas are considered safe the highways between Matamoros-Ciudad Victoria Reynosa-Ciudad
Victoria Ciudad Victoria-Tampico Monterrey-Nuevo Laredo and Monterrey-Reynosa are more prone to criminal activity Public
and private passenger buses traveling through Tamaulipas are sometimes targeted by organized criminal groups These groups
sometimes take all
passengers hostage and demand ransom payments In Tamaulipas U.S government employees are subject
to movement restrictions and curfew between midnight and am Matamoros Reynosa Nuevo Laredo and Cludad Victoria
have experienced numerous gun battles and attacks with explosive devices in the past year Violent conflicts between rival
criminal elements and/or the Mexican military can occur in all parts of the region and at all times of the day The number of
reported kidnappings for Tamaulipas is
among the highest in Mexico and the number of U.S citizens reported to the consulates
in Matamoros and Nuevo Laredo as being kidnapped abducted or disappearing involuntarily in 2014 has also increased
Tiaxcala No advisory is in effect
Veracruz Exercise caution when traveling In the state of Veracruz The state of Veracruz continues to experience violence among
rival criminal organizations
Yucatan Merida and Chichen Itza are major cities/travel destinations in Yucatan No advisory is in effect
Zacatecas Exercise caution in the state of Zacatecas Robberies carjackings and organized criminal activity remain concern
U.S personnel may travel outside the of Zacatecas only during daylight hOurs on toll roads and must return to
government city
the city of Zacatecas to abide by curfew of am to am
5/8
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217/2015 Mexico Travel Warning
Further Information
For more detailed information on staying safe in Mexico please see the State Departments Country Specific Information for
Mexico
For the latest security information U.S citizens traveling abroad should regularly monitor the State Departments internet web
site where the current Worldwide Caution Travel Warnings and Travel Alerts can be found Follow us on Twitter and the
Bureau of Consular Affairs page on Facebook as well Up-to-date information on can also be obtained
security by calling 1-888-
407-4747 toll free the United States and Canada for callers outside the States and
in
or United Canada regular toll line at 001-
202-501-4444 These numbers are available from 800 a.m to 800 p.m Eastern Time Monday through Friday except U.S
federal holidays U.S citizens traveling or residing overseas are encouraged to enroll with the State Departments Smart Traveler
Enrollment Program For any emergencies involving U.S citizens in Mexico please contact the U.S Embassy or U.S Consulate
with responsibility for that persons location in Mexico For information on the ten U.S consular districts in Mexico complete with
links to Embassy and Consulate websites consult the Mexico U.S Consular The numbers below
please District map provided for
the Embassy and Consulates are available around the clock The U.S Embassy is located in Mexico City at Passo de Ia Reforma
305 Colonia Cuauhtemoc telephone from the United States 011-52-55-5080-2000 telephone within Mexico City 5080-2000
telephone long distance within Mexico 01-55-5080-2000 U.S citizens may also contact the Embassy by e-mail
Consulates with consular districts
Ciudad Juarez Chihuahua Paseo de Ia Victoria 3650 telephone 01152656 227-3000
Guadalajara Nayarit Jalisco Aguas Calientes and Colima Progreso 175 telephone 01152333 268-2100
Hermosillo Sinaloa and the southern part of the state of Sonora Avenida Monterrey 141 telephone 01152662 289-3500
Matamoros the southern part of Tamaulipas with the exception of the city of Tampico Avenida Primera 2002 telephone 011
52868 812-4402
Merida Campeche Yucatan and Quintana Roo Calle 60 no 338-K 29 31 Col Alcala Martin Merida Yucatan Mexico 97050
telephone 01152999 942-5700 or 202-250-3711 U.S number
Monterrey Nuevo Leon Durango Zacatecas San Luis Potosi and the southern part of CoahuilaProlongacion Ave Alfonso Reyes
No 150 Col Valle Poniente Santa Catarina Nuevo Leon 66196 telephone 011S2818 047-3100
Nogales the northern part of Sonora Calle San Jose Nogales Sonora telephone 01152631 311-8150
Nuevo Laredo the northern part of Coahuila and the northwestern part of Tamaulipas Calle Allende 3330 Col Jardin telephone
01152867 714-0512
Tijuana Baja California Norte and Baja California Sur Paseo de Las Culturas s/n Mesa de Otay telephone 011 52 664 977-
2000
All other Mexican states the Federal District of Mexico City and the city of Tampico Tamaulipas are part of the Embassys
consular district
Consular Agencies
Acapulco Hotel Emporio Costera Miguel Aleman 121 Suite 14 telephone 01152744 481-0100 or 01152744 484-
0300
CancØn Blvd Kukulcan Km 13 ZH Torre La Europea Despacho 301 Cancun Quintana Roo Mexico C.P 77500 telephone 011
52998 883-0272
Los Cabos Las Tiendas de Palmilla Local B221 Carretera Transpeninsular Km 27.5 San JosØ del Cabo BCS Mexico
23406 telephone 624 143-3566 Fax 624 143-6750
MazatlØn Playa Gaviotas 202 Zone Dorada telephone 01152669 916-5889
Oaxaca Macedonio AlcalØ no 407 interior 20 telephone 01152951 514-3054 011 52951 516-2853
Piedras Negras Abasolo 211 Zona Centro Piedras Negras Coah telephone 01152878 782-5586
Playa del Carmen The Palapa Calle Sur between Avenida 15 and Avenida 20 telephone 01152984 873-0303 or 202-
370-6708e U.S number
Puerto Vallarta Paradise Plaza Paseo de los Cocoteros Local Interior 17 Nuevo Vallarta Nayarit telephone 01152
322 222-0069
San Miguel de Allende Centro Comercial La Luciernaga Libramiento Manuel Zavala Pepe KBZON telephone 01152415
152-2357
Embassies Consulates
6/8
http//travel.state.govlcontentlpassports/englishlalertswarnlngs/mexico-travel-warning.html
01354
2/7/2015 Mexico Travel Warning
Assistance for U.S Citizens
U.S Embassy Mexico City
Paseo de Ia Reforma 305
Colonia Cuauhternoc
Mexico D.F Mexico C.P
06500
Telephone
5255 5080-2000
Emergency After-Hours
Telephone
5255 5080-2000 ext
0155 5080-2000 ext
within Mexico /5080-2000
within Mexico City
Fax
5255 5080-2201
Email
acsmexicocity@state.gov
U.S Embassy Mexico City
V1W MORE LOCATIONS
7/8
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01355
2f7/2015 Mexico Travel Warning
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01356
EXHIBIT
01357
Case Number 414270
THE ESTATE OF iN THE PROBATE
DOROTHY LOUISE LONGORIA COURT NUMBER ONE
DECEASED HARRIS COUNTY TEXAS
Shelby Longorias Second Amended Response to Requests for Disclosure
TO James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria
Deceased Sylvia Dorsey and Adriana Longoria by and through their attorneys of record
James Austin Fisher FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street
Dallas Texas 75201
Shelby Longoria Will Contestant and Counter-Defendant in the above-styled and
numbered cause and pursuant to Rule 194 of the Texas Rules of Civil Procedure answers the
following requests for disclosure separately and fully in writing
REQUEST FOR DISCLOSURE
The correct names of the parties to the lawsuit
RESPONSE
The parties are correctly named
REQUEST FOR DISCLOSURE
The name address and telephone number of any potential parties
RESPONSE
Eduardo Wayo Longoria Jr ________________
1702 Cresthaven Dr EXI-IIBJT
Austin Texas 78704
512 535-0105
REOUEST FOR DISCLOSURE ci _____________
The legal theories and in general the factual bases of your claims or defenses
RESPONSE
The will that Sylvia Longoria Dorsey offered into probate is invalid On January 21
lacked the by law to make valid last will and
2010 Dorothy testamentary capacity required
exerted
testament Further the 2010 Will was executed as the result of undue influence by Sylvia
3004728v1/013774
01358
over Dorothy The influence effectively operated to subvert or mind the
overpower Dorothys at
time she executed the insirument in would not have executed the 2010 Will
question Dorothy
but for the influence exerted by Sylvia Sylvia also tortiously interfered with Shelbys inheritance
rights by inducing Dorothy to execute the purported 2010 Will Adriana also tortiously interfered
with Shelbys inheritance rights by her actions in 2009 to 2011 she induced
Specifically
Dorothy to execute alternative wills yet she ultimately acquiesced in the probate of the 2010
Will despite knowledge of later will because she needed Sylvias and Tommys cooperation
to
carry out scheme to assert claims on behalf of Dorothys estate for her own benefit Sylvia
and Adriana thus have received benefit and of substantial of
directly indirectly portion
Dorothys estate and the appointment of Sylvias husband James Thomas Dorsey Tommy as
executor
Tommy should be removed as independent executor because he was appointed pursuant
to an invalid will procured by Sylvia for the of installing her husband as the executor in
purpose
order to fraudulently circumvent her release of claims and recognition of the validity of the trust
created in 2002 Tommy also should be removed as independent executor because he has
material conflict of interests As independent executor he has fiduciary obligation to Dorothy
Longorias estate to investigate Sylvias misappropriation of money earmarked for Dorothy and
to assert claims as appropriate to recover the misappropriated funds Tommy will not fulfill this
fiduciary obligation however because he is manied to Sylvia and benefited from her
misappropriation Further Tommy has entered joint prosecution agreement with Adriana
Sylvia and Adrianas son Raymond Hart Monte Through the joint prosecution agreement
Tommy Sylvia Adriana and Monte have agreed to cooperate in the prosecution of the
CLAIMS this litigation and to share any proceeds in accordance with the terms of the
agreement no party including
that Tommy has the exclusive right to make decisions about
the actions or positions to be taken by the other PARTIES or the ATTORNEYS and to use
any and LITIGATION
their best efforts to reach consensus on all decisions relating to or the
prosecution or sefflement of the CLAIMS in this lawsuit Together these provisions render
Tommy incapable of properly performing the independent executors fiduciary duties under
Texas Probate Code 149C because it means he either will not or cannot effectively pursue
repayment of monies owed to the Estate by Sylvia Adriana and Monte
Tommys counterclaims lack merit because Shelby did not owe his mother fiduciary
duty nor did he breach promise to hold property for her benefit Further in spite of their recent
amendment Tommys counterclaims even as amended should be dismissed on forum non
conveniens grounds because they relate to Mexican marital property agreement that was
entered as judgment of Mexican court Mexican trust holding and owning only Mexican
assets that was set up by Mexican citizen living in Mexico and the probate of Mexican will
that took place in Mexican court Resolving these claims in Texas would require the translation
of Spanish-language documents and interpretation of Spanish-language documents and also face
the insuperable obstacle of how to bring Mexican witnesses to court in Texas These are only
some of the reasons dismissal on forum non conveniens grounds is appropriate Tommys
counterclaims also lack merit because they are outside of the limitations period fail to state
legally cognizable claim and are unsupported by the record in this case
Adrianas counterclaims also lack merit because Shelby has not tortiously interfered with
promise Further Adriana cannot
her inheritance or enforceable contractual show
rights any
3004728v1/013774
01359
Shelby owed her fiduciary duty or breached any promise let alone legally cognizable one
Adriana cannot show the malice and/or fraud enhanced Adrianas
to support damages
counterclaims also lack merit because they are outside of the limitations period fail to state
legally cognizable claim and are unsupported by the record in this case
REQUEST FOR DISCLOSURE
The amount and any method of calculating economic damages
RESPONSE
Not applicable
REQUEST FOR DISCLOSURE
The name address and telephone number of having knowledge of relevant facts
persons
and brief statement of each identified persons connection with the case
RESPONSE
Shelby Longoria
do Johnny Carter Rick Hess and Kristen Schiemmer
Susman Godfrey
1000 Louisiana Ste 5100
Houston Texas 77002
Shelby Longoria is the will contestant and counter-defendant in this case
Sylvia Dorsey
do James Fisher
500 North Alcard Street
Dallas Texas 75201
Sylvia Dorsey applied for the probate of Dorothy Longoria purported 2010 will
James Thomas Tommy Dorsey
do James Fisher
500 North Akard Street
Dallas Texas 75201
Tommy is the purported executor of the will Sylvia Dorsey applied to probate
3004728v1/013774
01360
Eduardo Wayo Longoria Jr
1702 Cresthaven Dr
Austin Texas 78704
512 535-0105
Wayo is Sylvia Shelby and Adrianas brother
Adriana Longoria
6138 San Felipe Street
Houston TX 77057
713 784-0826
Adriana is Sylvia Shelby and Wayos sister
Thomas Dorsey Jr
Houston Texas
713 816-0881
Thomas Dorsey Jr is the son of the will applicant and executor as well as the business
partner of the executor
Kristin Dorsey
Houston Texas
713 816-0881
Kristin Dorsey is Thomas Dorsey Jr.s wife and the daughter-in-law of the will applicant
and executor
Elizabeth Fertitta
2706 Eastgrove Lane
Houston Texas 77027
Elizabeth Fertitta is the daughter of the will applicant and executor and her husband
drafted the will Dorothy Louise Longoria allegedly executed on January 21 2010
Zack Fertitta
2706 Eastgrove Lane
Houston Texas 77027
Zack Fertitta is the son-in-law of the will applicant and executor and drafted the will
Dorothy Louise Longoria allegedly executed on January 21 2010
Robert Edward Wayo Dorsey
15308 Sunset Blvd
Pacific Palisades CA 90272
Wayo Dorsey is the son of the will applicant and executor
3004728v1/013774
01361
Adriana Longoria
6138 San Felipe Street
Houston Texas 77057
Adriana Longoria is Dorothy Longorias daughter Sylvia Dorsey and Shelby Longorias
sister and Tommys sister-in-law
Raymond Hart
5834 Candlewood Lane
Houston TX 77057
713 818-2387
Raymond Hart is Adriana Longorias son
Forrest Hart
307 Grand Street Apt 1C
Brooklyn New York 11211-4446
Forrest Hart is Adriana Longorias son
Adiiana Banks
6138 San Felipe Street
Houston Texas 77057
Adriana Banks is Adriana Longorias daughter
Tita Longoria
do Johnny Carter Rick Hess and Kristen Schiemmer
Susman Godfrey
1000 Louisiana Ste 5100
Houston Texas 77002
Tita Longoria is Shelby Longorias wife and Dorothy Longorias daughter-in-law
Marta Beatriz Montelongo Garza
Cerro del Bemal 128 Colonia las Fuentes Cp 88710
Reynosa Tamaulipas
Ms Montelongo witnessed Eduardos 2002 will and the 2002 Afirme Trust agreement
Saul Garza Molina
Real De Cantaro 203 Frace Los Cantaros
Reynosa Tamaulipas
Mr Garza is the CEO of Grupo Inlosa and had close contact with Eduardo and Dorothy
over many years
3004728v1/013774
01362
Imia Campoy Carrillo
Haya 108 Fracc Privada Las Ceibas
Reynosa Tamaulipas
Ms Campoy is the Treasurer for Grupo Inlosa and was in charge of making payments to
Sylvia and Adriana under the Acuerdo Privado
Patricia Vazquez
Playa Hermosa 507 Col Militar Marte
Iztacalco Mexico
Ms Vasquez was the Treasurer for Grupo Irilosa before Ms Campoy and was
responsible for making payments to Sylvia and Adriana under the Acuerdos Privados
Marco Tones
Sierra Nevada 1208 Col Fuentes
Reynosa Tamaulipas
Mr Tones was the Administrative Director at Grupo Inlosa for many years and has
knowledge of Eduardo and Dorothys wills and estate planning
Pedro Ramirez
Padre Mier 1504
Monteney N.L
Mr RamIrez was the attorney who drafted trust documents and the Acuerdos Privados
Celia Guerrero
Zaragoza 1300 Sur
Monterrey N.L
Ms Guerrero works with Mr Ramirez and also assisted Mr Rainirez in the preparation
of many documents
Mario Gonzalez Mendoza
Dr Mier 3113 Zona Centro
Nuevo Laredo Tamaulipas
Mr Gonzalez Mendoza was Eduardos and Dorothys attorney for approximately 40
and has relevant to their estate planning testamentary wishes and separate
years knowledge
prqperty agreement
Mario Gonzalez Basurto
Dr Mier 3113 Zona Centro
Nuevo Laredo Tamaulipas
Mr Gonzalez Basurto is Mr Longorias attorney in the amparo proceedings in Mexico
3004728v1/013774
01363
Elsa Gonzalez Basurto
Dr Mier 3113 Zona Centro
Nuevo Laredo Tamaulipas
Ms Gonzalez worked on the probate of Eduardos estate
Alicia Garcia
Dr Mier 3113 Zona Centro
Nuevo Laredo Tamaulipas
Ms Garcia has been Mr Gonzalez Mendozas assistant for many years and knew
Eduardo and Dorothy
Carlos Avila
Hacienda San Abel 215 Fracc Las Haciendas
Reynosa Tamaulipas
Mr Avila was the HR Manager for Grupo Inlosa for
many years
Carlos Gonzalez Hinojosa
Libramiento Luis Echevania 630
Reynosa Tamaulipas
Mr Gonzalez Hinojosa is an attorney in Reynosa who prepared several wills for Eduardo
and Dorothy
.Arnulfo Cruz
Calle Del Cerro 131 Colonia Cumbres
Monteney N.L
Mr Cruz is tax consultant who participated on many of the documents and tax planning
for Dorothy and Eduardo
Virginia Coronel
.Azucena 505 Col Puerta Del Hierro
Monterrey N.L
Ms Coronel is an attorney with intimate knowledge of documents related to Eduardos
and Dorothys estate planning and Eduardos and Shelbys business dealings in Mexico
3004728v1/013774
01364
Dr Anselmo Guarneros
Calle Independencia 2209
Nuevo Laredo Tamaulipas
Dr Guarneros was good friends with Eduardo and Dorothy for many years witnessed
Eduardos 2002 will and is about Eduardos medical condition the time he
knowledgeable at
executed the 2002 will
Carlos Lozano
Nayarit 3626 Colonia Jardin
Nuevo Laredo Tamaulipas
Mr Lozano worked for Eduardo for over thirty years
Antonio Del Bosque
Boulevard Las Torres Del Bosque 705
Nuevo Laredo Tamaulipas
Mr Del Basque worked for Eduardo for over thirty years
Lie Francisco Gaxiola
Basque De Ciruelos 140-505
Mexico D.F
Mr Gaxiola is an attorney that drafted documents for the Serfm Trust
Nestor Sanchez
Calle Perales 750 Colonia Jardin
Reynosa Tamaulipas
Mr Sanchez served as Administrative Director of 3rupo Inlosa before Marco Tones
Lie Adrian Lozano Lozano
Hidalgo 234 Pte 40 Piso Zona Centro
Monterrey N.L
Mr Lozano is an executive at Banca Afirme the trustee of the Afirme Trust
Martha Beatriz Garza
Hidalgo 234 Pte 40 Piso Zona Centro
Monterrey N.L
Ms Garza is an executive at Banca Afirme the trustee of the Afirme Trust
3004728v1/013774
01365
Lic Eduardo Marroquin
Francisco Madero Pte 218 Monterrey
Nuevo Leon Tamaulipas
Mr Marroquin is an executive at Banca Afirme the trustee of the Afinne Trust
Dr Mario Alberto Perez Coss
Madero 1320
Nuevo Laredo Tamaulipas
Dr Perez certified Dorothys good health in connection with her 1989 Mexican will
Oscar Chapa Gonzalez
Guatemala 2802
Col Ferrocarril
Nuevo Laredo Tamaulipas 88050
Mr Chapa is knowledgeable about the valuation of properties in connection with
Eduardos and Dorothys 1983 Separate Property Agreement
Jose Luis Saldafia Avendaflo
Carretera Piedras Negras
kilometro 19.3 Poniente
Nuevo Laredo Tamaulipas
Mr Saldafia is knowledgeable about the 1983 Separate Property Agreement and the
valuation of interests divided in that agreement
REQUEST FOR DISCLOSURE
For any testifying expert
The experts name address and telephone number
The subject matter on which the expert will testify
The general substance of the experts mental impressions and opinions and brief
summary of the basis for them or if the expert is not retained by you employed by you or
otherwise subject to your control documents reflecting such information
If the expert is retained by you employed by you or otherwise subject to your
control
3004728v1/013774
01366
All documents tangible items reports models or data compilations that
have been provided to reviewed by or prepared by or for the expert in anticipation of the
experts testimony and
The experts current resume and bibliography
RESPONSE
Experts will designated on the schedule provided by the Court
REOUEST FOR DISCLOSURE
Any indemnity and insuring agreements described in Rule 192.3f
RESPONSE
Not applicable
REOUEST FOR DISCLOSURE
settlement described in Rule 192.3g
Any agreements
RESPONSE
Dorsey signed contract entitled Release Agreement on December 29 2006
Sylvia
acknowledging full payment of gifts and inheritances she was owed under the Private Agreement
and Wish Letter and releasing her claims against Shelby Longoria
REQUEST FOR DISCLOSURE
Any witness statements described in Rule 192.3h
RESPONSE
Not applicable
3004728v1/013774 10
01367
Respectfully submitted
SUSMAN GODFRE .L.P
By
Carter
Jc17inny
Sfate Bar No 00796312
Richard Hess
State Bar No 24046070
Kristen Schiemmer
State Bar No 24075029
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713654-6666
Robert Maclntyre Jr
MACINTYRE MCCULLOCH STANFIELD YOUNG
2900 Weslayan Suite 150
Houston Texas 77027
Telephone 713 547-5400
Attorneys for Shelby Longoria
CERTifICATE OF SERVICE
and of the above and
This is to certify that on this April 2014 true correct copy
the following counsel of record in accordance
instrument was properly forwarded to
foregoing
21 of the Texas Rules of Civil Procedure as indicated below
with Rule
Austin Fisher Via Ekctroni Mail
James
FISHER WELCH
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Bmail jfisherfisherwelch.com
Wesley Holmes
THE HOLMES LAW FIRM
1000 North Central Expressway Suite 400
Dallas Texas 75231
Email wes@wesholmes.com
and riana Longoria
Attorneys for James Thomas Dorsey Syii orse
Kr.i ten Schienirner
3004728v1/013774 11
01368
EXHIBIT
01369
VOLUME II
ADRIANA LONGORIA 8/26/2014
Page 197 Page 199
what he was doing was improper is trust specifically Trust 194-2 right
No did not Witness nods head
Okay Let me give you two exhibits at the Youve got to answer audibly
same time because ones in English and one is in Yes oh--yes
Spanish
And when you look at the first page under
the Declarations trust
Exhibits 102 and 103 are marked you see that it refers to
BY MR HESS Exhibit 102 has Private contract being executed with Mr Eduardo Longoria
Agreement and Translation at the top Theriot acting as trustor and your brothers Wayo
Exhibit 103 says Recuerdo Bravada and Shelby as Trust and Officiaries right
10 Lets start with 103 Ms Longoria and then 10 Yes
11 well 102 11 This agreement also affects you in very
go back to
12 because the second clause refers to
12 So 103 is the Spanish language Private real way
13 be paid to you
you and your father
13 between right payments to
Agreement
14 A. Yes 14 Do you see that
15 15 nods head
it is signed by you and signed by your Witness
16 father on the third right
16 Okay The second payment to Adriana
page
17 Yes 17 Longoria Kowalski is the will of their father that
18 the amount of U.S $3 million be delivered to his
18 Now lets go to Exhibit 102 which is in
19 19 daughter Adriana Longoria Kowalski
English
20 October of you entered into
2002 20 Do you see that
So in
21 this with your father Eduardo Longoria 21 Yes
agreement
22 the private weve
22 right So this is agreement that
23 nodshead 23 referenced today and also yesterday as the
Witness
24 MR FISHER Objection form 24 instrument by which your father expressed his will
25 Yes 25 that you should get $3 million right
198 Page 200
Page
Q. BY MR HESS Okay Just so Im clear
This is the one we signed at dinnertime It
And was his birthday October
this is the translation of Exhibit 103 if
And you see the first clause it says The
theres any issue with the translation you see you
the and of the
let me know parties recognize validity scope
Okay frist
Do you see that The paragraph right before
And if you dont have time to check you
whether or the $3 million to you
have capable lawyers who can determine
not they have with the translation Uh-huh
any problems
MR FISHER Pm not capable Okay So back in 2002 in October you say
10 on your fathers birthday you executed an agreement
10 translator however
11 MR HESS Right
11 that affirms the validity and the scope of this
BY MR HESS
12 trust referenced document right
in the
12 And.Im only using 102
13 because this language this procedure
13 MR FISHER Objection form
14 Thats fine 14 BY MR HESS Your answer
not before
in 15 Well was able to read it
15 this procedure is taking place
16 it
16 English
signed
17 of 102 says Executed by
17 All right Obviously you didnt sign
So at the top
18 Exhibit the
Theriot and Adriana Longoria Exhibit 102 but you signed 103
18 Eduardo Longoria
19 one II
19
20
Kowalski
acceptance
with
of the
respect
terms and
to the recognition
conditions of
and
Trust 20
Spanish
Yes
language
Im
21 And when you were not able to read
21 No 194-2 say you
22 Do you see that 22 it youre not telling me that youre incapable of
23 23 reading it right
YesIseeit
24 the Agreement signed in 24 No was saying it was too brief amount of
Okay So Private
25 that there 25 time
2002 by you and your father acknowledges
15 Pages 197 to 200
MERRILL CORPORATION HOUSTON
WWW MERRILLCORP COM/LAW
1-888-513-9800
01370
VOLUME II
ADRIANA LONGORIA 8/26/2014
Page 201 Page 203
And
you didnt have
You feel today that enough these pages almost feel that my father at
time to read Exhibit 103 before you signed it that time as you can see his signature was quite
Yes ill
You dont dispute that did it You dont dispute
you sign
dont dispute that did sign it A.No
You dont dispute that you could have had that you signed it and that youve been
the opportunity to read it whenever you wanted paid pursuant to this agreement all the way up to
No They they were picked up then and 2010
there Letmesaythatldo-
10 see Do you recognize this is the 10 right
11 been 11 know where those came from
by which youve -- not
agreement paid payments
12 YesIdo 12 were they the same payments from the trust that
13 an allowance -- 13 had been paid for for 50 years monthly
14 YesIdo 14 When got my money got it in my account
15 between 15 like had been for 50
every month every year years prior
16 As had all the years prior in my life 16 Are you going to turn around and give all
17 MR FISHER You didnt let him 17 that money back if this agreement is invalid
18 know what 18 have no money Ive spent it
finish the question so you dont even
19 19 Well look at the bottom of page
you were answering
20 BY MR HESS You dont even know what 20 MR
FISHER Which exhibit
21 was asking 21 MR HESS Exhibit 102
22 No dont am so terribly sony 22 BY MR HESS Where it
says The balance
23 Thats 23 to be delivered to Adriana Longoria Kowalski in
all right
24 Ill leave here renegade 24 terms of previous paragraph amounts to 2069100
suppose
25 Just try to do better 25 And it carries over onto the second page
Page 202 Page 204
will Itruly.. Are you with me Ms Longoria
You signed an agreement -- Im looking at this
Yes The witness peruses the document
-- in 2002 And under the terms of that rm going to see-- lets see-- during
allowance monthly can ask you -- or no
agreement you have been paid an this questions
all way up until October 2010 BY MR HESS If you want to confer with
Yes your lawyer because you think you might reveal
then
Are you claiming that this agreement is something privileged between the two of you
somehow invalid yes But.otherwise no
10 No 10 MR HESS Im sorry to interrupt
11 Okay This is valid agreement that you 11 MR FISHER agree with what you
12 signed and which your father signed 12 said.but want to ask you if you understand what
13 Witness nods head 13 he said
THE WITNESS No no didnt know
14 MR FISHER Objection form 14
15 BY MR HESS You nodded before Mr Fisher 15 if could make reference to you
16 objected
16 MR FISHER cant coach you how
17 But what out loud 17 to answer or anything like that
is
your answer anyway
18 What see here on the paper is my signature
18 THE WITNESS Its most--
and my fathers signature
19 MR FISHER Youve just got to
20 20 answer the as best you can
While may have some complaints today
you question
21 that you wish you had more time to read it you
21 BY MR HESS Right now think the
22 question is Are you reading the same paragraph
22 dont dispute that you signed it and that youve
23 been paid pursuant to this agreement up until 23 am
24 October2010 24 MR FISHER Im not sure she is
25 I.Ididnotknowwhatwaswrittenon 25 The second one --
16 Pages 201 to 204
MERRILL CORPORATION HOUSTON
1-888-513-9800 WWW MERRILLCORP COM/LW
01371
VOLUNE II
ADRIANA LONGORIA 8/26/2014
Page 205 Page 207
MR FISHER If you could identi It was across the street from Sylvias
business
it again
BY MR HESS Sure The bottom of page Do you remember the address
carried over to the top of page A.No
one Im on Do you remember what unit number your mother
Yes thaes the
lived in
So by the time that you signed this
the balance on the $3 million 14-- 140
agreement in 2002
Around what floor did she on
you was
live
that your father wished to give to
The 14th floor
$2069100 right
10 10 How your mother when she
Witness nods head often did you see
11 moved Houston
11 Im pointing to my ear because want to to
12 saw her in the beginning
12 hear your answer very frequently
13 Oh thank you Yes But- 13 When you say very frequently what does
14 As we discussed 14 that mean
15 15 Twice week
maylaskyou-
16 And when you in beginning what
over ask me
the
16 When this deposition is say
17 17 does that mean
whatever you want
18 That means Mother lived here around
18 Okay
was 19 six years And would say the first three
19 When your
father passed away in 2005 think
the received 20 or four years
20 there any interruption in payments you
21 in 2005 21 2005 to 2008 you saw her probably two times
22 No 22 week
23 23 And how did that change after 2008
2006
24 and had had little
24 No Well Mother always
25 bit of caustic since was 15
25 2007 relationship
206 Page 208
Page
would say And some things didnt change
dont remember
Do you remember any interruptions in your
Was there anything in particular that caused
with your
monthly allowance in 2008 the caustic aspects of your relationship
when mother to resurface after 2008
Those were the period of time dont
Oh no It never was put to bed
remember much
And then after 2008 how often do you think
Okay Do you remember any interruption of
2010 you would visit with your mother in person
payments in 2009 or
dont remember Once week once every ten days
During this --
right now
And how ong did that last after 2008
We talked about this earlier today but is
10 Till she died
10 your memory starling to fail you because youre
11 At some point in 2009 did your mother
11 getting disturbed about some of the issues that
12 some desire to for her to change her
12 have bothered in the express you
you past
13 wifi
13 Perhaps
14 We didnt talk about that much
14 Now in 2005 after your father passed away
15 It sounds like in 2009 she didnt tell
you
15 mother moved from Laredo to Houston right
your
16 that she had some desire to go and change her will
16 She did
17 Is that right
17 Where did she live
18 AttheBella- 18 No she did not tell me
How mental health-wise
19 Do you remember the name of the apartment 19 was your mother doing
20 around that time
20 building where she lived
21 the Bella-something
21 We were neck and neck She was not well
It was
22 You were suffering from depression
22 Okay Is that high-rise condominium
23 Iwas
23 building
24 And she was suffering from depression
24 Yes it is
25 Do you remember the address
25 No She was aged
______
17 Pages 205 to 208
MERRILL CORPOPATION HOUSTON
WWW MERRILLCORP COM/ LAW
1-888-513-9800
01372
EXHIBIT
01373
Case Number 414270
IN THE ESTATE OF IN THEPROBATE
DOROTHY LOUISE LONGORIA COURT NUMBER ONE
DECEASED HARRIS COUNTY TEXAS
___________________________________________________________
Shelby Longorias Responses to Adriana Longorias
First Requests for Production of Documents and Things
TO Acixiana Longoria Adriana by and through her attorneys of record James Austin Fisher
Fisher Welch 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 and
Wesley Holmes The Holmes Law Finn 10000 North Central Expressway Suite 400
Dallas Texas 75231
Shelby Longoria Shelby Will Contestant in the above-styled and numbered cause and
to Rule 196 of the Texas Rules of Civil Procedure answers the following requests for
pursuant
of documents separately and fully in writing
production
GENERAL OBJECTIONS
to and all instructions or definitions that would require him to
Shelby objects any
in manner beyond that required by the Texas Rules of Civil Procedure
respond
all the requests below as seeking of documents
Shelby further objects to production
that have already been produced pursuant to requests for production propounded by Sylvia Dorsey
Sylvia and James Thomas Dorsey Tommy
to and all to the extent that they seek the production of
Shelby objects any requests
the work-
any documents or information protected from disclosure by the attorney-client privilege
of privilege law or rule Privileged Information
any other applicable
doctrine or claim
product
Information in to the and any
Shelby Longoria will not produce Privileged response requests
documents should be understood exclude Information
by him
to Privileged
undertaking to produce
the to demand the return of any documents that
Shelby Longoria specifically reserves right
EXHIBT
3285478v1/013774
01374
in his sole that such documents
inadvertently may be produced if he determines discretion may
constitute or contain Privileged Information
Shelby has withheld documents and/or communications covered by privilege
including attorney-client privilege and/or work product privilege responsive to Adrianas RFPs 17
18 and 19 Pursuant to TRCP 193.3c Shelby will exclude privileged communications and
documents created from the point at which it consulted an attorney with view toward obtaining
from the lawyer of claim in this
professional legal services in the prosecution specific litigation
Shelby Longoria reserves all other objections including without limitation
to the relevance admissibility or authenticity of all information or documents provided
objections
RESPONSES AN OBJECTIONS
All documents in which the Private Agreement is mentioned
RESPONSE
In their requests for production and 23 Sylvia and Tommy requested respectively
All documents referring or relating to Adriana Longoria and All documents relating to
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on
or about December 17 2002 Subject to the objections listed in the responses to those requests
or control that are responsive to those
Shelby produced all documents in his possession custody
raised in to those Accordingly to the
requests Shelby maintains any objections response requests
in which the Private is mentioned Shelby has already
extent Shelby has documents Agreement
documents this on the basis of
them Shelby has not withheld any responsive to request
produced
his previous objections
All drafts of the Private whether or not they are entitled Acuerdo Privado
Agreement
RESPONSE
3285478v1/013774
01375
In their requests for production and 23 Sylvia and Tommy requested respectively
All documents referring or relating to Adriana Longoria and All documents relating to
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on
or about December 17 2002 Subject to the objections listed in the responses to those requests
all documents in his possession custody or control that are responsive to those
Shelby produced
raised in to those Accordingly to the
requests Shelby maintains any objections response requests
extent Shelby has drafts of the Private Agreement Shelby has already produced them Shelby has
on the basis of his previous
any documents
not withheld responsive to this request objections
All documents in which draft of the Private Agreement is mentioned
RESPONSE
In their requests for production and 23 Sylvia and Tommy requested respectively
All documents or to Adriana Longoria and All documents relating to
referring relating
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on
or about December 17 2002 Subject to the objections listed in the responses to those requests
all documents in his possession custody or control that are responsive to those
Shelby produced
raised in response to those Accordingly to the
requests Shelby maintains any objections requests
of the Private is mentioned Shelby has
extent Shelby has documents in which draft Agreement
them withheld documents to this on the
already produced Shelby has not any responsive request
basis of his previous objections
All documents in which there is reference to payment of money that was made to
Adriana pursuant to the Private Agreement
RESPONSE
In their requests for production and 23 Sylvia and Tommy requested respectively
Adriana Longoria and All documents relating to
All documents referring or relating to
and Eduardo on
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria
3285478v1/013774
01376
or about December 17 2002 Subject to the objections listed in the responses to those requests
Shelby produced all documents in his possession custody or control that are responsive to those
requests Shelby maintains any objections raised in response to those requests Accordingly to the
extent Shelby has documents in which there is reference to payment of money that was made to
Adriana pursuant to the Private Agreement Shelby has already produced them Shelby has
however identified an updated statement of account for payments made to Adriana pursuant to the
Private Agreement which he will produce Shelby has not withheld any documents responsive to
this request on the basis of his previous objections
All documents which identify the source of funds used to make payment of money to
Adriana pursuant to the Private Agreement
RESPONSE
In their for production and 23 Sylvia and Tommy requested respectively
requests
All documents refening or relating to Adriana Longoria and All documents relating to
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on
or about December 17 2002 Subject to the objections listed in the responses to those requests
documents in his or control that are responsive to those
Shelby produced all possession custody
Accordingly to the
requests Shelby maintains any objections raised in response to those requests
the source of funds used to make of money
extent Shelby has documents which identify payment
to Adriana pursuant to the Private Agreement Shelby has already produced them Shelby has not
withheld any documents responsive to this request on the basis of his previous objections
All written communications to or from Adriana in which the Private Agreement is
mentioned
RESPONSE
In their requests for production and 23 Sylvia and Tommy requested respectively
All documents referring or relating to Adriana Longoria All documents relating to
3285478v1/013774
01377
communications between and Adriana Longoria and All documents relating to
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on
or about December 17 2002 Subject to the objections listed in the responses to those requests
Shelby produced all documents in his possession custody or control that are responsive to those
requests Shelby maintains any objections raised in response to those requests Accordingly to the
in which the Private
Shelby has written communications from Adriana
extent or is
to Agreement
mentioned Shelby has already produced them Shelby has not withheld any documents responsive
to this request on the basis of his previous objections
All written communications to or from Adriana in which any payment of money to Adriana
is mentioned
RESPONSE
In their requests for production and Sylvia and Tommy requested All documents
referring or relating to Adriana Longoria and All documents relating to communications between
and Adriana Longoria Subject to the objections listed in the responses to those requests
all documents in his possession custody or control that are responsive to those
Shelby produced
raised in to those Accordingly to the
requests Shelby maintains any objections response requests
communications to from Adriana in which any payment of money to
extent Shelby has written or
Adriana is mentioned Shelby has already produced them Shelby has not withheld any documents
responsive to this request on the basis of his previous objections
All documents which state or purport to state the balance owed to Adriana pursuant to the
Private Agreement as of any date
RESPONSE
In their request for production 23 Sylvia and Tommy requested All documents relating to
and Eduardo
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria
on or about December 17 2002 Subject to the objections listed in the responses
to that request
3285478v1/013774
01378
Shelby produced all documents in his possession custody or control that are iesponsive to those
requests Shelby maintains any objections raised in response to those requests Accordingly to the
extent Shelby has documents which state or purport to state the balance owed to Adriana pursuant
to the Private Agreement as of any date Shelby has already produced them Shelby has however
identified an updated statement of account for payments made to Aciriana pursuant to the Private
Agreement which he will produce Shelby has not withheld any documents responsive to this
request on the basis of his previous objections
All documents which state or purport to state the total amount paid to Adriana pursuant to
the Private Agreement as of any date
RESPONSE
In their request for production 23 Sylvia and Tommy requested All documents relating to
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo
on or about December 17 2002 Subject to the objections listed in the responses to that request
documents in his or control that are responsive to those
Shelby produced all possession custody
raised in response to those Accordingly to the
requests Shelby maintains any objections requests
which the amount to Adriana
Shelby has documents or purport to state total paid
extent state
to the Private Agreement as of any date Shelby has already produced them Shelby has
pursuant
however identified an updated statement of account for payments made to Adriana pursuant to the
which he will produce Shelby has not withheld any documents responsive to
Private Agreement
this request on the basis of his previous objections
which to Adriana pursuant the Private
10 All documents list or purport to list payments to
Agreement
RESPONSE
In their request for production 23 Sylvia and Tommy requested All documents relating to
and Eduardo
document entitled Acuerdo Privado and purportedly signed by Adriana Longoria
3285478v1/013774
01379
on or about December 17 2002 Subject to the objections listed in the responses to that request
Shelby produced all documents in his possession custody or control that are responsive to those
requests Shelby maintains any objections raised in response to those requests Accordingly to the
extent Shelby has documents which list or purport to list payments to Adriana pursuant to the
Private Agreement Shelby has already produced them Shelby has however identified an updated
statement of account for made to Adriana pursuant to the Private Agreement which he
payments
will produce Shelby has not withheld any documents responsive to this request on the basis of his
previous objections
which mention Adriana
11 All documents payment of money by Eduardo and/or Dorothy to
RESPONSE
In their request for production Sylvia and Tommy requested All documents referring or
Adriana the in the that
relating to Longoria Subject to objections listed responses to request
documents in his or control that are responsive to those
Shelby produced all possession custody
in to those Accordingly to the
requests Shelby maintains any objections raised response requests
extent Shelby has documents which mention gift of property by Eduardo and/or Dorothy to
Aciriana Shelby has already produced them Shelby has not withheld any documents responsive to
this request on the basis of his previous objections
documents which mention of property by Eduardo and/or Dorothy Adriana
12 All gift to
RESPONSE
In their requests for production 43 and 44 Sylvia and Tommy requested respectively
All documents referring or relating to Adriana Longoria All documents evidencing any
gift sale or other transfer by Eduardo of any property owned by her at
assignment conveyance
All documents or other transfer
any time and evidencing any assignment conveyance gift sale
of any owned by her at any time Subject to the objections listed in the
by Dorothy property
3285478v1/013774
01380
responses to those requests Shelby produced all documents in his possession custody or control
that are responsive to those requests Shelby maintains objections raised in response to those
any
requests Accordingly to the extent Shelby has documents which mention gift of property by
Eduardo and/or Dorothy to Adriana Shelby has already produced them Shelby has not withheld
any documents responsive to this request on the basis of his previous objections
13 All written communications to or from Adriana in which any property owned or formerly
owned or formerly owned by Eduardo is mentioned
RESPONSE
In their requests for production and 43 Sylvia and Tommy requested All
documents referring or relating to Adriana Longoria All documents relating to communications
between and Adriana Longoria and All documents evidencing any assignment
conveyance gift sale or other transfer by Eduardo of any property owned by her at any time
to the objections listed in the responses to those requests Shelby produced all documents in
Subject
his possession custody or control that are responsive to those requests Shelby maintains any
objections raised in response to those requests Accordingly to the extent Shelby has written
communications to or from Adriana in which any property owned or formerly owned or formerly
owned by Eduardo is mentioned Shelby has abeady produced them Shelby has not withheld any
documents responsive to this request on the basis of his previous objections
14 All written communications to or from Adriana in which any property owned or formerly
owned by Dorothy is mentioned
RESPONSE
In their requests for production and 44 Sylvia and Tommy requested All
documents referring or relating to Adriana Longoria All documents relating to communications
between and Adriana Longoria and All documents evidencing any assignment
gift sale or other transfer by Dorothy of any property owned by her at any time
conveyance
3285478v1/013774
01381
Subject to the objections listed in the responses to those requests Shelby produced all documents in
his possession custody or control that are responsive to those requests Shelby maintains any
objections raised in response to those requests Accordingly to the extent Shelby has written
communications to or from Adriana in which any property owned or formerly owned by Dorothy
is mentioned Shelby has already produced them Shelby has not withheld any documents
responsive to this request on the basis of his previous objections
15 All written communications which include an instruction to make payment of money to
Adriana
RESPONSE
In their request for production Sylvia and Tommy requested All documents referring or
to Adriana Longoria Subject to the objections listed in the responses to that request
relating
documents in his or control that are responsive to those
Shelby produced all possession custody
raised in response to those Accordingly to the
requests Shelby maintains any objections requests
communications which include an instruction to make payment of
extent Shelby has written
money to Adriana Shelby has already produced them Shelby has not withheld any documents
responsive to this request on the basis of his previous objections
16 All written communications which include an instruction not to make payment of money
to Adriana
RESPONSE
In their request for production Sylvia and Tommy requested All documents referring or
the in the that
relating to Adriana Longoria Subject to objections listed responses to request
in his or control that are responsive to those
Shelby produced all documents possession custody
in response to those Accordingly to the
requests Shelby maintains any objections raised requests
which include make of
extent Shelby has written communications an instruction not to payment
documents
Adriana Shelby has already produced them Shelby has not withheld any
money to
3285478v1/013774
01382
responsive to this request on the basis of his previous objections
17 All documents which characterize or describe your relationship with Adriana at any time
after 1978
RESPONSE
In their request for production Sylvia and Tommy requested All documents referring or
relating to Adriana Longoria Subject to the objections listed in the responses to that request
Shelby produced all documents in his possession custody or control that are responsive to those
requests Shelby maintains any objections raised in response to those requests Accordingly to the
extent Shelby has documents which characterize or describe his relationship with Adriana at any
time after 1978 Shelby has already produced them Shelby has not withheld any nonprivileged
documents responsive to this request on the basis of his previous objections
18 All documents which characterize or describe Eduardos relationship with Adriana at any
time after 1978
RESPONSE
In their requests for production 11 12 23 63a and 65 Sylvia and Tommy
requested All documents referring or relating to Eduardo All documents referring or relating to
Adriana All documents communications between and Eduardo
Longoria relating to
and All documents communications between you and others
Longoria Theriot relating to
Eduardo Longoria Theriot All documents relating to document entitled Acuerdo
regarding
Privado purportedly signed by Adriana Longoria and Eduardo on or about December 17 2002
and All written communications in which any one or more of the following is mentioned
Eduardo All written communications to or from Eduardo
those all
Subject to the objections listed in the responses
to requests Shelby produced
documents in his or control that are responsive to those requests Shelby
possession custody
raised in response to those Accordingly to the extent Shelby has
maintains any objections requests
10
3285478v1/013774
01383
documents which characterize or describe Eduardos relationship with Adriana at any time after
1978 Shelby has already produced them Shelby has not withheld any nonprivileged documents
responsive to this request on the basis of his previous objections
19 All documents which characterize or describe Dorothys relationship with Adriana at any
time after 1978
RESPONSE
In their request for production 10 64a and 66 Sylvia and Tommy requested
All documents referring or relating to Dorothy All documents referring or relating to Adriana
Longoria All documents relating to communications between you and Dorothy Louise
Longoria All documents relating to communications between you and others regarding Dorothy
Louise Longoria All written communications in which any one or more of the following is
mentioned Dorothy and All written communications to or from Dorothy
Subject to the objections listed in the responses to those requests Shelby produced all
documents in his custody or control that are responsive to those requests Shelby
possession
maintains raised in to those Accordingly to the extent Shelby has
any objections response requests
documents which characterize or describe Dorothys relationship with Adriana at any time after
1978 Shelby has already produced them Shelby has not withheld any nonprivileged documents
responsive to this request on the basis of his previous objections
20 All written communications in which Eduardo and/or Dorothy asked or instructed you to
Adriana
pay money to Adriana or pay money
to cause another person or business to to
RESPONSE
In their requests for production 10 11 and 12 Sylvia and Tommy requested
respectively All documents referring or relating to Adriana Longoria All documents relating
to communications between you and Dorothy Louise Longoria All documents relating to
communications between you and others regarding Dorothy Louise Longoria All documents
3285478v1/013774 11
01384
relating to communications between you and Eduardo Longoria Theriot and All documents
relating to communications between you and others regarding Eduardo Longoria Theriot
Subject to the objections listed in the responses to those requests Shelby produced all
documents in his possession custody or control that are responsive to those requests Shelby
maintains any objections raised in response to those requests Accordingly to the extent Shelby has
written coimnunications in which Eduardo and/or Dorothy asked or instructed Shelby to pay money
to Adriana or to cause another person or business to pay money to Adriana Shelby has already
produced them Shelby has not withheld any documents responsive to this request on the basis of
his previous objections
21 All written communications which respond to request or instruction by Eduardo and/or
Dorothy that you pay money to Adriana or that you cause another person or business to pay
money to Adriana
RESPONSE
In their requests for production 10 11 and 12 Sylvia and Tommy requested
All documents referring or relating to Adriana Longoria All documents relating
respectively
between and Louise All documents to
to communications you Dorothy Longoria relating
communications between you and others regarding Dorothy Louise Longoria All documents
to communications between you and Eduardo Longoria Theriot and All documents
relating
to communications between you and others regarding Eduardo Longoria Theriot
relating
all
to the objections listed in the responses to those requests Shelby produced
Subject
in his or control that are responsive to those requests Shelby
documents possession custody
raised in response to those Accordingly to the extent Shelby has
maintains any objections requests
written communications in which Eduardo and/or Dorothy asked or instructed Shelby to pay money
money to Adriana Shelby has
person or business
to Adriana or to cause another to pay already
on the basis of
them Shelby has not withheld any documents to this
produced responsive request
12
3285478v1/013774
01385
his previous objections
22 All documents which mention to request or instruction by Eduardo and/or Dorothy that
you pay money to Adriana or that you cause another person or business to pay money to
Adriana
RESPONSE
In their requests for production 10 11 and .12 Sylvia and Tommy requested
respectively All documents referring or relating to Adriana Longoria All documents relating
to communications between you and Dorothy Louise Longoria All documents relating to
communications between you and others regarding Dorothy Louise Longoria All documents
relating to communications between you and Eduardo Longoria Theriot and All documents
relating to communications between you and others regarding Eduardo Longoria Theriot
to the listed in the to those requests Shelby produced all
Subject objections responses
documents in his custody or control that are responsive to those requests Shelby
possession
maintains raised in response to those requests Accordingly to the extent Shelby has
any objections
written communications in which Eduardo and/or Dorothy asked or instructed Shelby to pay money
to Adriana or to cause another person or business to pay money to Adriana Shelby has already
them Shelby has not withheld documents responsive to this request on the basis of
produced any
his previous objections
Eduardo Dorothy asked or instructed to do
23 All written communications in which and/or you
of Adriana or to another or business to do something
something for the benefit cause person
for the benefit of Adriana
RESPONSE
In their requests for production 10 11 and 12 Sylvia and Tommy requested
respectively All documents referring or relating to Adriana Longoria All documents relating
to communications between you and Dorothy Louise Longoria All documents relating to
between and others regarding Dorothy Louise Longoria All documents
communications you
13
3285478v1/013774
01386
relating to communications between you and Eduardo Longoria Theriot and All documents
relating to communications between you and others regarding Eduardo Longoria Theriot
Subject to the objections listed in the responses to those requests Shelby produced all
documents in his possession custody or control that are responsive to those requests Shelby
maintains any objections raised in response to those requests Accordingly to the extent Shelby has
written communications in which Eduardo and/or Dorothy asked or instructed you to do something
for the benefit of Adriana or to cause another person or business to do something for the benefit of
withheld
Shelby has already them Shelby any documents
has not to
Adriana produced responsive
this request on the basis of his previous objections
24 All written communications which respond to request or instruction by Eduardo and/or
Dorothy that you something for the benefit of Adriana or that you cause another person or
business to do something for the benefit of Adriana
RESPONSE
In their for 10 11 and 12 Sylvia and Tommy requested
requests production
respectively All documents referring or relating to Adriana Longoria All documents relating
to communications between you and Dorothy Louise Longoria All documents relating to
communications between you and others regarding Dorothy Louise Longoria All documents
relating to communications between you and Eduardo Longoria Theriot and All documents
relating to communications between you and others regarding Eduardo Longoria Theriot
Subject to the objections listed in the responses to those requests Shelby produced all
documents in his or control that are responsive to those requests Shelby
possession custody
maintains raised in response to those requests Accordingly to the extent Shelby has
any objections
written communications which respond to request or instruction by Eduardo and/or Dorothy that
do
person or business
that another to
something for the benefit of Adriana or you cause
you
something for the benefit of Adriana Shelby has already produced them Shelby has not withheld
14
3285478v1/013774
01387
any documents responsive to this request on the basis of his previous objections
25 All documents which mention request or instruction by Eduardo and/or Dorothy that you
do something for the benefit of Adriana or that you cause another person or business to do
something for the benefit of Adriana
RESPONSE
In their requests for production 10 11 and 12 Sylvia and Tommy requested
respectively All documents referring or relating to Adriana Longoria All documents relating
to communications between you and Dorothy Louise Longoria All documents relating to
communications between you and others regarding Dorothy Louise Longoria All documents
relating to communications between you and Eduardo Longoria Theriot and All documents
relating to communications between you and others regarding Eduardo Longoria Theriot
the in the those all
Subject to objections listed responses to requests Shelby produced
documents in his custody or control that are responsive to those requests Shelby
possession
maintains raised in response to those requests Accordingly to the extent Shelby has
any objections
documents which mention or instruction Eduardo and/or Dorothy that do
request by you
of Adriana or that you cause another do
person or business something
to
something for the benefit
for the benefit of Adriana Shelby has already produced them Shelby has not withheld any
documents responsive to this request on the basis of his previous objections
26 All written communications between you and Dorothy in which Adriana is mentioned or
referred to
RESPONSE
In their for production and Sylvia and Tommy requested respectively All
requests
documents referring or relating to Adriana Longoria and All documents relating to
in the
Dorothy Louise Longoria
between to the objections listed
communications you and Subject
those all documents in his possession custody or control
responses
to requests Shelby produced
raised in response to those
that are responsive to those requests Shelby maintains any objections
3285478v1/013774 15
01388
communications between himself and
requests Accordingly to the extent Shelby has written
in which Adriana is mentioned or referred to Shelby has already produced them Shelby
Dorothy
to on the basis of his previous objections
any documents
has not withheld this request
responsive
communications between and Eduardo in which Adriana is mentioned or
27 All written you
referred to
RESPONSE
In their requests for production and 11 Sylvia and Tommy requested respectively
All documents referring or relating to Adriana Longoria and All documents relating to
the
Longoria Theriot
in
communications between and Eduardo Subject to the objections listed
you
all documents in his possession custody or control
to those requests Shelby produced
responses
raised in response to those
that are responsive to those requests Shelby maintains any objections
communications between himself and
Accordingly to the extent Shelby has written
requests
Adriana mentioned or referred to Shelby has already produced them Shelby
Eduardo in which is
not withheld any documents responsive to this request on the basis of his previous objections
has
Respectfully submitted
4QJ
SUSMAN GODFREY LL.P
By
Jorny.W.Ca
Bar No 00796312
Stte
joartersusmangodfrcy.com
Richard Hess
State Bar No 24046070
rhesssusmangodfrey.com
Kristen Schiemmer
State Bar No 24075029
ksohlemmnersusmangodfreY.c0m
1000 Louisiana Street Suite 5100
16
3285478v1/013774
01389
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713 654-6666
Robert Maclntyre Jr
State Bar No 12760700
macintyre@rnmlawtexas.com
MACINTYRE MCCULLOCH STANFIELD YouNG
2900 Weslayan Suite 150
Houston Texas 77027
Telephone 713 547-5400
Attorneys for Shelby Longoria
CERTIFIcATE OF SE1 VICE
and correct of the above and foregoing
This is to certilS that on September 12 2014 true copy
forwarded the following counsel of record in accordance with Rule 21
instrument was properly to
of the Texas Rules of Civil Procedure as indicated below
James Austin Fisher Via Email
FISHER WELCH
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Email jfisher@fisherwelch.com
Holmes Via Email
Wesley
THE HOLMES LAW FIRM
North Central Suite 400
10000 Expressway
Dallas Texas 75231
Email wes@wesholmes.com
andAdriana Longoria
Attorneys for James Thomas Dorsey Sylvia
17
3285478v1/O1 3774
01390
EXHIBIT
01391
Case Number 414270
IN THE ESTATE OF iN THE PROBATE COURT
DOROTHY LOUISE LONGORIA NUMBER ONE OF
DECEASED HARRIS COUNTY TEXAS
Shelby Longorias Responses to Adrianas First Set of Interrogatories
TO Adriana Longoria by and through her attorneys of record James Austin Fisher Fisher
Welch 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 and Wes
Holmes The Holmes Law Firm 10000 North Central Expressway Suite 400 Dallas
Texas 75231
Shelby Longoria Will Contestant and Counter-Defendant in the above-styled and
numbered to Rule 197 of the Texas Rules of Civil Procedure answers the
cause pursuant
following interrogatories separately and fully in writing
GENERAL OBJECTIONS
to each instruction definition and interrogatory to the
Shelby Longoria objects
extent that or discovery than or different
it purports to impose any requirement obligation greater
under the Texas Rules of Civil Procedure and the applicable Rules and Orders of the
from those
Court
objects to each interrogatory that is overly broad unduly
Shelby Longoria
calculated to lead to the discovery of adnuissible evidence
burdensome or not reasonably
to each instruction definition and interrogatory to the
Shelby Longoria objects
seeks documents from disclosure by the attorney-client privilege
extent that it protected
deliberative privilege attorney work product doctrine or any other applicable privilege
process
inadvertent and shall not constitute
any such disclosure by Shelby Longoria occur is
Should it
waiver of any privilege
set forth above
Shelby Longoria incorporates by reference every general objection
into each specific response set forth below specific response may repeat general objection
EXHIBIT
3285112v1/013774
01392
for emphasis or some other reason The failure to include in
any general objection any specific
response does not waive any general objection to that request Moreover Shelby Longoria
reserves his right to amend his responses below
OBJECTIONS RESPONSES TO INTERROGATORIES
INTERROGATORY NTJISII3ER
what
Please state you contend to be the total amount of money that Adriana has been paid
pursuant to the Private Agreement
RESPONSE
The total amount of money that Adriana has been paid pursuant to the Private Agreement
is $3168619 as noted in the document attached as Exhibit and bates labeled SLONGORIA
002565-002568
INTERROGATORY NUMBER
For each payment of money that has been made to Adriana pursuant to the Private Agreement
please state
the date on which the payment was sent to Adriana
the manner in which the payment was made for example by check or by wire-
transfer
the full name address and telephone number of the business which actually sent
the payment to Adriana
address and number of the individual who directed the
the full name telephone
business described in part to send the payment to Adriana
the full name address and telephone number of the owner or each of the owners
of more than one of the account from which the money was taken to make the
payment to Adriana
the number of the account from which the money was taken to make the payment
to Adriana and
3285112v1/013774
01393
the full name address and telephone number of the financial institution at which
that account was maintained
PLEASE PROVIDE THE iNFORMATION DESCRIBED IN PARTS TKROUGH
SEPARATELY FOR EACH PAYMENT OF MONEY WHICH YOU CONTEND
WAS MADE TO AD1UANA PURSUANT TO THE PRIVATE AGREEMENT
RESPONSE
to this interrogatory as unduly burdensome and calling for
Shelby Longoria objects
information that is available to Adriana Longoria or already in Adrianas possession or
equally
scope of knowledge as she was personally involved in receiving these payments Shelby also
scope of his personal
to this as seeking information outside the knowledge
objects interrogatory
further objects to this interrogatory as vague and overbroad because it seeks
Shelby Longoria
information covering 20-year time period Subject to these objections Shelby Longoria provides
to each of the subparts as follows
responses
The statement of account attached as Exhibit and labeled SLONGORIA 002565-
002568 reflects all dates on which payments were made to Adriana To the best of
this statement reflects the dates on which Adriana
Shelbys knowledge accurately
received payments
To the best of Shelbys knowledge Shelby believes payments were made by wire
transfer since at least 2008
sent Adriana
To the best of Shelbys knowledge no business actually payment to
no business sent to Adriana
To the best of Shelbys knowledge actually payment
To the best of his knowledge Shelby believes his father Eduardo owned the bank
account from which Adriana was paid After Eduardos death it is Shelbys
that Dorothy owned the bank account
understanding
3285112v1/013774
01394
To the best of his knowledge Shelby answers that the most recent bank account
number used pay Adriana was 900559-5
to
Banco Nacional de Mexico S.A BANAMEX which is located at Guerrero 919 col
Centro C.P 88000 Nuevo Laredo Tamaulipas As noted on the banks website the
banks phone number is 01867 712 3093
INTERROGATORY NUMBER
If contend that to the Private Agreement Adriana ever received property other
you pursuant
with respect to such property
than money please state the following
detailed description of the property which you contend was received by
Adriana pursuant to the Private Agreement
the date on which you contend the property was received by Adriana pursuant to
the Private Agreement
the manner in which you contend the property was transferred to Adriana for
example by delivery of deed pursuant to the Private Agreement
the full name address and telephone number of the person or business which
you contend owned the property immediately before it was received by Adriana
pursuant to the Private Agreement
the full name address and telephone number of the individual who directed the
owner of the property to transfer it to Adriana and
what contend to have been the fair market value of the property at the time
you
by Adriana Private Agreement
when you contend it was received pursuant to
PLEASE PROVIDE THE INFORMATION DESCRIBED IN PARTS THROUGH
SEPARATELY FOR EACH ITEM OF PROPERTY WHICH YOU CONTEND WAS
RECEIVED BY ADRLANA PURSUANT TO THE PRIVATE AGREEMENT
RISPONSE
to this interrogatory as unduly burdensome and calling for
Shelby Longoria objects
is available to Adriana Longoria or already in Adrianas possession or
information that equally
of knowledge as she was personally involved in receiving these payments Shelby also
scope
3285112v1/013774
01395
scope of his personal
objects to this interrogatory as seeking information outside the knowledge
Shelby Longoria further objects to this interrogatory as vague and overbroad because it seeks
information covering 20-year time period
Subject to these objections Shelby understands that in addition to over $3 million received
under the Private Agreement Adriana also received 50% of the shares of CASACO as noted in
documents produced by Adrianas co-parties Sylvia and Tommy at DORSEY 01913-01951
Shelbys knowledge of CASACO is limited to the information contained in those documents
INTERROGATORY NUMBER
For each business which has ever made payment of money to Adriana pursuant to the Private
Agreement please state the following
the names of the owners of the business at each of the times when it made
payment of money to Adriana pursuant to the Private Agreement
or title in the business which made payment of money to Adriana
your position
pursuant to the Private Agreement and
or title in any business which was an owner of the business which
your position
made of money to Adriana pursuant to the Private Agreement
payment
PLEASE PROVIDE THE INFORMATION DESCRIBED iN PARTS THROUGH
SEPARATELY FOR EACH BUSiNESS WHICH YOU CONTEND MADE
PAYMENT OF MONEY TO ADRIANA PURSUANT TO THE PRIVATE
AGREEMENT
RESPONSE
To the best of Shelbys knowledge no business made payment to Adriana pursuant to
the Private Agreement
INTERROGATORY NUMBER
For each business which you contend has ever made an assignment conveyance or other
of property Adriana pursuant to the Private Agreement please state the
transfer of any kind to
following
3285112v1/013774
01396
the names of the owners of the business at each of the times when you
contend made an assignment or other transfer of any kind of
it
conveyance
property to Adriana pursuant to the Private Agreement
your position or title in the business which you contend made the assignment
conveyance or other transfer of any kind of property to Adriana pursuant to the
Private Agreement and
or title in any business which you contend was an owner of the
your position
business which made the assignment or other transfer of any kind
conveyance
of property to Adriana pursuant to the Private Agreement
PLEASE PROVIDE THE INFORMATION DESCRIBED IN PARTS THROUGH
SEPARATELY FOR EACH BUSINESS WHICH YOU CONTEND MADE
PAYMENT OF MONEY TO ADRIANA PURSUANT TO THE PRIVATE
AGREEMENT
RESPONSE
Shelby Longoria does not contend that any business made an assignment conveyance or
of non-monetary to Adriana to the Private
other transfer of any kind property pursuant
Agreement
Respectfully submitted
/QQ
SUSMAN GODFREY L.L.P
By
Cttrtr
Jourty
Bar No
00796312
Stte
jcartersusmangodfrey.com
Richard Hess
State Bar No 24046070
rhesssusmangodfrey corn
Kristen Schiemmer
State Bar No 24075029
kschlemmersusmangOdfrey.COm
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
3255112v1/013774
01397
Telephone 713 651-9366
Fax 713 654-6666
Robert Maclntyre Jr
State Bar No 12760700
macintyremm1awtexas.com
MACINTYRE MCCULLOCH STANFIELD YouliG
2900 Weslayan Suite 150
Houston Texas 77027
Telephone 713 547-5400
Attorneys for SlieThy Longoria
3285112v1/013774
01398
EXHIBIT
32851 12v1/013774
01399
REPORTE No.5
Estado de Cuenta de ALK
Pos Saldo Pago do Pago de Total Pago Intereses Saido
niciales Mes Inicial Capital Intereses Mensual No Pagodas Final Prime 50% Prime
ago-62 3006000 29000 29000 2971000 6.09% 3.00%
sep-92 2071 000 4000 4000 2967000 8.00% 3.00%
oct-92 2667000 4000 4000 2963000 600% 3.00%
nov-92 2963000 4000 4000 2959000 6.00% 3.00%
dic-92 2959000 4000 4000 2955000 6.00% 3.00%
ene-93 2955000 4000 4000 2951000 6.00% 3.00%
feb-93 2951000 4800 4800 2946200 6.00% 3.00%
Mzo-93 2946200 8245 8245 2937055 6.00% 3.00%
abr-93 2937955 36000 36000 2901955 6.00% 3.00%
10 Myo-93 2901955 15227 15227 2886728 6.00% 3.00%
11 Jun-93 2886720 2875790 6.00% 3.00%
i2421b iS421b
12 juI-9 2875790 7138 7138 2568652 6.00% 3.00%
13 ago-9 2868652 7138 7138 2861514 600% 3.00%
14 oep-6 2861514 2937 2937 2858577 6.00% 3.00%
15 oct-9 2858577 5706 5706 2852871 6.00% 3.00%
16 nov-9 2852871 10235 10235 2842636 6.00% 3.00%
17 dic-9 16450 16450 2826186 6.00% 3.00%
2842636
18 ene-94 2626186 7450 7450 2818736 6.0056 3.00%
19 feb-9 2818730 8900 8900 2809836 600% 3.00%
20 Mzo-94 2809836 24900 24900 2784936 6.25% 3.13%
21 8200 6200 2775736 675% 3.38%
abr-44 2784936
22 Myo-9 2778736 11200 11200 2767536 7.25% 3.63%
23
20 Peri090 Pages Iniclales
jun-9 2767536 8900
U__ 8900 2758636 7.25% 3.63%
6000 2752636 7.25% 3.63%
24 Jul-94 2758836 6000
25 ago-94 2752636 8451 8451 2744185 7.75% 3.88%
26 sep-94 2744185 14500 14500 2729665 7-75% 3.88%
oct-94 7000 2722685 7-75% 3.88%
27 2729685 7000
28 nov-94 2722685 9100 9.100 2713585 8.50% 4.25%
29 dic-94 2713586 11365 11365 2702220 8.50% 4.25%
ene-95 11715 2690505 8.50% 4.25%
30 2702220 11715
31 feb-95 2690505 9900 9900 2680605 4.50%
32 Mzo-95 2660605 8000 8000 2672605 9.60% 4.50%
33 abr-95 10000 10000 2662605 9.00% 4.50%
2672605
10500 2652105 900% 4.50%
34 Myo-95 2662605 10500
052 1fl 11.500 2640605 9.00% 4.50%
11
35 Jun-95
iii
10300 2630305 8.75% 4.38%
36 jul-95 2640605 10300
2620005 8.75% 4.38%
37 ago-95 2630305 10300 10300
10300 10300 2609705 8.75% 4.38%
38 sep-95 2620005
oct-95 10300 10300 2599405 8.75% 4.36%
39 2609705
9000 2590405 8.75% 4.38%
40 nov-95 2599405 9000
2579405 8.56% 4.25%
41 dic-95 2590.405 11000 11000
42 eno-98 2579.405 13043 13043 2566362 8.50% 425%
feb-95 11.500 11500 2554882 8.2556 4.13%
43 2566362
9000 2645862 8.25% 4.13%
44 Mzo-96 2554862 5000
2531562 8.25% 4.13%
45 abr-96 2545662 14000 14000
11000 2520862 8.25% 4.13%
46 Myo-98 2531862 11000
47 im-06 2520862 10 000 5Q0 2510862 9.25% 4.13%
40 P00000 Pagos iniclaies 129743
12.000 2498662 825% 4.13%
48 jul-96 2510862 12000
2486362 8.26% 4.13%
49 ago-96 2496862 12600 12500
2471562 8.25% 413%
50 sep-SO 2468362 14.500 14500
17439 17.439 2454423 8.25% 4.13%
51 oct-96 2471862
11816 2442607 8.25% 4.13%
52 nov-95 2454423 11816
13639 2428968 8.25% 4.13%
53 dio-96 2442607 13639
2417329 6.25% 4.13%
54 ena-97 2428968 11639 11639
feb-97 12284 12284 2405045 825% 4.13%
55 2417329
14.639 2390406 8.50% 4.25%
56 Mzo-97 2405045 14639
2377259 8.50% 4.25%
57 abr-97 2390406 13147 13147
2368364 8.50% 4.25%
58 Myo-97 2377259 5895 8895
860% 425%
59 iue-97 2365.364 _j45 2359719
so l-erlooo ragos iniciaies 15114 151143
8.50% 425%
60 jul-97 2359719 10164 10164 2349555
2349.555
4p.3o 450 2309525 8.50% 4.25%
50.194
tooei 680478
Sub-Total
7045 535 2310050 8.50% 4.25%
8180 390-97 2309526 7645
2306544 8.60% 425%
sep-97 2310055 3516 8181 11657
8181
2306065 8.50% 4.25%
oct-97 2306544 476 8169 8645
8169
522 5.50% 4.25%
nov-97 2306066 7645 7645 230659C
8167
SLONGORIAOO2565
01400
COO CO
CO OW
CO
3C
03 03 03 03 03
o- .m0a0o
9O 03OOOO0O 03
ao3 00 09 a0o03 _CCC0o
0000000 0330 0NN
00 0N0
CO
COW
303
OWO
oo3ot0o3
30-410
NC10O
-OC
C0OC0 WO4WO0
CD001aaao
.oapoao
03100 .C400 3003
COOOO
aC0-
-01000
400-3D t0O-.JC001Ma0000
10
-3P000.-O-00
00000 000000000_J4
iua aoCoCn 30 tocoaa aCa.300flC03000 -.3-0-0
CO CO
mm 0C1 0$00O 0003 004 C03O0W
00000 00000 oeooooo000000 oiooob5oŁooo oŁetŁteŁo 0010
aoeoooo8ŁNa booªo CC
00 rii NNN03NIIII31300NNO
3031010 lo 10 00100 MN 00
3000300030
MI 03031003j30.3N000303NN
1000001010 ro 10 jo
33N03NNN3
NO 300K
pC00O
3004011
9N30p
WC000ON
Cl
C0o 30 -0-0-
-4
001003010 0000000300000 031-00 03 000000IOOIOCCO aaa aaaaaaaa
-3
00000 0-0-0-
4501 dic-03 1600529 15317 4.501 19818 1785212 4.00% 3.00%
4463 ene-04 1785212 11565 4463 16028 1773647 4.00% 3.00%
4434 feb-04 1773647 10198 4434 14632 1763449 4.00% 3.00%
4409 mar-04 1763449 11734 4409 16142 1751716 4.00% 3.00%
4379 abr-04 1751716 11239 4379 15618 1740477 4.00% 3.60%
4351 may-04 1740477 17071 4351 21422 1723406 4.00% 3.00%
4309 jun-04 1723406 17526 4309 21834 1705880 4.00% 3.00%
4531 1705886 10.1 00 4.531 14.631 4.25% 3.19%
1695780
lo.Penodo Pago Intereses 53.199 399907
4504 ago-04 1695780 13622 4504 18126 1682158 4.25% 3.19%
4731 sep-04 1682158 13395 4731 18126 1668763 4.50% 3.38%
4954 oct-04 1668763 12664 4954 17618 1656099 4.75% 3.56%
4917 nov-04 1656099 9710 4917 14626 1646390 4-75% 3.56%
5145 dlc-04 1846390 9481 5145 14626 1636908 5.00% 3.75%
5371 ene-05 1636908 11947 5371 17318 1624991 5.25% 3.94%
5332 feb-05 1.624981 9286 5332 14618 1615675 5.25% 3.94%
5554 mar-05 1.615675 9064 5554 14618 1606.611 5.50% 4.13%
5774 abr-05 1606811 13862 5774 19636 1592749 5-75% 4.31%
5724 may-05 1592749 9904 5724 14028 1583844 5.75% 4.31%
6187 jun-05 1583844 13431 6187 19618 1570413 6.25% 4.69%
6134 jul-05 1570413 8494 6134 14628 1.561919 6.25% 4.69%
8o Perlodo Pago Intereses 133861 64327 198188
6101 ago-OS 1561919 12.535 6101 18636 1849384 6.25% 4.69%
6294 sep-05 1549384 11334 6294 17628 1538051 6.50% 4.88%
6489 oct-05 1538051 11139 6489 17628 1826911 6.75% 5.06%
6680 nov-05 1526911 17964 6680 24644 1508948 7.00% 525%
6602 dlo-05 1509948 15035 8602 21636 1493913 7.00% 626%
6536 ene-06 1493913 6082 8536 14618 1485831 7.00% 525%
6733 feb-06 1485831 7885 6733 14618 1477946 7.25% 8.44%
6828 mar-06 1477846 10190 6928 17.118 1467755 7.60% 5.63%
6880 ubr-06 1467755 7738 6880 14618 1460017 750% 5.63%
6844 may-06 1460017 13324 6844 20188 1446693 7.50% 5.63%
7233 jun-06 1446693 9385 7233 16618 1437308 8.00% 8.00%
7411 jul-06 1437308 9207 7411 16818 1428101 8.25% 6.19%
133818 89731 214.549
9o.PeriodoPagointereses
1428101 8265 7364 16.618 1418847 8.25% 6.19%
7364 ago-OS
12302 7316 19.618 1408645 8.25% 6.19%
7316 sep-06 1418847
oct-06 1406545 9366 7252 16618 1397179 8.25% 6.19%
7252
nov-06 24618 1379765 8.25% 6.16%
7204 1397179 17414 7204
7114 dio-06 1379765 5504 7114 12618 1374262 8.26% 6.19%
7086 ene-07 1.374262 17054 7086 24.140 1357208 8.25% 6.19%
feb-07 9620 6998 16618 1347586 8.25% 6.19%
6998 1367208
6949 mar-07 1347588 11051 6949 18000 1336537 8.25% 6.19%
abr-07 8906 6892 15600 1327628 8.25% 6.19%
6892 1336537
6848 may-07 1327.628 8964 6846 15800 1318674 8.25% 6.16%
6.799 20.800 1304673 8.25% 6.19%
6799 jun-07 1318674 14.001
6727 15800 1296600 8.25% 6.19%
6727 jul-07 1304673 .....9.9.T
100 Periodo Pago Intereses 132.801 84547 217048
6680 18600 1283481 825% 6.16%
8680 ago-Ui 1295600 12120
15800 1274299 825% 6.19%
8618 sep-07 1283481 9182 6618
15800 1264671 7.75% 5.61%
6172 oct-07 1274299 9626 6172
nov-07 1264671 11872 5928 17800 1262769 7.50% 6.63%
5928
1242872 7.50% 5.63%
5872 dlc-07 1252799 9928 5872 15800
1227203 7.25% 6.44%
5602 ene-08 1242872 15668 5632 21300
1198005 6.00% 4.50%
4602 feb-OS 1227203 29198 4602 33000
1183898 6.00% 4.50%
4493 mar-08 1196.005 14.307 4493 18800
abr-08 1183698 16916 3884 20600 1166782 5.25% 3.94%
3684
1154628 5.00% 3.76%
3646 may-08 1166782 12154 3646 15000
22192 3608 1132436 5.00% 3.75%
3608 jun 08 154626 258tO
1120175 5.00% 3.75%
3539 Jul-08 1132436 12261 3539 15800
110 Perlodo Page Intereses 1754 60675 236106 .0
1107876 5.00% 376%
3501 ugo-OB 1120175 12299 3501 15800
l095538 5.00% 3.75%
3462 sep-08 1107876 12338 3462 15800
1078161 5.00% 3.75%
3424 oct-08 1095538 17376 3424
1065057 4.00% 3.00%
2695 nov-08 1078161 13.105 2695 15800
1051920 4.00% 3.00%
2663 dlc-08 1065057 13137 2663 15800
2137 ene-09 1051920 17163 2137 i9300 1034756 3.25% 2.44%
feb-09 14699 2102 16800 1020056 325% 244%
2102 1034756
mar-09 2072 18.800 1.003330 3.26% 2.44%
2072 1020058 16728
abr-09 2038 15800 989566 3.25% 2.44%
2038 1003330 13762
15800 975778 325% 2.44%
2010 may-09 989568 13.790 2010
1982 15800 961.960 325% 2.44%
1982 Jun-09 975778 13818
1954 jul-OS 981860 16846 1954 r208 943114 3.26% 2.44%
SLONGORIAOO2567
01402
120 Perlodo Pago Intereses 1770611 3003912071001 01
1916 ao-O9 943114 13864 1916 15600 929230 3.25% 244%
1897 sep-09 929230 13913 1887 15800 915317 3.25% 2.44%
1859 oct-09 915317 13941 1859 15800 901377 3.25% 2.44%
1831 nov-09 901 377 33 969 831 35 867408 3.25% 2.44%
1762 dic-09 987408 14038 1762 15900 853369 3.25% 2.44%
1733 eoe-10 853369 14067 1733 15800 839303 325% 2.44%
1705 feb-10 839.303 14085 1705 15.800 825200 3.25% 2.44%
1676 mar-10 825208 14124 1676 15800 811084 3.25% 2.44%
1648 abr-10 811084 14152 1.848 15800 796931 3.25% 2.44%
1619 may-10 798.931 14181 1619 15800 782750 3.25% 2.44%
1590 jun-10 792750 14210 1590 15800 788540 3.25% 2.44%
1561 jul-10 768540 14239 1561 15800 754301 3.25% 2.44%
13o.PertodoPajotntereses 88813 20787 209608
1532 ao-10 754301 14288 1532 15800 740033 3.25% 2.44%
1503 sep-10 740033 14297 1503 15800 725737 3.25% 2.44%
1474 oct-10 725737 1474 727211 3.25% 2.44%
nov-10 727211 1477 728688 3.25% 2.44%
1477
1480 730188 3.25% 2.44%
1450 dic-lO 728688
one-Il 1483 731651 3.25% 2.44%
1483 730.168
731651 1486 733137 3.25% 2.44%
1486 feb-11
mar-11 733137 1489 734627 3.25% 2.44%
1489
734627 1492 736119 3.25% 2.44%
1492 abr-11
1495 737814 3.25/ 2.44%
1495 may-li 735119
1498 739112 3.25% 2.44%
1498 jun-11 737614
1501 740614 3.25% 2.44%
1501 jul-tI 739112
14o Periodo Page Intereses 28568 3035 31600 14877
740614 1504 742119 3.25% 2.44%
1504 ago-Il
742118 1507 743625 3.25% 2.44%
1507 sep-Il
1510 745136 3.25% 2.44%
1510 oct-li 743625
nov-li 1514 746646 3.25% 2.44%
1514 745136
746849 1517 748160 3.25% 2.44%
1517 dlc-Il
ene-12 1520 749660 3.25% 2.44%
1520 748.166
feb-12 1523 751200 3.25% 2.44%
1523 749.686
1526 752734 3.25% 2.44%
1526 mar-12 751209
1529 754262 3.25% 2.44%
1529 abr-12 752734
1532 755790 3.25% 2.44%
1532 may-12 754263
1535 757331 3.25% 2.44%
1535 jun-12 755796
1538 758860 3.25% 2.44%
1538 jul-12 757331
1541 760411 3.25% 2.44%
1541 ago-12 758889
1545 761950 3.25% 2.44%
1545 sep-12 760411
150 Periodo Irstereses 21 342
Paso
Sc
.unu.uen 7619531
SLONGORJAOO2568
01403
CERTIFICATE OF SERVICE
This that 15 2014 true and correct of the above and foregoing
is to certify on September copy
instrument was forwarded to the following counsel of record in accordance with Rule
properly
21 of the Texas Rules of Civil Procedure as indicated below
James Austin Fisher Via Email
FISHER WELCH
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Email jfisher@fisherwelch.com
Wesley Holmes Via Email
THE HOLMES LAW FIRM
10000 North Central Expressway Suite 400
Dailas Texas 75231
Email wes@wesholmes.com
Dirs andAdriana Longoria
Attorneys for James Thomas Dorsey Sylvia
Kri ten Schiename
32851 12v1/O13774
01404
EXHIBIT
01405
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Shelby Longoria October 2014
Theres no reference here in your mothers
estate is there
dont see that
Now would you please look at Exhibits 103 and
104 -- excuse me -- 102 and 103
Did give you 103
Yes
MR HESS Do you have an extra copy of
103 for me
10 MR FISHER Handing
11 MR HESS Thank you
12 By Mr Fisher Do you recognize Exhibit 103 as
13 the Spanish version of the private agreement between
14 your father your sister Adriana
15 Yes
16 Were you present when it was signed
17 No
18 Did you play any part in the creation or
19 preparation of this document
20 dont recall playing part in the creation
21 of this document
22 Please look at your father signature on the
third Was he physically going through difficult
23 page
24 time in Decetber of 2002
25 Well as we spoke earlier he was getting
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older and physically he was -- started to decline
Would you agree that his signature here is
significantly worse than earlier
I. just say that yes he -- physically he
was in state and he was declining His goal was going
little bit down so -- but that was just aging
Was he also depressed
dont remember him being depressed in 2002
All right Now if you would please look at
10 the English version Help me out Exhibit 102
11 Did you view this agreement as creating
12 moral obligation but not legal obligation for you
13 Well would just say that generally speaking
14 what my dads wishes were and which they seem to be
15 written down in these documents those are the wishes
16 that tried morally speaking to fulfill or help him to
17 fulfill
18 Please look at the paragraph that begins with
19 the word second toward the bottom of the first page
20 Okay
21 It says Payment to Adriana Longoria
22 Kowa.ski It is the will of their father that the
23 amount of U.S $3 million be delivered to his daughter
24 Adriana Longoria Kowalski from the operating flows
25 generated by the companies represented by the shares
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contributed to the trust or by their subsidiaries and
therefore it is the obligation of Eduardo and Shelby
Luis Longoria KowaJ.skj in the terms mentioned below end
quote
What did you understand to be the
companies referenced there
The companies that we have been talking about
Okay And there is reference to trust
and that trust is identified as the Afirme above on
10 that page right
11 Yes
12 The Afirme Trust held stock in the Vertice
13 Empresarial and in Inmuebles Terrenos
14 Correct
15 And those two companies in turn owned other
16 companies
17 Correct
18 And this agreement from the language we just
19 read kind of places the payments to Adriana would be
20 made from the operating flows generated by the
21 companies right
22 Correct
23 Not from your personal funds
24 Correct
25 So but you were running the companies
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right
Well was participating in running the
companies There were other managers involved
Well was there anyone with more authority
than you Did you report to anyone
In 2002
Yes sir
To my dad
Well he was semi-retired
10 Yes but still he was my moral leader
11 In terms of actual position in the companies
12 you were at the top of the organizational chart werent
13 you
C-
14 Probably yes
15 Did you believe that this private agreement
16 created legal obligation for the companies to pay
17 Adriana or was it only moral obligation for them as
18 well
19 HESS Object to form
20 dont make that correlation never
21 thought about that
22 By Mr Fisher Okay You never thought about
23 whether the companies had legal obligation to make
24 payments
25 Well your question is more technical in
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nature so never really thought about that
What do you think now Did the companies --
The same thing Ive always thought
Which is
Which is that and my brother were morally
obligated to fulfill my dads wishes
But not legally
Not legally
Okay And think you used the word
10 inheritance earlier to describe what these agreements
11 meant to your sisters
12 They were to be the inheritance that your
13 sisters would receive correct
14 Thats understanding yes
15 But at the same time youre saying that after
16 father died there was no one who was obligated to
your
17 make those payments
18 Thats your contention in this lawsuit
19 isnt it
will tell you that felt strong
20 Again
21 moral obligation to fulfill my dads wishes for what he
22 wanted my sisters to receive
23 Okay But if after your father died your
and that moral
24 darker side took over you suppressed
25 sense you didnt feel like there was any legal
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Shelby Longoria October 2014
obligation to pay your sisters one cent
MR HESS Object to form
Well dont recall having darker side
And again can only emphasize the strong feeling that
had for the love of my father and my family to do the
best could to comply with his wishes
By Mr Fisher Well in fact in October of
2010 you stopped making the payments to Adriana didnt
you
10 The payments stopped in October of 2010
11 And its your contention in this lawsuit
12 theres no legal obligation for those payments to be
13 made right
14 Well she was -- she was paid in full
15 So thats your contention
16 Yes Based on the wish letter and what he had
17 specifically described
18 Okay Now is it your contention in this case
19 that she was paid in full from the operating flows
20 generated by the companies
21 Well that was the only money that money was
22 being generated is from the companies cant think of
23 another place where the money could have been generated
24 No she received gifts from her mother
25 Dorothy and you have taken those against her havent
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you
dont have specific recollection of that
Youd have to be more specific or show me
All right
And then go to the statement of account to see
if that was charged to her account
Do you contend in this case that gifts from
Dorothy to Adriana should be counted against the amounts
to be paid to her under the private agreement
10 No If my mom owned something by herself
11 separate and she was to give something to one of her
12 daughters that was totally and completely up to her
13 Okay Now the private agreement calls for
14 payments beginning at the bottom of the first page the
15 balance to be delivered to Adriana amounts to
16 $2069100 correct
17 That is correct
18 The next paragraph said that shes to receive
19 an annual amount of $150000 of principal and interest
20 in monthly payments of 12500 each right
21 Right Thats what it says
22 Okay The first month after this was signed
23 was January 2003 correct
24 Yes
25 January 2003 to October 2010 when she was cut
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Shelby Longoria October 2014
off thats 91 months
MR HESS Object to form
dont know
By Mr Fisher Seven years through 2009
plus another nine months up to October 2010 91 months
Okay
And 91 times 12500 is $1137500 You trust
me on that
Ill trust you on that
10 The balance was $2069100 If all of the
11 monthly payments were made up to October 2010 that
12 would amount to $1137500 leaving unpaid principal
13 amount not including any interest whatsoever of
14 $931600
15 MR HESS Object to form
16 By Mr Fisher Do you disagree with any of
17 that math
18 Well Id have to run the math myself But if
19 you want me to Ill take your word for it
20 Okay So is it your testimony sir that
21 pre-payments were made to Adriana exceeding $930000
22 between January 2003 and October 2010
23 Well the calculation that Im making is based
24 on the wish letter which speaks of $3 million And
25 based on the wish letter it talks about the house in
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Shelby Longoria October 2014
Laredo could be used as payment So that was never
deducted from the statement of account
So if we take the value of the Laredo
house which later turned into the Houston condo and we
were to subtract 50 percent of that value from the
balance of the $3 million havent run the nuibers
exactly but it seems to me like she would have been
paid in full based on the wish letter
Who owned the Laredo house in 1992
10 In 1992 it was owned by Casaco
11 Okay So when the wish letter was signed
12 that Laredo house was owned by Casaco
13 Maybe not No dont recall dont
14 recall who owned it in 1992
15 The Laredo house was not given to Adriana was
16 it
17 Well it was Casaco was formed whatever
18 year that was and it was suggested to my dad that he
19 give the shares to my sisters
20 Okay
21 But still that could subtract it from the
22 statement of account
23 Okay So the Laredo house was transferred to
24 Casaco is that your testimony
25 Yes thats my recollection
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And that definitely happened before December
of 2002 didnt it
Well dont have the dates so -- if could
see some documentation could probably --
Maybe well do that
Youre telling me now you dont remember
if the Laredo house was conveyed to Casaco before
December of 2002
It was probably before 2002 yeah
10 Okay So then we come to December 2002 and
11 your father signs private agreement that says the
12 balance is $2069100
13 Right
14 after the house is conveyed to Casaco
15 right
16 But if you go to the wish letter it says
17 payments may be rendered in kind to which the following
18 properties may be conveyed Laredo house
19 Okay Private agreement caine after the wish
20 letter true
21 Yes
22 And the private agreement says as of December
23 of 2002 balance is $2069100 right
24 Id have to -- if we could see the statement
25 of account that would probably help me
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Sure What are we up to
Exhibit 110 marked
By Mr Fisher Please look at Exhibit 110
See title Shelby Longorias Responses to Adrianas
First Set of Interrogatories
Yes
Appears to be signed by one of your attorneys
on September 15th 2014 less than month ago
Correct
10 Have you seen this document before
11 Yes
12 Does it have attached to it statement of
13 accounts for Adriana
14 Yes it does
15 What does it show the balance to be as of
16 January 2003
17 According to this January 2003 2050192
18 Isnt that February
19 Well see ENE
20 Yes
21 Thats January
22 Yeah and it says $2069100
23 No but the balance if you go -- thats the
24 original balance after the payments
25 All right At the beginning of January
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$2069100
Yes
It is perfect match to the amount in the
private agreement
All right
MR HESS Jim youve been going for
about an hour and 20 minutes
MR FISHER Would you like to take
break sir
10 THE WITNESS need to go to the
11 restroom
12 MR FISHER Lets take break
13 THE VIDEOGRAPHER The time is 209 p.m
14 We are off the record
15 Short break held
16 THE VIDEOGRAPHER The time is 221 p.m
17 We are back on the record
18 By Mr Fisher We are back on the record Mr
19 Longoria do you understand that
20 Yes
21 We were discussing Exhibit 110 which is
22 entitled your responses to Adrianas first set of
23 interrogatories
24 Did you review these answers before
25 today
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Shelby Longoria October 2014
Yes
Are they true and correct to the best of your
knowledge
Yes
Please turn to
Are we not on 110
Yes sir Yes
Page Interrogatory No asks for
certain information about each payment of money that has
10 been made to Adriana pursuant to private agreement
11 Do you see that sir
12 Yes
13 Paragraph asked for the nmtiber of the
14 account in which the money is taken to make the payment
15 to Adriana If youll turn back to Page your answer
16 is quote To the best of his knowledge Shelby
17 believes his father Eduardo owned the bank account from
18 which Adriana was paid After Eduardos death it was
19 understanding that Dorothy owned the bank
Shelbys
20 account end quote
21 Do you see that
22 Yes
23 Where was the account that Dorothy owned
24 believe it was in Reynosa
25 Was that one of the accounts that was
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Shelby Longoria October 2014
identified earlier
Im not sure
And so is it your understanding that all of
the payments made after your father died were made from
bank account owned by Dorothy
Thats my understanding
All right
Up until certain point
What happened then
10 Well my recollection that at certain
11 point my mom was considered U.S person for tax
12 purposes so dont know if that changed how the
13 payments were made have no cant recall
14 Exhibit 111 marked
15 By Mr Fisher Please look at Exhibit 111
16 This is copy of letter from Carolyn Beckett to
17 Adriana Longoria
18 Yes
19 Have you seen it before
20 Yes have
21 Carolyn Becket was your attorney wasnt she
22 Yes
23 In this letter she writes to Adriana in the
24 second paragraph that in 2008 your mother declared
25 herself U.S resident and ceased to make transfers of
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Shelby Longoria October 2014
funds to in her
you own name
Do you see that sir
do see that
Was that the event you were describing few
minutes ago
Yes
Do you have any understanding as to why your
mother declared herself U.S resident in 2008
Well know there was -- relied on Carolyn
10 Becketts expertise and Adrian Hernandez their support
11
people to make those determinations
12
Okay So it was advice from Adrian Hernandez
13 and Carolyn Beckett was involved
14
Primarily Carolyn Becket who was tax
15
attorney
16 Wliaj was the tax benefit to be derived from
17 your mother declaring herself to be U.S resident
18
4R HESS Object to form
19
Well dont think it was matter about
20 being benefit It was about matter of what
doing
21 needed to be done based on her current status
22
By Mr Fisher What was your understanding or
23 what is your understanding as to why that needed to be
24 done
25
Again relying on tax experts to evaluate what
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Shelby Longoria October 2014
her tax position is so we can be totally or at least
my mom could be totally compliant
So the letter continues in the next sentence
quote Instead cash payments made in 2009 were made
through ITSA pursuant to the private agreement you and
your father entered into in 2002 Funds were withdrawn
from the operating cash accounts of ITSA and payments
were made to your Mexican account to the extent of the
corporations available funds These funds were
10 deposited into an account in Mexico titled in your
11 name after which they were available to you to be
12 transferred to your account in the U.S end quote
13 Do you see that
14 Yes do
15 Is ITSA reference to Inmuebles Terrenos
16 Yes
17 That was company that was held in the --
18 Afiriue Trust
19 -- Afirme Trust
20 Correct
21 Although by 2009 it was no longer the Afirme
22 Trust right it was Bank Santander
23 MR HESS Object to form
24 2009 dont recall specifically
25 By Mr Fisher Did that not change when you
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had your transaction with your brother in 2007
dont believe -- always refer to it as the
Afirme Trust.
In any event Ininuebles Terrenos was held in
trust
Correct
Of which you were beneficiary
was beneficiary
So based on this letter was it your
10 understanding that from the time of your fathers death
11 through 2008 the payments to Adriana pursuant to the
12 private agreement were made from an account owned by
13 your mother Dorothy
14 Yes believe so dont know specifically
15 but yes
16 All right
17 Exhibit 112 marked
18 By Mr Fisher If you please look at Exhibit
19 112 sir
20 MR FISHER Would you give one to Mr
21 Hess
22 MR HESS Thanks
23 By Mr Fisher Is this copy of an affidavit
24 that you signed on or about July 29 2013
25 Yes
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Shelby Longoria October 2014
Now there were many exhibits to this
affidavit and they are not included in this exhibit --
this deposition exhibit note for the this
record is
only your testimony
Do you see sir
that
see that
You understood when you signed this that an
affidavit is testimony right
Yes
10 In fact beginning in the first page it says
ii Before me the undersigned authority on this day
12
personally Shelby Longoria who being by me first duly
13 stated the
sworn following
14
Right
15 Do you see that
16
Yes do
17
So you understood it was important for this
18 document to be accurate
19
Well yes understand most documents should
20 be accurate
21
Okay Well especially document thats
22 signed under oath
23 Correct
24 Please turn to Page Paragraph 16 refers to
25 private agreements with each of your sisters correct
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Right
Let me just begin reading the second sentence
there The Mexican Trust the Mexican companies owned
by the Mexican Trust and were not parties to those
agreements Nevertheless the payments my sisters
received were paid from the Mexican companies owned by
the Mexican Trust end quote
Some of the payments werent made by the
Mexican companies were they
10 MR HESS Object to form
11 Well they were paid from the Mexican entity
12 By Mr Fisher Well --
13 To somehow the money came from the Mexican
14 entity to either my father or my mothers account first
15 and then from there it was paid to my sisters
16 By Mr Fisher You testified just few
17 minutes that from the time your father died in
ago
18 January of 2005 through 2008 the payments came from an
19 account owned by your mother Dorothy didnt you
20 Yes and right now just said that either
21 they came the cash flow came from Mexican company
while he was alive and after his
22 to my fathers account
23 death then it went into my moms account is my
24 understanding
25 Lets look down at paragraph 18 which reads
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and cpaote Following my fathers death Adriana and
Sylvia continued to receive payments under their
Acuerdos Privados The Mexican companies owned by the
Mexican Trust though not obligated by the terms of the
Acuerdos Privados to make these payments treated these
payments to my sisters as matter of first priority
Once again youre saying that the
Mexican companies made the payments arent you
MR HESS Object to form
10 What Im saying is that the cash flow from the
11 Mexican companies
12 By Mr Fisher Okay So youre saying the
13 Mexican companies paid Dorothy and then Dorothy paid
14 Adriana
15 Yes
16 But the money belonged to Dorothy once she
17 received it
18 would assume thats the case yes
19 All right mean it wasnt paid to her with
20 some string attached
21 Well dont think so Again had to rely
22 on attorneys and accountants to help with this
23 Also in paragraph 18 we see you saying that
24 the Mexican companies owned by the Mexican Trust were
25 not obligated by the terms of the Acuerdos Privados to
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make these payments
dont believe they were
Okay thought earlier today you were
uncertain about their obligation but -- now youre
you
clearly saying they were not obligated
Well dont believe that they were
And you testified that -- that they
you
werent
Yes
10 The reason Im emphasizing that is because
11 want it to be very clear sir that youre saying that
12 the amounts to be paid to Sylvia and Adriana were their
13 inheritance and yet youre also saying at the same time
14 that when your father died there was no one on the fae
15 of the planet who had the legal obligation to make those
16 payments to your sisters
17 Thats your position in this case right
18 MR HESS Object to form
19 What Im saying is that when my father died
20 still felt the moral obligation not just because he was
do take effort on my part and also
21 gone to to every
22 on my brothers part to fulfill his desires including
23 my mom which is what her desires were too Thats
24 what Im saying
25 By Mr Fisher Okay Youre using the word
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moral obligation thats something different from the
legal obligation isnt it
Yes it is
Okay
Exhibit 113 marked
By Mr Fisher Would you please look at
Exhibit 113 sir This is pleading entitled Shelby
Longorias Contest of 2010 Will
Do you see that sir
10 do see that
11 And is this pleading that was filed on your
12 behalf by your attorney in this case
13 Yes it was
14 Have you ever read it before
15 Yes have
16 Do you believe it to be true and accurate
17 Ido
18 Please turn to Page and look at paragraph
19 Paragraph says and quote After Eduardo Seniors
20 death in January 2005 Shelby continued to make payments
21 to Adriana and Sylvia as provided by the private
22 agreements end quote
23 So here we have an assertion that you
24 made payments
25 Well look at it more as semantics more than
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anything felt -- continued to feel the obligation
Shelby continued to feel the obligation to continue
to make the payments to Adriana and Sylvia
All right sir But this doesnt say that you
continued to feel an obligation It says Shelby
continued to make payments to Adriana and Sylvia as
provided by the private agreements end quote
That just wasnt true was it
MR HESS Object to form
10 Well --
11 By Mr Fisher Did you make the payments
12
13 Did you make the payments
14 MR HESS Lets do one at time Yall
15 are speaking over each other It doesnt give me
16 chance to object think its getting hard for the
17 court reporter to follow Lets do question and answer
18 By Mr Fisher After your father died did you
19 make payments under the private agreement
20 did not personally make payments
21 If we turn to Page Paragraph 11 it says
22 again quote Shelby also continued to send payments to
23 Adriana in accordance with the private agreement between
24 her and Eduardo Senior end quote
25 So fact is you personally did not send
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payments
did not personally send payments out of my
checking account to be more specific
The money sent was not your money and you
werent the one who sent the money
didnt say that
Were you the one who sent the money
was the one that was instrumental in getting
the money sent in order to comply with my dads wishes
10 Explain how you were instrumental What did
11 you do that was instrumental
12 Well what Ive done all along was to be
13 supportive of my dads wishes and my moms wishes and
14 what they wanted to do regarding my sisters
15 inheritance So thats been the case all along is to
16 give my support and do everything can in my power
17 regardless of what the economy is doing with the Mexican
18 companies make every effort that they get their
19 money Thats what Im saying
20 Did your parents were either of them give
21 gifts to your wife Tita
22 Yes believe they did
23 Did those gifts include stock in the bank
24 My dad -- yes my dad give them gifts of
25 stock
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EXHIBIT
01430
Case Number 414270
IN THE ESTATE OF iN THE PROBATE
DOROTHY LOUISE LONGORIA COURT NUMBER ONE
DECEASED HARRIS COUNTY TEXAS
Shelby Longorias Third Amended Response to Requests for Disclosure
TO James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria
Deceased Sylvia Dorsey and Adriana Lorigoria by and through their attorneys of record
James Austin Fisher FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street
Dallas Texas 75201
Shelby Longoria Will Contestant and Counter-Defendant in the above-styled and
numbered cause to Rule 194 of the Texas Rules of Civil Procedure answers the
pursuant
following requests for disclosure separately and fully in writing
REQUEST FOR DISCLOSURE
The correct names of the parties to the lawsuit
RESPONSE
The parties are correctly named
REQUEST FOR DISCLOSURE
The name address and telephone number of any potential parties
RESPONSE
Eduardo Wayo Longoria Jr
1702 Cresthaven Dr
EXHIBIT
Austin Texas 78704
512535-0105
REQUEST FOR DISCLOSURE
_________
of your claims defenses
The legal theories and in general the factual bases or
RESPONSE
The will that Sylvia Longoria Dorsey offered into probate is invalid On January 21
by law to make valid last will and
2010 Dorothy lacked the testamentary capacity required
as the result of undue influence exerted
testament Further the 2010 Will was executed by Sylvia
3495696v1/013774
01431
over Dorothy The influence effectively operated to subvert or overpower Dorothys mind at the
time she executed the instrument in question Dorothy would not have executed the 2010 Will
but for the influence exerted by Sylvia Sylvia also tortiously interfered with Shelbys inheritance
rights by inducing Dorothy to execute the purported 2010 Will Adriana also tortiously interfered
with Shelbys inheritance rights by her actions in 2009 to 2011 she induced
Specifically
Dorothy to execute alternative wills yet she ultimately acquiesced in the probate of the 2010
Will of later because she needed Sylvias and
despite knowledge will Tommys cooperation
to carry out scheme to assert claims on behalf of Dorothys estate for her own benefit Sylvia
and Adriana thus have received benefit directly and indirectly of substantial of
portion
Dorothys estate and the appointment of Sylvias husband James Thomas Dorsey Tommy as
executor
Tommy should be removed as independeit executor because he was appointed pursuant
to an invalid will procured by Sylvia for the purpose of installing her husband as the executor in
order to fraudulently circumvent her release of claims and recognition of the validity of the trust
created in 2002 Tommy also should be removed as independent executor because he has
material conflict of interests As independent executor he has fiduciary obligation to Dorothy
Longorias estate to investigate Sylvias misappropriation of money earmarked for Dorothy and
to assert claims as appropriate to recover the misappropriated funds Tommy will not fulfill this
fiduciary obligation however because he is mathed to Sylvia and benefited from her
misappropriation Further Tommy has entered joint prosecution agreement with Adriana
Sylvia and Adrianas son Raymond Hart Monte Through the joint prosecution agreement
Tommy Sylvia Adriana and Monte have agreed to cooperate in the prosecution of the
CLAIMS this litigationi and to share any proceeds in accordance with the terms of the
agreement that no party including Tommy has the exclusive right to make decisions about
the actions or positions to be taken by the other PARTIES or the ATTORNEYS and to use
their best efforts to reach consensus on any and all decisions relating to LITIGATION or the
prosecution or settlement of the CLAIMS in this lawsuit Together these provisions render
Tommy incapable of properly performing the independent executors fiduciary duties under
Texas Probate Code 49C because it means he either will not or cannot effectively pursue
repayment of monies owed to the Estate by Sylvia Adriana and Monte
Tommys counterclaims lack merit because Shelby did not owe his mother fiduciary
duty nor did he breach promise to hold property for her benefit Further Tommys
counterclaims even as amended should be dismissed on forum non conveniens grounds because
relate to Mexican marital property agreement that was entered as judgment of Mexican
they
court Mexican trust holding and owning only Mexican assets that was set up by Mexican
citizen living in Mexico and the probate of Mexican will that took place in Mexican court
Resolving these claims in Texas would require the translation of Spanish-language documents
and interpretation of Spanish-language documents and also face the insuperable obstacle of how
to bring Mexican witnesses to court in Texas These are only some of the reasons dismissal on
forum non conveniens grounds is appropriate Tommys counterclaims also lack merit because
are outside of the limitations period fail to state legally cognizable claim and are
they
unsupported by the record in this case
Adriana counterclaims also lack merit because Shelby has not tortiously interfered with
her inheritance rights or any enforceable contractual promise Further Adriana cannot show
3495696v1/013774
01432
Shelby owed her fiduciary duty or breached promise let alone legally cognizable one
any
Adriana cannot show the malice and/or fraud to support enhanced damages Adrianas
counterclaims also lack merit because they are outside of the limitations period fail to state
legally cognizable claim and are unsupported by the record in this case
REOUEST FOR DISCLOSURE
The amount and any method of calculating economic damages
RESPONSE
According to the Inventory Appraisement and List of Claims filed by the Estate the
Estate is claiming 50% interest in two Mexican companies Vertice Empresarial S.A de C.V
and Inmuebles Terrenos S.A de C.V In her April 27 1989 will Dorothy Longoria
bequeathed the entirety of her hereditary wealth in the Mexican Republic in equal parts to Shelby
Longoria and Eduardo Longoria Jr Under the terms of that will half of any interest by Dorothy
Longoria in the Mexican companies would be inherited by Shelby Longoria To the extent that
the Estate recovers any interest in the Mexican companies or damages compensating for the loss
of interests in Mexico half of that recovery is owed to Shelby Longoria pursuant to the 1989
will This amount will be owed by Sylvia and Adriana as damages for their tortious interference
with Shelbys inheritance rights Moreover Adriana and Sylvia will owe contribution to Shelby
for any recovery by the Estate as described in Shelbys pleadings
REOUEST FOR DISCLOSURE
address and telephone number of persons of relevant
The name having knowledge facts
and brief statement of each identified persons connection with the case
RESPONSE
Shelby Longoria
do Johnny Carter Rick Hess and Kristen Schiemmer
Susman Godfrey
1000 Louisiana Ste 5100
Houston Texas 77002
the will contestant and counter-defendant in this case
Shelby Longoria is
Sylvia Dorsey
do James Fisher
500 North Akard Street
Dallas Texas 75201
for the probate of Dorothy Longoria purported 2010 will
Sylvia Dorsey applied
James Thomas Tommy Dorsey
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01433
do James Fisher
500 North Akard Street
Dallas Texas 75201
Tommy is the purported executor of the will Sylvia
Dorsey applied to probate
Eduardo Wayo Longoria Jr
1702 Crestliaven Dr
Austin Texas 78704
512 535-0105
Wayo is Sylvia Shelby and Adriarias brother
Adriana Longoria
6138 San Felipe Street
Houston TX 77057
713 784-0826
Adriana is and
Sylvia Shelby Wayos sister
Thomas Dorsey Jr
Houston Texas
713 816-0881
Thomas Dorsey Jr is the son of the will applicant and executor as well as the business
partner of the executor
Kristin Dorsey
Houston Texas
713 816-0881
Kristin Dorsey Thomas Jr.s wife
is
Dorsey and the daughter-in-law of the will applicant
and executor
Elizabeth Fertitta
2706 Eastgrove Lane
Houston Texas 77027
Elizabeth Fertitta is the of the will applicant
daughter and executor and her husband
drafted the will Dorothy Louise Longoria allegedly on January
executed 21 2010
Zack Fertitta
2706 Eastgrove Lane
Houston Texas 77027
Zack Fertitta is the son-in-law of the will applicant and executor and drafted the will
Dorothy Louise Longoria allegedly executed on January 21 2010
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01434
Robert Edward Wayo Dorsey
15308 Sunset Blvd
Pacific
Palisades CA 90272
Wayo Dorsey is the son of the will applicant and executor
Adriana Longoria
6138 San Felipe Street
Houston Texas 77057
Adriana Longoria is
Dorothy Longorias daughter Sylvia Dorsey and Shelby Longorias
and
sister Tommys sister-in-law
Raymond Hart
5834 Candlewood Lane
Houston TX 77057
713 818-2387
Raymond Hart is Adriana Longorias son
Forrest Hart
307 Grand Street 1C
Apt
Brooklyn New York 11211-4446
Forrest Hart is Adriana Longorias son
Adriana Banks
6138 San Felipe Street
Houston Texas 77057
Adriana Banks is Adriana Longorias daughter
Tita Longoria
do Johnny Carter Rick Hess and Kristen Schlemmer
Susman Godfrey
1000 Louisiana Ste 5100
Houston Texas 77002
Tita Longoria is Shelby Longorias wife and Dorothy
Longorias daughter-in-law
Marta Beatriz Garza
Montelongo
Cerro del Bemal 128 Colonia las Fuentes Cp 88710
Reynosa Tamaulipas
Ms Montelongo witnessed Eduardos 2002 will and the 2002 Afirme Trust agreement
Saul Garza Molina
Real De Cantaro 203 Fracc Los Cantaros
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01435
Reynosa Tamaulipas
Mr Garza is the CEO of Grupo Inlosa and had close contact with Eduardo and Dorothy
over many years
Irma Campoy Carrillo
Ilaya 108 Frace Privada Las Ceibas
Reynosa Tamaulipas
Ms Campoy is the Treasurer for Grupo Inlosa and was in charge of making payments to
Sylvia and Adriana under the Acuerdo Privado
Patricia Vazquez
Playa Hermosa 507 Col Militar Marte
Iztacalco Mexico
Ms Vasquez was the Treasurer for Grupo Inlosa before Ms Campoy and was
responsible for making payments to Sylvia and Adriana under the Acuerdos Privados
Marco Torres
Sierra Nevada 1208 Col Fuentes
Reynosa Tamaulipas
Mr Torres was the Administrative Director at Grupo Inlosa for many years and has
knowledge of Eduardo and Dorothys wills and estate planning
Pedro Ramirez
Padre Mier 1504
Monterrey N.L
Mr RamIrez was the attorney who drafted trust documents and the Acuerdos Privados
Celia Guerrero
Zaragoza 1300 Sur
Monterrey N.L
Ms Guerrero works with Mr Ramirez and also assisted Mr RamIrez in the preparation
of many documents
Mario Gonzalez Mendoza
Dr Mier 3113 Zona Centro
Nuevo Laredo Tamaulipas
for 40
Mr Gonzalez Mendoza was Eduardos and Dorothys attorney approximately
to estate wishes and separate
and has knowledge relevant their planning testamentary
years
property agreement
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01436
Mario Gonzalez Basurto
Dr Mier 3113 Zona Centro
Nuevo Laredo Tamaulipas
Mr Gonzalez Basurto is Mr Longorias attorney in the
amparo proceedings in Mexico
Elsa Gonzalez Basurto
Dr Mier 3113 Zona Centro
Nuevo Laredo Tamaulipas
Ms Gonzalez worked on the probate of Eduardos estate
Alicia Garcia
Dr Mier 3113 Zona Centro
Nuevo Laredo Tamaulipas
Ms Garcia has been Mr Gonzalez Mendozas assistant for many years and knew
Eduardo and Dorothy
Carlos Avila
Hacienda San Abel 215 Fracc Las Haciendas
Reynosa Tarnaulipas
Mr Avila was the HR Manager for Grupo Inlosa for many years
Carlos Gonzalez Hinojosa
Libramiento Luis Echevarria 630
Reynosa Tamaulipas
Mr Gonzalez Hinojosa is an attorney in Reynosa who prepared several wills for Eduardo
and Dorothy
Arnulfo Cruz
Calle Del Cerro 131 Colonia Cumbres
Monterrey N.L
Mr Cruz is tax consultant who participated on many of the documents and tax planning
for Dorothy and Eduardo
Virginia Coronel
Azucena 505 Col Puerta Del Hierro
Monterrey NL
Eduardos
Ms Coronel is an attorney with intimate knowledge of documents related to
and Dorothys estate planning and Eduardos and Shelbys business dealings in Mexico
3495696v1/013774
01437
Dr Anselmo Guarneros
Calle Independencia 2209
Nuevo Laredo Tamaulipas
Dr Guarneros was good friends with Eduardo and Dorothy for many years witnessed
Edudos 2002 will and is knowledgeable about Eduardos medical condition at the time he
executed the 2002 will
Carlos Lozano
3626 Colonia Jardin
Nayarit
Nuevo Laredo Tamaulipas
Mr Lozano worked for Eduardo for over thirty years
Antonio Del Bosque
Boulevard Las Torres Del Bosque 705
Nuevo Laredo Tamaulipas
Mr Del Bosque worked for Eduardo for over thirty years
Lic Francisco Gaxiola
Bosque De Ciruelos 140-505
Mexico D.F
Mr Gaxiola is an attorney that drafted documents for the Serfin Trust
Nestor Sanchez
Calle Perales 750 Colonia Jardin
Reynosa Tamaulipas
Mr Sanchez served as Administrative Director of Grupo Inlosa before Marco Torres
Lie Adrian Lozano Lozano
Hidalgo 234 Pte 40 Piso Zona Centro
Monterrey N.L
Trust
Mr Lozano is an executive at Banca Afinne the trustee of the Afirme
Martha Beatriz Garza
Hidalgo 234 Pte 40 Piso Zona Centro
Monterrey N.L
Ms Garza is an executive at Banca Afinne the trustee of the Afirme Trust
3495696v1/013774
01438
Lie Eduardo Marroquin
Francisco Madero Pte 218 Monterrey
Nuevo Leon Tamaulipas
Mr Marroquin is an executive at Banca Afirrne the trustee of the Afirme Trust
Dr Mario Alberto Pez Coss
Madero 1320
Nuevo Laredo Tamaulipas
Dr Perez certified Dorothys good health in connection with her 1989 Mexican will
Oscar Chapa Gonzalez
Guatemala 2802
Col Ferrocarril
Nuevo Laredo Tamaulipas 88050
Mr Chapa is knowledgeable about the valuation of properties in connection with
Eduardos and Dorothys 1983 Separate Property Agreement
Jose Luis Saldaæa Avendafio
Carretera Piedras Negras
kilometro 19.3 Poniente
Nuevo Laredo Tamauiipas
Mr Saldaæa is knowledgeable about the 1983 Separate Property Agreement and the
valuation of interests divided in that agreement
Mann Espinosa
1801 South 2nd Street
McAllen Texas 78503
Mr Espinosa is knowledgeable about the history of Inter National Bank as well as the
value over time of shares of Inter National Bank
Dr Canlos Cigarroa
702 East Calton Road
Laredo TX 78041
956 728-8255
Dr is about Eduardo Longoria Sr.s execution of will in
Cigarroa knowledgeable
October 2002 including Mr Longorias mental and physical condition at that time
REQUEST FOR DISCLOSURE
3495696v1/013774
01439
For any testifying expert
The experts name address and telephone number
The subject matter on which the expert will testify
The general substance of the experts mental impressions and opinions and brief
summary of the basis for them or if the expert is not retained by you employed by you or
otherwise subject to your control documents reflecting such information
If the expert is retained by you employed by you or otherwise subject to your
control
All documents tangible items reports models or data compilations that
have been provided to reviewed by or prepared by or for the expert in anticipation of the
experts testimony and
The experts current resume and bibliography
RESPONSE
George Glass M.D P.A
4600 Post Oak Place Drive Suite 307
Houston Texas 77027
Telephone 713 627-3834
Dr Glass may testify regarding Dorothy Longoria overall mental health including but
not limited to her mental capacity to execute wills and other legal documents in December 2009
and continuing through the end of her life Specifically Dr Glass may testify that Dorothy
Longoria did not possess the mental capacity and was not capable of understanding and meeting
the necessary legal requirements to execute wills and other legal documents Dr Glass also may
to reasonable of medical certainty that Dorothy Longoria was susceptible to or
testify degree
submitted to undue influence or psychological domination of her daughters Sylvia Dorsey
and/or Adriana Longoria at the time that she executed wills and other legal documents on or
after December 2009
the
Dr Glass has reviewed the medical records produced in this litigation as well as
of the parties Dr Glasss current resume and bibliography have previously been
depositions
provided
Sheila Enriquez CPA JD
Briggs Veselka Co
3495696v1/013774 10
01440
Nine Greenway Plaza Suite 1700
Houston Texas 77046
Telephone 713-353-1909
Ms Enriquez may testify concerning Dorothys Longoria finances and expenditures
between her move to Houston and her death including an examination of red flags that are
indicative of potential theft fraud or mismanagement of Dorothy Longorias assets by her
daughter Sylvia Dorsey for the benefit of Sylvia Dorsey Adriana Longoria Tommy Dorsey
and others
Ms Enriquez has reviewed the bank records and other records containing financial
information produced in this litigation as well as the depositions of the parties Ms Enriquezs
current resume and bibliography have previously been provided
Mario Gonzalez Mendoza
Dr Mier 3113
Nuevo Laredo Tamaulipas CP 88000
Mr Gonzalez Mendoza may be called to testify about Eduardo and Dorothy Longorias
1983 agreement to partition all their community property and related proceedings in Mexico The
general substance of Mr Gonzalez Mendozas mental impressions and opinions are reflected in
his October 2014 deposition Mr Gonzalez Mendoza is of the opinion that the 1983 agreement
is valid under Mexican law and operated to partition all the couples existing and future
community property so that the couple maintained separate property from 1983 forward Mr
Gonzalez Mendozas employment and educational information is contained in his deposition
Johnny Carter
Rick Hess
Susman Godfrey L.L.P
1000 Louisiana St Ste 5100
Houston Texas 77002
Telephone 713 654-6694
Robert Maclntyre Jr
Maclntyre McCulloch Stanfleld Young
2900 Weslayan Suite 150
Houston Texas 77027
Telephone 713 547-5400
Mr Carter Mr Hess and Mr Maclntyre may testify as to the reasonable and necessary
attorneys fees and expenses incurred by Shelby Longoria due to the above referenced lawsuits
Mr Carter and Mr Hess are of the opinion that reasonable fees in this case equal $650
per hour for Mr Carters time $500 per hour for Mr Hesss time $375 per hour for Ms
Schiemmers time and $275 per hour for paralegals time multiplied by the number of hours
each and do in the and trial of this case and
they have spent spend preparation prosecution
through its final resolution Mr Maclntyre is of the opinion that reasonable fees in this case
3495696v1/013774 11
01441
equal $500 per hour for Mr Maclntyres time multiplied by the number of hours he has spent
and does spend in the preparation prosecution and trial of this and
case through its final
resolution
Mr Carter Mr Hess and Mr Maclntyre have considered the following factors in
reaching their opinions fees
concerning attorney
the time and labor required
ii the novelty and difficulty of the questions involved
iii the skill required to perform the legal services properly
iv the likelihood that involvement in this case precludes other employment
the fee in Texas
customarily charged Houston for similar legal services
vi the amount involved vii time limitations imposed by the circumstances and
vii the experience reputation and ability of the attorney the services
performing
Mr Carters Mr Hesss and Mr Maclntyres opinions will be further based on the
agreement between the clients and the the attorneys
attorneys education active practice in the
state of Texas and their with attorneys fees customarily
familiarity charged in Houston Harris
County Texas for legal services such as those provided in this matter
Mr Carter Mr Hess and Mr Maclntyre will review the engagement letter pleadings
documents and all time entries and invoices their
prepared by respective firms through the date
of trial The resumes of Mr Carter Mr Macintyre and Mr Hess have previously been provided
Janet Fenner Masson
Forensic Document Examiner
908 Town Country Boulevard Suite 120
Houston Texas 77024
Telephone 713 973-7552
Ms Masson has examined handwriting on documents produced in and
this case may
testify about the extent to which the on various documents
handwriting is consistent with the
handwriting of various individuals She also may offer her opinion concerning the authorship of
the documents In particular Ms Masson may examine and testify about the handwriting on July
2011 documents to describe the will and
purporting last testament of Dorothy Longoria
including her opinion concerning the authorship of the documents Ms Massons CV has
previously been provided
Phil limes
Ernest Young LLP
Houston Center
3495696v 1/013774
12
01442
Suite 1200
1401 MeKinney Street
Houston Texas 77010
Mr limes is Certified Public Accountant CPA licensed in Texas and New York and as
CPA has examined accounting records financial statements and related documentation of
small family run businesses as well as large international publically traded companies operating
domestically and internationally As CPA he has expressed opinions on accounting including
retention by the Securities and Exchange Commission He is also certified in valuation of
companies as Certified Valuation Analyst CVA and member of the National Association of
Certified Valuation Analysts NACVA Over his over 25 years
of experience Mr limes has
of fraud and misuse of funds and is member of the Association of
investigated allegation
Certified Fraud Examiners ACFE He has been appointed by the US Attorney for the
Southern District of NY as compliance monitor after the companies agreed deferred
prosecution agreement alleging fraud Mr limes is currently an Executive Director at Ernst
Young BY which is global
worldwide
leader
Mr
in assurance
limes
tax transaction
leader
and
in BYs
advisory
Fraud
services with
over 160000 employees is practice Investigation
and Services practice based in Houston His current curriculam vitae is submitted with
Dispute
these disclosures
Mr limes is expected to testify about events in the Mexico that negatively influenced
in Mexico including operating profitability investment decisions and
companies operating
obligations
denominated in US dollars Mr Times will provide the court his opinions regarding
his analysis of pertinent transaction including testimony regarding the structure of the trust assets
in this matter and the movement of funds from those trusts to various beneficiaries He will
that the activities of the trusts the related companies and that of Shelby Longoria were
testify
consistent with the wishes expressed by Eduardo Longoria and Dorothy Louise Longoria He
will also provide on the sources and use of funds in various transactions such as the sale
opinions
of real estate assets Mr limes will identify for the court accounting banking and other related
financial records produced in this matter supporting his opinions Mr Innes is expected to also
testify that the actions of Shelby Longoria complained of by Plaintiffs are not supported by the
financial documents produced in this matter Finally Mr limes will also provide rebuttal
concerning the and Adriana Longorias quantification of damages In
testimony Dorseys
reaching his opinions Mr Innes has relied on his analysis of the documents produced in this
matter as well as upon his education training and experience
Carlos Gabuardi
Alejandria 125
Col Roma 64700
Monterrey N.L
64600 MEXICO
Mr Gabuardi will testify concerning the legal effect of the separate property agreement
business and
in Mexico Mexican legal regimes governing the parties transactions contracts
other activities subject to Mexican law for example the Adriana Longoria Private Agreement
the of domicile under Mexican law and other aspects of Mexican law Some of Mr
concept
Gabuardis opinions have been provided in affidavits filed with briefs in this matter and Mr
3495696vI/013774 13
01443
Gabuardi may offer additional opinions in connection with summary judgment and other motions
to be filed by Shelby Longoria Mr Gabuardi has reviewed documents produced in this matter
Mr Gabuardis current CV can be found as an exhibit to his affidavit in support of dismissal of
Adriana Longorias claims
RESERVATION OF RIGHTS
Shelby Longoria cross-designates each and every person designated in the past or in the
future by another party to this action to be testifying expert and reserves the right to elicit
opinions from those experts on any subject matter for which they were designated to testify for
any other party
In the event that James Thomas Dorsey Sylvia Dorsey or Adriana Longoria designates
one or more expert witnesses Shelby Longoria reserves the right to call one or more experts in
same fields to critique and to rebut the expert testimony presented by James Thomas Dorsey
Sylvia Dorsey or Adriana Longoria
As of the time of this response it has not been decided whether other expert witnesses
will be called to testify on Shelby Longorias behalf Shelby Longoria reserves the rights to
amend and to supplement this response as may be necessary
REQUEST FOR DISCLOSURE
Any indemnity and insuring agreements described in Rule 192.3f
RESPONSE
Not applicable
REQUEST FOR DISCLOSURE
settlement agreements described in Rule 192.3g
Any
RESPONSE
Sylvia Dorsey signed contract entitled Release Agreement on December 29 2006
acknowledging full payment of gifts and inheritances she was owed under the Private Agreement
and Wish Letter and releasing her claims against Shelby Longoria
REOUEST FOR DISCLOSURE ii
Any witness statements described in Rule 192.3h
RESPONSE
Not applicable
3495696v1/O1 14
01444
Respectfully submitted
SUSMAN GODFRBY L.L.P
By
Cartof
JohprW
State Bar No 00796312
Richard Hess
State Bar No 24046070
Kristen Schiemmer
State Bar No 24075029
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
Telephone 713 651-9366
Fax 713 654-6666
Robert Maclntyre Jr
MACINTYRE MCCULLOCH STANFIELD YOUNG
2900 Weslayan Suite 150
Houston Texas 77027
Telephone 713 547-5400
Attorneys for Shelby Longoria
CERTIFICATE OF SERVICE
This is to certifr that on this January 15 2015 tme and correct copy of the above and
foregoing instrument was properly forwarded to the following counsel of record in accordance
with Rule 21 of the Texas Rules of Civil Procedure as indicated below
James Austin Fisher Via Electronic Mail
FISHER WELCH
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
Email jfisherfisherwelch.com
Wesley Holmes
THE HOLMES LAW FIRM
1000 North Central Expressway Suite 400
Dallas Texas 75231
Email wes@wesholmes.com
Attorneys for James Thomas Dorsey Sylvia 1sey and Adriana ongoria
CØrter
3495696v1/013774 15
01445
Eis7s
Phil Innes is an Executive Director based in
Houston Phil has over 25 years of
experience in
accounting and auditing
corporate investigations dispute advisory
PhiIipJ Innes services financial advisory services
Executive Director valuations financial reporting expert
Fraud Investigation Dispute Services witness testimony and case consultancies
He has provided professional services to
Direct 7137504817 clients in wide variety of industries
Fax 8666102299 including recent work in Upstream Oil
Gas transportation of hydrocarbons oil
phil innes@ey.com field services and manufacturing
Houston Center Mr lnnes investigation experience includes
1401 McKinney Street investigating alleged accounting
Suite 1200 irregularities including those related to
Houston TX 77010 revenue recognition inventory and fixed
asset controls purchasing and
disbursements The investigations have
included understanding complex banking
transactions including the tracing of funds
both domestic and international He has
been retained audit committees
by
and outside counsel to assist in
companies
investigating alleged misconduct and
present the results of the investigation to
boards auditors
management corporate
and regulators such as the SEC and DOJ
The investigations have also focused on
allegations of self-dealings anti-bribery law
violations and investigation of other
fraudulent activities in
alleged domestically
the United States and abroad All of the
investigations have involved analyzing
documents bank records
company
internal controls interviews of
company
personnel and discussions with auditors
management boards and regulators Mr
lnnes investigation work has also involved
and recommendations for
assessing making
the purpose of improving companys
internal controls and anti-bribery
compliance programs Phil has also served
monitor as of
as compliance part
companys deferred prosecution agreement
after being selected by the company with
agreement from the US Attorneys office
This monitor work involved third party
provider for instant fund transfers directly
from members checking account or
credit card to an electronic wallet
01446
UERNsT YOUNG
QoiIylo flU gW Do Philip Innes
pg
Mr Innes has been designated as an expert In Federal and State courts as well as domestic
and international arbitrations on matters involving claims requiring the analysis of financial
data records records financial statements
including accounting banking trading activity
business plans and projections vaiuations as weil as market and industry data He has
been designated as an expert on accounting finance and valuation matters including the
calculation of damages His testimony has been used in various matters including contract
disputes post-acquisition disputes fraudulent conveyances anti-trust accounting
breach contract valuations of businesses
irregularities of mergers and acquisitions and
business assets He has also been admitted as an expert and has offered testimony
regarding application of accounting and auditing standards including acting as an expert for
the Securities and Exchange Commission on such matter He has testified on matters
involving oil and gas accounting including matters involving COPAS mineral royalties
pipeline transportation hydrocarbon storage and oil field services
In addition to services in investigations and litigation his work has been used by companies
and lending institutions in their assessment of value and improvements to companys
financial performance Phil has advised companies in mergers and acquisitions including
identification of syrlergies and development of business plans to
developing merger plans
achieve and track cost savings He has also assisted companies in their development of
operational business plans organization structures accounting systems as well as the
identification of weaknesses in their systems of internal controls providing steps and
for Improving these controls Phil has performed business valuations including
processes
of selling prices and purchase terms as well as conducting purchase and sale
negotiation
due diligence
Prior to consulting Phil was the Chief Financial Officer of publicly traded company
entering
that was non-operator in the Gulf of Mexico as well as gas marketer and prior to that he
practiced as public accountant practicing in both the audit and tax fields
Case Highlights
Provided damages from breach of fiduciary
expert testimony concerning resulting alleged
alleged breach of non-compete agreement and misappropriation of trade secrets
duty
damages included breach of contract and diminution in value
of Term and
Provided expert testimony regarding the accounting for conveyance Perpetual
Interests
Overriding Royalty
Provided expert testimony regarding
the application of COPAS
Provided companys financial condition and ability to pay
expert testimony regarding
dividends Testimony included effects of alternative financing on capital structure capital
spending and the ability to pay dividends
Provided testimony regarding contractual audit clauses and the conduct of an
expert
auditor their with Generally Accepted Auditing Standards
concerning compliance
Provided revenue and cost disputes identified in COPAS
expert testimony regarding
audits
Provided regarding accounting and claims related to the operations of
expert testimony
common carrier oil pipeline
Provided regarding accounting and auditing disputes for offshore GOA oil
expert testimony
and gasjoint venture operations
Provided expert testimony regarding compliance with Generally Accepted Accounting
Principles and Generally Accepted Auditing Standards
01447
JIERNST YOUNG
Qtlilyi Evmythin8 Innes
Philip
pg
Provided expert testimony regarding contract disputes related to insurance contracts
Testimony included addressing the accounting treatment for the contracts and damages
Provided expert testimony concerning Generally Accepted Accounting Principles
specifically related to restatement of financial statements Testimony included reporting
on the companys internal controls accounting records financial reporting forecasting
and actions taken senior executives
earnings projections by
Provided testimony and analysis in fraud-related matter including the investigation of
existing accounting and bank records in the United States Middle East and Caribbean
Reconstructed accounting records Provided testimony regarding solvency
Provided testimony regarding damages from alleged infringement of patents
Provided expert testimony regarding the financial effect of certain contract clauses
including an investigation of the financial activity between the parties operating in the
Chemical Industry Also provided testimony regarding damages
Provided testimony on reasonably equivalent value in fraudulent conveyance action
relating to the transfer of medical practice assets real estate and certain guarantees by
fiduciaries Also provided testimony regarding damages
Retained by the SEC to provide testimony in an accounting dispute regarding the
application of Generally Accepted Accounting Principles
Provided analysis and testimony in trade secret matter involving claims for damages due to
the loss of customers
Provided testimony in trade secret and trade name infringement suit involving computer
software
Provided trade secret trade dress claims in the telecommunication
expert testimony in
of reasonable
industry including analysis royalty
Provided testimony in valuation of pharmaceuticals and bioluminescence
expert
technology
Provided expert testimony on financial performance and accounting for natural gas
productionjoint venture and damages due to breach of contract
Provided expert testimony on claims for construction costs including opining on the
adequacy of internal controls to capture these costs Provided expert testimony on the
reasonableness of supporting accounting documentation
Provided testimony regarding post acquisition accounting and valuation of net
expert
assets
Forensic and Financial Investigation Experience
Retained by counsel for the board of directors of and Upstream Oil and Gas Company to
investigate certain activities of its Chief Executive Officers
Retained by counsel for home warranty provider to investigate and quantify alleged
fraudulent activities
Retained counsel for distribution to disbursement activity to
by company investigate
fraudulent activity and to review certain actions of the companys Chief
identify potential
Financial Officer
Retained service violations of
by counsel for an oil field companies regarding alleged export
controls
service adherence to deferred
by Monitor an companys
to assist its
Retained in oil field
prosecution agreement with the DOJ
Retained by counsel for drilling company regarding alleged violation of the Foreign Corrupt
Practices Act
telecommunications to
Retained by counsel for the audit committee of wireless company
restatement of financial statements investigating accounting for
investigate including
01448
ll ERNST YOUNG
uaiityh trything
Philip Innes
pg
revenues fixed asset additions E-91 and to
services assess managements established
internal controls an assessment of tone at the
including top
Retained by counsel for the audit committee of an International service to
company
investigate whistle-blower of
allegations concerning proper reporting revenues
Investigation of alleged insurance fraud and an assessment of senior managements
influence over financial reporting
Retained by foreign to contracts for
government agency investigate gas pipelines
refineries fertilizer plant and offshore Caspian region concessions Work included
economic analysis of the contracts investigation into related transactions and
party
analysis of financial reporting Subsequent to initial work was retained by outside counsel
to perform transition of financial matters
management all
involving the governmental
agency
Retained by foreign governmental and outside counsel to fraud
agency investigate
allegations accounting irregularities related party transactions and costs involving oil and
gas development and exploration activities in central Asia
Retained by an International Bank to investigate fraudulent transfers of funds to senior
management
Retained by lenders to investigate and document financial and operational controls for
retailers Work included an assessment of the borrowing base
Valuation and Financial Due Diligence Experience
Performed acquisition due diligence and structured financing of oil and gas properties and
gas gathering systems
Performed acquisition due diligence for service and communication companies
Performed acquisition due diligence of oil field services company Analysis including
breakdown of profitability between the to be acquired service lines including analysis of
the drivers of costs and cost sharing between service lines
Performed merger and acquisition consulting to accounting fabrication and purchasing
departments Work used to define goals and take advantage of synergies Work was
also used in
development and reporting of synergies to the public markets
Performed and testified to the valuation of start-up companies with embryonic
technologies
Audit Tax and Financial Consulting
Approximately ten years ol audft and tax services to clients in wide variety of industries
including technology and telecommunications casualty insurance oil and gas energy oil
field services medical entertainment construction waste real estate
management retail
and manufacturing Work included representation of clients in IRS audits independent
financial statement audits and reviews SEC reporting and performing special projects such
as lnitial Public Offerings and acquisition due diligence
Provided interim transition management services for multi-billion dollar foreign oil and
for of audits audits
gas company responsible financial reporting completion JIB analysis
of financial Impact of divestitures and other contracts management of data room on sale
of oil and gas concessions hiring of staff and implementation of accounting controls
Advised clients on various cost accounting and financial analysis matters including
developing and assessing models for allocation of indirect costs
assessment of activity based costing procedures
analysis of profitability and
cost reduction plans
Chief Financial Officer responsible for financial reporting due diligence on acquisition and
divestitures fund raising activities and negotiation of transactions
01449
.iI ERNST YouNG
QvalityIn ie Phi Innes
lip
pg
CertiUications
Certified Public Accountant Licensed In Texas and New York
Certified Valuation Analyst
01450
EXHIBIT
01451
AFFIDAVIT 01 ILAN ROSENB
han Rosenberg hereby declare and state as follows
PERSONAL BACKGRoTjl
am over the age of 21 and competent to make this affidavit have drafted this
affidavit based on my personal iciowiedge unless otherwise stated and having reviewed it can
attest that it is true and correct
hold Bachelor of Laws degree J.D equivalent awarded by the Escuela Libre
de Derecho in Mexico City Mexico as well as Master of Laws LL.M and Master of
Comparative Laws LL.C.M from the University
degrees of Pennsylvania Law School
am an attorney licensed to practice law in every in
jurisdiction Mexico as well
as in the Commonwealth of Pennsylvania am also licensed to practice before the Supreme
Court of the United States the United States Courts of Appeals for the Third and Federal
Circuits as well as the United States District Courts for the Eastern and Middle Districts of
Pennsylvania Northern District of Illinois and the Eastern District of Wisconsin copy of my
Curriculum Vitae is attached as Exhibit to this affidavit
In addition to my practice in the United States of America have actively and
continuously practiced before Mexican state arid federal courts for more than fifteen years
am Partner of the law firm of Gordon Rees in Philadelphia Pennsylvania
am also Lecturer at Law at the University of Pennsylvania Law School
have been retained James Thomas Executor of the
Dorsey Independent
Estate of Dorothy Louise Longoria Deceased the Estate and asked to prepare this affidavit
as an expert in the field of Mexican law
EXHIBIT
Ii
01452
QUESTIONS PRESENTED
The Estate has asked me to opine on the following questions tinder Mexican law
How does the Mexican state of Tamaulipas regulate service of process on
individual defendants
Would Tamaulipas court have jurisdiction over an action filed by the
Estate against Shelby Longoria
Does the law of Tamaulipas provide remedy for breach of fiduciary
duty or recognize private trusts and informal fiduciary relationships
Does the filing of an Amparo lawsuit result in general waiver of
jurisdictional defenses in Mexico
MATERIALS REVIEWED
In formulating the opinions below have relied on my review of Shelby
Longorias Amended Contest of 2010 Will the Counterclaims thereto asserted by the Estate
Shelby Longoria Motion to Dismiss Counterclaims for Forum Non Conveniens and its
supporting Brief the Affidavit of Dr Carlos Gabuardi an August 1983 letter signed by
Eduardo Longoria Jr and Shelby Luis Longoria to Dorothy Kowaiski de Longoria as well as
and research of Mexican
my professional knowledge and experience my independent statutory
and case law
OPINIONS
Determinations
Pre1imiiary Statement on Mexican 3urisclictional
10 Mexico like the United States is federal republic comprised of individual states
executive and judiciary
that have autonomous governments including state legislative
branches
and federal bodies of laws
11 Thus Mexico has separate state
-2-
01453
12 Pursuant to Article 104 Section II of the Mexican Constitution Constitucion
Politica de los Estados Unidos Mexicanos and Article 53 Section of the Mexican Federal
Judiciary Organizatidn Law Ley Organica del Poder Judicial de Ia Federacion in civil cases
Mexican federal courts have subject matter jurisdiction only oyer claims that are governed by
which Mexico is These in
fedeiai laws or international treaties to party provisions state
pertinent part as follows
Article 104 The Federal Courts shall adjudicate
II All civil commercial controversies
or that arise concerning
with or application of federal laws or
compliance
international treaties executed by Mexico The plaintiff
may choose when the interests at issue only affect private
be heard by the judges and
parties that these disputes
tribunals of the states
Federal district court shall adjudicate
Article 53..- judges
Those civil controversies that arise concerning compliance
with or application of federal laws or international treaties
executed by Mexico When those controversies only affect
at the option of the
private they may be heard
interests
and tribunals of the states and the
plaintiff by the judges
Federal District
13 of the
13 Insofar as it concerns civil disputes among private parties Article
Mexican Federal Civil Code Codigo Civil Federal or CC sets forth whether they are to be
and thus determines whether there is Mexican
under Mexican federal or state civil law
resolved
federal sibject matter jurisdiction over particular dispute
law rules relating the
14 Article 13 Section tV ofthe CC sets forth choice of to
Section IV provides that
formalities for the creation of legal rights Specifically
created
by the laws of the place
be governed where they are
formalities of legal acts will
forth in this Code when the act is to have
to the formalities set
However they may be subject
effects in the Federal District or throughout the Republic on federal matters
01454
15. Furthermore Article 13 Section of the CC supplies the choice of law rules to
determine the law that governs the legal effects of acts and contacts Section provides that
to the provisions of the foregoing sections the legal effects of acts and contracts are to
be governed by thelaws of the place where they are to be performed unless the parties have
validly designated the application of different laws
16 Pursuant to Mexican choice of law rules there is no Mexican federal interest at
issue with respect to the disputes between the Estate and Shelby Longoria Thus this analysis is
premised on the substantive and procedural laws of the State of Tamaulipas where Shelby
certain relevant facts took place
Longoria argues
II Pursuant to the Laws of the Mexican State of Tamaulipas Service of Process Must
Be Effected Personally Upon an Individual Defendant at His Home
17 The Mexican State of where Shelby Longoria claims to have
Tamaulipas
business interests and contends is the more convenient venue for this action has its own Civil
Code the Cod.igo Civil para el Estado de Tamaulipas or CCT as well as its own Code of
Civil Procedure the Codigo de Procedirnientos Civiles para el Estado dc Tamaulipas or
CPCT
law charges the courts and not the with the obligation to
18 Tamaulipas litigants
Articles 29 and 30 of the CPCT provide that only court
effect service of process Specifically
serve defendant with process
personnel may original
19 Article 67 in Sections and III of the CPCT provides the rules for effecting
of Tamaulipas Those sections provide as
original service of process on individuals by the courts
follows
ARTICLE 67.- Original service of process must be effected in
accordance with the following rules
If an individual service of process
IL defendant is
must be made directly person unless the individual
to that
as then it must be effected upon his/her
lacks procedural capacity
of process upon an agent is only
legal guardian Original service
-4
01455
authorized when the agent resides within the seat of the court and
the to be served outside that place or is of
person intended lives
unknown whereabouts or if the agent lives outside the jurisdiction
but within the Republic and the person to be served lives abroad
and has no known residence or the persons whereabouts are
unknown In this case the agent is required to have general or
special power of attorney with sufficient authority to answer the
complaint and defend the action being served pursuant to the
provisions of Article 52 with the need to appoint duly
licensed attorneys The agent can only refuse to intervene if
he/she that he/she did not accept or has renounced the
proves
power of attorney
UI
IV Original service of process must be effected in the place
designated by the party so requesting and must be precisely the
home of the party to be served with original process if an
individual and if corporation in its corporate domicile its
offices or principal commercial establishment except
principal
when with branches with an individual agent authorized to
dealing
in the action when dealing with business transacted by the
appear
branches or in which the branches have intervened The serving
the
must verify that all of this information
officer is contained
and may be specially authorized to serve process on
complaint
the individual defendant or agent at their place of regular
the
employment or wherever they may be found within
jurisdiction but in this case may be effected only to the
specific individual at issue and the server must note specifically
during process the means used
the to identify the individual the
of attorney
verification of authority of an agent power
and set forth all relevant information
Emphasis supplied
have ruled in binding precedent that in
20 The Mexican Federal Courts of Appeal
the court official must verify that the location
order for original service of process to be effective
where the defendant is served is in fact the defendants home Precedent No 162858
ORIGINAL SERVICE OF PROCESS UPON INDIVIDUALS
IF THE COURT OFFICIAL SETS FORTH ONLY THAT
THE ADDRESS OF THE DEFENDANT IS CORRECT
BASED ON TUE NAME OF TIlE STREETS NUMBER
NEIGHBORHOOD AN CITY TIE FAII1S TO SATISFY
THE ESSENTIAL PROCEDURAL FORMALITIES WHICH
VIOLATES THE RULES THAT GOVERN IT
LEGISLATION OF THE STATE OF TAMAULIPAS
01456
Articule 67 section III of the Code of Civil Procedure for the
State orders that original service of on individuals must be
process
effected at the address designated by the party so requesting
which must coincide with the place where the defendant lives
therefore the official when effecting service of process
must verify that these circumstances are all met and include
in the respective
steps taken to so verify certification Therefore
if the official does not set forth in the certification that the location
where the official appeared to serve original process is the
defendants home and instead only states that he verified that the
address was correct based on his observation of the correct street
names number neighborhood and city such certification fails to
satisfy the essential procedural formalities because that
information does not provide certainty that the address is where the
defendant lives Accordingly that irregularity is violation of the
rules that the procedures for sai4 action
govern
9th Session Circuit Courts of Appeal Federal Judiciary Reporter
and its Gazette Volume XXXIII February of 2011 2044
Emphasis added
21 Thus the laws of Tamaulipas specifically require that original service of process
upon an individual be made directly upon the defendant and at the defendants home Otherwise
service of process will be ineffective
original
22 Article 97 of the CPCT also provides that when official caurt action is to take
outside of the Mexico the court will follow the procedures set forth in the international
place
Mexico In this Mexico is party to the Hague Convention
treaties to which is party respect
Documents in Civil or Commercial Matters
on the Service Abroad of Judicial and Extrajudicial
Therefore in order to effect valid
and the Inter-American Convention on Letters Rogatory
on an individual residing outside of Mexico in an action filed in
service of original process
service must be effected the individual at their home following the
Tamaulipas directly upon
or Inter-American Conventions
procedures set forth in the Hague
23 Dr Caries Gabuardi proffered by Shelby Longoria as an expert in Mexican law
be effected the
admits at 16 that the CPCT requires that original service of process at
defendants home or the place where they live Dr Gabuardi opines however that the
in its is attached as Exhibit
true and correct copy of the ptecedent original Spanish
-6
01457
provisions of the CPCT are irrelevant based on Mexican Supreme Court opinion finding that
service of process may be effected on defendant at his home his place of business or
wherever he may be found without regard to any particular order What Dr Gabuardi fails to
point out is that the Supreme Court opinion at issue does not deal with Tamaulipas procedure at
all but rather with the provisions of the Codes of Civil Procedure of the Mexican states of
Jalisco Puebla Chiapas as well as the Federal District Mexico City whose rules for service of
are different from those of Tamaulipas Jalisco Puebla Chiapas and
original process markedly
of process effected defendants
the Federal District all provide that original service may be at
domicile which their respective civil codes define as includin.g not only the home but also the
where defendant transacts business or where the defendant may be located The non
place
binding Seventh Circuit precedent referenced by Dr Gabuardi at 18 focuses on the Code of
Civil Procedure of Veracruz which also in Article 82 that original service of process
provides
the defendants domicile Tamaulipas in stark contrast to these other
must take place at
the place where the individual defendant has his or
Mexican jurisdictions refers specifically to
her home Therefore while the precedent referenced by Dr Gabuardi at 11 16-17 may be
similar to those in Jalisco Puebla Chiapas and the
binding on all courts applying provisions
is in the case of Tamaulipas Similarly the non-binding precedent
Federal District it inapposite
for effecting
from the Seventh Circuit at 18 is of no import as Veracruzs requirements
service of process track those of Jalisco Puebla Chiapas and th Federal Diirict but
original
not their sister state of Tamaulipas
Jurisdiction of Tamaulipas Courts
Pursuant to Article 172 of the CPCT must be filed before
24 complaint
competent judge.2
Under Mexican law competence is synonymous with the United States
functionally
used to refer to the geographic area
concept ofjurisdiction in Mexico jurisdiction is generally
Those terms are therefore used interchangeably
where governmental actors haye authority
herein
.7
01458
25 Under Mexican law competence functional synonym of the United States
concept of jurisdiction is determined by statute In Tamaulipas the CPCT provides in Article
the of the ourts governed by the provisions of this code.3
20 Section III that jurisdiction is
26 Article 173 of the CPCT specifically provides that competence or jurisdiction will
and by the
by the amount the subject matter the appellate
be determined level territory.4
27 Notviithstanding Dr GabuŁ.r opinion at 13 that Shelby Longoria
in Mexico
maintains sufficient contacts with .. Tamaulipas personal or territorial jurisdiction
is not determined by contacts but rather by specifically defined express statutory provisions
Contacts with standing alone are of no import with respect to whether
specific jurisdiction
Mexican ourt has jurisdiction Indeed Dr Gabuardi himself has recognized as much in the
article he references at 11 In that article Dr Gabuardi states that in Mexico the bases for
Entre
by law See Gabuardi Carlos la
asserting jurisdiction are limited to those established
el Forum Non Convethens Boletin Mexicano cia Derecho
Jurisdiccin Ia Competencia
nueva serie aflo XLI nilm 121 enero-abril de 0O8 at 89 Thus Dr Gabuardi
Comparado
law oncompetence establishes detailed rules to determine what types of cases
explains Mexican
can be heard by particular court Id In Dr Gabuardi own words competence sets forth the
rules which must be strictly observed from an operational standpoint to assign
specific
controversies as between the different courts of country Id Translation
is ours According
contacts basis for asserting jurisdiction Mexico
to Dr Gabuardis own analysis are not
are those expressly listed in the
48 that the only bases to assert
Id at pointing out jurisdiction
operative Codes of Civil Procedure which do not include contacts
of the CPCT that the rules of procedure are of public order
Notably Article provides
and cannot be waived by stipulation of private parties
is aldn to personal jurisdiction in the United States
Territorial jurisdiction or competence
01459
IV Tamaulipas Courts Do Not Have Original Jurisdiction Over Shelby Longoria
Adriana Longoria or Sylvia Dorsey
28 The CPCT provides in Article 195 Section IV that the competent judge is the
one located in the domicile of the defendant in actions involving movable property or in
personarn or civil status actions unless provided otherwise law.5
29 Pursuant to Article 24 of the CCT i4iyjduals domicile is the place wher he
or she lives If the individuals home address is unknown but only then the law will repute as
domicile the place where the individual principally conducts his or her business and if this
location is also unknown then an individuals domicile is wherever he or she can be found In
other words the Civil Code of Tamaulipas reference to an individuals primary place of
business or their actual physical location is intended to provide alternative domidiles only in
those cases where an individuals actual place of residence is unknown.6
30 As explained in the foregoing sections plaintiff filing suit in Tamaulipas must
the home address of the defendant in order to achieve valid original service of process
identify
31 According to Article 175 of the CPCT tribunal may refuse to entertain
case unless it determines it lacks jurisdiction Lii such cases it must set forth in the order the
legal bases supporting its conclusion Emphasis supplied
As Dr Gabuardi recognizes the claims asserted by the Estate are inpersonain claims
to that do not apply in Tamaulipas the opinions cited
In addition to referring provisions
by Dr Gabuardi in fj 1648 are of no import to the question of domicile for purposes of
Indeed in the cases to which Dr Gabuardi refers the Mexican federal
asserting jurisdiction
of the term
courts including the Court explained that their liberal construction
Supreme
of service of process only because the primary purpose of service
domicile was for
purposes
of process is to put defendant on notice of an action The court opinions however made clear
for purposes of service of process is of no implication to substantive
that the ruling on domicile
considerations associated with domicile including the ability of the courts to exercise
consider in Texas
jurisdiction over particular case By way of analogy that original process
action can be served on Mexican individual domiciled in Mexico The only implication of
the foreign citizen is on notice of the action It does not mean the Texas court has
service is that
jurisdiction over that individual
-9-
01460
32 Thus in Tamaulipas trial courts must review the complaint when filed and make
sua sponte determination as to whether they have jurisdiction
33 There is no dispute that Shelby Longoria lives in Texas Indeed his Amended
Contest of 2010 Will at avers that Shelby Longoria Shelby is an indiidual domiciled in
Hidalgo County Texas
34 Theiefore Thmau.lias court lacks statutory juisdictibn oV tort case against
foreign defendant and will aimost certainly dismiss any action filed against
Shelby Longoria
The same conclusion follows with respect to Adriana Longoria and Sylvia
him sua sponte.7
Dorsey as both of them live in Houston Texas
35 dismis8 the complaint for lack of subject matter
Moreover court may
jurisdiction
would have to recognize this Courts jurisdiction over the
36 Tamauiipas court
counterclaim where the counterclaim would predate any Tamaulipas
Estates particularly
189 of the CPCT that the court before which the principal
action.8 Indeed Article provides
m4ter over related counterclaims
cause of action is pending has exclusive subject jurisdictiorL
the
37 Pursuant to Article 177 of the CPCT court that expressly recognizes
of another cannot assert jurisdiction
jurisdiction
Remedy Breach of Fiduciary Duties
Tamaulipas Law Does Not Provide for
38 Article 1388 of the CCT provides as follows
law
When an act causes damages and losses to person and the
the perpetrator of that act or on someone else the
imposes upon
to repair those damages and losses there is civil
obligation
liability
that the defendant has waived
do so even if the pleads
Tamaulipas court may plaintiff
challenge to the courts territorial jurisdiction
Courts jurisdiction
Shelby Longoria does not challenge
this
understand
-10-
01461
39 Mexican law generally and Tamaulipas law specifically do not impose or
recognize fiduciary duty9 on the part of an adult child to business
manage affairs of or for the
benefit of parent.10
40 Mexican law also does not recognize informal
fiduciary relationships or
specifically private trusts11 so the August 1983 letter signed by Eduardo Longoria Jr and
Shelby Luis Longoria to Dorothy ICowalski de Longoria whereby they agree to hold maintain
and manage certain assets for the Decedents benefit does not create
fiduciary duty Rather
the letter creates only moral obligation or duty which is unenforceable under Tamaulipas
law CCT Articles 1028 and 1370
41 Even assuming for the sake of argument only that there were basis to recover
in for breach of fiduciary
tort duty any such claim is barred under Tamaulipas one-year statute
of limitations pursuant to Article 1510 Section III of the CCT
42 Because more than year has elapsed since the death of Dorothy Longoria any
claim sounding in under Tamaulipas law
tort is barred as matter of law
Indeed cause of action for breach of fiduciary of
duty regardless its
nature would be
impossible to plead and prove under Tamaulipas law which to
requires plaintiffs provide
detailed description of all facts and attach or list all the items of evidence that cause of
support
action from the outset 247
Articles to 249 of the CPCT Amendments to pleadings are not
allowed Moreover Article 330 of the CPCT precludes party from inspecting an opponents
general accounting
10
We note that the only duty flowing from children to their parents is
statutory obligation
under Articles 277 and 282 of the CCT to provide support for food clothing housing and
medical care when necessary
Mexican law only recognizes trusts created financial
through federally-licensed
institutions subject to regulatory directive and oversight The Mexican Court
Supreme
explained that United States-style were adopted
trusts partially by the Mexican
legislature according to our system even though strictly speaking it structured an institution
wholly different than the trust and established it as an exclusive
banking operation due to the
solvency of banks arid the governments oversight over them See Precedent No 246296
TRUSTS NATURE OF 7th Session Auxiliary Chamber Supreme Court Federal Judiciary
Reporter Volume 21 Seventh Section 39
11
01462
VI The Mexican Aniparo Do Not
Proceedings Imply Wholesale Submission to .the
Jurisdiction of Mexican Courts
43 The United States concepts of minimum contacts general jurisdiction or
specific jurisdiction do not exist under Mexican law Mexican courts authority to hear
particular case is determined on case-by-case basis as defined by statute i.e the codes of
civil procdure Therefore the fact that party has invoked the jurisdiction of Mexican court
in particular case does not mean that it will be sul tht sathe Mexican court sjurisdiction
in any and every future action
44 Thus the pursuit of an Amparo action in Mexico is inconsequential to whether
Mexican court can over Amparo claimants
assert jurisdiction or anyone else for that matter in
future civil actions Mexicans courts ability to exercise jurisdiction will have to be assessed
after the filing of every complaint
45 More importantly the filing of an Amparo action in Mexico cannot be described
as Dr Gabuardi does at pp 6-8 as an acknowledgement of the adequacy reliability and better
convenience of the Mexican judicial system for the purposes of adjudicating the private party
matters pending before this Court
46 In order to understand why the filing of an Amparo action implies none of what
Dr Gabuardi suggests we must explain the nature of the Juicio de Amparo
47 An Amparo action which arises under Articles 103 and 107 of the Mexican
Constitution is proceeding by which any private person individual or corporate can challenge
the constitutionality of the actions of state or federal government actor regardless of whether
that actor is member of the executive legislative or judiciary branch In other words the only
possible defendants in Amparo actions are Mexican government actors in their official
12
capacities
12
Insofar as the Amparo actions referenced by Dr Gabuardi the only defendant is
Tamaulipas court
-12-
01463
48 The Mexican Court has interpreted the constitutional guarantee of due
Supreme
process broadly to include the misapplication of any law whether state or federal within the
Court rulings are included in the definitin of official
scope of Amparo protection
and therefore courts
governmental acts any court judgment includingjudgrnents by state
state laws is reviewable by federal courts acting under their Amparo jurisdiction
interpreting
law deemed be violation
because an erroneous application of principle of federal or state is to
of Constitutional due process
49 When private person is aggrieved by the adjudication of his/her/its rights by
the only means seek
Mexican court without due process of law Aniparo proceedings provide to
redress for that constitutional violation
more circumscribed than federal proceeding by
50 Amparo proceedings are far
an argument that there
which the plaintiff seeks the protection of the federal justice system upon
of the Mexican Constitution statutory law due
has been inffingeinent of the strict application
process
of law or other fundamental rights Gabuardi Affidavit at 26 Amparo proceedings
available to private for constitutional violations on the
provide the only remedy party plaintiffs
defendants including the Mexican courts Amparo proceedings
part of the Mexican governmexlt
are not available to challenge actions on the part of private actors
hear
system with jurisdiction
court to
51 The Mexican federal judiciary is the only
of an official Mexican
Amparo cases and ultimately adjudicate the Mexican constitutionality
an Amparo proceeding cannot be pursued in any
governmental act The relief available through
other court.3
the Mexican courts have made clear that they lack
13 Notably in the context of an Amparo
tribunal
jurisdiction to in any way compel action by much less invalidate the acts of foreIgn
OF JURISDICTION BY DECLINATION THE
See Precedent No 166416 DECLiNATION
ORDER THAT DECLARES IT BY FINDING THAT FOREIGN COURT HAS
JURISDICTION PUTS AN END TO THE ACTION AND THEREFORE MAY BE
FEDERAL DISTRICT
CHALLENGED iN DIRECT AMPARO LEGISLATION OF THE
-13-
01464
52 Consequently Dr Gabuardis opinion that the filing of an Amparo proceeding is
an acknowledgement of the adequacy reliability and better convenience of the Mexican judicial
system is incorrect
RESERVATION OF RIGHT TO ISSUE SUPPLEMENTAL OPINIONS
53 understand this matter is in its early stages and additional facts may develop
have been advised that the Estate may therefore require further opinions cn Mericlaw
Accordingly1 reserve the right to amend and/or supplement the opinions expressed herein
whether in writing or live testimony as called upon to do so
declare under penalty of peijury pursuant to the laws of the Commonwealth of
are true and correct
Pennsylvania that the foregoing statements
Executed in Philadelphia Pennsylvania this 30th day of
By
215 665-4621
SUBSCRIBED me on this 30th day of
SWORN and before in Philadelphia Pennsylvania
September 2013
O-4
Lorraine Costro
Notary Public
My commission expires
COMMONWEALTH PENNSYLVANiA
NOTARIAL SEAL
LORRAINE COSTRO Notaiy Pubc
City of Philadelphia Phita Ceunty
My Commission Expires ApdI 222016
and Gazette Volume
Court Federal its
9th Session Chamber Supreme
1St Judiciary Reporter
XXX September 2009
120
-14-
01465
ILAN ROSENBERG
1123 Coventry Avenue
Cheltenham PA 19012
Phone 215-635-2005 Fax 215-701-2021
Email janeandilancomcast.net
PROFESSIONAL EXPERIENCE
Gordon Rees Philadelphia PA June 2013-Present
Partner Concentrating practice in complex insurance coverage and commercial litigation arid international
commercial matters and dispute resolution with an emphasis on matteis relathig to Mexico nd Latin America
outside advisor to the Mexican of Relations
legal Ministry Foreign
CozenOConnor Philadelphia PA September 2002-June 2013
Member Concentrated practice in complex domestic and international insurance coverage commercial and civil
matters Co-Chair of Latin American Subrogatibn Practice Group
Chevez Ruiz Zamarripa Cia S.C Mexico City Mexico September 1999-June 2001
Associate Concentrated practice in tax planning and tax and civil rights litigation Handled trial and appellate
matters before Mexican state and federal courts as well as the Mexican Federal Supreme Court
Mexican Federal Ministry of Finance Mexico City Mexico January 1998-June 1999
Supervisor of the Legal Consulting Department Advised various branches of the Mexican government
concerning public fmance and tax law and developed federal tax rules and regulations
EDUCATION
University of Pennsylvania Law School Philadelphia PA
Master of Comparative Law LL.C.M September 2009-May 2011
Master of Laws LL.M recipient of merit-based scholarship July 2001-May 2002
Escuela Libre de Derecho Mexico City Mexico August 1993-July 1998
Bachelor of Laws S.D Equivalent
LEADERSHIP POSITIONS
America-Israel Chamber of Commerce Advisory Board Member
HIAS and Council Migration Service of Philadelphia Board Vice President Chair Policy Committee
HONORS/AWARDS
Pennsylvania Super Lawyer Rising Star 20072008 and 2013
Recipient of the National Law Journal Pro Bono Award in 2008
BAR ADMISSIONS
Mexico all jurisdictions
Pennsylvania
United States District Courts Eastern and Middle Districts of Pennsylvania Eastern District of
Wisconsin Northern District of Illinois
United States Courts of Appeals Third and Federal Circuits
United States Supreme Court
HIT
01466
TEACING/LECTURING EXPERIENCE
University of Pennsylvania Law School Philadelphia PA October 2012-Present
Lecturer in Law Comparative law course entitled Common Law Contracts for Civil Lawyers
Escuela Libre de Derecho Law School Mexico City September 1999-August 2000
Adjunct Professor Tax Law and Administrative Procedure
01467
Page o12
Tesis
Semanario Judicial de la Novena
162 858
Federacin su Gaceta Epoca
5/10
Tribunales
Jurisprudencia
Colegiados S.J.F su Gaceta PÆg 2044
de Circuito Civil
Registro No 162 858
9a Epoca T.C.C S.J.F su Gaceta Torno XXXffl Febrero
de2Oil 2044
EMPLAZAMIENTO PERSONAS FfSICAS SI EN LA
iZON DEL ACTUARIO SOLO SE1ALA QUE EL
DOMICILIO DEL DEMANDADO ES CORRECTO POR
ADVERTIRLO DE LAS NOMINCLATURAS DE LAS
CALLES N1JMERO COLONTA CIUDAD ELLO NO
COLMA LAS FORMALIDADES ESENCTALES DEL
PROCEDIMIENTO LO QUE CONSTITUYE IJNA
WOLACION LAS REGLAS QIIE LO RIGEN
LEGISLACION DEL ESTADO DE TAMAULIPAS
El artIculo 67 fraccin ifi del Codigo de Procedimientos Civiles
para el Estado ordena que ci emplazamiento las personas fisicas
se realice en el domicilio seflalado
por la parte que lo pide el cual
debe corresponder con el lugar en donde habita el demandado por
tanto el actuario al realizarlo debe cerciorarse de que queden
satisfechas esas circunstancias asentarlo en ci acta relativa En
esas condiciones si en la razOn del actuario no se seflala que en el
domicilio en ci que se constituy para practicar el emplazamiento
habita ci demandado en cambio solo refiere que se cerciorO de
que era correcto por asI advertirlo de las nomenclaturas de las
calles nÆmero colonia ciudad correspondilentes con estas
expresiones no se colman las forrnalidades esenciales del
procedinaiento dada que esa informacin no brinda la seguridad
http//ius.scjn.gob.mx/paginasiReportesfReporteDE.aspxidius1 62858Tipol 9/30/2013
01468
Page of
de que ese domicilio sea el lugar donde habita el demandado
Consecuentemente esa irregularidad constituye una violacin
las reglas que rigen el procedimiento de dicha diligencia
PRIMER TRIBUNAL COLEGIADO DEL DECIMO
NOVENO CIRCTJTTO
Amparo en revision 235/2008 15 de octubre
.dŁ 2008 Unanimidad de votos Ponente Miguel
Mendoza Montes Secretaria Piedad del Carmen
HernÆndez Avila Amparo en revision 37/2010
Guadalupe Luis de Leon Zamora 25 de marzo de
2010 Unanimidad de votos Ponente Lucio Antonio
Castillo GnzÆlez Secretaria Gina Estela Cecopieri
Gmez Amparo en revision 127/20 10 JosØ Portilla
Guerra 29 de abril de 2010 Unanimidad de votos
Ponente Hector GÆ.lvez TÆnchez Secretaria Julia
Soto Valdez Amparo en revision 192/2010 Pedro
Hugo Salinas Bravo de julio de 2010 Unanimidad
de votos Ponente Lucio Antonio Castillo Gonzalez
Secretaria BelØn Alarcn CortØs Amparo en revisiOn
281/2010 Juan Francisco JimØnez Chapa 28 de
octubre de 2010 Unanimidad de votos Ponente Lucio
Antonio Castillo Gonzalez Secretario Faustino
GutiØrrez Perez
http//ius.scjn.gob.mx/paginas/Reportes/RePOrteDE.aSPXidiUSl 62858Tipol 9/30/2013
01469
CASE NUMBER 414270
THE ESTATE OF
IN PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED
HARRIS COUNTY TEXAS
OIDER DENYENG ShELBY
LONGOmAS MOTION TO DISMISS
ADRL4NA LONGOfflAS CLAIMS
Now before the Court is
Shelby Longorias Motion To Dismiss Adriana
Longorias Claims the
Motion Afler
conducting hearing and considering the
Motion the response filed on behalf of Adriana
Longoria the evidence
properly
before the
Court the pleadings on file and the
arguments of counsel the Court finds
that the Motion should be and it
hereby is DENIED
SO ORDERED on this
_______ day of_ 2015
PRESIDING JUDGE
PROBATE COURT NUMBER ONE
HArtrus COUNTY TEXAS
ORDER DENYING SHELBY LONGORTAS
MOTION
TO DISMISS ADRIANA LONGORIAs
CLAIMS Solo Page
01470
CASE NUMBER 414270
THE ESTATE OF PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF THE ESTATE OF
DOROTHY LOUISE LONGORIA DECEASED TO
SHELBY LONGOREAS THIRD AMENDED CONTEST OF 2010 WILL
TO THE HONORABLE JUDGE OF THIS COURT
COMES NOW James Thomas Dorsey in his capacity as Independent Executor of the
Estate of Dorothy Louise Longoria Deceased as Counter-Plaintiff and pleads the following
counterclaims in response to Shelby Longoria Third Amended Contest of2O 10 Will stating
the following causes of action against Shelby Longoria as Counter-Defendant
Discovery Level
Pursuant to TEX CIV 190 Counter-Plaintiff states that discovery in this
case is intended to be conducted under Level of that Rule
Overview
These counterclaims are brought by citizen of Texas against another citizen
of Texas Counter-Plaintiff is the personal representative of an estate pending in this Court
and adjudication of these counterclaims is essential to administration of that estate The
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF TI-TIE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01471
Decedent lived in Texas for the last 25 years of her life These counterclaims are based
entirely on Texas law None of them is based on any law of the United Mexican States
The Parties
Counter-Plaintiff James Thomas Dorsey is an individual who is bringing these
counterclaims in his the duly appointed
capacity as Independent Executor of the Estate of
Dorothy Louise Longoria Deceased
Counter-Defendant Shelby Longoria is an individual who resides in Hidalgo
County Texas Counter-Defendant commenced this action and has appeared through
counsel in this action so this pleading maybe served on him through his attorneys of record
Jurisdiction
Pursuant to Sections 4A 4B and 4F of the Texas Probate Code the Court has
jurisdiction over the subject matter of this civil action The Estate of Dorothy Louise
Longoria is pending in this Court and this Court is statutory probate court As explained
more fully below this action is brought by personal representative on behalf of that estate
and this action is related to that estate In addition the exercise of pendent or ancillary
jurisdiction over this action is necessary to promote judicial efficiency and economy
The Court has in personam jurisdiction over Counter-Defendant Shelby
Longoria by virtue of his filing of Shelby Longoria Third Amended Contest of 2010 Will
in to which these counterclaims are pleaded In addition general personal
response
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOREA DECEASED
TO SHELBY LONGOPJAS THIRD AMENDED CONTEST OF 2010 WILL Page
01472
jurisdiction exists because the Counter-Defendant has had continuous and systematic
contacts with the State of Texas and exists because
specific personal jurisdiction this action
arises out of contacts by the Counter-Defendant with the State of Texas as below
explained
Venue
Pursuant to Section 6A of the Texas Probate Code the venue of this action
is
proper because the Estate of Dorothy Louise Longoria Deceased is pending in this Court
and this action is related to that estate as explained more fully below
Conditions Precedent
All conditions precedent to Counter-Plaintiffs rights to plead and to prosecute
these counterclaims and to recover the relief requested herein have occurred or been
fulfilled
Facts Applicable to All Causes of Action
On July 1942 Eduardo Longoria Eduardo and Dorothy Louise Kowaiski
Dorothy were married in the City of Laredo in Webb County Texas
10 When they were married Dorothy was citizen of the United States of
America and Eduardo was citizen of the United Mexican States Mexico but he had
This petition does not recite every fact on which the Counter-Plaintiffs claims are
based It is intended only to be short statement of the cause of action sufficient to give fair
notice of the claim involved as required by TEx Civ 47
ORIGNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01473
been living in the United States and after the wedding the settled in
couple initially
McAllen Texas
11 The marriage of Eduardo and Dorothy was subject to the laws of the State of
Texas including the law of community property
12 Eduardo and Dorothy had four children all of whom are living Their names
are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo
Longoria Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All
of them reside in Texas
13 Eduardo and Dorothy amassed considerable wealth through variety of
business activities and investments
14 Over time Shelby took control over the business and investments owned by
Eduardo and Dorothy
15 Shelby managed property and accounts owned by Dorothy and represented to
her that he was doing so for her benefit Indeed the account statements were not even sent
to Dorothy even though she was identified as the sole owner of the accounts The accounts
included but are not limited to the following accounts collectively Dorothys Accounts
in Mexico
Banamex Account Number 7572369315
Banamex Account Number 7518181565 and
OR1GNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY ThDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01474
BanRegio Account Number 75-00454-001-8
16 In addition Shelby expressly agreed to hold in trust for the benefit of Dorothy
property that Shelby obtained from Eduardo In letter to
Dorothy dated August 1983 for
example Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us
as long as you live we will hold them as if they were yours and will make the fruits
available to
you for your direction as to their use These promises were made by Shelby
while he was residing in Texas and were set forth in letter that
they was sent to Dorothy
from an address in Texas Shelby breached these promises to Dorothy by failing to account
for the property that was given to Shelby by Eduardo by concealing from Dorothy material
facts about that including value and profitability
property its nature extent by failing to
hold and maintain that property as if it belonged to Dorothy by paying himself income
generated by the property by failing to disclose to Dorothy that he had done so and by
failing generally to make the fruit of that property available to her for her use
17 Likewise in letter dated October 2007 which Shelby sent to Dorothy at
her residence in Houston Texas Shelby made specific promises with respect to large sum
of money that Eduardo wished for Dorothy to have upon his death Admitting that he held
such funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate
to her daughters Shelby promised that within thirty days after Dorothy died he would pay
$100000 to Sylvia and $100000 to Adriana UponDorothys death Shelbyrepudiated and
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01475
breached this promise to Dorothy While he did tender check for $100000 to and
Sylvia
check for $100000 to Adriana he printed on the checks if the checks
language that were
negotiated would have resulted in release of their rights in Dorothys estate and rights
against Shelby self-serving conditions which Shelby had no right to The fact
impose that
Shelby arbitrarily demanded such releases for his benefit as conditions on his perfonnance
of an unconditional duty to pay $100000 to Sylvia and $100000 to Adriana proves that
Shelby knew that Dorothy owned valuable claims against him Shelby knew that
Dorothy
intended to leave her entire estate to Sylvia and Adriana and Shelby knew that Sylvia and
Adriana themselves had valuable claims against him all of which he now dishonestly
denies
18 Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as
trustee of an express trust for the benefit of Dorothy and in addition or in the alternative
pursuant to an informal fiduciary relationship with Dorothy
19 In contravention of his fiduciary duty to Dorothy under Texas law Shelby
failed to advise Dorothy fully and fairly regarding the nature and extent of her property and
his actions with respect to her property and the property he was holding in trust supposedly
for her benefit
20 In fact Shelby managed for his own benefit Dorothys property as well as
property he was holding in trust supposedly for her benefit He caused income from the
ORJGNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01476
property to be paid to him or to others for his benefit and failed to disclose to Dorothy that
he had done so
21 Eduardo died on January 26 2005 at the age of 91 He was born on October
25 1913
22 When Eduardo died all of the property in his estate was community property
of which one-half was owned by Dorothy under Texas law
23 Eduardo died in Webb County Texas where he and Dorothy had lived for
many years
24 After the death of Eduardo Shelby continued to
manage Dorothys property
and continued to represent to her that he was managing her property for her benefit but he
intentionally concealed from Dorothy the nature extent and value of her property what he
had done with her property over the
years and how much money he had been paid or
otherwise derived from the property
25 In fact Shelby managed the property for his own benefit and engaged in self-
dealing transactions that he failed to disclose to Dorothy
26 Dorothy died in Harris County Texas on April 62012 at the age of 92 She
was born on May4 1919
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01477
27 By order dated October 2012 this Court admitted to Last
probate Dorothys
Will and Testament dated 21 2010 and James
January appointed Thomas Dorsey
Independent Executor of the Estate of Dorothy
28 Letters Testamentary were issued to James Thomas Dorsey on the same day
and such Letters Testamentary are force and effect
currently in full so he is fully authorized
to bring this action
29 Whenever it is alleged herein that Shelby acted or communicated in
any
fashion then such allegation should be taken to mean
That the Shelby himself took such action or made such
communication
or in the alternative
That duly authorized agent of Shelby took such action or made such
communication on behalf of Shelby and in the course and scope of the agency in the
or
alternative
That such action or communication was by one having apparent
authority to do so on behalf of Shelby or in the alternative
That Shelby ratified and adopted such action or communication as his
own and thereby became legally responsible for it
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01478
First Cause of Action
Demand for Accounting
30 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If any averment is inconsistent with this cause of action the avennent is pleaded
in the alternative authorized 47 and 48 of the Texas
as by Rules Rules of Civil Procedure
31 Pursuant to Section 489B of the Texas Probate Code Section 113.151 of the
Texas Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled
to and hereby requests that Shelby provide full accounting of all of his activities as an
agent for Dorothy all transactions done or caused by him involving property owned in
whole or in by Dorothy but not limited to Dorothys Accounts
part including in Mexico and
all transactions involving property held by him in trust for Dorothy
32 Anticipating that Shelbywill plead the defense of limitations in
response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inaerentlyundiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01479
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
33 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Section 113.151 of the Texas Trust Code
and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an
award of attorney fees including litigation expenses reasonably and necessarily incurred in
connection with this action
Second Cause of Action
Breaches of Fiduciary Duty
34 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
avermerits If
any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
35 Under Texas law Shelby breached his fiduciary duty to Dorothy by failing
to disclose to her fully and fairly all information that might affect her interests in
property
managed by him including both her community property and property held by Shelby in trust
for her with utmost good and fair in the of her
failing to act faith dealing management
property and property held in trust for her and in his other activities affecting her interests
failing to act with undivided loyalty to Dorothy in the management of her property and
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 10
01480
property held by him in trust for her and in his other activities affecting her interests and
engaging in transactions were
self-dealing that detrimental to her and in addition or in the
alternative improperly benefited him
36 The breaches of fiduciary duty by Shelby proximately caused compensable
harm to Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby
requests entry ofjudgment against Shelby for actual damages in an amount to be determined
by the trier of fact in accordance with Texas law The damages awarded should include all
amounts of money which were withdrawn from Dorothys Accounts in Mexico and which
Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her
fully informed consent
37 The breaches of fiduciary duty by Shelby constituted fraud gross
negligence and malice as those terms are defined in Chapter 41 of the Texas Civil
Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose to
Dorothy all facts that might affect her interests Shelby intentionally or in the alternative
with reckless disregard for Dorothys rights concealed from Dorothy the nature extent and
value of her property what he had done with her property over the years and how much
money he had been paid or otherwise derived from the property Under Texas law Counter-
Plaintiff is entitled to and hereby requests entry of judgment against Shelby for exemplary
damages in an amount to be determined by the trier of fact in accordance with Texas law
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 11
01481
38 Shelby derived profits by means of the breaches of his fiduciary duty to
Dorothy Under Texas law Counter-Plaintiff entitled to and hereby requests entry of
is
judgment decreeing that Shelby disgorge all profits received by him or by his wife his
children or any other persons designated by him as result of the breaches of his fiduciary
duty to Dorothy
39 Shelby acquired property by means of the breaches of his fiduciary duty to
Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of
judgment imposing constructive trust on all acquired by Shelby or by his wife his
property
children or any other persons designated by him by means of the breaches of his fiduciary
duty to Dorothy
40 Anticipating that Shelby will plead the defense of limitations in
response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SIELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 12
01482
he breached his fiduciary duty of full disclosure of facts that
all might affect Dorothys
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to was withheld from her and diverted
Dorothy to Shelbys
benefit
41 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Section 114.064 of the Texas Trust Code
and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an
award of attorney fees including litigation expenses reasonably and necessarily inculTed in
connection with this action
Third Cause of Action
Breach of Promise To Hold Property for Dorothys Benefit
42 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
avennents If any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
43 Shelby promised Dorothy that he would hold in trust for Dorothy all of the
assets that lEduardo gave to Shelby and Wayo and that he would make the income from such
property available to her for her direction as to their use These promises were made by
Shelby while he was residing in Texas Shelby breached these promises to Dorothy by
failing to account for the property that was given to Shelby and Wayo by Eduardo by
from Dorothy material facts about that including its nature extent
concealing property
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 13
01483
value and profitability by failing to hold and maintain that as if
property it belonged to
Dorothy by paying himself income generated by the property by to disclose to
failing
Dorothy that he had done so and by failing generally to make the fruit of that
property
available to her for her use
44 These breaches by Shelby proximately caused compensable harm to Dorothy
and her estate Based on the doctrines of breach-of-contract promissory estoppel and
money-had-and-received under Texas law Counter-Plaintiff is entitled to and hereby
requests entry ofjudgment against Shelby for actual damages in an amount to be determined
by the trier of fact in accordance with Texas law
45 Anticipating that Shelby will plead the defense of limitations in response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
ORIGiNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOIUSE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 14
01484
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
46 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice
and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and
hereby requests an award of attorney fees including litigation expenses reasonably and
necessarily incurred in connection with this action
Fourth Cause of Action
Breach of Promise To Pay $100000 to Adriana and $100000 to Sylvia
47 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
48 Shelby promised Dorothy that within thirty days of her death he would pay
$100000 to Adriana and $100000 to Sylvia These promises were made by Shelby while
he was residing in Texas and they were directed to Dorothy at her residence in Houston
Texas Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia
checks that they could not negotiate without waiving their rights in Dorothys estate and their
rights against Shelby self-serving conditions which Shelby had no right to impose
ORIGiNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF TI-lB ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 15
01485
49 Based on the doctrines of breach-of-contract promissory estoppel and money-
had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests
entry of judgment against Shelby for $200000 in accordance with Texas law
50 Anticipating that Shelby will plead the defense of limitations in to this
response
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the
years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
51 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice
and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 16
01486
hereby requests an award of attorney fees including litigation expenses reasonably and
necessarily incurred in cormection with this action
Fifth Cause of Action
Declaration of Invalidity of Donation Agreement dated January 11 2005
52 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
53 On January 2015 Shelby produced for the time of
first photocopy
document dated January 11 2005 written in Spanish entitled CONTRATO DE
DONACION the Donation Agreement The Donation Agreement purports to be signed
by Eduardo and Dorothy
54 By order dated January 292014 Shelby was ordered by this Court to produce
documents such as the Donation Agreement no later than February 282014 His production
of the Donation Agreement on January 2015 was over ten months late
55 On the date of the Donation Agreement Eduardo was dying and on hospice
care Fifteen days later Eduardo died The Executor believes and now that on
avers
January 112005 Eduardo lacked the requisite mental capacity to make legally enforceable
contract
56 The Donation Agreement states that it was signed in Reynosa Tamaulipas
Eduardo was not in Reynosa on the date of the Donation Agreement
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY IIDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 17
01487
57 In the seven years that Dorothy lived after the date of the Donation Agreement
she mentioned
never it to either of her daughters both of whom lived near her in Houston
or to her son-in-law the Executor whom she saw frequently or in her correspondence
which was extensive or in her personal notes where she wrote about
extensively her
financial situation Indeed during those seven years she made numerous statements both
written and oral that are inconsistent with the existence of the Donation Agreement
58 Based on the foregoing facts and others the Executor and therefore
believes
avers that the Donation Agreement is forgery
59 The Executor believes and now avers that the Donation Agreement is
unenforceable for lack of consideration or in the alternative for failure of consideration
60 There exists an actual controversy between the Executor and Shelby as to
whether or not the Donation Agreement is valid and enforceable contract
61 Consequently under Chapter 37 of the Texas Civil Practice and Remedies
Code the Executor hereby requests entry of judgment declaring that the Donation
Agreement is invalid and wholly unenforceable
62 Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code the
Executor requests an award of costs and reasonable and necessary attorneys fees as are
equitable and just
ORIGINAL COUNTERCLAiMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 18
01488
Prayer for Relief
WHEREFORE PREMISES CONSIDERED Counter-Plaintiff James Thomas
Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased prays
that
upon due notice and trial by jury or upon hearing on motion for entry of default
judgment or motion for summary judgment the Court renderjudgment for Counter-Plaintiff
and against Counter-Defendant Shelby Longoria awarding the following relief under Texas
law
decree commanding Counter-Defendant Shelby Longoria to render an
accounting of all property that was owned in whole or in part by Dorothy Louise Longoria
and that was within his possession custody or control and all transactions affecting her
property and an accounting of all actions taken by him as her agent or trustee specifically
including complete accounting of all monies withdrawn from Dorothys Accounts in
Mexico
an award of actual damages from and against Counter-Defendant Shelby
Longoria in amounts to be determined by the trier of fact in accordance with Texas law but
the maximum amount of actual damages currently sought by Counter-Plaintiff while
reserving his right under Texas law to amend this pleading to
request greater or lesser
amount as more evidence is uncovered and the whole truth comes to light is $43500000
ORTG1NAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 19
01489
an award of exemplary damages from and against Counter-Defendant
Shelby
Longoria in amounts to be determined by the trier of fact in accordance with Texas law but
the maximum amount of exemplary damages currently sought by Counter-Plaintiff while
reserving his right under Texas law to amend this pleading to request greater or lesser
amount as more evidence uncovered and the whole truth comes
is to light is $10000000
an award of attorney fees including litigation expenses reasonably and
necessarily incurred by Counter-Plaintiff in connection with each of his causes of actions
under Texas law
decree commanding Counter-Defendant Shelby Longoria to disgorge all
profits received by him or by others for his benefit as result of breach by him of his
fiduciary duty to Dorothy Louise Longoria
decree imposing constructive trust on all property acquired by Counter-
Defendant Shelby Longoria or by others for his benefit by means of breach of fiduciary
duty owed to Dorothy Louise Longoria
an award of prejudgment interest on all actual damages at the highest rate
authorized by law to the date of judgment
an award of all costs incurred by Counter-Plaintiff in the course of preparing
and prosecuting this civil action
ORIGiNAL COUNTERCLAiMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL Page 20
01490
an award of postjudgment interest on all monetary relief at the highest rate
authorized by law from the date of judgment until paid
10 judgment declaring that the Donation Agreement dated January 11 2005
is invalid and wholly unenforceable
11 all writs and processes necessary to collect the judgment and
12 all other relief to which Counter-Plaintiff is entitled or which the Court may
deem appropriate under the circumstances and the applicable law
Any inconsistent allegations or prayers for relief are pleaded in the alternative as
expressly authorized by TEx Civ 47 and 48
Reservation of Rights To Amend and To Supplement This Pleading
Because Counter-Plaintiff presently does not know all of Counter-Defendants acts
and omissions that caused harm to Dorothy Louise Longoria or her estate or all of the
relevant circumstances surrounding such acts and omissions Counter-Plaintiff anticipates
that it may be necessary to plead additional causes of action after discovery is completed
Accordingly Counter-Plaintiff hereby reserves the rights to amend and to supplement this
pleading
OPJGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 21
01491
VERIFICATION
STATE OF TEXAS
COU1TTY OF DALLAS
BEFORE ME the undersigned authority on this day appeared in person James Austin
Fisher and made the following statement under oath
My name is James Austin Fisher am one of the attorneys of
record for James Thomas Dorsey Independent Executor of the
Estate of Dorothy Louise Longoria Deceased in Case Number
414270 in Probate Court Number One of Harris County Texas
and am authorized under Rule 14 of the Texas Rules of Civil
Procedure to execute this verification on his behalf have read
the averments set forth in paragraphs 53 60 above and
through
affirm that those avennents are either within my personal
knowledge or are supported by evidence of which am aware
and are true and correct
James Austin Fisher
SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority by James
Austin Fisher on February 11 2015
Notary Public in and for Texas
tyl ws
Printed Name of Notary Public
My Commission Expires ei
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF TIlE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGOFJAS THIRD AMENDED CONTEST OF 2010 WILL Page 22
01492
DATED February 112015
Respectfully submitted
/s/Jwnes Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
email address jfisherfisherwelch.com
Shannon L.K Welch
State Bar of Texas Number 90001699
email address swelch@fisherwelch.com
FISHER WELCH
Professional Corporation
Ross Tower Suite 2800
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Facsimile 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
email address wes@wesholmes.com
THE HOLMES LAW FmM
10000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9266
ATTORNEYS FOR COUNTER-PLAINTIFF
JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF
THE ESTATE OF DOROTHY
LOUISE LONGORIA DECEASED
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 23
01493
CERTIFICATE OF SERVICE
hereby certify that on February 11 2015 true and conect copy of this document
was served on Shelby Longoria through his attorneys of record named below in the manner
indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schiemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
BY EMAIL TO jcarter@susmangodfrey.com rhess@susrnangodfrey.com and
kschleinrnerjsusrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO rnacintyre@rnrnlawtexas corn
/s/ James Austin Fisher
James Austin Fisher
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WiLL Page 24
01494
NO 414270
IN THE ESTATE OP IN THE PROBATE COURT
DOROTHY LOUiSE IONGORIA NUMBER ONE OP
DECEASED HARRIS COUNTY TEXAS
DOCKET CONTROL ORDER
The following Docket Control Order shall apply to this case unless moditled the coutt If dale
by no is given
below th item is governed by the Texas Rules of Civil Procedure
JOINDER All must be added and
parties served whether by amendment or third
party
pivotice by dat ThE PARTY CAUSING ITE IOINDER SHALL FROVLDE
this
COPY
OF THIS DOCKET CONTROL ORDER AT DIE TIME OP SERVICE
EXPERT V/ITNESSES DESIGNATION Expcrt witness are and
designations required
must be towed by the thllowing dales The designation must include the infonnatson listed in
Rule 1942fl and Failure to timely respond will be governed by Rule 19.6
/t5 Experts for partica
seeking affirmative ralitf
3iI All other experts
ALTERNATIVE DISPUTE RESOLUTION Mediation Ii hereby ORDERED and iball
be completed by Ibis date
ILIJLjj DISCOVERY PERIOD ENDS AU diaoovty must be conducted before the end of the
discovery period Parties seeking dtseuvtey must serve Sir in
requests sufficiently advance of
the end of the that the deadline for
discovery period responding wiul be within the dicuvery
period Counsel conduct this
may discovery beyond deadline by Rule 11 agreement
Incomplete discovery will not delay the trial
DESPOSIT1VE MOTIONS AND PLEAS Must be heard or act by submission as follows
Dispositivr motions or pleas subject to an must be considered
interlocutory appeal by this
date
9f3Oj5 Suntmary judgment motions not an
subject to interlocutory appeal must be considered by this
date
Cc 813/j5 Rule 166ai motions not be considered before
may this date
lfIdilS ChALLENGES TO EXPERT TESTIMONY All motions to exclude and
testinrony
ovideistiary clsnfleisgcs to export testimony must be flied by this date unites extended by
leave of court
SLILL PLEADINGS AU amendments sod supplements must be this date This order does
filed by
not preclude prompt filing ofploasJmgs directly responsive to any timely tiled
pleadings
j21jfl WRITTEN STATEMENTS OF TILE PARTIES CONTENTIONS are to be filed with the
Court and exchanged between the counsel thia date
parties by
AGREED WRITTEN STIPULATIONS axe to be filed with the Court and exchanged
between the parties counici by tbi dstn
CONTESTED ISSUES OF FACT arc to be filed with the Court and exchanged between
parties counsel by this date
PROPOSED IURY CILARGE QUESTIONS INSTRUCTIONS AND DEIrINTIONS
are to be filed with the Court and exchanged between pasties counsel date
by this
01495
MOTIONS LIMINE nittet be filed with the Ccort by this date
j/Il6 PIUtTRIAL CONFERENCE Parties shall be prepared to disesss all
aspects
of trial with
the court on this date TIME 3O p.m This mtfer rosy be DISMISSED FOR WANT
OF PROSECUTION for fUurs to appear at Pretrial
10 lL TRIAL If not assigned by the second Friday following
this date the case will be reset
Days Bench lury Panel
Sied Judge
PARTY Sreby PARTY
Counsel Name ts t.u Cctist.ete C- Counsel Name st C.
Address O0q LcL a_ans -----
Couneats5
Tdephonei
Telecopier 7i3554.666
Email
yl Driey Ain L.s.xr0
PARTY .cd%l4f P4ry
Counsel Name TsuicsA Fthc Ex
Counsel
FnrI
1w 4C
Firm
Address 2fOO
N.Akdf.1.4IdS1 2Oi
Telephone V4f p4s -tO
Telecopier 6L.i
Emafl Email
01496
Petition for Writ of Mandamus Conditionally Granted in Part and Denied
in Part and Opinion filed July 16 2015
In The
intnU nutt uf pid
NO 14-1S-00261-CV
Thi RE SHELBY LONGORIA Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
Probate Court No
Harris County Texas
Trial Court Cause No 414270
OPINION
On March 25 2015 relator Shelby Longoria filed petition for writ of
mandamus in this court See Tex Govt Code Ann 22.22 West 2004 see also
Tex App 52 In the petition Shelby asks this court to compel the Honorable
Loyd Wright presiding judge of Probate Court No of Harris County to set aside
his 18 2015 order denying Shelbys motion to dismiss the claims of real
February
01497
party in interest Adriana Longoria based on forum-selection clause We
conditionally grant the petition for writ of mandamus in
part and deny it in part
BACKGROUND
Eduardo Longoria Sr Mexican citizen and businessman was the father of
Shelby Longoria Adriana Longoria Eduardo Longoria Jr Wayo and Sylvia
In 2002 Eduardo transferred shares of his two Mexican holding
Dorsey
companies Vertice Empresarial S.A de C.V and Inmuebles Terrenos S.A de
C.V the Mexican companies to trust administered by Mexican bank
Banca Afirme Grupo Financiero Eduardo designated Shelby as 60% beneficiary
and Wayo 40% beneficiary of this trust which the parties describe as the Afirme
Trust At the same time Eduardo executed new will naming Shelby as
executor Eduardo also signed Carta de Voluntad or Wish Letter granting
and Adriana each cash be distributed over time by the
Sylvia $3000000 in to
Afirme Trust In December 2002 Eduardo and Adriana executed an Acuerdo
Privado or Private Agreement providing that Adriana would receive
$3000000 from the operating cash flow generated by the Mexican companies
Eduardo died in 2005 Dorothy Longoria Eduardos wife and the mother of
the children died in 2012 On May 2013 Tommy Dorsey Sylvias husband and
executor of Dorothys estate sued Shelby for demand for an accounting and
breach of duty to Dorothy alleging that Shelby had diverted her
fiduciary
community property interests to himself Specifically Tommy alleged among
other things that Shelby had induced Eduardo into signing the 2002 Afirme
which Eduardo of his and Dorothys shares in the Mexican
Trust into conveyed all
companies and of which he made Shelby and Wayo the beneficiaries and
01498
had induced Eduardo into signing the 2002 will leaving all of Eduardos
Shelby
remaining property to Shelby and Wayo
On June 18 2013 Shelby filed will contest alleging that Sylvia and
Adriana had exerted undue influence over Dorothy in connection with her will
which divided Dorothys estate equally between Adriana and Sylvia and named
the capacity the will
Tommy executor and that Dorothy lacked to execute Shelby
also sought the removal of Tommy as executor On August 23 2013 Shelby filed
third-party petition alleging that Sylvia and Adriana were responsible in
contribution for any damages found owing by Shelby to the estate
Adriana answered the will contest on December 2013 and filed
counterclaims against Shelby on January 2014 Adriana amended her
counterclaims on December 11 2014 February 2015 and February 11 2015
Adriana that induced Eduardo into entering the Private Agreement
alleged Shelby
and into believing that it would be fair allocation of the estate She also
counterclaimed for tortious interference with inheritance rights breach of fiduciary
tortious inference with the Private Agreement breach of the obligation to
duty
perform the Private Agreement and breach of the agreement to
pay Adriana
$100000 Dorothys death and sought declaration that an agreement called
upon
the Donation is not an enforceable contract.1
Agreement
On 14 2015 Shelby filed motion to dismiss Adrianas
January
counterclaims based on forum-selection clause in the Private Agreement that
for exclusive venue in the courts of Reynosa Tamaulipas Mexico
provides
Adriana does not explain in her third amended what the Donation Agreement is
petition
the parties to it
or identify
01499
In response to the motion to dismiss Adriana contended that the forum-
selection clause does not apply to her counterclaims the forum-selection clause
is unreasonable and unjust in light of pre-existing fiduciary relationship between
Shelby and Adriana where the agreement was made where the parties resided and
the of the Mexican forum the forum-selection clause is
unacceptability
unenforceable because it was procured through fraud and overreaching by Shelby
and Shelby waived his right to enforce the forum-selection clause by litigating
Adrianas counterclaims in the trial court for year without invoking the clause
The trial court held hearing on Shelbys motion to dismiss on February 12
2015 and signed the order denying Shelbys motion on February 18 2015
II MANDAMUS STANDARD OF REVIEW
To be entitled to mandamus relief relator must demonstrate the trial
court clearly abused its discretion and the relator has no adequate remedy by
appeal In re Reece 341 S.W.3d 360 364 Tex 2011 orig proceeding trial
court clearly abuses its discretion if it reaches decision so arbitrary and
unreasonable as to amount to clear and prejudicial error of law or if it
clearly
fails to analyze the law correctly or apply the law correctly to the facts In re
Cerberus Capital Mgmt L.P 164 S.W.3d 379 382 Tex 2005 orig proceeding
per curiam trial court abuses its discretion when it fails to properly interpret
or apply forum-selection clause In re Lisa Laser USA Inc 310 SW.3d 880
883 Tex 2010 orig proceeding @er curiam An appellate remedy is
inadequate when trial court improperly refuses to enforce forum-selection
clause because allowing the trial to go forward will vitiate and render illusory the
01500
subject matter of an appeal i.e trial in the proper forum Id Thus mandamus
relief is available to enforce an unambiguous forum-selection clause Id
HI Scope of the Forum-Selection Clause
Shelby argues that most of Adrianas claims fall within the scope of the
forum-selection clause in the Private Agreement.2
Forum-selection clauses are generally enforceable and presumptively valid
In re Laibe Corp 307 S.W.3d 314 316 Tex 2010 orig proceeding per
curiam In re Intl Profit Assocs Inc 274 S.W.3d 672 675 Tex 2009 orig
court abuses discretion in enforce
proceeding per curiam trial its refusing to
forum-selection clause unless the party opposing enforcement meets its heavy
burden of showing that enforcement would be unreasonable or unjust the
to the forum-selection clause he can enforce
Shelby contends that as non-signatory
the clause under estoppel principles Even though Adriana has not argued that Shelby cannot
enforce the forum-selection clause in the Private Agreement based on the fact that he is not
signatory to the Agreement we nonetheless address this issue
theories enforce arbitration
Equitable estoppel allowing non-signatories to agreements
also apply to forum-selection clauses Deep Water Slender Wells Ltd Shell Intl Exploration
Prod Inc 234 S.W.3d 679 69394 Tex App.Flouston Dist 2007 pet denied
citing Phoenix Network Techs Europe Ltd Neon Sys Inc 177 S.W.3d 605 62224 Tex
App.Houston Dist 2005 no pet. person
who has agreed to resolve disputes with
one party in particular forum may be required in some circumstances to resolve related disputes
with other parties
in the same forum Smith Kenda Capital LLC 45 S.W.3d 453 458 Tex
Dist 2014 no pet. Under the of direct benefits estoppel
App.Houston theory
enforce forum-selection clause that contains other terms on which the
nonsignatory may
signatory plaintiff must rely to
prosecute Id In re its claims Cornerstone Healthcare Holding
Grp Inc 348 S.W.3d 538 54445 Tex AppDallas 2011 orig proceeding Direct benefits
estoppel applies when signatorys claim against nonsignatory references or presumes the
existence of the written agreement containing the clause Smith 451 S.W.3d at 458 Adrianas
claims Shelby clearly reference or presume the existence the agreement containing the
against
forum-selection clause i.e the Private Agreement Therefore Shelby may enforce the forum-
selection clause in the Private Agreement to the extent that it
encompasses Adrianas claims
01501
clause is invalid for reasons of fraud or overreaching enforcement would
contravene strong public policy of the forum where the suit was brought or
the selected forum would be seriously inconvenient for trial Laibe Corp 307
S.W.3d at 316 In re ADMInv Servs Inc 304 S.W.3d 371 375 Tex 2010
orig proceeding
The court must first determine whether the claims fall within the scope of
the forum-selection clause Deep Water Slender Wells Ltd 234 S.W.3d at
8788 The court bases its determination on the language of the clause and the
nature of the claims purportedly subject to the forum-selection clause Id at 688
If the claims fall within the scope the court must determine whether to enforce the
clause Id
In construing contract we must ascertain and give effect to the parties
intentions as expressed in the writing itself Italian Cowboy Partners Ltd
Prudential Ins Co of Am 341 S.W.3d 323 333 Tex 2011 If contract is
worded so that it can be given certain ordefinite meaning then it is unambiguous
and the court will construe it as matter of law El Paso Field Servs L.P
MasTec Am Inc 389 S.W.3d 802 806 Tex 2012 if after applying the
pertinent rules of contract construction the contract is subject to two or more
reasonable interpretations the contract is ambiguous Id The court must enforce
an unambiguous contract as matter of law without considering parol evidence
DavidJ Sacks P.C Haden 266 S.W.3d 447 450 Tex 2008 per curiam
The Private Agreement between Eduardo and Sylvia provides the following
in relevant part
01502
First Regarthng TUE TRUST The parties recognize the
validity and scope of the TRUST and in this regard they are in
agreement with all its terms and conditions and therefore declare that
the agreement is the final and definitive will of the parties and
therefore they comply with all terms and agree that the shares
contributed to it are to be transferred to the designated beneficiaries
Second Paymeitt to ADRIANA LONGORIA KOWALSKL It is
the will of her father that the amount of $3000000.00 three million
U.S dollars be delivered to his daughter ADRIANA LONGORIA
KOWALSKI from the operating cash flow generated by the
companies represented by the shares contributed to the TRUST or
by their subsidiaries and therefore it is the obligation of EDUARDO
AND SHELBY LUIS LONGOR1A KOWALSK1 in the terms
mentioned below
On the date this Agreement is signed the balance to be delivered to
ADRIANA LONGORIA KOWALSKI in terms of the preceding
paragraph amounts to the sum USD $2069100.00 two million
sixty-nine thousand one hundred U.S dollars according the
statement of account that is attached hereto
By virtue of the foregoing an annual amount of $150000.00 one
hundred fifty thousand U.S dollars of principal and interest will be
given to ADRIANA LONGORIA KOWALSK1 in monthly
installments of $12500 twelve thousand five hundred U.S dollars
until the complete payment of the balance referred to above In
addition the balance payable shall earn normal interest rate of 75%
seventy-five percent of the prime rate published by the Wall Street
Journal
Third Final and Definitive Will of the Parties The parties state
that this Agreement is the final and definitive will of the parties
therefore they are in agreement with all its terms further stating that
there is no mistake fraud bad faith or any defect of will that might
affect their or decision the content
understanding regarding
01503
The TRUSTs obligation to deliver the mentioned quantities to
ADRIANA LONGORIA KOWALSKI in the terms set forth herein
shall continue in effect until full payment acknowledging that after
payment of the amounts referred to in this Agreement ADRIANA
LONGORIA KOWALSKI shall be satisfied in relation to any present
or future obligation charged to the TRUST assets or to those of
Messrs EDUARDO and SHELBY LUIS LONGOPJA KOWALSKI
Fourth Jurisdiction and Mexican Law This Agreement is
established under the jurisdiction and laws of the United Mexican
States Therefore the parties exclusively submit to the laws of
Mexico thus they expressly waive the application of any law
regulation provision or rule of any jurisdiction other than Mexico
which might correspond to them due to their residence paternity
citizenship domicile kinship or commercial relationship Therefore
in the event of any interpretation dispute or any aspect related to this
Trust they expressly submit to the court of the city of Reynosa
Tamaulipas Mexico
Likewise the issuance of any law regulation or provisions in
jurisdictions outside the Republic of Mexico or any act performed
outside the national territory by any party seeking to impose
restrictions on this Agreement or to impose the performance of acts
different from the purposes for which it is authorized ii impose
taxes duties or tax burdens other than those under Mexican Law iii
expropriate limit confiscate seize dispose of freeze or otherwise
affect the rights of the Agreement based on federal state or municipal
laws outside the jurisdiction of the Republic of Mexico shall not
apply to this Agreement in all eases the jurisdiction and laws of the
of the United Mexican States being applicable under the
Republic
terms of the previous paragraph
Having seen and read the foregoing the parties sign it in the city of
Reynosa Tamaulipas on DECEMBER 17th 2002
The Fourth Clause of the Private Agreement contains two paragraphs that
address the choice of forum and choice of law provisions The first paragraph
01504
provides the following with respect to the forum selected by the parties in the
event of any interpretation dispute or an aspect related to this Trust they
expressly submit to the courts of the city of Reynosa Tamaulipas Mexico.3
Adriana contends that the forum-selection clause does not apply to the
Private Agreement because it
specifically applies to the Afirme Trust Eduardo
created the Afirme into which he placed his and Dorothys shares of the
Trust
Mexican companies The Third Clause of the Private Agreement expressly states
that the source of the payments made to Adriana under the Agreement was the
Afirme Trust Adriana specifically alleged that Shelby induced Eduardo into
entering various transactions that would increase his own inheritance while
decreasing the inheritances of Wayo Sylvia and Adriana and Shelby induced
Eduardo into entering the Private Agreement and into believing that this would be
fair allocation of his estate Adriana further asserted that Shelby did not make
the required payments from the Afirme Trust but from Eduardos funds and then
from Dorothys funds after the death of Eduardo Shelby ceased making any
payments in October 2010
In the First Clause of the Private Agreement Adriana recognized the scope
and of the Afirme Trust and that the Mexican companies held in the Trust
validity
would be the source of money to make the payments to her under the Private
Agreement Adriana acknowledged this in her response to the mandamus petition
The Afirme Trust is the designated source of funds to pay Adriana under the
Private Agreement Without the Afirme Trust there would be no causes of action
against Shelby for interference with inheritance rights tortious interference with
Emphasis added
01505
the Private Agreement breach of his contractual obligation to perform the Private
breach of related the
Agreement or his fiduciary duty to purported trust
relationship created by the Private Agreement
Adriana contends that even if the forum-selection clause applies to the
Private Agreement which she implicitly
conceded would encompass her claims for
tortious interference with the Private Agreement and breach of the contractual
obligation to perform the Private Agreement it still does not apply to her claim for
tortious interference with inheritance rights Adriana has focused on the forum-
selection clause as applying to the Private Agreement As explained above the
forum-selection clause is applicable to Adrianas claims because she would have
no grounds for her allegations without the Afirme Trust
Moreover courts have consistently held the language any interpretation
dispute or any aspect related to is broad See e.g TGI Fridays Inc Great
Nw Rests Inc 652 Supp 2d 750 759 N.D Tex 2009 Forum selection
clauses cover claims relating to an agreement are broad in scope RSR Corp
Siegmund 309 S.W.3d 686 701 Tex App.Dailas 2010 no pet The phrase
relates to in particular is recognized as very broad term internal quotes and
citations omitted see also Young Valt.X Holdings Inc 336 S.W3d 258 263
Tex App.Austin 2010 pet dismd holding that each fraud breach of
fiduciary duty and securities claim arises under or relates to the stock sale
was encompassed by the forum-selection clause Adriana
and therefore
furthermore cannot plead tort claims to avoid the application of the forum-
selection clause if those causes of action relate to the Afirme Trust See My CafØ
CCC Ltd Lunchstop Inc 107 S.W.3d 860 866 Tex App.Dallas 2003 no
10
01506
pet Pleading alternative noncontractual theories of recovery will not alone
aoid forum selection clause if those alternative claims arise out of the
contractual relations and implicate the contracts terms.
Adriana does not address her claim for breach of the fiduciary duty that
allegedly arose prior to the existence of the Private Agreement We nonetheless
address whether Adrianas pre-contractual tort claim is subject to the forum-
selection clause This court and other courts have held that fraud-in-the-
inducement claims can be subject to forum-selection clause because it is
dispute involving the parties agreement See e.g Clark Power Ivfktg Direct
Inc 192 S.W.3d 796 799800 Tex App.Houston Dist 2006 no pet
My CafØ-CCC Ltd 107 S.W.3d at 867 see also Accelerated Christian Educ Inc
Oracle Corp 925 S.W.2d 66 73 Tex AppDallas 1996 no writ overruled
in part on other grounds by In re Tyco Elecs Power Sys Inc No 05-04-01808-
CV 2005 WL 237232 at Tex App.Dallas Feb 2005 orig proceeding
denied mem op stating that pre-contractual claims for
misrepresentations made before the execution of the contract are not excluded from
the scope of the forum-selection clause merely because the conduct took place
before the contract came into existence This court however did not address
whether forum-selection clause necessarily encompasses all pre-contractual
claims Clark 192 SW.3d at 800
As explained above the forum-selection clause is very broad encompassing
any interpretation dispute or any aspect related to this Trust When all the
claims arise out of the parties contractual relations and implicate the contracts
terms the forum selection clause will encompass all the causes of action relating to
11
01507
the agreement My CqfØ-CCC Ltd 107 S.W.3d at 866 Adriana claims that
had assumed fiduciary duty to her by making payments to her from the
Shelby
Mexican companies ten years prior to the execution of the Private Agreement
Those then continued from the funds of the Afirme Trust Adrianas
payments
claim for breach of fiduciary duty implicates the Afirme Trust and
pre-contractual
is subject to the forum-selection clause There would be no breach of fiduciary
duty without the trust
Adriana further asserts that the forum-selection clause does not apply to her
claim for breach of the promise between Shelby and Dorothy to pay her $100000
Dorothys death Shelby concedes that Adrianas claim for the breach of the
upon
to her $100000 Dorothys death does not fall within the scope
promise pay upon
of the forum-selection clause
As to her request for declaratory judgment that the January 11 2005
Donation Agreement is unenforceable Adriana first pleaded her request the day
before the hearing on Shelbys motion to dismiss Adrianas petition does not
explain what the Donation Agreement is no copy of the agreement was attached to
the petition and there was no briefing on the applicability of the forum-selection
clause to this claim Shelby however contends in his mandamus petition that the
agreement bears directly on the manner in which payments would be made under
Private the for judgment
the Agreement Shelby suggests request declaratory
was not before the court and trial court will be able to address the proper
venue for this claim the Donation Agreement upon receiving direction
from this Court relating to the other claims The trial court stated in its order that
it considered the pleadings of the parties and did not carve out any claims that were
12
01508
not being addressed in its ruling on the motion to dismiss We do not have enough
information from the mandamus record to determine that the forum-selection
clause encompasses Adrianas claim that Shelby breached the Donation
Agreement
In summary we hold that the forum-selection clause applies to Adrianas
claims for tortious interference with inheritance rights breach of fiduciary
duty tortious interference with the Private Agreement and breach of the
contractual obligation to perform the Private Agreement The forum-selection
clause however does not apply to Adrianas claim that Shelby breached the
to Adriana $100000 upon Dorothys death and based on this
agreement pay
record we cannot say that Adrianas claim that Shelby breached the Donation
Agreement falls within the scope of the forum-selection clause
OBJECTIONS RAISED ADRIANA
Adrianas Objections to the Mandamus Record
Adriana complains that Shelby cites in his mandamus petition materials
that were not presented to the trial court in connection with the motion to dismiss
which therefore should not be considered in the mandamus proceeding Adriana
refers to most of the items contained in the mandamus record filed by Shelby
including pleadings filed by the parties motion to quash the reporters record of
the hearing on previously denied motion to dismiss for forum non conveniens
and filings related to the motion to dismiss for forum non conveniens The trial
court stated in the order that it considered among other things the pleadings on
file Moreover relator must file certified or sworn copy of every document
that is material to the relators claim for relief and that was filed in
any underlying
13
01509
proceeding Tex App 52.7a1 There is nothing improper about the
items Shelby included in the mandamus record and we are not aware of any
authority for penalizing relator for erring on the side of over-inclusion in
connection with mandamus record Therefore we reject Adrianas contention
that we cannot consider most of the items in the record in our review of the
mandamus petition
Objections to Evidence Attached to the Motion to Dismiss
Adriana objected to Exhibits and 3A which were the October 15 2002
Banca Afirme Fideicomiso No 194-2 the Afirrne Trust and certified
translation of the Afirme Trust respectively Johnny Carter one of Shelbys
stated in his affidavit submitted in support of Shelbys motion to
attorneys
dismiss in relevant part
Attached as Exhibit is true and correct copy of document
dated October 15 2002 titled Banca Afirme Fideicomiso No 194-2
Attached as Exhibit 3A is true and correct copy of certified
translation of Banca Afirme Fideicomiso No 194.2
Adriana argued that Carter did not testify that Exhibit was true and
correct copy of the original or that he had personal knowledge of the execution or
terms of the original and because Exhibit 3A was translation of Exhibit
Exhibit 3A could have no better claim of authenticity than Exhibit Adriana
requested that the trial court strike and disregard Exhibits and 3A
Shelby asserts that Adriana waived her objections to Exhibits and 3A
because she did not obtain ruling from the trial court Shelby contends that Rule
166a standards for summary judgment proceedings govern the motion to dismiss
14
01510
for improper venue See Tex Civ 166a Courts look to cases on arbitration
for guidance on forum-selection clauses See e.g Snith 451 S.W.3d at 457
Reference to cases addressing the applicability of arbitration clauses is
appropriate when examining whether particular claims or parties fall within
forum selection clauses reach In re Boehme 256 S.W.3d 878 884 Tex
App.Houston Dist 2008 orig proceeding In deciding whether party
has waived forum-selection clause the Supreme Court has repeatedly resorted to
cases involving arbitration agreements.
In the arbitration context the court conducts to
trial
summary proceeding
determine the applicability of an arbitration clause based on the parties affidavits
pleadings discovery and stipulations In re Estate of Guerrero No 14-13-00580-
CV S.W.3d 2015 WL 1884068 at Tex App.Houston Dist
Apr 23 2015 pet filed en banc The procedure is similar to motion for
summary judgment and is subject to the same evidentiary standards Id
Under the summary judgment standard copies of documents must be
authenticated to constitute competent summary judgment evidence Id at
properly sworn affidavit stating that the attached documents are true and correct
copies of the original authenticates the copies so they may be considered as
summary judgment evidence Id
defect in the form of authentication of documents i.e defect in the
affidavit attempting to authenticate the attached documents is waived without an
objection in and ruling from the trial court Id at see also Hicks Humble
Oil Ref Co 970 S.W.2d 90 93 Tex AppHouston Dist 1998 pet
denied Appellants objected to Exxons exhibits as not being properly
15
01511
authenticated but did not get ruling of the trial court on
any of their objections
By failing to secure rulings on their objections to Exxons summary judgment
proof appellants have waived any complaint on this appeal as to their admissibility
Here Adriana the form of the authentication and
into evidence. objected to
therefore was required to obtain ruling on her objections
Adriana asserts that the trial court implicitly sustained her objections by
denying Shelbys motion to dismiss Shelby responds that ruling on the merits of
summary judgment motion is not an implicit ruling on evidentiary objections to
evidence and the prevailing party cannot avoid waiver of its
summary judgment
objections by arguing that it received favorable ruling on the merits
evidentiary
of the motion See Parkway Dental Assocs PA Ho Huang Props L.P 391
S.W.3d 596 604 Tex App.Houston Dist 2012 no pet holding that the
trial courts granting of summary judgment is not an implicit ruling on the
movants objection to the nonmovants summary-judgment evidence Duncan-
Hubert Mitchell 310 S.W.3d 92 100 Tex App.Dallas 2010 pet denied
holding that where movant objected to nonmovants evidence it could not be
inferred that the trial court sustained movants objections merely by granting
summary judgment
Even if the summary judgment procedure were not followed in the context
of motion to dismiss for forum-selection clause to preserve complaint for
appellate review the record must show the complaint was made to the trial court
by timely request objection or motion that was sufficiently specific and the trial
court ruled on the request objection or motion either expressly or implicitly or
refused to rule on the request objection or motion and the complaining party
16
01512
objected to the refusal Tex App 33.1a There is nothing in the record to
suggest that the trial court implicitly ruled on Adrianas objections to Shelbys
exhibits submitted in support of his motion to dismiss At the hearing there was
argument concerning the Afirme Trust but Adriana did not object to the
authentication of the Afirme Trust
Adriana also objected to Exhibit to the motion dismiss which was the
affidavit of Shelbys Mexican law expert Dr Carlos Gabuardi and in particular
paragraph subparagraphs and and paragraphs 1i because they
contained opinions of the meaning and legal effect of the ordinary terms of
contract which are questions of law for the court and the parol evidence rule
prohibits the admission of extrinsic evidence that alters the terms of written
contract Adriana further objected that the remainder of Gabuardis affidavit was
inelevant asked the trial court to sustain her objections and strike and disregard
Gabuardi affidavit
An objection to defect in the substance of an affidavit may be raised for the
first time on appeal Pipkin Kroger Tex L.P 383 S.W.3d 655 670 Tex
App.Houston Dist 2012 pet denied The complained of portions of
Gabuardis affidavit are mostly his interpretations of the Private Agreement and
the forum-selection clause which are questions of law for the court See Akin
Santa Clara Land Co Ltd 34 S.W.3d 334 339 Tex App.San Antonio 2000
pet denied Expert testimony regarding the legal interpretation of an
unambiguous encroaches the trial courts determine
agreement upon province to
the correct legal interpretation. No ruling on an objection was required to
preserve error on those portions of Gabuardis affidavit because they offered legal
17
01513
conclusions See Rarnirez Transcon Ins Co 881 S.W.2d 818 829 Tex
AppHouston Dist 1994 writ denied holding that objection to an
affidavit on the grounds that it states only legal conclusion is one that relates to
defect of substance which may be raised for the first time on appeal
Even though Adriana did not waive her objections to Gabuardis affidavit
we need not address her objections in light of the well-settled rules for contract
construction We have considered the interpretation of the forum-selection clause
as question of law reviewing the trial courts interpretation de novo without
considering parol evidence See DavidJ Sacks P.c 266 S.W.3d at 450
VI ADRIANAS DEFENSES TO THE ENFORCEABILITY OF THE FORUM-SELECTION
CLAUSE
Whether the Forum-Selection Clause is Unreasonable or Procured by
Fraud
Adriana argues the forum-selection clause in the Private Agreement is
unreasonable because it contravenes pre-existing and overarching fiduciary
relationship between Shelby and her and it was procured by fraud Adriana claims
confidential relationship arose between Shelby and her prior to the execution of
the Private Agreement because Shelby had ssumed the obligation to make
payments to her from the revenue of the Mexican companies he had been
managing for number of years According to Adriana because informal
fiduciary relationships are not recognized in Mexico the application of the forum-
selection clause and the choice-of-law clause4 would deprive her of rights which
The choice-of-law clause was not the subject of Shelbys motion to dismiss
18
01514
had vested prior to the Private Agreements existence Adriana claims that Shelby
in his role as fiduciary failed to make her aware of the Private Agreements
negating potential cause of action Also based on this claimed fiduciary
relationship Adriana asserts that she was fraudulently induced into executing the
forum-selection clause
No duty of disclosure arises without evidence of confidential relationship
Ins Co of Am Morris 981 SW.2d 667 67475 Tex 1998 failure to
disclose information
may constitute fraud where there is duty to disclose
Bradfbrd Vento 48 S.W.3d 749 7545 Tex 2001 Fraudulent inducement
to sign an agreement containing dispute resolution agreement such as an
arbitration clause or forum-selection clause will not bar enforcement of the clause
unless the specific clause was the product of fraud or coercion Lyon Fin Servs
Inc 257 S.W.3d 228 232 Tex 2008 orig proceeding per curiam The fraud
or in must involve the negotiation of the forum-selection
overreaching question
clause itself Young 336 S.W.3d at 26667
However party who signs contract is presumed to know its contents and
its legal effects Profits Assocs Inc 286 S.W.3d at 923 Mo Pac R.R Co
Lely Dev Corp 86 S.W.3d 787 791 Tex App.Austin 2002 pet dismd
party cannot avoid contract clause by simply failing to read it In re US Home
Corp 236 S.W.3d 761 764 Tex 2007 orig proceeding @er curiam
Evidence that party concealed forum-selection clause combined with evidence
proving that concealment was part of an intent to defraud party may be sufficient
to invalidate the clause Profits Assocs Inc 286 S.W.3d at 923
19
01515
Adriana in her affidavit in
support of her response to Shelbys motion to
dismiss claimed that Shelby discouraged me from reading the ACUERDO
PRIVADO He did not say to me that it contained clause saying that submitted
to the courts of the city of Reynosa Tamaulipas Mexico in the event of any
interpretation dispute or other aspect of the ACUERDO PRIVADO or words to
that effect and have had no such understanding either when signed it or since
then Adriana does not claim that Shelby prevented her from reading the forum-
selection clause An allegation that Shelby merely discouraged her from reading
the Private Agreement before she signed it is not sufficient to establish fraud See
Id at 92324 rejecting relators argument that forum-selection clause was
procured by fraud or overreaching because relator was not shown the clause US
Home Corp 236 S.W.3d at 764 holding there was no evidence of fraud as
relators conceded that no one prevented them from reading the back-side of
single sheet contract that contained the arbitration clause
Moreover Eduardo and Adriana agreed that the Private Agreement was the
final and definitive will of the parties and there was no mistake fraud bad faith
or any defect of will that might affect their understanding or decision regarding the
content See In re Emex Holdings LLC No 13-ll-00145-CV 2013 WL
1683614 at Tex App.Corpus Christi Apr 18 2013 orig proceeding
denied mem op en banc noting that the parties stated in the agreement that
there was no fraud bad faith injury or any other cause of nullity established by
law and holding that the real parties had not clearly shown that the forum-selection
clause was the product of fraud or overreaching
20
01516
Here Adrianas claim that she trusted Shelby as fiduciary to tell her that the
forum-selection clause would negate potential cause of action for breach of
fiduciary duty in Mexico does not render forum-selection clause unenforceable
See id holding parties who did not read the forum-selection clause before signing
the agreement because they had instructed the attorney to change the clause and
trusted him to do so were charged with knowledge of the forum-selection clause
Not being able to bring certain causes of action in the designated forum is not
reason to avoid enforcement of forum-selection clause Lyon Fin Servs Inc
257 S.W.3d at 234 holding inability to assert claim for
usury under Pennsylvania
law did not create public policy reason to deny enforcement of the forum-
selection clause
Moreover Adriana has not shown any evidence that Shelby knew that she
would not be able to maintain claims for breach of fiduciary duty based on an
informal confidential relationship under Mexican law claim based on the
failure to disclose information necessarily that the party with the duty to
presumes
speak has knowledge of the facts Cf Four Bros Boat Works Inc Tesoro
Petroleum Cos 217 S.W.3d 653 670 Tex App.Houston Dist 2006 pet
denied stating that the failure to disclose information does not constitute fraud
unless there is duty to disclose information Shelby had no duty to disclose facts
of which he was not aware See HTM Rests Inc Goldman Sachs Co 797
S.W.2d 326 329 Tex App.Houston Dist 1990 writ denied party
cannot be guilty of fraudulently or intentionally concealing facts of which he is not
aware Although silence can be form of misrepresentation the duty to speak
does nct arise until the silent party is aware of the facts citations omitted
21
01517
Adriana has not shown that Shelby had duty to disclose to her the forum-
selection and choice-of-law provisions in the Private Agreement and their
consequences Adriana further has not demonstrated that the forum-selection and
choice-of-law provisions were procured by fraud or overreaching
Whether Reynosa Tamaulipas Mexico is Seriously Inconvenient
Forum
Adriana further contends that the forum-selection clause is unenforceable as
seriously inconvenient such that she will be denied her day in court because the
specified forumReynosa Tamaulipas Mexicois one of the most dangerous
places in the world When inconvenience in litigating in the chosen forum is
foreseeable at the time of contracting the challenger must show that the trial in the
contractual forum will be so gravely difficult and inconvenient that he will for all
practical purposes be deprived of his day in court ADM mv Servs Inc 304
S.W.3d at 375 By entering into an agreement with forum-selection clause the
parties effectively represent to each other that the agreed forum is not so
inconvenient that enforcing the clause will deprive either party of its day in court
whether for cost or other reasons Intl Profit Assocs Inc 274 S.W.3d at 680
Adriana agrees that financial difficulties and inconvenience to the witnesses are not
sufficient to avoid application of the forum-selection clause but asserts that the
dangerous conditions in Reynosa render the forum seriously inconvenient See
Lyon Fin Servs Inc 257 S.W.3d at 254 In re Zotec Partners LLC 353 S.W.3d
533 537 Tex App.San Antonio 2011 orig proceeding
Relying on forum-non-conveniens cases Shelby contends that purported
dangerous conditions are not sufficient to avoid enforcement of forum-selection
22
01518
clause in the absence of evidence that such conditions have an adverse impact on
the operation of the judiciary.5 Shelby presented uncontroverted evidence that
Adriana Sylvia and Tommy have hired attorneys and filed claims against him in
Tamaulipas Adrianas Mexican law expert has handled litigation in Tamaulipas
and Reynosa has fuiiy functioning court system Adriana responds that forum
non conveniens cases are not applicable in the forum-selection clause analysis We
disagree There is no reason not to consider forum non conveniens cases which
have addressed whether political unrest or other conditions render the alternative
forum inadequate
See e.g Paoliceiii Ford Motor Co 289 Fed Appx 387 391 11th Cir 2008
absent evidence the political unrest has affected the Colurnbian judicial system or would affect
litigation of this case this fact is not sufficient to outweigh the other factors that weigh in favor
of dismissal Rustal Trading US Inc Makki 17 Fed Appx 331 337 6th Cir 2001
holding political unrest in foreign jurisdiction did not render the forum inadequate absent
some showing that the unrest had had an adverse effect on the judicial system there Transunion
Corp PepsiCo Inc 811 F.2d 127 129 2d Cir 1987 holding there had been no showing that
political unrest in the Philippines had an adverse impact on the judicial system Miralda
Tidewater Inc Civ No 11-1170 2012 WL 3637845 at ED La Aug 23 2012
observing that several federal appellate courts had uniformly concluded that political unrest of
the alternative forum had not per se rendered the forum inadequate in the forum non conveniens
context absent some showing that this unrest negatively affected the judicial system of the
country or the litigation at issue Morales Ford Motor Co 313 Supp 2d 672 682 S.D
Tex 2004 rejecting contention that political situation in Venezuela would make trial in U.S
more convenient because of paucity of evidence and information submitted to the court on the
issue In re Bridgestone/Firestone Inc Tires Prods Liability Litig 190 Supp 2d 1125
114344 S.D md 2002 considering physical threats to litigants and witnesses arising from
then current volatile political situation in Columbiaof particular interest the fact that in
the recent past judicial officers have been the targets of guerilla violationto be factor
weighing in favor of retaining jurisdiction In re BPZ Res Inc 359 S.W.3d 866 879 Tex
App.Houston Dist 2012 orig proceeding denied holding that political unrest
alone was insufficient to establish that Peru was an inconvenient forum
23
01519
Under these circumstances Adriana has not shown that litigating in Reynosa
is so gravely difficult and inconvenient that she will for all practical purposes be
deprived of her day in court
Waiver of the Right to Enforce the Forum-Selection Clause
Adriana asserts that Shelby has waived his right to enforce the forum-
selection clause Adriana pleaded four of her six counterclaims on January
2014 and added two claims in her amended pleadings on December 11 2014
February 2015 and February 11 2015 Shelby litigated those four original
causes of action for year including pleading affirmative defenses based on Texas
law before seeking dismissal of Adrianas claims pursuant to the forum-selection
clause
party may waive the right to enforce forum-selection clause Boehme
256 S.W.3d at 884 In determining waiver of forum-selection clause the court
may look to arbitration cases for guidance Id The test for waiver of an
arbitration clause is whether the party seeking arbitration has substantially
invoked the judicial process and the party resisting arbitration suffered actual
prejudice as result Id
Waiver is primarily function of intent and requires either the intentional
relinquishment of known right or intentional conduct inconsistent with claiming
that right Crosstex Energy Servs L.P Pro Plus Inc 430 S.W.3d 384 39394
Tex 2014 Whether party has substantially invoked the judicial process
depends on the totality of the circumstances Richmont Holdings Inc Superior
Recharge Sys L.L.C 445 S.W.3d 573 575 Tex 2015 per curiam
24
01520
Adriana contends that Shelby substantially invoked the judicial process by
deposing her and serving her with written discovery requests
and by having his
own deposition taken and responding to Adrianas discovery requests
These
limited actions do not establish that Shelby substantially invoked the judicial
process such that he waived his right to enforce the forum-selection clause See In
re Vesta Ins Grp Inc 192 S.W.3d 759 76364 Tex 2006 orig proceeding
per curiarn holding the relators did not substantially invoke the judicial process
by serving requests for disclosure noticing four depositions and sending request
for production In re AIU Ins Co 148 S.W.3d 109 121 Tex 2004 orig
proceeding holding the relator did not waive enforcement of the forum-selection
clause by filing answer requesting jury and paying the jury fee Boehme 256
S.W.3d at 885 holding that deposing three witnesses producing two witnesses for
deposition exchanging documents and participating in
temporary injunction
hearing did not constitute waiver of forum-selection clause
Adriana also asserts that she has been prejudiced by Shelbys delay in
seeking to enforce the forum-selection clause Mere delay in moving to enforce
the forum-selection clause does not constitute waiver Cf Richinont Holdings
Inc 455 S.W.3d at 576 holding that moving to compel arbitration nineteen
months after lawsuit was filed was not waiver of right to arbitrate Vesta Ins Grp
Inc 192 S.W.3d at 76364 holding that moving to compel arbitration two years
after lawsuit was filed was not waiver of right to arbitrate
Adriana contends that Shelby gained an advantage in this litigation by
questioning her at her deposition about the Private Agreement and payments made
pursuant to it Shelby responds that he had been seeking to take Adrianas
25
01521
deposition since June 2013 several months prior to Adriana filing her
counterclaims Shelbys counsel questioned Adriana about the Private Agreement
because Adriana had initiated changes to Dorothys will due to her dissatisfaction
with the payments she received pursuant to the Private Agreement Adriana cannot
show prejudice from any discovery requests to which she responded as she chose
to litigate in forum not agreed to by the parties See In re Automated Collection
Techs Inc 156 S.W.3d557 560 Tex 2004 orig proceeding per curiam
holding that real party in interest could not show prejudice from any duplication
of time or efforts in litigating case where it had initiated proceedings in forum
other that the one to which it had contractually agreed
Adriana further that she suffered prejudice by Shelbys delay in
argues
invoking the forum-selection clause because the one-year statute of limitations in
Mexico will limit her recovery of damages Shelby points out that because the last
payment Adriana received under the Private Agreement was in October 2010 the
delay from January 2014 to January 2015 is immaterial for limitations purposes in
Mexico Moreover Adriana is complaining of the choice-of-law provision in the
Private Agreement which is not the subject matter of the trial courts order or this
original proceeding Adriana has not shown that she has been prejudiced by
Shelbys delay in seeking to enforce the forum-selection clause Therefore
Adriana has not established that Shelby waived his right to enforce the forum
selection clause
VII CONCLUSION
We hold that Adrianas claims for tortious interference with inheritance
rights breach of fiduciary duty tortious interference with the Private Agreement
26
01522
and breach of the contractual obligation to perform the Private Agreement fall
within the scope of the forum-selection clause but Adrianas claims for breach of
the agreement to pay her $100000 upon Dorothys death and breach of the
Donation Agreement do not We further hold that Adriana has not established that
the forum-selection clause was procured as result of overreaching or fraud that
Reynosa Taumalipas is seriously inconvenient forum or that Shelby waived his
right to enforce the clause
Thus the trial court abused its discretion by denying Shelbys motion to
dismiss based on the forum-selection clause contained in the Private Agreement as
to Adrianas claims for tortious interference with inheritance rights breach of
fiduciary duty tortious interference with the Private Agreement and breach of the
contractual obligation to perform the Private Agreement and Shelby does not have
an adequate remedy by appeal The trial court did not abuse its discretion by
denying Shelbys motion to dismiss as to Adrianas claims for breach of the
agreement to
pay her $100000 upon Dorothys death and breach of the Donation
Agreement
Accordingly we conditionally grant the petition for writ of mandamus in
and direct the court to vacate its 18 2015 order to the extent
part trial February
that it denies Shelbys motion to dismiss as to Adrianas claims for tortious
interference with inheritance rights breach of fiduciary duty tortious interference
with the Private Agreement and breach of the contractual obligation to perform the
Private Agreement and dismiss those claims We deny the remainder of the
petition as to Adrianas claims for breach of the agreement to pay her $100000
27
01523
upon Dorothys death and breach of the Donation Agreement The writ will issue
only if the trial court fails to act in accordance with this opinion
Is Tracy Christopher
Justice
Panel consists of Justices Christopher Donovan and Brown
28
01524
CASE NUMBER 414270
IN THE ESTATE OF IN PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED HARPJS COUNTY TEXAS
FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF THE ESTATE OF
DOROTHY LOUISE LONGORIA DECEASED TO
SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL
TO THE HONORABLE JUDGE OF THIS COURT
COMES NOW James Thomas Dorsey in his capacity as Independent Executor
of the Estate of Dorothy Louise Longoria Deceased as Counter-Plaintiff and pleads
the following counterclaims in response to Shelby Longoria Third Amended
Contest of2O 10 Will or any pleading subsequently filed by Shelby Longoria stating
the following causes of action as Counter-Defendant
against Shelby Longoria
Discovery Level
Pursuant to TEx Civ 190 Counter-Plaintiff states that discovery
in this case is intended to be conducted under Level of that Rule
Overview
These counterclaims are brought by citizen of Texas against another
citizen ofTexas Counter-Plaintiff is the personal representative of an estate pending
FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01525
in this Court and adjudication of these counterclaims is essential to administration
of that estate The Decedent lived in Texas for the last 25 years of her life These
counterclaims are based entirely on Texas law None of them is based on any law of
the United Mexican States
The Parties
Counter-Plaintiff James Thomas Dorsey is an individual who is bringing
these counterclaims in his capacity as the duly appointed Independent Executor of the
Estate of Dorothy Louise Longoria Deceased
Counter-Defendant Shelby Longoria is an individual who resides in
Hidalgo County Texas Counter-Defendant commenced this action and has
appeared through counsel in this action so this pleading may be served on him
through his attorneys of record
Jurisdiction
Pursuant to Sections Sections 32.001 32.002 and 32.005 of the Texas
Estates Code the Court has jurisdiction over the subject matter of this civil action
The Estate of Dorothy Louise Longoria is pending in this Court and this Court is
statutory probate court As explained more fully below this action is brought by
personal representative on behalf of that estate and this action is related to that estate
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01526
In addition the exercise of pendent or ancillary jurisdiction over this action is
necessary to promote judicial efficiency and economy
The Court has inpersonam jurisdiction over Counter-Defendant Shelby
Longoria by virtue of his filing of Shelby Longoria Third Amended Contest of2O 10
Will in
response to which these counterclaims are pleaded In addition general
personal jurisdiction exists because the Counter-Defendant has had continuous and
systematic contacts with the State of Texas and specific personal jurisdiction exists
because this action arises out of contacts by the Counter-Defendant with the State of
Texas as explained below
Venue
Pursuant to Sections 33.00 and 33.002 of the Texas Estates Code the
venue of this action is
proper because the Estate of Dorothy Louise Longoria
Deceased is pending in this Court and this action is related to that estate as
explained more fully below
Conditions Precedent
All conditions precedent to Counter-Plaintiffs rights to plead and to
prosecute these counterclaims and to recover the relief requested herein have
occurred or been fulfilled
FIRSTAMENDED COU1TTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01527
Facts Applicable to All Causes of Action
On July 1942 Eduardo Longoria Eduardo and Dorothy Louise
Kowaiski Dorothy were married in the City of Laredo in Webb County Texas
10 When they were married Dorothy was citizen of the United States of
America and Eduardo was citizen of the United Mexican States Mexico but he
had been living in the United States and after the wedding the couple initially settled
in McAllen Texas
11 The marriage of Eduardo and Dorothy was subject to the laws of the
State of Texas including the law of community property
12 Eduardo and Dorothy had four children all of whom are living Their
names are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known
as Wayo Longoria Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria
Shelby All of them reside in Texas
13 Eduardo and Dorothy amassed considerable wealth through variety of
business activities and investments
This petition does not recite fact on which the Counter-Plaintiffs claims are
every
based It is intended only to be short statement of the cause of action sufficient to give fair
notice of the claim involved as required by TEx Civ 47
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01528
14 Overtime Shelby took control over the business and investments owned
by Eduardo and Dorothy
15 Shelby managed property and accounts owned by Dorothy and
represented to her that he was doing so for her benefit Indeed the account
statements were not even sent to Dorothy even though she was identified as the sole
owner of the accounts The accounts included but are not limited to the following
accounts collectively Dorothys Accounts in Mexico
Banamex Account Number 7572369315
Banamex Account Number 7518181565 and
BanRegio Account Number 75-00454-001-8
16 In addition Shelby expressly agreed to hold in trust for the benefit of
Dorothy property that Shelby obtained from Eduardo In letter to Dorothy dated
August 1983 for example Shelby and Wayo promised Dorothy that the assets
that Daddy has willed to us as we will hold them
long as you live as if they were
yours and will make the fruits available to you for your direction as to their
use These promises were made by Shelby while he was residing in Texas and they
were set forth in letter that was sent to Dorothy from an address in Texas Shelby
breached these promises to Dorothy by failing to account for the that was
property
FIRSTAMENDED COUNTERCLAiMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORJA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01529
given to Shelby by Eduardo by concealing from Dorothy material facts about that
property including its nature extent value and profitability by failing to hold and
maintain that property as if it belonged to Dorothy by paying himself income
generated by the property by failing to disclose to Dorothy that he had done so and
by failing generally to make the fruit of that property available to her for her use
17 Likewise in letter dated October 2007 which Shelby sent to
Dorothy at her residence in Houston Texas Shelby made specific promises with
respect to large sum of money that Eduardo wished for Dorothy to have upon his
death Admitting that he held such funds in trust for Dorothy and in recognition that
Dorothy intended to leave her estate to her daughters Shelby promised that within
thirty days after Dorothy died he would pay $100000 to Sylvia and $100000 to
Adriana Upon Dorothys death Shelby repudiated and breached this promise to
Dorothy While he did tender check for $100000 to Sylvia and check for
$100000 to Adriana he printed on the checks language that if the checks were
negotiated would have resulted in release of their rights in Dorothys estate and
rights against Shelby self-serving conditions which Shelby had no right to impose
The fact that Shelby arbitrarily demanded such releases for his benefit as conditions
on his performance of an unconditional duty to pay $100000 to Sylvia and $100000
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01530
to Adriana proves that Shelby knew that Dorothy owned valuable claims against
him Shelby knew that Dorothy intended to leave her entire estate to Sylvia and
Adriana and Shelby knew that Sylvia and Adriana themselves had valuable
claims against him all of which he now dishonestly denies
18 Shelby owed fiduciary duty to Dorothy as an agent for Dorothy
as trustee of an express trust for the benefit of Dorothy and in addition or in the
alternative pursuant to an informal fiduciary relationship with Dorothy
19 In contravention of his fiduciary duty to Dorothy under Texas law
Shelby failed to advise Dorothy fully and fairly regarding the nature and extent of her
property and his actions with respect to her property and the property he was holding
in trust supposedly for her benefit
20 In fact Shelby managed for his own benefit Dorothys property as well
as property he was holding in trust supposedly for her benefit He caused income
from the property to be paid to him or to others for his benefit and failed to disclose
to Dorothy that he had done so
21 Eduardo died on January 26 2005 at the age of 91 He was born on
October25 1913
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONUORIA DECEASED
TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL Page
01531
22 When Eduardo died all of the property in his estate was community
property of which one-half was owned by Dorothy under Texas law
23 Eduardo died in Webb County Texas where he and Dorothy had lived
for many years
24 After the death of Eduardo Shelby continued to manage Dorothys
property and continued to represent to her that he was managing her property for her
benefit but he intentionally concealed from Dorothy the nature extent and value of
her property what he had done with her property over the years and how much
money he had been paid or otherwise derived from the property
25 In fact Shelby managed the property for his own benefit and engaged
in self-dealing transactions that he failed to disclose to Dorothy
26 Dorothy died in Harris County Texas on April 2012 at the age of 92
She was born on May 1919
27 By order dated October 2012 this Court admitted to probate
Dorothys Last Will and Testament dated January 21 2010 and appointed James
Thomas Dorsey Independent Executor of the Estate of Dorothy
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONUORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01532
28 Letters Testamentary were issued to James Thomas Dorsey on the same
day and such Letters Testamentary are currently in full force and effect so he is frilly
authorized to bring this action
29 Whenever it is alleged herein that Shelby acted or communicated in any
fashion then such allegation should be taken to mean
That the Shelby himself took such action or made such
communication or in the alternative
That duly authorized agent of Shelby took such action or made
such communication on behalf of Shelby and in the course and scope of the agency
or in the alternative
That such action or communication was by one having apparent
authority to do so on behalf of Shelby or in the alternative
That Shelby ratified and adopted such action or communication
as his own and thereby became legally responsible for it
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THiRD AMENDED CONTEST OF 2010 WILL Page
01533
First Cause of Action
Demand for Accounting
30 Counter-Plaintiff repeats and incorporates by reference all of the
foregoing averments If any averment is inconsistent with this cause of action the
averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas
Rules of Civil Procedure
31 Pursuant to Section 489B of the Texas Probate Code Section 113.15
of the Texas Trust Code and the common law of the State of Texas Counter-Plaintiff
is entitled to and hereby requests that Shelby provide full accounting of1 all of
his activities as an agent for Dorothy all transactions done or caused by him
involving property owned in whole or in part by Dorothy including but not limited
to Dorothys Accounts in Mexico and all transactions involving property held by
him in trust for Dorothy
32 Anticipating that Shelby will plead the defense of limitations in response
to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil
Practice and Remedies Code is applicable and precludes application of any statute of
limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule
and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure
Shelby concealed from Dorothy the nature extent and value of her property what he
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 10
01534
had done with her property over the years and how much money he had been paid or
otherwise derived from the property The nature of the injuries to Dorothy and her
estate were inherently undiscoverable because of the relationship of trust and
confidence between Dorothy and Shelby and because he breached his fiduciary duty
of full disclosure of all facts that might affect Dorothys interests The injuries to
Dorothy and her estate are objectively verifiable because money that should have
been paid to Dorothy was withheld from her and diverted to Shelbys benefit
33 It was both reasonable and necessary for Counter-Plaintiff to retain
attorneys to prepare and to prosecute this action Pursuant to Section 113.151 of the
Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to
and hereby requests an award of attorney fees including litigation expenses
reasonably and necessarily incurred in connection with this action
Second Cause of Action
Breaches of Fiduciary Duty
34 Counter-Plaintiff repeats and incorporates by reference all of the
foregoing averments If any averment is inconsistent with this cause of action the
averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas
Rules of Civil Procedure
FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY NDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 11
01535
35 Under Texas law Shelby breached his fiduciary duty to Dorothy by
failing to disclose to her fully and fairly all information that might affect her
interests in property managed by him including both her community property and
property held by Shelby in trust for her failing to act with utmost good faith and
fair dealing in the management of her property and property held in trust for her and
in his other activities her interests
affecting failing to act with undivided loyalty
to Dorothy in the management of her property and property held by him in trust for
her and in his other activities affecting her interests and engaging in self-dealing
transactions that were detrimental to her and in addition or in the alternative
improperly benefited him
36 The breaches of fiduciary duty by Shelby proximately caused
compensable harm to Dorothy and her estate Under Texas law Counter-Plaintiff is
entitled to and hereby requests entry ofjudgment against Shelby for actual damages
in an amount to be determined by the trier of fact in accordance with Texas law The
damages awarded should include all amounts of money which were withdrawn from
Dorothys Accounts in Mexico and which Shelby cannot show specifically to have
been withdrawn for Dorothys benefit or with her fully informed consent In the
alternative the damages awarded should at minimum include all amounts of
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 12
01536
money which were withdrawn from Dorothys Accounts in Mexico and used to make
payments to her daughters Adriana and Sylvia based on the alleged contract dated
January 11 2005 written in Spanish entitled CONTRATO DE DONACION the
Donation Agreement which is forgery and unenforceable for the reasons set
forth in the Fifth Cause of Action herein
37 The breaches of fiduciary duty by Shelby constituted fraud gross
negligence and malice as those terms are defined in Chapter 41 of the Texas Civil
Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose
to Dorothy all facts that might affect her interests Shelby intentionally or in the
alternative with reckless disregard for Dorothys rights concealed from Dorothy the
nature extent and value of her property what he had done with her property over the
years and how much money he had been paid or otherwise derived from the property
Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of
judgment against Shelby for exemplary damages in an amount to be determined by
the trier of fact in accordance with Texas law
38 Shelby derived profits by means of the breaches of his fiduciary duty to
Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry
ofjudgment decreeing that Shelby disgorge all profits received by him or by his wife
FRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 13
01537
his children or other persons result of the breaches of his
any designated by him as
fiduciary duty to Dorothy
39 Shelby acquired property by means of the breaches of his fiduciary duty
to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests
entry of judgment imposing constructive trust on all property acquired by Shelby
his his children or
or by wife any other persons designated by him by means of the
breaches of his fiduciary duty to Dorothy
40 Anticipating that Shelbywill plead the defense of limitations in response
to this cause of action Counter-Plaintiffpleads that Section 16.069 of the Texas Civil
Practice and Remedies Code is applicable and precludes application of any statute of
limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule
and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure
Shelby concealed from Dorothy the nature extent and value of her property what he
had done with her property over the years and how much money he had been paid or
otherwise derived from the property The nature of the injuries to Dorothy and her
estate were inherently undiscoverable because of the relationship of trust and
confidence between Dorothy and Shelby and because he breached his fiduciary duty
of full disclosure of all facts that might affect Dorothys interests The injuries to
FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 14
01538
Dorothy and her estate are objectively verifiable because money that should have
been paid to Dorothy was withheld from her and diverted to Shelbys benefit
41 It was both reasonable and necessary for Counter-Plaintiff to retain
attorneys to prepare and to prosecute this action Pursuant to Section 114.064 of the
Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to
and hereby requests an award of attorney fees including litigation expenses
reasonably and necessarily incurred in connection with this action
Third Cause of Action
Breach of Promise To Hold Property for Dorothys Benefit
42 Counter-Plaintiff repeats and incorporates by reference all of the
foregoing averments If any averment is inconsistent with this cause of action the
averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas
Rules of Civil Procedure
43 Shelby promised Dorothy that he would hold in trust for Dorothy all of
the assets that Eduardo gave to Shelby and Wayo and that he would make the income
from such property available to her for her direction as to their use These promises
were made by Shelby while he was residing in Texas Shelby breached these
promises to Dorothy by failing to account for the property that was given to Shelby
and Wayo by Eduardo by concealing from Dorothy material facts about that property
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOPJA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 15
01539
including its nature extent value and profitability by failing to hold and maintain
that property as if it belonged to Dorothy by paying himself income generated by the
property by failing to disclose to Dorothy that he had done so and by failing
generally to make the fruit of that property available to her for her use
44 These breaches by Shelby proximately caused compensable harm to
Dorothy and her estate Based on the doctrines of breach-of-contract promissory
estoppel and money-had-and-received under Texas law Counter-Plaintiff is entitled
to and hereby requests entry of judgment against Shelby for actual damages in an
amount to be determined by the trier of fact in accordance with Texas law The
damages awarded should include all amounts of money which were withdrawn from
Dorothys Accounts in Mexico and which Shelby cannot show specifically to have
been withdrawn for Dorothys benefit or with her fully informed consent In the
alternative the damages awarded should at minimum include all amounts of
money which were withdrawn from Dorothys Accounts in Mexico and used to make
payments to her daughters Adriana and Sylvia based on the alleged contract dated
January 11 2005 written in Spanish entitled CONTRATO DE DONACION the
Donation Agreement which is forgery and unenforceable for the reasons set
forth in the Fifth Cause of Action herein
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 16
01540
45 Anticipating that Shelby will plead the defense of limitations in response
to this cause of action Counter-Plaintiffpleads that Section 16.069 of the Texas Civil
Practice and Remedies Code is applicable and precludes application of any statute of
limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule
and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure
Shelby concealed from Dorothy the nature extent and value of her property what he
had done with her property over the years and how much money he had been paid or
otherwise derived from the property The nature of the injuries to Dorothy and her
estate were inherently undiscoverable because of the relationship of trust and
confidence between Dorothy and Shelby and because he breached his fiduciary duty
of full disclosure of all facts that
might affect Dorothys interests The injuries to
Dorothy and her estate are objectively verifiable because money that should have
been paid to Dorothy was withheld from her and diverted to Shelbys benefit
46 It was both reasonable and necessary for Counter-Plaintiff to retain
attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas
Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff
is entitled to and hereby requests an award of attorney fees including litigation
expenses reasonably and necessarily incurred in connection with this action
FIRSTAMENDED COUNTERCLAiMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOPJA DECEASED
TO SHELBY LONGOEJAS THIRD AMENDED CONTEST OF 2010 WELL Page 17
01541
Fourth Cause of Action
Breach of Promise To Pay $100000 to Adriana and $100000 to Sylvia
47 Counter-Plaintiff repeats and incorporates by reference all of the
foregoing averments If any averment is inconsistent with this cause of action the
averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas
Rules of Civil Procedure
48 Shelby promised Dorothy that within thirty days of her death he would
pay $100000 to Adriana and $100000 to Sylvia These promises were made by
Shelby while he was residing in Texas and they were directed to Dorothy at her
residence in Houston Texas Shelby breached these promises to Dorothy by
tendering to Adriana and Sylvia checks that they could not negotiate without waiving
their rights in Dorothys estate and their rights against Shelby self-serving
conditions which Shelby had no right to impose
49 Based on the doctrines of breach-of-contract promissory estoppel and
money-had-and-received under Texas law Counter-Plaintiff is entitled to and
hereby requests entry of judgment against Shelby for $200000 in accordance with
Texas law
50 Anticipating that Shelby will plead the defense of limitations in response
to this cause of action Counter-Plaintiff pleads that Section 16.069 ofthe Texas Civil
FiRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIIAS THIRD AMENDED CONTEST OF 2010 WILL Page 18
01542
Practice and Remedies Code is
applicable and precludes application of any statute of
limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule
and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure
Shelby concealed from Dorothy the nature extent and value of her property what he
had done with her property over the years and how much money he had been paid or
otherwise derived from the property The nature of the injuries to Dorothy and her
estate were inherently undiscoverable because of the relationship of trust and
confidence between Dorothy and Shelby and because he breached his fiduciary duty
of full disclosure of all facts that might affect Dorothys interests The injuries to
Dorothy and her estate are objectively verifiable because money that should have
been paid to Dorothy was withheld from her and diverted to Shelbys benefit
51 It was both reasonable and necessary for Counter-Plaintiff to retain
attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas
Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff
is entitled to and hereby requests an award of attorney fees including litigation
expenses reasonably and necessarily incurred in connection with this action
FIRST AMENDED COUNTERCLAMS OF JAMES THOMAS DORSEY EDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 19
01543
Fifth Cause of Action
Declaration of Invalidity of Donation Agreement dated January 11 2005
52 Counter-Plaintiff repeats and incorporates by reference all of the
foregoing averments If any averment is inconsistent with this cause of action the
averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas
Rules of Civil Procedure
53 On January 2015 Shelby produced for the first time photocopy of
document dated January 11 2005 written in Spanish entitled CONTRATO DE
DONACION the Donation Agreement The Donation Agreement purports to be
signed by Eduardo and Dorothy
54 By order dated January 29 2014 Shelby was ordered by this Court to
produce documents such as the Donation Agreement no later than February 282014
His production of the Donation Agreement on January 2015 was over ten months
late
55 On the date of the Donation Agreement Eduardo was dying and on
hospice care Fifteen days later Eduardo died The Executor believes and now
avers that on January 112005 Eduardo lacked the requisite mental capacity to make
legally enforceable contract
FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL Page 20
01544
56 The Donation Agreement states that it was signed in Reynosa
Tamaulipas Eduardo was not in Reynosa on the date of the Donation Agreement
57 In the seven years that Dorothy lived after the date of the Donation
Agreement she never mentioned it to either of her daughters both of whom lived
near her in Houston or to her son-in-law the Executor whom she saw frequently
or in her correspondence which was extensive or in her personal notes where she
wrote extensively about her financial situation Indeed during those seven years she
made numerous statements both written and oral that are inconsistent with the
existence of the Donation Agreement
58 Based on the foregoing facts and others the Executor believes and
therefore avers that the Donation Agreement is forgery
59 The Executor believes and now avers that the Donation Agreement is
unenforceable for lack of consideration or in the alternative for failure of
consideration
60 There exists an actual controversy between the Executor and Shelby as
to whether or not the Donation Agreement is valid and enforceable contract
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 21
01545
61 Consequently under Chapter 37 of the Texas Civil Practice and
Remedies Code the Executor hereby requests entry ofajudgment declaring that the
Donation Agreement is invalid and wholly unenforceable
62 Pursuant to Section 37.009 of the Texas Civil Practice and Remedies
Code the Executor requests an award of costs and reasonable and necessary
attorneys fees as are equitable and just
Prayer for Relief
WHEREFORE PREMISES CONSIDERED Counter-Plaintiff James Thomas
Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased
prays that upon due notice and trial by jury or upon hearing on motion for entry of
default judgment or motion for summary judgment the Court render judgment for
Counter-Plaintiff and against Counter-Defendant Shelby Longoria awarding the
following relief under Texas law
decree commanding Counter-Defendant Shelby Longoria to render an
accounting of all
property that was owned in whole or in part by Dorothy Louise
Longoria and that was within his possession custody or control and all transactions
affecting her property and an accounting of all actions taken by him as her agent or
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 22
01546
trustee specifically including complete accounting of all monies withdrawn from
Dorothys Accounts in Mexico
an award of actual damages from and against Counter-Defendant Shelby
Longoria in amounts to be determined by the trier of fact in accordance with Texas
law but the maximum amount of actual damages currently sought by Counter-
Plaintiff while reserving his right under Texas law to amend this pleading to request
greater or lesser amount as more evidence is uncovered and the whole truth comes
to light is $43500000
an award of exemplary damages from and against Counter-Defendant
Shelby Longoria in amounts to be determined by the trier of fact in accordance with
Texas law but the maximum amount of exemplary damages currently sought by
Counter-Plaintiff while reserving his right under Texas law to amend this pleading
to request greater or lesser amount as more evidence is uncovered and the whole
truth comes to light is $10000000
an award of attorney fees including litigation expenses reasonably and
necessarily incurred by Counter-Plaintiff in connection with each of his causes of
actions under Texas law
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 23
01547
decree commanding Counter-Defendant Shelby Longoria to disgorge
all profits received by him or by others for his benefit as result of breach by him
of his fiduciary duty to Dorothy Louise Longoria
decree imposing constructive on all acquired
trust property by
Counter-Defendant Shelby Longoria or by others for his benefit by means of
breach of fiduciary duty owed to Dorothy Louise Longoria
an award of prejudgment interest on all actual damages at the highest
rate authorized by law to the date of judgment
an award of all costs incurred by Counter-Plaintiff in the course of
preparing and prosecuting this civil action
an award of postjudgment interest on all monetary relief at the highest
rate authorized by law from the date ofjudgment until paid
10 judgment declaring that the Donation Agreement dated January 11
2005 is invalid and wholly unenforceable
11 all writs and processes necessary to collect the judgment and
12 all other relief to which Counter-Plaintiff is entitled or which the Court
may deem appropriate under the circumstances and the applicable law
FIRSTAMENDED COTJNTERCLAJMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 24
01548
Any inconsistent allegations or prayers for relief are pleaded in the alternative
as expressly authorized by TEx Civ P.47 and 48
Reservation of Rights To Amend and To Supplement This Pleading
Because Counter-Plaintiff presently does not know all of Counter-Defendants
acts and omissions that caused harm to Dorothy Louise Longoria or her estate or all
of the relevant circumstances surrounding such acts and omissions Counter-Plaintiff
anticipates that it may be necessary to plead additional causes of action after
discovery is completed Accordingly Counter-Plaintiff hereby reserves the rights to
amend and to supplement this pleading
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 25
01549
VERIFICATION
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME the undersigned authority on this day appeared in person James
Austin Fisher and made the following statement under oath
My name is James Austin Fisher am one of the attorneys
of record for James Thomas Dorsey Independent Executor
of the Estate of Dorothy Louise Longoria Deceased in
Case Number 414270 in Probate Court Number One of
Harris County Texas and am authorized under Rule 14
of the Texas Rules of Civil Procedure to execute this
verification on his behalf have read the averments set
forth in paragraphs 53 through 60 above and affirm that
those averments are either within my personal knowledge
or are supported by evidence of which am aware and are
true and correct
James Austin Fisher
SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority
by James Austin Fisher on August 2015
A-n lCtI cvl r.i
Printd Name of Notary Public
My Commission Expires Lp
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 26
01550
DATED August 2015
Respectfully submitted
/s/ James Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
email address jfisherfisherwelch.com
Shannon L.K Welch
State Bar of Texas Number 90001699
email address swelch@fisherwelch corn
FISHER WELCH
Professional Corporation
Ross Tower Suite 2800
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Facsimile 214.661.9404
ATTORNEYS FOR COUNTER-
PLAINTIFF
JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF
THE ESTATE OF DOROTHY
LOUISE LONGORTA DECEASED
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 27
01551
CERTIFICATEOF SERVICE
hereby certify that on August 2015 true and correct copy of this
document was served on Shelby Longoria through his attorneys of record named
below in the manner indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schlemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
YEMAIL TOjcartersusmangodfrey corn rhesssusrnangodfrey corn and
kschlernmersusrnangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
2900 Weslayan Suite 150
Houston Texas 77027
BY EMAIL TO rnacintyrernrnlawtexas corn
/s/ James Austin Fisher
James Austin Fisher
FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 28
01552
Dv PROBATE COURT
FILED
8/27/2015 94018 PM
Stan Stanart
Clerk
County
Harris County
CASE NUMBER 414270
IN THE ESTATE OF INTHE PROBATE
DOROTHY LOUISE LONGORIA COURT NUMBER ONE
DECEASED HARRIS COUNTY TEXAS
Shelby Longorias Motion to Dismiss the
Estates Counterclaims Relating to Dorothy Longorias Banamex Accounts
Shelby Longoria Shelby moves to dismiss the Estates counterclaims arising out of
Dorothy Longorias Dorothy Banamex bank accounts Mexican Bank Accounts
The Estate first asserted its theory of bank account misappropriation in an amended
petition filed on February 11 2015 fifteen days before Shelby filed his summary-judgment
motion.1 In amended disclosure responses served on June 2015 the Estate purported to
calculate its
damages based on this theory The bulk of the damages related to withdrawals
from two Banamex bank accounts
On December 12 1999 Dorothy opened Banamex US Dollars Checking Account no
On February 10 2005 Dorothy opened Banamex Mexican pesos Checking
Account no Dorothy passed away on April 2012 On April 18 2012 both the
Banamex Mexican pesos account and the Banamex Dollars account were closed.4
After Dorothy died Sylvia offered one of her mothers purported wills to probate
Sylvias husband James Thomas Dorsey Tommy was appointed executor of Dorothys estate
As the Estates executor Tommy sued Shelby Shelby filed will contest and claims against
Sylvia and Adriana and Sylvia and Adriana each raised additional counterclaims against Shelby
1Exh 1at4-5
Exh This document contains sensitive data Per TRCP 21c all sensitive data has been redacted an unredacted
copy will be maintained during the pendency of this case and any appeal
3Exh.3
4EXh Further Attached as Exh 103 the First Amended Disclosures of James Thomas Dorsey Independent
Executor of the Estate of Dorothy Louise Longoria the Estates attachments show that the last transaction of the
Banamex Dollars checking account occurred on December 20 2010 at 78 and the last transaction for the Banamex
Mexican pesos checking account occurred on April 16 2012 at 51
3801298v11013774
01553
Beginning in February 2015 the Estate alleged that Shelby was liable to the Estate for all
amounts of money which were withdrawn from Dorothys Accounts in Mexico and which
Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her fully
formed consent.5 These claims must be dismissed under the terms of the Banamex
plain
Agreement forum-selection clause
II
The Banamex Accounts Are Subject to Forum-Selection Clauses
In Mexico to determine the terms and conditions in force in contract with bank it is
not enough to examine the language of the original contract Because banks can unilaterally
change the terms and conditions by notifying the customer of the changes necessary to also
it is
examine all versions of the agreement through the duration of the contract for any changes
Attached as Exhibit to this motion is the Affidavit of Carlos Gabuardi respected Mexican
lawyer and academic Professor Gabuardi explains that Mexican law allows for banks to
unilaterally change the terms of contracts in accordance with their notification clauses.6 For this
reason banks make the contents of their contracts public in the Registry of Adhesive Contracts
RECA.7 In this system the terms and conditions in force are those currently registered and not
the terms established at the time of execution.8 If an account the terms and conditions
is closed
in force are those that are established at the time the bank account closed.9
For the Banamex Dollars Dorothy signed an application with language that
incorporates separate document containing the terms and conditions Similarly the language
Exh at 36 the Estate Sylvia and Adrian all raise other counterclaims that are not subject to this motion
6Exh atJj 14
71d at 16
81d at 9-10
91d at1jJ 14
Exh
Id at translated in Exhibit 2A
3801298v1/013774
01554
above the signature in the application to the Banamex Mexican Account12
pesos incorporates
separate document containing terms and conditions.3
Attached as Exhibit 6A are the terms and conditions that were in effect on April 18
2012 the date when the accounts were closed Thus the terms and conditions in Exhibit 6A
apply to both Banamex Accounts
III
The Estates Claims Must Be Dismissed Pursuant to the
Mexican Banks Respective Forum-Selection Clauses
In construing forum-selection clause our primary goal is to give effect to the written
expression of the parties agreement We must read the provision in its entirety striving to
give meaning to every sentence clause and word to avoid rendering any portion inoperative
Phoenix Network Techs Europe Ltd Neon Sys Inc 177 S.W.3d 605 615 Tex App
Houston Dist 2005 no pet Southwest Inc Hotel Networks
quoting Intelecom Corp
997 S.W.2d 322 324 Tex App Austin 1999 pet denied
The Plain Language of the Forum-Selection Clause Encompasses the Estates Claims
The Banamex forum selection clause provides provides for Mexican venue for
any dispute relating to the peso and Dollars accounts
CLAUSE XIII.17 JURISDICTION The present Contract will be governed
by the laws of Mexico the parties shall the jurisdiction of the
expressly accept
courts of Mexico other them under
City waiving any that may correspond to
whatever circumstance.14
12
Exhibit
13
Id at translated in Exhibit 3A
Exhibit at 20 XIII.17 Translated in Exhibit 6A
3801298v1/013774
01555
As Dorothys representative the forum-selection clause applies to the Executor and
Executors claims on the Estates behalf
The Forum-Selection Clauses Provides for Exclusive Jurisdiction in Mexico
By agreeing that the contract is governed by the laws of Mexico the parties shall
expressly accept the jurisdiction of the courts of Mexico City waiving other that
any may
correspond to them under whatever circumstance the parties established Mexico as the exclusive
forum for resolution of disputes in the Banamex accounts See In re Automated Collection
Techs Inc 156 S.W.3d 557 558 Tex 2004 directing dismissal of Texas case where the
parties had consented to the exclusive jurisdiction of the courts of Montgomery County
Pennsylvania.
The Estate has run afoul of the forum-selection clauses of both Banamex bank account
agreements by filing this lawsuit in Texas under Texas law Where as here the parties agree to
submit to venue in one jurisdiction while waiving venue in other locations they have made
selection of an exclusive forum for S.W.3d
resolving claims In re Fisher 433 523 532 Tex
2014 finding that forum-selection clause was mandatory even when the selected jurisdiction
was non-exclusive when the contract stated that party agrees not to bring any proceeding
arising out of or relating to this Agreement in any other court In re Emex Holdings L.L.C
2013 WL 1683614 at Tex App Corpus Christi Apr 18 2013 orig proceeding finding
that the following clause was enforceable and exclusive The parties agree that for the
construction and compliance herewith submit themselves to the Jurisdiction and
they expressly
Competence of the Common Affairs Laws and Courts seated in Mexico waiving to any other
that may correspond to them due to their present or future domiciles Dixon TSE Intl Inc
330 F.3d 396 397 5th Cir 2003 finding that the following clause was enforceable and
3801298v1/013774
01556
exclusive The Courts of Texas U.S.A shall have jurisdiction over all controversies with
to the execution or of and waive
respect interpretation performance this Agreement the parties
any other venue to which they may be entitled by virtue of domicile or otherwise Export
Import Bank of the US Hi-Films S.A de 2010 WL 3743826 at S.D.N.Y Sep 24
2010 forum-selection clauses are mandatory even though they do not expressly use the word
exclusive because the parties waived other jurisdictions
The Result Is the Same Under Mexican Law
When contract contains choice-of-law clause the Court must apply the law chosen by
the parties to determine the scope of the forum-selection clause Hooks Indus Inc Fairmont
Supply Co 2001 WL 395341 at Tex App.Houston Dist Apr 19 2001 no pet
Martinez Bloomberg LP 740 F.3d 211 224 2d Cir 2014 Albemarle Corp AstraZeneca
UK Ltd 628 F.3d 643 651 4th Cir 2010 Yavuz 61 MM Ltd 465 F.3d 418 428 10th Cir
2006
Here the parties to the Banamex bank agreements chose the application of Mexican law
In his Affidavit Professor Gabuardi explains that Mexican law recognizes forum-selection
clauses15 and that the forum-selection clause here written to
is express the parties intent that
lawsuits concerning the respective Bank Accounts will be brought in Mexico.16
The Court Must Enforce the Forum-Selection Clause and Dismiss
trial court must presume that mandatory forum-selection clause is valid and
enforceable In re Boehme 256 S.W.3d 878 881 Tex App.Houston Dist 2008 orig
proceeding emphasis in original The trial court gives full effect to forum selection clause
absent strong showing by the resisting party that the court should set aside the clause because
5Exh atJ 15
16Id.atjJj 16
3801298v1/013774
01557
the clause is invalid based on reasons such as fraud undue influence or overweening
bargaining power or enforcement would be unreasonable and unjust Smith Kenda
Capital LLC 2014 WL 5783581 at Tex App.Houston Dist Oct 21 2014 no pet
quoting Deep Water Slender Wells Ltd Shell Intl Explor Prod Inc 234 S.W.3d 679
692 Tex App.Houston Dist 2007 pet denied Enforcement can be avoided only in
extreme circumstances that courts cannot presently anticipate or foresee In re ADM Investor
Servs Inc 304 S.W.3d 371 376 Tex 2010
Because the forum-selection clause that both Banamex accounts
governs is mandatory
and there is no reason not to enforce it this Court must dismiss the Estates counterclaims based
on the Bank agreements forum-selection clause See Deep Water Slender Wells Ltd Shell Intl
Explor Prod Inc 234 S.W.3d 679 687 Tex App.Houston Dist 2007 pet denied
motion to dismiss is the mechanism for forum-selection clause
proper procedural enforcing
that party to the agreement has violated in filing suit.
Conclusion
The Court should enter the proposed order submitted with this motion and dismiss the
Estates claims arising out of Dorothys Banamex bank accounts
Respectfully submitted
SUSMAN GODFREY L.L.P
By/s/ Mateo Fisher
Johnny Carter
State Bar No 00796312
jcartersusmangodfrey.com
Richard Hess
State Bar No 24046070
3801298v1/013774
01558
rhesssusmangodfrey.corn
Kristen Schiemmer
State Bar No 24075029
kschlemmersusmangodfrey .com
Mateo Fisher
State Bar No 24077692
mfishersusmangodfrey.com
1000 Louisiana Street Suite 5100
Houston Texas 77002-5 096
Telephone 713 651-9366
Fax 713 654-6666
Robert Maclntyre Jr
State Bar No 12760700
macintyre@mmlawtexas.com
Maclntyre McCulloch Stanfield Young
2900 Weslayan Suite 150
Houston Texas 77027
Telephone 713 547-5400
Attorneys for Shelby Longoria
3801298v1/013774
01559
CERTIFICATE OF CONFERENCE
Counsel for Shelby Longoria has conferred with counsel for James Thomas Dorsey on
August 25 2015 in good faith effort to resolve the matters raised by this motion and counsel
for Plaintiff is opposed to the disposition of the matters raised in this motion
/s/ Mateo Fisher
Mateo Fisher
CERTIFICATE OF SERVICE
This is to certify that on August 27 2015 true and correct of the above and
copy
foregoing instrument was properly forwarded to the following counsel of record in accordance
with Rule 21 of the Texas Rules of Civil Procedure as indicated below
James Austin Fisher Via E-Service
Fisher Welch
Ross Tower Suite 2800
500 North Akard Street
Dallas Texas 75201
Email jfisher@fisherwelch.com
Attorneys for James Thomas Dorsey Sylvia Dorsey and Adriana Longoria
/s/Mateo Fisher
Mateo Fisher
3801298v1/013774
01560
01561
Case Number 414270
IN THE ESTATE OF IN THE PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED
HARRIS COUNTY TEXAS
Affidavit of Mateo Fisher
Mateo Fisher declare as follows
My name is Mateo Fisher am over the age of twenty-one 21 years am
to to the matters stated herein have personal knowledge of the facts and
competent testify
statements in this declaration and each of the facts and statements is true and correct
am an attorney in the law firm of Susman Godfrey L.L.P am licensed to
law in the state of Texas and before this Court represent Shelby Longoria in the above
practice
Motion to Dismiss
referenced litigation provide this affidavit in support of Shelby Longorias
the Estates Counterclaims Relating to Dorothy Longorias Banamex Accounts
Attached as Exhibit true and correct of the Original Counterclaims of
is copy
James Thomas Independent Executor of the Estate of Dorothy Louise Longoria
Dorsey
Deceased To Shelby Longorias Third Amended Contest of 2010 Will of February Il 2015
Attached as Exhibit is true and correct copy of document produced by
Longoria bates-labelled SLONGORIAOO3O85 consisting of signed bank account
Shelby
application for Banamex Dollars Checking Account dated December 12 1999
Attached as Exhibit 2A is true and correct certified partial translation of Exhibit
document produced by Shelby Longoria bates-labelled SLONGORIAOO3O85 consisting of
01562
signed bank account application for Banamex Dollars Checking Account dated December 12
1999
Attached as Exhibit is true and correct copy of document produced by
Longoria bates-labelled SLONGORIAOO274O consisting of signed bank account
Shelby
application for Banamex Mexican pesos Checking Account dated February 10 2005
Attached as Exhibit 3A is true and correct certified partial translation of
document produced by Shelby Longoria bates-labelled SLONGORIAOO274O consisting of
Banamex Mexican Account dated
signed bank account application for pesos checking February
10 2005
Attached as Exhibit is true and correct copy of Banamex Bank document
that the Banamex Dollars checking account no and the Banamex Mexican
showing
pesos checking account no were both closed on April 18 2012
Attached as Exhibit is true and correct copy of the Affidavit of Dr Carlos
Gabuardi
10 Attached as Exhibit is true and correct copy of document produced by
bates-labelled SLONGORIAOO2934 consisting of the terms and conditions for
Shelby Longoria
Banamex checking accounts
11 Attached as Exhibit 6A true and correct copy of document produced by Shelby
of terms and for
Longoria bates-labelled SLONGORIAOO2934 consisting the conditions
Banamex checking accounts
12 Attached as Exhibit 103 is true and correct redacted copy of the First Amended
Disclosures of James Thomas Independent Executor of the Estate of Dorothy Louise
Dorsey
Longoria of June 2015
01563
FURTHER AFFIANT SAITH NOT
3k
Mateo Fisher
SUBSCRIBED AND SWORN TO BEFORE ME Notary Public by Mateo Fisher on
this 27th day of August 2015 to certify which witness my official hand and seal of office
ii
ALLEN
Notai y/Public in and for the State of Texas
Pubhc State ol Texas
Notary
Commission Expires 0622 2018
crnniission
My Fpii es
_______________________
01564
01565
EXHIBIT
01566
CASE NUMBER 414270
IN THE ESTATE OF IN PROBATE COURT NUMBER ONE
DOROTHY LOUISE LONGORIA
DECEASED HARRIS COUNTY TEXAS
O1UGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF THE ESTATE OF
DOROTHY LOUISE LONGORIA DECEASED TO
SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL
TO THE HONORABLE JUDGE OF THIS COURT
COMES NOW James Thomas Dorsey in his capacity as Independent Executor of the
Estate of Dorothy Louise Longoria Deceased as Counter-Plaintiff andpleads the following
counterclaims in
response to Shelby Longoria Third Amended Contest of2O 10 Will stating
the following causes of action against Shelby Longoria as Counter-Defendant
Discovery Level
Pursuant to TEx CIV 190 Counter-Plaintiff states that discovery in this
case is intended to be conducted under Level of that Rule
Overview
These counterclaims are brought by citizen of Texas against another citizen
of Texas Counter-Plaintiff is the personal representative of an estate pending in this Court
and adjudication of these counterclaims is essential to administration of that estate The
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED
TO SHELBY LONGORTIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01567
Decedent lived in Texas for the last 25 years of her life These counterclaims are based
entirely on Texas law None of them is based on any law of the United Mexican States
The Parties
Counter-Plaintiff James Thomas Dorsey is an individual who is bringing these
counterclaims in his capacity as the duly appointed Independent Executor of the Estate of
Dorothy Louise Longoria Deceased
Counter-Defendant Shelby Longoria is an individual who resides in Hidalgo
County Texas Counter-Defendant commenced this action and has appeared through
counsel in this action so this pleading maybe served on him through his attorneys of record
Jurisdiction
Pursuant to Sections 4A 4B and 4F of the Texas Probate Code the Court has
jurisdiction over the subject matter of this civil action The Estate of Dorothy Louise
Longoria is pending in this Court and this Court is statutory probate court As explained
more fully below this action is brought by personal representative on behalf of that estate
and this action is related to that estate In addition the exercise of pendent or ancillary
jurisdiction over this action is necessary to promote judicial efficiency and economy
The Court has in
personam jurisdiction over Counter-Defendant Shelby
Longoria by virtue of his filing of Shelby Longorias Third Amended Contest of 2010 Will
in
response to which these counterclaims are pleaded In addition general personal
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01568
jurisdiction exists because the Counter-Defendant has had continuous and systematic
contacts with the State of Texas and specific personal jurisdiction exists because this action
arises out of contacts by the Counter-Defendant with the State of Texas as explained below
Venue
Pursuant to Section 6A of the Texas Probate Code the venue of this action
is proper because the Estate of Dorothy Louise Longoria Deceased is pending in this Court
and this action is related to that estate as explained more fully below
Conditions Precedent
All conditions precedent to Counter-Plaintiffs rights to plead and to prosecute
these counterclaims and to recover the relief requested herein have occurred or been
fulfilled
Facts Applicable to All Causes of Action
OnJuly3 1942 Eduardo LongoriaEduardo andDorothyLouiseKowalski
Dorothy were married in the City of Laredo in Webb County Texas
10 When they were married Dorothy was citizen of the United States of
America and Eduardo was citizen of the United Mexican States Mexico but he had
This petition does not recite every fact on which the Counter-Plaintiffs claims are
based It is intended only to be short statement of the cause of action sufficient to give fair
notice of the claim involved as required by TEx CIV 47
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL Page
01569
been living in the United States and after the wedding the couple initially settled in
McAllen Texas
11 The marriage of Eduardo and Dorothy was subject to the laws of the State of
Texas including the law of community property
12 Eduardo and Dorothy had four children all of whom are living Their names
are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo
Longoria Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All
of them reside in Texas
13 Eduardo and Dorothy amassed considerable wealth through variety of
business activities and investments
14 Over time Shelby took control over the business and investments owned by
Eduardo and Dorothy
15 Shelby managed property and accounts owned by Dorothy and represented to
her that he was doing so for her benefit Indeed the account statements were not even sent
to Dorothy even though she was identified as the sole owner of the accounts The accounts
included but are not limited to the following accounts collectively Dorothys Accounts
in Mexico
Banamex Account Number 7572369315
Banamex Account Number 7518181565 and
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01570
BanRegio Account Number 75-00454-001-8
16 In addition Shelby expressly agreed to hold in trust for the benefit of Dorothy
property that Shelby obtained from Eduardo In letter to Dorothy dated August 1983 for
example Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us
as long as you live we will hold them as if they were yours and will make the fruits
available to you for your direction as to their use These promises were made by Shelby
while he was residing in Texas and they were set forth in letter that was sent to Dorothy
from an address in Texas Shelby breached these promises to Dorothy by failing to account
for the property that was given to Shelby by Eduardo by concealing from Dorothy material
facts about that property including its nature extent value and profitability by failing to
hold and maintain that property as if it belonged to Dorothy by paying himself income
generated by the property by failing to disclose to Dorothy that he had done so and by
failing generally to make the fruit of that property available to her for her use
17 Likewise in letter dated October 2007 which Shelby sent to Dorothy at
her residence in Houston Texas Shelby made specific promises with respect to large sum
of money that Eduardo wished for Dorothy to have upon his death Admitting that he held
such funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate
to her daughters Shelby promised that within thirty days after Dorothy died he would pay
$100000 to Sylvia and $100000 to Adriana Upon Dorothys death Shelby repudiated and
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01571
breached this promise to Dorothy While he did tender check for $100000 to Sylvia and
check for $100000 to Adriana he printed on the checks language that if the checks were
negotiated would have resulted in release of their rights in Dorothys estate and rights
against Shelby self-serving conditions which Shelby had no right to impose The fact that
Shelby arbitrarily demanded such releases for his benefit as conditions on his performance
of an unconditional duty to pay $100000 to and $100000 to
Sylvia Adriana proves that
Shelby knew that Dorothy owned valuable claims against him Shelby knew that
Dorothy
intended to leave her entire estate to Sylvia and Adriana and Shelby knew that Sylvia and
Adriana themselves had valuable claims against him all of which he now dishonestly
denies
18 Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as
trustee of an express trust for the benefit of Dorothy and in addition or in the alternative
pursuant to an informal fiduciary relationship with Dorothy
19 In contravention of his fiduciary duty to Dorothy under Texas law Shelby
failed to advise Dorothy fully and fairly regarding the nature and extent of her property and
his actions with respect to her property and the property he was holding in trust supposedly
for her benefit
20 In fact Shelby managed for his own benefit Dorothys property as well as
property he was holding in trust supposedly for her benefit He caused income from the
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THiRD AMENDED CONTEST OF 2010 WL Page
01572
property to be paid to him or to others for his benefit and failed to disclose to Dorothy that
he had done so
21 Eduardo died on January26 2005 at the age of9l He was born on October
25 1913
22 When Eduardo died all of the property in his estate was community property
of which one-half was owned by Dorothy under Texas law
23 Eduardo died in Webb County Texas where he and Dorothy had lived for
many years
24 After the death of Eduardo Shelby continued to manage Dorothys property
and continued to represent to her that he was managing her property for her benefit but he
intentionally concealed from Dorothy the nature extent and value of her property what he
had done with her property over the years and how much money he had been paid or
otherwise derived from the property
25 In fact Shelby managed the property for his own benefit and engaged in self-
dealing transactions that he failed to disclose to Dorothy
26 Dorothy died in Harris County Texas on April 62012 at the age of 92 She
was born on May 1919
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOPJA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01573
27 By order dated October 2012 this Court admitted to probate Dorothys Last
Will and Testament dated January 21 2010 and appointed James Thomas Dorsey
Independent Executor of the Estate of Dorothy
28 Letters Testamentary were issued to James Thomas Dorsey on the same day
and such Letters Testamentary are currently in full force and effect so he is fully authorized
to bring this action
29 Whenever it is alleged herein that Shelby acted or communicated in
any
fashion then such allegation should be taken to mean
That the Shelby himself took such action or made such communication
or in the alternative
That duly authorized agent of Shelby took such action or made such
communication on behalf of Shelby and in the course and scope of the agency or in the
alternative
That such action or communication was by one having apparent
authority to do so on behalf of Shelby or in the alternative
That Shelby ratified and adopted such action or communication as his
own and thereby became legally responsible for it
ORIGINAL COUNTERCLAiMS OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01574
First Cause of Action
Demand for Accounting
30 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
avennents If any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
31 Pursuant to Section 489B of the Texas Probate Code Section 113.151 of the
Texas Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled
to and hereby requests that Shelby provide full accounting of1 all of his activities as an
agent for Dorothy all transactions done or caused by him involving property owned in
whole or in part by Dorothy including but not limited to Dorothys Accounts in Mexico and
all transactions involving property held by him in trust for Dorothy
32 Anticipating that Shelby will plead the defense of limitations in response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
ORIGiNAL COUNTERCLATMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOIJTSE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page
01575
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
33 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Section 113.151 of the Texas Trust Code
and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an
award of attorney fees including litigation expenses reasonably and necessarily incurred in
connection with this action
Second Cause of Action
Breaches of Fiduciary Duty
34 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If
any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
35 Under Texas law Shelby breached his fiduciary duty to Dorothy by failing
to disclose to her fully and fairly all information that might affect her interests in property
managed by him including both her community property and property held by Shelby in trust
for her failing to act with utmost good faith and fair dealing in the management of her
property and property held in trust for her and in his other activities affecting her interests
failing to act with undivided loyalty to Dorothy in the management of her property and
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORJAS THIRD AMENDED CONTEST OF 2010 WTLL Page 10
01576
property held by him in trust for her and in his other activities affecting her interests and
engaging in self-dealing transactions that were detrimental to her and in addition or in the
alternative improperly benefited him
36 The breaches of fiduciary duty by Shelby proximately caused compensable
harm to Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby
requests entry ofjudgment against Shelby for actual damages in an amount to be determined
by the trier of fact in accordance with Texas law The damages awarded should include all
amounts of money which were withdrawn from Dorothys Accounts in Mexico and which
Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her
fully informed consent
37 The breaches of fiduciary duty by Shelby constituted fraud gross
negligence and malice as those terms are defined in Chapter 41 of the Texas Civil
Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose to
Dorothy all facts that might affect her interests Shelby intentionally the alternative
or in
with reckless disregard for Dorothys rights concealed from Dorothy the nature extent and
value of her property what he had done with her property over the
years and how much
money he had been paid or otherwise derived from the property Under Texas law Counter-
Plaintiff is entitled to and hereby requests entry of judgment against Shelby for exemplary
damages in an amount to be determined by the trier of fact in accordance with Texas law
ORIGiNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY Th4DEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 11
01577
38 Shelby derived profits by means of the breaches of his fiduciary duty to
Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of
judgment decreeing that Shelby disgorge all profits received by him or by his wife his
children or any other persons designated by him as result of the breaches of his fiduciary
duty to Dorothy
39 Shelby acquired property by means of the breaches of his fiduciary duty to
Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of
judgment imposing constructive trust on all by Shelby or by his
property acquired wife his
children or any other persons designated by him by means of the breaches of his fiduciary
duty to Dorothy
40 Anticipating that Shelby will plead the defense of limitations in response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her
property
over the
years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 12
01578
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to was withheld from her and diverted
Dorothy to Shelbys
benefit
41 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to
prepare and to prosecute this action Pursuant to Section 114.064 of the Texas Trust Code
and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an
award of attorney fees including litigation expenses reasonably and necessarily mculTed in
connection with this action
Third Cause of Action
Breach of Promise To Hold Property for Dorothys Benefit
42 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If any averment is inconsistent with this cause of action the avennent is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
43 Shelby promised Dorothy that he would hold in trust for Dorothy all of the
assets that Eduardo gave to Shelby and Wayo and that he would make the income from such
property available to her for her direction as to their use These promises were made by
Shelby while he was residing in Texas Shelby breached these promises to Dorothy by
failing to account for the property that was given to Shelby and Wayo by Eduardo by
concealing from Dorothy material facts about that property including its nature extent
ORIGINALCOUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGOPJAS THIRD AMENDED CONTEST OF 2010 WiLL Page 13
01579
value and profitability by failing to hold and maintain that
property as if it belonged to
Dorothy by paying himself income generated by the property by failing to disclose to
Dorothy that he had done so and by failing generally to make the fruit of that property
available to her for her use
44 These breaches by Shelby proximately caused compensable harm to Dorothy
and her estate Based on the doctrines of breach-of-contract promissory estoppel and
money-had-and-received under Texas law Counter-Plaintiff is entitled to and hereby
requests entry ofjudgment against Shelby for actual damages in an amount to be determined
by the trier of fact in accordance with Texas law
45 Anticipating that Shelby will plead the defense of limitations in
response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the
years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 14
01580
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
46 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice
and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and
hereby requests an award of attorney fees including litigation expenses reasonably and
necessarily incurred in connection with this action
Fourth Cause of Action
Breach of Promise To Pay $100000 to Adriana and $100000 to Sylvia
47 Counter-Plaintiff repeats and incorporates by reference all of the foregoing
averments If
any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
48 Shelby promised Dorothy that within thirty days of her death he would pay
$100000 to Adriana and $100000 to Sylvia These promises were made by Shelby while
he was residing in Texas and they were directed to Dorothy at her residence in Houston
Texas Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia
checks that they could not negotiate without waiving their rights in Dorothys estate and their
rights against Shelby self-serving conditions which Shelby had no right to impose
OFJGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 15
01581
49 Based on the doctrines of breach-of-contract promissory estoppel and money-
had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests
entry of judgment against Shelby for $200000 in accordance with Texas law
50 Anticipating that Shelby will plead the defense of limitations in response to this
cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and
Remedies Code is applicable and precludes application of any statute of limitations In
addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent
concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from
Dorothy the nature extent and value of her property what he had done with her property
over the years and how much money he had been paid or otherwise derived from the
property The nature of the injuries to Dorothy and her estate were inherently undiscoverable
because of the relationship of trust and confidence between Dorothy and Shelby and because
he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys
interests The injuries to Dorothy and her estate are objectively verifiable because money
that should have been paid to Dorothy was withheld from her and diverted to Shelbys
benefit
51 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys
to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice
and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY ThUJEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 16
01582
hereby requests an award of attorney fees including litigation expenses reasonably and
necessarily incurred in connection with this action
Fifth Cause of Action
Declaration of Invalidity of Donation Agreement dated January 11 2005
52 CounterPlaintiff repeats and incorporates by reference all of the foregoing
averments If
any averment is inconsistent with this cause of action the averment is pleaded
in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure
53 On January 2015 Shelby produced for the first time photocopy of
document dated January 11 2005 written in Spanish entitled CONTRATO DE
DONACION the Donation Agreement The Donation Agreement purports to be signed
by Eduardo and Dorothy
54 By order dated January 292014 Shelby was ordered by this Court to produce
documents such as the Donation Agreement no later than February 282014 His production
of the Donation Agreement on January 2015 was over ten months late
55 On the date of the Donation Agreement Eduardo was dying and on hospice
care Fifteen days later Eduardo died The Executor believes and now avers that on
January 11 2005 Eduardo lacked the requisite mental capacity to make legally enforceable
contract
56 The Donation Agreement states that it was signed in Reynosa Tamaulipas
Eduardo was not in Reynosa on the date of the Donation Agreement
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 17
01583
57 In the seven years that Dorothy lived after the date of the Donation Agreement
she never mentioned it to either of her daughters both of whom lived near her in Houston
or to her son-in-law the Executor whom she saw frequently or in her correspondence
which was extensive or in her personal notes where she wrote extensively about her
financial situation Indeed during those seven years she made numerous statements both
written and oral that are inconsistent with the existence of the Donation Agreement
58 Based on the foregoing facts and others the Executor believes and therefore
avers that the Donation Agreement is forgery
59 The Executor believes and now avers that the Donation Agreement is
unenforceable for lack of consideration in the alternative for of consideration
or failure
60 There exists an actual controversy between the Executor and Shelby as to
whether or not the Donation Agreement is valid and enforceable contract
61 Consequently under Chapter 37 of the Texas Civil Practice and Remedies
Code the Executor hereby requests entry of judgment declaring that the Donation
Agreement is invalid and wholly unenforceable
62 Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code the
Executor requests an award of costs and reasonable and necessary attorneys fees as are
equitable and just
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 18
01584
Prayer for Relief
WHEREFORE PREMISES CONSIDERED Counter-Plaintiff James Thomas
Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased prays
that upon due notice and trial by jury or upon hearing on motion for entry of default
judgment or motion for
summary judgment the Court renderjudgment for Counter-Plaintiff
and against Counter-Defendant Shelby Longoria awarding the following relief under Texas
law
decree commanding Counter-Defendant Shelby Longoria to render an
accounting of all property that was owned in whole or in
part by Dorothy Louise Longoria
and that was within his possession custody or control and all transactions affecting her
property and an accounting of all actions taken by him as her agent or trustee specifically
including complete accounting of all monies withdrawn from Dorothys Accounts in
Mexico
an award of actual damages from and against Counter-Defendant Shelby
Longoria in amounts to be determined by the trier of fact in accordance with Texas law but
the maximum amount of actual damages currently sought by Counter-Plaintiff while
reserving his right under Texas law to amend this pleading to request greater or lesser
amount as more evidence is uncovered and the whole truth comes to light is $43500000
ORIGiNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOEJA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 19
01585
an award of exemplary damages from and against Counter-Defendant Shelby
Longoria in amounts to be determined by the trier of fact in accordance with Texas law but
the maximum amount of exemplary damages currently sought by Counter-Plaintiff while
reserving his right under Texas law to amend this pleading to request greater or lesser
amount as more evidence is uncovered and the whole truth comes to light is $10000000
an award of attorney fees including litigation expenses reasonably and
necessarily incurred by Counter-Plaintiff in connection with each of his causes of actions
under Texas law
decree commanding Counter-Defendant Shelby Longoria to disgorge all
profits received by him or by others for his benefit as result of breach by him of his
fiduciary duty to Dorothy Louise Longoria
decree constructive on
imposing trust all property acquired by Counter-
Defendant Shelby Longoria or by others for his benefit by means of breach of fiduciary
duty owed to Dorothy Louise Longoria
an award of prejudgment interest on all actual damages at the highest rate
authorized by law to the date of judgment
an award of all costs incurred by Counter-Plaintiff in the course of preparing
and prosecuting this civil action
ORIGNAL COUNTERCLAJMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THWD AMENDED CONTEST OF 2010 WILL Page 20
01586
an award of postjudgment interest on all monetary relief at the highest rate
authorized by law from the date of judgment until paid
10 judgment declaring that the Donation Agreement dated January 11 2005
is invalid and wholly unenforceable
11 all writs and processes
necessary
to collect the judgment and
12 all other relief to which Counter-Plaintiff is entitled or which the Court may
deem appropriate under the circumstances and the applicable law
Any inconsistent allegations or prayers for relief are pleaded in the alternative as
expressly authorized by TEx Civ P.47 and 48
Reservation of Rights To Amend and To Supplement This Pleading
Because Counter-Plaintiff presently does not know all of Counter-Defendants acts
and omissions that caused hanu to Dorothy Louise Longoria or her estate or all of the
relevant circumstances surrounding such acts and omissions Counter-Plaintiff anticipates
that it
may be necessary to plead additional causes of action after discovery is completed
Accordingly Counter-Plaintiff hereby reserves the rights to amend and to supplement this
pleading
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORJA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 21
01587
VERIFICATION
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME the undersigned authority on this day appeared in
person James Austin
Fisher and made the following statement under oath
My name is James Austin Fisher am one of the attorneys of
record for James Thomas Dorsey Independent Executor of the
Estate of Dorothy Louise Longoria Deceased in Case Number
414270 in Probate Court Number One of Harris County Texas
and am authorized under Rule 14 of the Texas Rules of Civil
Procedure to execute this verification on his behalf have read
the averments set forth in
paragraphs 53 through 60 above and
affirm those
that averments are either within my personal
knowledge or are supported by evidence of which am aware
and are true and correct
James Austin Fisher
SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority by James
Austin Fisher on February 11 2015
Notary Public in and for thtatei.1f Texas
I2M
PrintØd Name of Notary Public
My Commission Expires
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 22
01588
DATED February 11 2015
Respectfully submitted
/s/ James Austin Fisher
James Austin Fisher
State Bar of Texas Number 07051650
email address jfisherfisherwe1ch.com
Shannon L.K Welch
State Bar of Texas Number 90001699
email address swelch@fisherwelch.com
FISHER WELCH
Professional Corporation
Ross Tower Suite 2800
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Facsimile 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
email address wes@wesholmes.com
THE HOLMES LAW FrnM
10000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9266
ATTORNEYS FOR COUNTER-PLAINTIFF
JAMES THOMAS DORSEY
INDEPENDENT EXECUTOR OF
THE ESTATE OF DOROTHY
LOUISE LONGORIA DECEASED
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 23
01589
CERTIFICATE OF SERVICE
hereby certify that on February 11 2015 true and correct copy of this document
was served on Shelby Longoria through his attorneys of record named below in the manner
indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schiemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
BY EMAIL TO jcartersusinangodfrey.corn rhess@susmangodfrey.com and
kschlernrnersusinangodfrey corn
Robert Maclntyre Jr
Maclntyre McCulloch Stanfield Young
3900 Essex Lane Suite 220
Houston Texas 77027
BY EMAIL TO rnacintyre@rnrnlawtexas.com
/s/ James Austin Fisher
James Austin Fisher
ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY I11DEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED
TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 24
01590
01591
EXHIBIT
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01596
EXHIBIT 2A
01597
DECLARE THAT THE DOCUMENTS AND INFORMATION PROVIDED ARE
CORRECT AND AUTHORIZE THE BANK TO VERIFY AND WHERE APPROPRIATE
TO PROVIDE THIS INFORMATION TO DULY AUTHORIZED CREDIT REFERENCE
ORGANISATIONS FOR THE PURPOSE OF UNDERSTANDING MY BEHAVIOUR AS
CUSTOMER OF THE BANKING AND FINANCE SECTOR THERE REGISTERED
01598
ii
TRANSPERFECT
City of New York State of New York County of New York
Alitasha Younger hereby certify that the document Banamex Dollars Account
Clause is to the best of my knowledge and belief true and accurate translation from
Spanish into English
A1itasha
Sworn to before me this
August 27 2015
.-..
Stamp Notary Public
THREE PARK AVENUE 39TH FLOOR NEW YORK NY 10O6 212.689.5555 212.6891059 WWW.TRAN5PERfECT.COM
OFFICES IN 90 CITES WORWWIDE
01599
01600
EXHIBIT
01601
SOLICITUD TJNICA ANAMEX
Bana mex
flhItffl1II1
365
VENT EZALIZADA POll
DOCVMENTOSEP1RfGAII4IS
iDEmwXCACION COMPEOBATE 06 DQMcUa COM$RO A1OFAE VPiL
EX.a.SENIEPELW Q6JN LOS 05101 D.SOWFOS EO
DI1ACIONES
ONAEO$ ION QT06 fribOs EN Li F.ESENTE ElANTE ENA
Alfl0ElZElADOANAMEX QUIL COVXQEOIlEW ANIESJOR IUQIIE WA ECUVS0S UT1uzAO AAPA DELACUElAr AONOE PSOCEDENC6A ucrrSSl
CELAM66117M
AWQEJZA4R.NA.4EXAUflUZAI.YJO PAOOO IWVORMACIONVI onqc$4TEuIDAENEErAsoucrTUD-6 /0 QUEDERIVEN
GUO1ONMIONRO SANAMEX F1iJJES
05 LA CUENCA 06 CUALQUDE RELACION QUE AANTENOA CONSENAMW WA rON.tOON LAS
COW GLADADIRECVAODESRECTAMENTh POP ruilwuP FAIIA EP OCONAEI.R MCEXUCTDE YEPAVICIOXUCOEl TEl
StJESltIlPRlAE C1JALUTSAEMPESA
LI AXFItElOP.EN CUOLDEENTO t0I5Sos1C10E$ QU L.4N6l.AET1CTILO iIEYflfi DISTflIJCIONES DECREOXTO
06661 ocomsATOy 06
61 NTE DECtARA QUE EllA AENUAXWO NOMSP.E F0 CUENTAF0jlA IrIXE QUE LOS BENEFICOS DBEWADOS CIJENTA
CON El MISMO NO SESEALIZAXI .16 FEMWAAN A1INtE yroRci FADE tDVXPARO AZIE4ISMQ.EECLAItA QUE FOExWru
CAD 0/SILACION CIONAOA
FINAL ALOUNO DEn FOALMISMOCUENTEQOERACElALDS RENEFICIOX 06 25Th CLIENT
osaSTIRABZNEFICLAPJO
is RECm10O 1.5100 El LOEI CON ATO/S1CONVENIOS ANEXOA CONOCIDOSX COM0
DA0MX AN.U
YESIOY DE ACUO CON SUS TERX4INOS COND1CONES AcE7rO QUE ESTASOtJCifUD ES PA1E XfltGITE DEL LOS MXSMO
1.1SN16 SANCO OALDEMEXICO.S.A IRA1moE1 NA1a6RO
BANA
PABA CONSULTAS EN3OCIEDADESDLINFORMACION CI1EDDECtA
MJTORXMCION 3970
06 l.A 1.EY MMESVLA LAS LOCINDADAS CE01P061 OHCPSXNI1CU EN
cOHIO6I5 El AflCULO El
S$U EAC0 PASA QI.6 LLRVE CASOLA SIVE 1OACIONESQUE CONSI06EE
04lME.1SESA AUTORIZO
SOURE 10 COWOREAMIENTO ElEIOJJAL CP.EOfT1CIO ASI COMO
CLOIJIEP CTL
NECESARIAS
06 NATUTPALE2A AIIALOGA CON CUAX.QUIER SOCIEDAD 06 CEEOmCIA
INFORMACION
pXORMAClON
AUTZADNELS ALCANCE 06
EN ESIE
IN6O.MAV1QN
ACIO MAXEFIESTO
ELAEOCIEDADDE
QIJE TENGO LD4O CONOCIMIENTODS
INFO ON CREDI1 lADE QUE $4
NATUMLREA
DJFOMRA AX EAJCO El U$OQLIE El DANCO NASA DEL 10SMVQUEEl.EANCOPO0RA
ThATE
K6J.LrLAR COFASILTM FEXWJC.Q CUANTAS VECESCONSXDEPBNECESAR.LA JMJSJ.NTh T000EL TIENFOES4
JXJ300ICA l.APABSENTE /.IJTOXUZACION TENORA tOM VElENCIA PETRES
QUEMANTENGAMOE UNA REIAVION
AO5 CONTADOI IPOELAFEENA QUESE SIOD6 _________________________________________________
EANCO
ESTA lr4PO1414AClO6 6661 USO XNT8XNO CONFIDSNCIAL
SLO NGORIAOO274O
01602
POR P00112
ANEXODE
REPRESENTANTE LEQAL
COT1IULARES
FIRMAIITES
IAPODERAflOS
ADICOPW1$
HQJAD2
OOOD2994538 C3679
EDE U$Q lWTER1O
39-70
SLONGORIAOO274I
01603
ANEXO COTifULARES APODERAUOS
REPRESENIANTE LEGAL RRMANTES ADECONALES
HOS oc
SLONGORIAOO2742
01604
FRFIL ThANSACCONAL DL CLIENTE
Ba namex
002994380 Q39853 D185
DE CXW
CHEQUES MODA ACDNM CUFA CORUT
cro
772369
____________________
NOMJRrSAPWJDO PATZflHO/AZLLJDO MATUNDORAZON SOCML DL CLIENT
Loo KowA1su co
DATOS DLA ACIIVIDAfl DELCIEN1Z
MEOEtJBJt4CQNE5 DELA 2MPSSA OBWA WRAA QSSAt1ON DENPOSTAQON/ O1ACO
RSMOHAL 10 IMORTh NI SXIORTh
ENCASFtRSiNAL$/COMERCWS
fOMBS o.oauo CtAVE LO
DzcARO QU fl0RNIEN DI LOS OQV ENTRIJI PASA LA AJIS1VA jr gO5CTO bVIClOS DEL MCO QJJsoLzmt zrDIIq DEACflVWAXSS UCITSI
LAtCUAt SAXA COP .4C1O
PATRTh4OILO AHORRO
HO4ootJELDO _____ ___
Y$DADMr1nQU tcER1 ICWgNDgSflOS MIl c1IPzTA3 ON RICjSG TJSD ATWWADSS UI TAJCONI1MPLAXPAS CODLGOINAL 41CA1w
CAL1 N0SMA QUI 1-0 M0D1PQUiO ADIC1O4T PI1PZCIVAS 12MfSACQ04U OtSTTNAIM$A TAUS 4CTWID4DEV v0R DZU 30N5 PXLAQOAADAS CON I8 KISMAS
ASI MIMO DCLAZO QUS ESPXfl0 LIZAS OrZRACIONES MINSUALS$ 1JLACIJMD0 ALNVMUO MooprrALLuoI 0IACION
1O DEOIL4CI0NS NtODXUAO
UuMRSOnOMXOPEAS0NOENSVtES
DORTADSODIO OS AIPONOS MSNSUAL
eom MSN$UL TSANP O4OOS DEIJAL sx
IOIE MEHS1XALQCAIA/O1 VIAJDW
NO POSMOrA1TE 95 UNGSUPO CMPRLSAW.L0 95 NG0CIU COflS4A IALACIOP
_____________________________
VONSLCSPJ0 _________________________________________________ CVYOLLC 51
__________________
ESTA QLIRMACIONSS PE ONTESDIO YCONFSDENCIAL
LONGORIAOO2743
01605
ANFO DF
3OWANDCONFFCIAO
na ex
000029945350 C39553 00156
VThTAk IIOJA lIE
INOA AYEWDO NOMPS III EUCVRSAL
3231461 UAEU 4761
WTE NEtcrE CTMCNTRkTO EA TVEA AGBS/DIA
2945360 DOROThY KOWALK1 LO1OOR1A 7123693lI 1105 tOll ID
IOMOEE -l POACENThJ6
SHELlIY LONGORIA KOWALK1 11110A 100
1IIA DO NAIIMTh2QTO ILP OOMKIUO D5L DONOICIAAIO
rO Cc
CLJ6NTE BANrn NACONAL DE MOCO SA lI I3RANTE DELGRUPQ1NA14C1ERO
11ANAMEX
ESTk INPORAL4CION ES lIE USO 111TRRNO CONPLDb4CIAL ALBM7O GNZA1E2WMF
GEENTE
39-jO
SLONGORIAOO2744
01606
AUTORi1AON PARA MANJD
DE CiJENTA DE CHEQUES
LU0$R 0A MES A1O
L1 L.1
1Jtiflrflfl flC 01 ItMTA
SUR 4161
PRIJSDObE LIPRE$EWrE LEE PARt1tP0 6M0$ Q4JE CON ESTA FECNA HE MOE PJJFORIZAOOA LA PERSONA OhiO NaMERS FIRA4A CONST CALCE FJAOUE
HAGA OhSPOSIChONES 0$ LAS SUk4AS OEPONTAOA$ EN Nt$tRA CUENTA GE CHEQUES ARRiBA ChIAGA EN LOS TEJWINO$ DEl ARTICLLO 57 tIE LA LAY 0$
INSTflWONES 0$ CID4TQ ASh CONO PARA ENOOSAR PARA M0$0 EN CL$HTA CUALQUER CLASS 0$ TtrULOS CREDrID MI PAVC6 0$ CUERD0 CON LA
CISP57ICION CWTENIQA EN ELARtICULO r.FRA000N LOS LA LAY GENERAL DETITULOS YOPERACIONES OS CREOrlO
HOMERS DEL CuEHrE GANOIMC0NALOE RExgo SA
IWTEGRiANTE0E1.GRUPO PIN HOLE AMEX
DONOIW LEEKOWALEIcI 05 LONGORIA
DEL CLII NTE 051.6
h4OA4SREYFLRIL
2OQS
G514447 E2 Er
SLONGORIAOO2745
01607
AUTORIZACFON PARA MANJO
CE CUETA BE CHEQUES
LUGRR OLA MEL AO
WOUU$1U NOA57lO Off LA SUCURSAL NOMERO CUENTA____________
RIR 4151
-j
ESThMOOS ENSURES
ICR MEDlO LAPRESEILTS LEE AMOS OLE CON ESTA FECW. IE REONA CUVO NOMOPS
Off PAS11CIPO MOSALTOSZAEOA LA PS SRMA CONSTAR AL CALCE PARA OLE
IIAGA OI5ffCSICIONE Off 1.55 SUMAS OEPOTMAS EN MI NUESTRA ELENrA Off CHEQUES ARRISA crtAOA EN LOS 7EN1MINOS DEL AR1ICULO 57 LA LE Off
1NSThUCIOIEE CREDIlO 551 COMO PARA ENOOSAS PARA ASONO EN CUENrA OJALOURCLASE CE TFWLOS CE CR50170 Ml PAR CS 55IJERDO COIL IA
OISPOSIOONCOIJ1BEDA ENEL ARTICULO FRACCION CE LA LEYGENERAL 7LOSYERACIORES Off CRSOITO
MERE DEL CLIEWTE BANOOACIOILRI.D MEXIQO.SA
4f
W41GIWITE EEL GRUPO 1114A4C1550 RAiASX
DOROThY LOUISE NOWALSI1 OS LONGORIA
F1RA DEL CliENTS I4CUBRE RENA DEL EiEOJrrLO
d7oGoN41ÆLozANo
GERENTE
39-70
SLO NG0R1A002746
01608
Banamex AUTORZAC1O
CUETA
PARA
DE
MANEJO
CHQU
OiIAljT MANEJO CIA
RENOSATAMP5
OD12
lOSUR47E1
ESTE4ADO$ SES
POR EtA ff1EZENTE 1ES PR1CIPO OS CUE CHESTA FECHA HE QlO$ lNAZXA LA PERECHA cuyo NOMBRE REMA ALCL PMA QUA
sAGA ONFO$JCENES ON LAS UMAS OEPGSIrAONS EN Ml 4USSTMA CIJEffA CE CHEQUES RRIBA CnCk EN LO$ RMOS GM AR11CULO CE l.A LEY ON
INST CIGNES GE CRENITO AM COLIC PARA 900SARPARA ASONO EN CUEHTA CUAJ.CUIER CLftSE tIE TYWLCS GE CREPITO FAVCH 15 ACUEPOO CON IA
ARlicIILo TN Thi rlA YREN flMTN TN
oisosciol 1sNlLEN II
El
NONBREOEL1UENSE EAMtIO ON
ETEGIWTE DEL GRIJPG FIIW1O4ERO SARAREX
IIcINOWY WUISEKOWM.LSXt ON LONGORIA
NOUBSE
AERTOaONZUZWJTO
39-70
QR-E-14fl EQSZ Uhks LA EtErEt ETN 9MIlErO El dAllcO
SLONGORIAOO2747
01609
Ban amex DE CUE4TA bE CHEQUES
_W _________ _____________ DA EIES ARO
S1AMPS _______
00 SR478
ES1IALNDOS SERORE
POL4Wc 0AcESrELES PPR11c.PO 3IOS QJE CO4E WI4 IOS M041ZO0 ALA RSO$ACJYO NO BNE oNST C.SLCE PAQUE
HAA sCAEs LAS WMAS DEOSTADA5 EN .S SJESTRA CUEWFA OEQLOS ARRJSA CADA EN LOS TERMINOS DEL RTCJLO 57 05 LA LEY
N5TrtUCOWES OS CREDt0 ASI COLO PARA ENOOSAR PARk ASONO EN OJENTA CUPLQU CLASS 05 ItTULOS CREDT0 AVOS ACUERDO CO4
DSPOSIC CPEt50A EN EL AREICULD PRACcJtS 10 LA LEYGEERAL 0rITuOS OPERACIONES DE CRO1T0
044E1R5 DEl CIJEN7E EANCO
DELRUPO FThACIERO EAN4SEx
DOROThY OWAiSX1 05 LONDORIA
psAocuENCE NQLRIRE FUtk DEL EJECUTNO
v4W
N0SREYFRS-AUTOElZAOQ ALBEPJI GONZALEZ LOZWO
GEtENTE
PATRJCZA
SLO NG0R1A002748
01610
01611
EXHIBIT 3A
01612
HAVE RECEIVED AND READ THE CONTRACTS AGREEMENTS AND
APPENDICES AS SINGLE CONTRACT FOR INDIVIDUAL PERSONS CHECKING
ACCOUNT FEES MN BANAMEX INDIVIDUAL PERSONS FORMS
AND AGREE WITH ITS TERMS AND CONDITIONS AND ACCEPT THAT THIS
APPLICATION IS INTEGRAL TO THEM
01613
ii
TRANSPERFECT
City of New York State of New York County of New York
Alitasha Younger hereby certif that the document Banamex Peso Account Clause
to the best of
is
my knowledge and belief true and accurate translation from Spanish
into English
Alitashaunge
Sworn to before me this
August 27 2015
Pu lic
1KUflJ ulfd
Comm$S0fl
In KiNG CO
dI12O19
Stamp Notary Public
.5
THREE PARK AVENUE 39TH FLOOR NEW YORK NY 10016 212.689.5555 212.689.1059 WWW.TRANSPERFECT.COM
OFflCES IN 90 CITiES WORLDWIDE
01614
01615
EXHIBIT
01616
01617
01618
01619
EXHIBIT
01620
Case Number 414270
IN THE ESTATE OF IN THE PROBATE COURT
DOROTHY LOUISE LONGORIA NUMBER ONE
DECEASED HARRIS COUNTY TEXAS
Affidavit of Dr Carlos Gabuardi
STATE OF NUEVO LEON
MONTERREY MEXICO
BEFORE ME Jorge Luis Trevino Trevino the undersigned Notario Publico
on this day personally appeared Carlos Alberto JosØ
Enrique Lorenzo Gabuardi
Arreola who being by me first duly sworn stated the following
My name is Dr Carlos Alberto Enrique JosØ Lorenzo Gabuardi
Arreola PhD am over twenty-one of sound
years age of mind and qualified to
make this affidavit have knowledge of the and
personal facts stated herein am
competent to testify thereto
have been retained by counsel for Shelby Longoria as consultant
and witness on Mexican law in the above-titled
expert action
In connection with this have been
engagement requested to address
several legal questions under the context of contracts entered into with Mexican
Bank Banco Nacional de Mexico S.A Banamex in reference to the following
checking accounts Banamex US Dollars Checking Account for Client No
7518181565 opened by Ms Dorothy Kowalsky Longoria on December 12 1999 and
Banamex Mexican No
pesos Checking Account for Client No
opened by Ms Dorothy Kowalsky Longoria on February 10 2005
Based on review of documents
my and my expertise in Mexican law
have the following
opinions
01621
In Mexico all contracts for mass transactions Mexican
banking that
banks conduct with the public including checking accounts are
documented using Standard Contractual Forms Unilateral
Adhesion Contracts that each bank amend from
may unilaterally
time to time
The terms and conditions set forth in the Standard Contractual
Forms are binding for all the of that particular
parties banking
transaction either acting as the financial institution or as
customers
The to amend Standard Contractual Form
process given are set
forth in each of the contracts concerned
All of the Standard Contractual Forms the
documenting checking
accounts referred to in point above and the amendments thereto
are valid and enforceable under Mexican Law
The Jurisdiction and Mexican Law clauses in the Standard
Contractual Forms documenting the checking accounts referred to
in point are valid and enforceable contractual clauses under
Mexican law
The fact that the parties to these contracts did execute the
actually
Standard Contractual Forms referred to means that
above they
expressly and voluntarily submitted themselves to the exclusive
jurisdiction of both Mexican law and the Mexican that
Judiciary is
to the courts located in Mexico City or Monterrey Banamex
waiving any other venue whatsoever
BACKGROUND
have studied practiced and law in Mexico and the United
taught
States for over 30 years received License in from Universidad de
Jurisprudence
Monterrey in 1981 Master of Laws LL.M with distinction from Tulane
01622
University in 2001 and Doctorate of Laws Ph.D from Tulane University in 2007
and
true correct copy of my resume is attached to this Affidavit as Exhibit
have taught law in various law schools in Mexico and the United
States Since 1983 have held research and teaching positions at several other
universities in Mexico and the United For example
States was member of the
National Researchers System of Mexico from 2008 until 2014 served as Professor
of Law and researcher at the Instituto Tecnologico de Estudios Superiores de
Monterrey in Mexico 1998-2011 acted as the Head of the Law Department and
served as Professor of Law at the Universidad de Monterrey Mexico
in 1990-1993
was Professor of Law St
Visiting at Marys University School of Law in San
Antonio Texas 1993-1994 and held Professor of Law
Adjunct positions at both
The of
Washington College Law American University Washington D.C Summer
1994 and Universidad Regiomontana in Monterrey Mexico 1983-1985 As
professor have courses on
taught Comparative International Law Private
International Law Public International Law International Business Transactions and
the Legal Framework of Doing Business in Mexico among others
have maintained law practice since 1980 in various companies
and law firms law at Gabuardi
currently practice Abogados in Monterrey Mexico
since 2004 have also worked lawyer the
as in legal department of the World Bank
in Washington D.C 1994-1996 and as both and the
Corporate Legal Manager
Assistant Secretary of the Board of Directors of Grupo Gamesa Mexican
manufacturing company 1980-1985 My law practice focuses on Corporate Law
Contracts Business Transactions Private International Law as well as in
International and Domestic Litigation
01623
had been member of several legal professional organizations in
both Mexico and internationally the Barra Mexicana de
including Abogados Colegio
de Abogados CapItulo Nuevo Leon the Mexican Bar Association Nuevo Leon Inn
where was the Chair of the International and Law the
Comparative Committee
Colegio de Abogados de Monterrey the Monterrey Bar Association the Academia
Nuevo Leonesa de Derecho Mercantil the Nuevo Leon Academy of Commercial
Law the Asosiacion Nacional de Abogados de Empresa the National Association of
Corporate Lawyers the External Advisory Board of NAFTA the Law and Business
Review of the Americas the Mexican of Private and
Academy International
Comparative Law Academia MØxicana de Derecho Internacional Privado
Comparado the Mexican Association of Private International Law Professors the
Asociacin Mexicana de Profesores de Derecho Internacional and the
Privado
International Academy of Comparative Law also was part of the group that
founded the US-Mexico Bar Association and later on served as its Mexican co-chair
of the Legal Education Committee
Further have served on the Regional Board of the Centre
Advisory
for Conciliation and Arbitration of St Marys School of San
University Law
Antonio Texas also co-planned and administered
program titled Joint Venture
Transnational Study and Training Program for U.S and Mexican Business
Lawyers held at the St Marys University School of Law and Universidad de
Monterrey
During my academic career have published more than 20
academic articles and two books in both Mexico and abroad on topics including
Commercial Law and Business Transactions Private International Law and
Comparative Law Most recently the Puerto Rico Supreme Court cited my article on
01624
forum non conveniens titled Entre Ia jurisdiccin Ia forum non
competencia el
conveniens originally published in the BoletIn Mexicano de Derecho Comparado in
2008 in its opinion deciding whether to incorporate the common-law doctrine of
forum non conveniens in Puerto Rico
II OPINIONS
In Mexico all contracts for mass transactions Mexican
banking that
banks conduct with the public including checking are documented
accounts using
Standard Contractual Forms Adhesion each
Unilateral Contracts that bank may
unilaterally amend from time to time
The use of Standard Contractual Forms Adhesion
Unilateral
Contracts for mass banking transactions including checking accounts is
governed
by the Statute for the Protection and Defense of Users of Financial Services Ley de
Proteccin Defensa al Usuario de Servicios the Statute for
Financieros
and Order in
Transparency Financial Services Ley para Ia Transparencia
Ordenamiento de los Servicios and the Sole of the
Financieros Regulation
Commission for the Protection and Defense of Users of Financial Services Applicable
to Financial Entities Disposicin Unica de Ia Condusef las Entidades
aplicable
Financieras and the Agency for the Protection of Consumer Federal
ProcuradurIa
del Consumidor
Standard Contractual Forms Unilateral Adhesion for mass
Contracts
banking transactions are defined as non-negotiable documents unilaterally prepared
by Financial Entities setting forth in standard forms the terms and conditions
applicable to the banking transactions entered into with their customers.1
Art 56 2nd paragraph of the Statute for the Protection and Defense of Users of
Financial Services Art section of the Statute for and Order
Transparency in
Financial Services and Art section iv of the Sole of the Commission for
Regulation
the Protection and Defense of Users of Financial Services to Financial
Applicable
Entities
01625
10 The terms and conditions set forth in the Standard Contractual Forms
are binding for all the of that particular either
parties banking transaction acting as
the financial institution or as customers.2
11 In the Banarnex Standard Contract Form have reviewed OR-8-1401
03-08 and OR-8-1401 08-11 there is clause for the exclusive
providing jurisdiction
of Mexican Law and the Courts located in Mexico City for all matters concerning
such contract.3
12 am of the opinion that the clauses providing for the exclusive
jurisdiction of Mexican Law and the Courts located in Mexico City for all matters
concerning the Banamex Standard Contract Forms OR-8-1401 03-08 and OR-8-1401
08-11 that is the original version of the contract at the time when the account was
opened and the latst version of the contract in effect at the time when the account
was closed are the same The clause on exclusive jurisdiction did not change over the
years and remained unchanged until the account was closed on April 18 2012
13 Under the authority of Article 11 section IV of the Statute for
Transparency and Order in Financial Services4 and Article paragraph of the Sole
Regulation of the Commission for the Protection and Defense of Users of Financial
Services Applicable to Financial Entities5 the Standard Contractual Forms used by
the banking institution shall include the procedure for customer to amendments
accept
to such Standard Contractual Forms
Article 78 of the Code of Commerce In commercial contracts each bound
party is
to the contract under the terms and conditions in the the of
contract validity
commercial transaction does not depend on observing formalities
any predetermined
or requirements
Clause All controversies derived from this Standard Contract shall be governed
by Mexican law and the jurisdiction of the competent courts in Mexico City waiving
to any other jurisdiction with the parties may have by reason of their current or future
domicile
Article 11 section IV Contractual Standard Fomis shall include the following The
notification process as well as the basis for the customers to accept amendments to
the Contractual Standard Forms with which the entered into contractual relation
with the banking institution
Article paragraph The Contractual Standard Forms used by banking institutions
shall include at least the conditions and procedures to amend the Contractual
Standard Forms
01626
14 The Banamex contracts provide that this banking institution may
unilaterally amend its own Standard Contractual Forms providing notice for such
amendments through reasonable means of notice established in those contracts If an
account is closed the terms and conditions that the
govern contract are those that are
established at the time the bank account closed
15 have no knowledge and have not seen any evidence showing me
that Ms Dorothy Kowalsky Longoria challenged or amendments
opposed to any to
the contracts under scrutiny while maintaining her Banamex Accounts
16 Furthermore under the of Article
authority 11 section VIII second
paragraph of the Statute for
Transparency and Order in Financial Services the
Commission for the Protection and Defense of Users of Financial Services shall
maintain Registry for the Standard Contractual Forms used by financial institutions
to the of publicity and
purpose making these contracts available to the public.6
17 All of the Standard Contractual Forms that have reviewed in this
document concerning the checking accounts referred to in this documents and the
amendments thereto are valid and enforceable contractual clauses under Mexican
Law
18 All versions of the Standard Forms
Contractual used by Banamex
during the time in which Ms Dorothy Kowalsky Longoria maintained her Banamex
accounts consistently set forth that the the
parties to same expressly and voluntarily
submitted themselves to the exclusive jurisdiction of both Mexican law and the
Mexican Judiciary that is the courts located
to in Mexico City Banamex waiving
any other venue whatsoever
19 The fact that the parties to these contracts actually did execute the
Standard Contractual Forms refened to in this Affidavit means that they expressly
and voluntarily submitted themselves the exclusive
to jurisdiction of both Mexican
law and the Mexican that
Judiciary is to the courts located in Mexico City
Banamex waiving any other venue whatsoever
Article 11 section VIII second paragraph of the Statute for and Order
Transparency in
Financial Services Financial Entities shall send to the Commission for the Protection and
Defense of Users of Financial the Standard
Services Contractual Forms to publish this in
Registry of
Standard Contractual Forms that could be consulted the
by general public at large
01627
20 It is
important to emphasize that in any and all cases all of the Standard
Contractual Forms under review always point towards the laws of Mexico and to the
jurisdiction of Mexican courts which venue is
always located in the of
country
Mexico
declare under of
penalty perjury under the laws of the United States of
America that the foregoing is true and correct
FURTHER AFFIANT SAYETH NOT
01628
01629
01630
01631
EXHIBIT
01632
nn ex CONTRATO UNICO DE CAPTACION PARA
PERSONAS FISICAS
CONTRATO UNICO DE CAPTACION PARA PERSONAS FSICAS QUE EN LOS TERMINOS DE LA SOLJCITUD ASI COMO DE LAS
DECLARACIONES LAS CLAUSULAS QUE APARECEN CONTINUACIN CELEBRAN POR UNA PARTE BANCO NACIONAL DE
MEXICO S.A INTEGRANTE DEL GRUPO FINANCIERO BANAMEX EN LO SUCESIVO DENOMINADO COMO BANAMEX POR LA
OTRA PARTE LA PERSONA CUYOS DATOS APARECEN EN LA SOLICITUD DEL PRESENTE CONTRATO EN ADELANTE REFERIDO
COMO EL CLIENTE
DEC LARAC ION ES
Declara Banamex pot conducto de sus funcionarlos autorizados que
Es una sociedad legalmente constituida conforme las
eyes de Mexico encontrÆndose debidamente autorizada como instituciOn de
banca mOltiple
Designa al Centro de Atencin TelefOnica como su enlace con el Cliente para efectos de consultas de saldo aclaraciones movimientos
cuyo nmero de telØfono en Ia Ciudad de Mexico es 12-26-26-39 BANAMEX 22-62-63-91 BANAMEX desde Guadalajara
Monterrey 12-26-26-39 BANAMEX ada sin costo 01 -800-021-2345 aquellos nOmeros telefnicos que se encuentren al reverso de
Ia Tarjeta de DØbito
El Contrato se encuentra debidamente inscrito en el Registro de Contratos de Adhesion de Condusef bajo los siguientes nOmeros de
acuerdo al Producto contratado Cuenta de Cheques M.N Banamex Personas Fisicas 0300-436-000550/09-13189-0811 ii Cuenta
Productiva MN Personas Banamex
Fisicas 0300-436-000552/09-13190-0811 iii Cuenta Maestra Opcin Banamex 0300-436-
000553/09-13191-0811 iv Cuenta Maestra Banamex 0300-436-000554/09-13192-0811 Cuenta Perfiles Banamex 0300-436-
000556/09-13193-0811 vi Cuenta BØsica Banamex 0300-003-000633/09-13194-0811 vii Mi Cuenta Banamex 0300-003-000632/09-
13195-0811 viii InvermOtico Pumas 0300-003-000631/09-13196-0811 Integral Banamex
ix Inversion para Personas Fisicas 0300-003-
000634/09-13197-0811 InversiOn Perfiles Banamex 0300-003-000666/09-13198-0811 xi DepOsito de Dinero Plazo Fijo Moneda
Nacional para Personas Fisicas 0300-003-000667/10-13199-0811 xii Cuenta de Cheques DOlares Banamex Personas Fisicas 0300-
003-000672/09-1 3200-0811 xiii Cuenta Prod uctiva DOlares Banamex Personas Fisicas 0300-003-000673/09-13201-0811 xiv
nvermOtico Estados 0300-003-000695/09-13202-0811 xv DØbito FOtbol 0300-003-000696/09-13203-0811 xvi PagarØ Personas
Fisicas 0300-429-000694/09-13204-0811 xvii Inversion Inteligente 0300-429-001619/08-13205-0811
II Declara el Cliente qua
Tiene capacidad legal suficiente para celebrar el presente Contrato reconoce como suyos los datos asentados en Ia Solicitud todo 10
cual acredita con Ia informaciOn que proporcionO Banamex en Ia entrevista que Øste le efectuO en esta misma fecha previo Ia
suscripcin de este instrumento con los documentos que so anexan al Contrato los cuales fueron debidamente contra
cotejados su
original aceptando que Banamex en cualquier momento podrO verificar Ia autenticidad de los datos ahi asentados en consecuencia
actualizarlos en su expediente Asimismo se obliga entregar Banamex los documentos que Øste le solicite en cualquier momento
El dinero que serÆ abonado Ia Cuenta as de su propiedad derivado del desarrollo de actividades manifestando conoce
licitas qua
entiende plenamente las disposiciones relativas realizadas con recursos de
las operaciones procedencia ilicita sus consecuencias En
el evento de quo el dinero que abone Cuenta sea propiedad cie un tercero se obliga notificar tal situaciOn Banamex asi como
identificar al tercero por cuenta del cual actOe
Autoriza Banamex proporcionar los datos documentos relativos su identificaciOn las demOs entidades integrantes del Grupo
Financiero Banamex S.A de C.V asi como sus subsidiarias controladoras afiliadas con las qua pretenda esteblecer una relacin
comercial con Ia finalidad de que dichas sociedades integren un solo expediente de identificaciOn
Desea celebrar Operaciones con Banamex realizOndolas entre otras medio de Instrucciones travØs de los Medios ElectrOnicos
por qua
Banamex ponga su disposicin por cual reconoce acepta qua Ia Firma ElectrOnica le identifica le autentica cumpliendo las
disposiciones legales aplicables de conformidad con los tØrminos condiciones alcances que en el presante Contrato se establecen
Es de su conocimiento qua Banamex no es una sucursal de Citigroup Inc de ninguna de sus afiliadas subsidiarias asi como quo las
obligaciones de Banamex derivadas del presente Contrato saran Onica exclusivamente cargo de Banamex en tØrminos de las eyes
aplicables incluyendo cualquier decreto regulaciOn orden accin gubernamental
Manifiesta expresamente su consentimiento para ajustarse las politicas internas de Banamex
Banamex le
proporcion los
siguientes datos de Ia Condusef Centro de AtenciOn TelefOnica 0155 53-400-999 lada sin costo 01-
800-999-8080 ii direcciOn de Internet www.condusef.gob.mx Hi correo electrOnico webmaster@condusef.gobmx
Sabe qua en cualquier momento padre revocar Ia autorizaciOn que en su caso confiriO Banamex utilice su informaciOn
para que pare
cualquier fin incluyendo Ia comercializaciOn de otros productos servicios lo cual podrO efectuar entregando en de las
cualquiera
sucursales Banamex el formato que Øste ponga su disposicion para tales efectos
Con base en Ia anterior las partes convienen las siguientes
CL SULAS
____
CAPITULO PRIMERO
DEFINICIONES
CLAUSULA .1.- CONCEPTOS DEFINIDOS Para efectos del presente Contrato los siguientes tØrminos escritos con mayOscula inicial
tendrOn los significados se expresan continuaciOn igualmente aplicables en
qua singular plural
Algoritmo especial significa fOrmula matemOtica que genera las Instrucciones seguir por Banamex fin de que el Cliente en los
opero
sistemas Banamox el Sarvicio ElectrOnico do Pagos
Archivo Global de Pagos significa el archivo electrnico qua Cliente envia BuzOn Electrnico de Red do Datos
el al Ia
que debate ester
contenido en alguno do los formatos de los Documentos ElectrOnicos quo contandrO los datos da los Proveedores las cantidades abonar
entregar en sucursal en su caso las Cuentas de los Proveedores eI nOmero do sucursal qua corresponda
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Atencin TolefOnica significa el servicio teletOnico establecido par Banamex para recibir las solicitudes del Cliente que deban hacerse par
esta via asi como pare brindar apoyo inmediato las necesidades del Cliente que se derivan del usa de Ia Banca Electrnica cualquier otro
producto operaciOn yb
servicio de atencin clientes que Banamex Ilegue poner disposiciÆn del Cliente
AudiomÆtico signiuica el Medlo Electrnico propiedad de Banamex el cual es accesible par el Clionte travØs del uso del telØfono como
medlo de comunicacin Guys utilizacin le permite convenir con Banamex determinados Servicios mediante Instrucciones eligiendo las
opciones habilitadas en el Media ElectrOnico utilizando Firmas Electrnicas coma medio de expresin de Ia voluntad del Cliente
ALltenticacin eI de tØcnicas utilizados verificar Ia identidad de
significs conjunto procedimientos para un Cliente express su
consentimiento para realizer operaciones recibir instrucciones travØs de los Medios de ComunicaciOn
ja significa cualquier lnstruccin realizada electrnicamente para canceler revocar un Alta cualquier otra operacin denaminada coma
tal en cualquiera de los Medios de Comunicacin
Banca ElectrOnics significa el conjunto de Servicios operaciones bancarias que Banamex realize con sus Clientes travØs do Medios
Electrnicos Su utilizaciOn le permite al Cliente con su Firma Electrnica como media de expresiOn de Ia voluntad convenir con Banamex los
Servicios mediante Instrucciones eligiendo las opciones habilitadas
Banca MOvif BancaNet Mvil Banamex MOvil significa indistintamente 01 serviclo de acceso los Servicios travØs de un Dispositivo de
Acceso celular inalOmbrico de radiofrecuencia cuyo nUmero de linea se encuentre asociado al Servicio
Banca Telefnica Audio Respuesta servicio de Banca Electrnica mediante el cual Banamex recibe instrucciones del Cliente travØs de un
sistoma telefOnico interactOa con el Cliente mediante de voz tonos mecanismos de reconocimiento de
proplo grabaciones voz
incluyendo los sistemas de respuesta intaractiva do voz
Banca TelefOnica Voz Voz significa el servicia de Banca ElectrOnica mediante el cual el Cliente instruye via telefOnica travØs de un
representante de Ia institucin debidamente autorizado por Œsta con funciones especIficas 01 cual padre operar en un contro do atencin
telefOnica realizer determinadas operaciones nombre del propio Cliento
BitOcora significa 01 registro asiento efectuado en forma electrnica de todas cads una de las Oporaciones travØs de los cuales se
podra conocer de manors enunciativa mÆs no limitativa datos do acceso al Medio ElectrOnico asi como de Is OperaciOn instruida el
par
Cliente
Blogueo do Factores do AutonticaciOn significa 01 proceso por el cual Banamex inhabilita temporalmente el uso de un Factor de
AutenticaciOn
Buzn Electrnico significa el area de almacenamiento eloctrÆnico quo Banamox ofrece yb tiene contratado donde se almacena
virtualmente Ia informaciOn que es onviada recibida por Banamex yb ol Cliente al quo tendrØ acceso el Cliente mediante 01 uso de su Firma
ElectrOnics
Caiero AutomØtico significa el Dispositivo de Acceso de autoservicio quo le permite al Cliente realizer consultas Operaciones diversas tales
coma Ia
disposicin de dinero en efectivo al cual el Cliente accede mediante una tarjeta cuonta bancaria pars utilizar el servicio de Banca
ElectrOnics
CarØtula significa el documento que contiene as principales caractoristicas do Ia operaciOn que el Cliente celebrarÆ al
amparo del Contrato
quo forms parte del mismo
Cargos Programados significan las Instrucciones por escrito travØs de otros medios do comunicaciOn autorizados que el Cliente instruye
para que Banamex le cargue una mas de sus Cuentas ciertas sumas de dinero con Ia periodicidad que asimismo especifique las abone
Ia Cuenta de Abono del Cliente benoficiario de las mismas
Certificado Diqital significa el registro electrnico que genera Banamex Un tercero por Øste designado respecto do Ia confirmacin de
identidad del Cliente los datos de creaciOn de su firma electrOnica avanzada Dicho Certificado contiene datos do Ia omisin do dave
llave pOblica privada del Cliente el nombro do Cliente ii un nOmero de serie asignado por Banamex el Tercera it fecha do
vencimiento iv Ia dave pQblica del Cliente El Cliente podrÆ utilizer el Certificado Digital pars transmitir mensajos de datos firmando con su
dave privada
Cheque significa el documenta que reOna los requisitos que seOala Ia
Ley General do Titulos Operaciones do CrØdito pare ser considerado
coma tal
Chequera signiuica el talonario quo cantiene los esqueletos do Cheques quo en su caso Banamex proporcionarÆ al Clionte do acuerdo con
lo
dispuesto en el presente Contrato
Cifrado significa el mecanismo Utilizado par Banamex pars proteger Ia confidencislidad do los Mensajes do Datos informacin mediante
mØtodos criptogrØficos basado en una evaluacin de riesgos que determinarØ Ia complejidad del Algoritmo do encripcin utilizado Ia longitud
de sus claves Ilaves
respectivas criptogrÆficss
Clavo DinØmica es parte do Ia Firms ElectrOnica consiste en un esquema de identificaciOn del Cliente basado en el control del acceso Ia
Banca ElectrOnica mediante el usa conjuntamente con otros elementos de una cadena do caracteres generados automØticamente travØs de
un dispositivo fisico Cads Clave DinÆmica genorada da acceso Onicarnente una SesiOn Ia realizaciOn de una OperaciOn InstrucciOn
ConcentraciOn do Fondos significa Ia recepdiOn de depositas con referendas pare abono una Cuenta Concentradora Los dopOsitos
podrØn ser recibidos en sucursales corresponsales Banca ElectrOnics Las referencias pueden ser numØricas do haste 10 posiciones
alfanumØricas de hasta 20 caracteres ambos tipos de conformidad con las reglas establecidas par Banamex
Condusef significa
Ia ComisiOn Nacional para Ia ProtecciOn Defense de los Usuarios de Servicios Financieros
Constancia de Dopsito significa Ia constancia nominative no negociable emitida par Banamex pars documentar el DepOsito Plazo que
ofectOe 01 Cliente en tØrminos del Sexto Las Constancias de no son titulos de crOdito
Capitulo DopOsito
Contrato significs conjuntamonte Ia Solicitud Ia CarÆtula el presente instrumento sus anexos cualquier convenlo quo lo
modifique
adicione
ContreseOa NOrnoro de.IdenlificsciOn Personalo Clave Confidencial significa Is cadena estOtica sea numØrica alfanumØrica gonerada
par el Cliente para Is utilizaciOn de los Servicios travØs do los Modios ElectrOnicos dobiendo activarso en cualquiera do as sucursales de
Banamox en los propios Medios ElectrOnicos travØs de cualquiora do los medios quo Banamex determine para tales efectos
Correo Electrnico significa Is ubicaciOn direcciOn en Internet indicada par el Cliente en cualquiora de los documentos que forman parto del
Contrato mediante comunicado posterior quo ol Cliente entregue Banamex travØs del cual ol Cliente puedo envier recibir
comunicaciones
Cuenta significa Ia cuonta bancaria quo en su caso Banamex abrirO al Cliento on tØrminos de Ia dispuosto en Is ClÆusula 11.1 del Contrata
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Cuenta Concentradora signitica una Cuenta Propia que serÆ utilizada para Ilevar cabo ConcentraciOn do Fondos Østa puede ser una
cuenta virtual con sucursal 870 bien alguna cuenta existente en cuyo caso so denominarÆ Cuenta Regionalizada
Cuenta de Abono significa Is Cuenta Incorporada en Ia cual se acreditarÆn en forms global los depOsitos derivados del Servicio Electrnico
do Pagos del Serviclo do Domiciliscin del Servicio de Cobranza Referenciada Banamex en Ia cual se cargarÆn las comisiones quo se
deriven de dichos Servicios
Cuenta de Cargo Global significa cualquier Cuenta Propia que ha sido incorporada respecto do Ia cual Banamex so encuentra autorizado
por el Cliento pars realizar cargos en relacin con el Servicic denominado TEF
Cuentas de Proveedores significan as cuentas en las que so harÆn los abonos contenidos en un Archivo Global de Pagos enviado al Buzn
ElectrOnico
Cuenta do Terceros significa cualquier cuenta dada de sits en Ia que el Cliente solamente podia realizar depsitos cuyo titular sea un
tercero quo tenga alguna relaciOn con el Cliente
Cuenta Incorporada significa cualquier Cuenta cuyo titular sea el Cliente un tercero las cuales tiene acceso el Cliente travØs de
cualesquiera de los Medios de Comunicacin para conocer los saldos realizar operaciones monetarias otras quo pormita cada Medio de
Comunicacin en virtud de haber sido dada do Alta
Cuenta Propia significa una Cuenta Incorporada cuyo titular es el Cliente
Depsito significa el depOsito bancario de dinero que se efectUe Ia Cuenta bien constitucin incremonto del Depsito Plazo del
Pagare modiante Ia entrega Banamex do cantidades determinadas de dinero do acuerdo con lo estipulado en el
presente Contrato
Depsito Plazo significa el depsito bancario de dinero plaza fijo que efect0e el Cliente en los tØrminos condiciones referidos en el
Capitulo Sexto del Contrato
Desblogueo de Factores de Autenticacin significa el proceso por el cual Banamex habilita el uso de un Factor de Autenticacin quo so
encuentre bloqueado
Desembolso significa Ia disposicin do Ia Lines de CrØdito efectuada en tØrminos de lo estipulado en Ia ClÆusula Xll.2
Dia HØbil significa cualquier dia del aæo que no sea sÆbado ni domingo en que las instituciones do crØdito estØri autorizadas para celebrar
operaciones con el pblico
Dispositivo de Acceso significa el equipo media que permite un Cliente accedor los Servicio de Banca Electrnica
Divisa significa los DÆlares asi coma cualquier otra moneda extranjera hbremente transferible convertible do inrnediato Dlares
Documentos Electrnicos significa toda aquella informacin generada enviada recibida archivada comunicada travØs do medios
electrOnicos pticos do cualquier otra tocnologia denominado Monsajo do Datos utilizado entre atros para Ia prestacin do los Servicios
DOlares significa Ia moneda de curso legal en los Estados Unidos de America
Eguipo de Cmputo significa el oquipo conformado par computadora un modem acceso inalOmbrico red quo tenga instalado algCin
Programa do Computo para que travØs de una linea tolefnica cualquier otro media autorizado se conecte Internet Intranet transmits
sus Instrucciones
Estada de Cuenta significa el documento elaborado par Banamox quo se refiere Ia ClÆusula X.1 del Contrato
Factor de AutenticaciOn significa
el mecanismo tangible intangible basado en las caracteristicas fisicas del Cliente en dispositivos
infarmaciOn quo solo el Cliente posea conazca pudiendo ser do manera enunciativa mÆs no limitativa Inforrnacin quo el Cliento conozca
que Banamex valide mediante cuestionarios practicados par los operadores del contra de atencin telefOnica ii Informacin que Onicamente
eI Cliente conozca pudiendo ser contraseæas nCimeros de identificaciOn personal estØtica iii lnformacin generada par dispositivos
generadores do Contraseæas dinØmicas do un solo uso dinØmicos OTP iv informacin derivada de las caracteristicas flsicas biometrias
del Cliente
do AutenjJgciOn NOmero Con8denciMPPIN Passwoid Claves deAcceso
Clove Confidericial Numero do ldentiflcaciÆn Personal Firma ElectrOqica Ayanzada a_ggjguier otra cue so agreque degiendo
gjcadas do nanera ipfl Id Iocofl fjaeritecuaIqiiera do oiij significa los datos en forma electronics utilizados par el Cliente para
identificarse con Banamex con terceros por ØI autorizados aceptar Ia atribucin do las lnstrucciones enviadas al propio Banamex
consignados en un Mensaje do Datos transmitido La Firma ElectrOnics tiene los mismos efectos juridicos quo Ia firma autOgrafa conforme Is
Iegislacion siendo admisible coma prueba en juicia
GAT significa ganancia anual total nets exprosads en tØrminos porcerituales anuales que pars fines informativos de comparacion
incorpara los interosos nominales capitalizables quo en su caso genere ol Producto contratado por 01 Cliento menos los costos relacionados
con ol mismo incluidos los do apertura
Horario Bancaria 1-lorarlo de Servicio significa en Dias HØbiles el horario comprendido do las 900 harass las 1600 horas hors del centro
de Mexico El Harario Bancarlo podia ser modificada en cualquier momenta par Banamex sin necosidad do previa aviso En caso de recibirse
lnstrucciones en dias inhÆbiles fuera del Horaria do Servicio las mismas se ejecutaran al Dia HÆbil siguiente doritro del Horario de Servicio
lnstruccin significa cada una de las Operaciones solicitadas par el Cliente Banamex travØs de los Medios ElectrOnicos utilizando una
Firma Electrnica para abtener Servicios on relaciOn con algunas Cuentas nOmera do cliente en su caso
Internet significa el media de comunicaciOn masivo travØs del cual un Dispositiva do Accesa incluyonda un dispositivo celular inalÆmbrico
quo reUna un minima do caracteristicas puede onviar recibir datos voz video demÆs informaciOn travØs do redes tolefOnicas locales
internacionales via cable transmisin do ondas incluyondo via satØlite demØs redes pOblicas do comunicacin
IPAB significa
el Instituta
para ProtecciOn al Ahorro Bancario
Linea Banamex Digitem significa el Programs do COmputo instalado en el Equipo do Computa del Clionto quo Øste podrÆ utilizar pars tenor
occeso los Servicios establecidos en Ia ClOusula VIII.5 do este Contrato
Linea do CrØdito significa el crØdito en cuonta corriente quo so rofiere Ia ClOusula XII.1
Medios Eloctrnicos significa cualesqulora do los equipos electrnicos pticos cuslqulor atra tecnologia utilizados medianto el usa do Ia
Firma Electrnica puestas disposiciri del Cliente par parte de Banamex incluyonda Micrositios do terceros relacionadas aprobados por
Banamox pars su acceso fin do quo el Cliente puoda Ilevar cabo 01 envio do las Instrucciones su ejecucin tanto en Ia relativo Servicios
solicitud de informaciOn asi como respecto do Ia actualizaciOn modificacin do representantes legales porfiles de operaciOn de las
mismos Dichos Dispositivos de Acceso san enunciativa no limitativamente Banamox MOvil AudiomÆtico Operador TelefOnico Portal do
Internet de Servicias do Banca ElectrOnics do Cash Management Lines Banamox Digitem Cajeros AutomOticos Terminales Punto de Vonta
Telefonia MOvil pudiendo Banamex en cualquior momenta sin mediar notificaciOn alguna incorporar eliminar cualquiera do sIlas
01635
Mensaje de Dabs significa Is informacin generada transmitida archivads braves de los Medios Electrnicos en los cuales se contienen
las Instrucciones pars Ia ejecucin de Operaciones
Mensajes Cortos de Texto SMS significa el servicio de mensaje corto el cual estÆ disponible en redes de telefonia mOvil permitiendo envier
recibir mensajes de texto TelØfonos Mviles via el centro de mensajes de un operador de red
Mexico significa los Estados Unidos Mexicanos
Negocios Afiliados significan los proveedores de hienes servicios efectivo que se encuentren afiliados Is marca de Ia Tarjets de DØbito
cualquier otro medjo de disposicin determinado por Banamex P01 lo tanto scepten los mismos como instrumento de pago media do
disposicion del dinero depositado en Ia Cuenta
NOmero de Cliente significa Is idenbificaciOn numerics alfsnumØrica que genera Bsnsmex pars cads Cliente yb pars cads relacin juridica
establecida segOn sea el caso misma
que es dada conocer al Cliente pars que Øste pueda tener acceso conjuntamente con otros
elementos algunos de los Medlos de Comunicacin quo conforman Banca Electronics
NOmero do InstrucciOn NOmero de Autorizacin significa Ia identificacin numØrica que hace Is Benca ElectrOnica en relacin con cads
OperaciOn del Cliente sea en Is solicitud de un Servicio en especifico do Ia ejecuciOn que realizarÆ Banamex respecto de Ia lnstruccin Ests
ldentificaciOn es tamblØn aplicable para el caso do cambio do Clave Confidencial consulta de saldos no le serØ aplicable lo anterior
Operaciones significa cuslquiera do las trsnsacciones fisicas de Banca Electronics quo celebre el Cliente con Banamex al amparo del
Contrato ssociada los Servicios
OperacjOn Monetaria significa Ia transferencia retiro de recursos dinerarios las cuales podrÆn ser micro pagos operaciones quo
equivalen on Pesos 70 UDIS de baja cuantia que equivale hasta un monto en Pesos do 250 UDIS diaries iii do medians cuantia
operaciones que equivalen 1500 UDIS diaries iv por montos superiores al
oquivalente en Pesos 1500 UDIS diarias El importe de las
Operaciones Monetarias podrÆ variar de acuerdo con 10 que establozcan las disposiciones legales aplicablos
Operador Telefnico significa el Media ElectrOnico accesiblo por el Cliente travØs del uso del telØfono coma medlo do comunicacin cuya
utilizaciOn le permito convenir con Banamex los Servicios mediante Instrucciones verbales un operador eligiendo las opciones habilitadas
PaparØ significa el titulo de credito denominado PagarØ con Rendimiento Liquidable Vencimiento quo emitirÆ Banamex para documentar
el prØstamo que le otorgue el Cliente de conformidad con Ia dispuesto en el Capitulo Sexto del Contrato
Pago Mvil significa el Medio Electrnico accesible pars 01 Cliente travØs del uso del TelØfono MOvil cuyo nOmero Onico do identificaciOn
se encuentra asociado una cuenta pudiendo el Cliente realizar entre otras las siguientes Operaciones consulta de saldo ii Operaciones
Monetarias limitadas pagos transferencias do recursos dinorarios hasta por el monto establecido en las disposiciones legales aplicables
con cargo las tarjetas cuentas bancarias que se tengan asociadas este media asi como iii administraciOn del servicio
Personas Autorizadas significan las personas fisicas que sean autorizadas por el Cliente para hacer disposiciones de dinero con cargo Ia
Cuenta Ia Linea de CrØdito bastando para ello Ia inclusiOn de sus nombres firmas en Ia Solicitud bien mediante autorizacin posterior
que proporcione el Cliente Banamex travØs do los formatos quo Øste determine para tales efectos
Banamex padrÆ negar Ia autorizacin seæalads anteriormente cuando el Cliente no le proporcione todos los documentos que el primero le
solicite pars cerciorarse de Is identidad de las personas fisicas que el Cliente pretends autorizar
Pesos significa Ia moneda de curso legal en Mexico
Portal Banamex significa Ia diroccin electrnica de Banamex dentro do Ia red mundial conocida como Internet identificada coma
www.banamex.com cualquier otra quo Banamex 10 determine al Cliente mediante un aviso enviado braves de cualquiera do los medios
soæalados on Ia ClOusula Xlll.8
Producto significa el nombre comercial travØs del cual el Cliente podrO identificar el tipa de Operacin que celobrarÆ con Banamex al
del Contrato
amparo
Programa de COmputo Software significa cualquier aplicaciOn instalada en el Equipo de Camputo del Cliento para quo Oste pueda recibir
determinados Servicios entre otros Programas de Cmputo se encuentran los denominados Linoa Banamex Digitem TEF
Restablecimiento de contrasoæas procedimiento par el cual el Cliente podra definir una nueva contrasoæa NOmero de Identificacin
Personal
Servicios significa cualosquiera do los siguientes transferencia do fondos oritre cuentas propias cuentas do terceros cargos las
cuentas propias pare depositos en tarjetas do crØdito Banamox otros adoudas con Banamex con cualquier tercero cargos las cuontas
propias respectivas pars depOsitos par concepto do servicios depOsitos Terceros cargos las cuentas de cargo para depOsitos de
nOmina empleados funcionarios del Cliente do sus subsidiarias afiliadas cargos las cuentas propias para roalizar ordenes de
pago transferencias de fondos do las cuentas propias pars realizer inversiones vista plaza con previo aviso compra yenta de
acciones de sociedados do inversiOn cargos las cuentas propias para compraventa de divisas para abono cuentas propias cambio
do Clave Confidencial consultas do saldos movimientos estados de cuonta consults do estado do cheques librados operaciones pars
protecciOn do cheques en caso de robos oxtravios solicitud do talonarios de chequeras de las cuentas propias de las
que el Clionte es
titular altas de cuentas do tercoros bajas de cuontas propias cuontas do terceras altos bojas do Firmas Electrnicas
administracin do facultades cualesquiera otros sorvicios que Banamex presto Ilegue prestar en un futuro travØs de los Medios
ElectrOnicos
Servicio do Domiciliacin significa el servicio ofrecido por Banamex quo permite al Cliento realizar cargos automØticos tarito rocurrentes
coma oventuales las cuentas do sus propios clientes pars el pago do bienes yb sorvicios
Servicio ElectrOnico de Pagos os el sorvicia que presta Banamex el cual cansiste en Ia aceptsciOn de pagos mediante Ia rocepciOn do
dopositos do terceros
SesiOn significa el periodo do tiompa sin interrupcin on eI cual 01 Clienie padre Ilovar cabo consultas Operaciones Manetarias cualquior
otro tipo de transacciOn bancaria do Servicios una vez que haya ingresado con su correspandiento Firma Electrnica algOn Media do
ComunicaciOn hasta quo so hubiere desconectado
Solicitud significa Ia pOgina de datos gonerales del Contrato en Ia cual se hace constar entre otros Ia informaciOn general del Cliente
Sucursal significa el establocimiento de Banamex cuya dave nombro se espocifica on Ia Solicitud
Tarleta do DØbito significa
Ia tarjeta de plÆstico con bands magnØtica quo en su caso Banamex entreguo al Cliente de conformidad con lo
en ol Contrato Ia cual sorÆ utilizada 01 coma un media de disposicin del dinero depositado en Cuenta
dispuosto por Tarjetahabiento Ia
instrumento do paga asociado Ia misma
Tarietahabionte significa eI Cliente Ia Persona Autorizada cuyo favor expodirO Banamex Ia
Tarjeta de DØbita do acuerdo con Ia
dispuesto
en ol Contrato
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Telftfono MOvil significa el dispositivo electrnico do comunicacin celular radiofrecuencia inalftmbrico propiodad en uso del Cliente el
cual tione un nOmero inico de identificacin permito realizer actividades comerciales compras de baja cuantia
Terminal Punto de Venta significa el Medlo Electrnico consistente en terminales de cmputo telØfonos mviles programas de cmputo
operados por terceros para instruir el
pago de bienes servicios con cargo Ia
Tarjeta de DØbito Ia Cuenta
Transforencia Electrnica de Fondos TEE significa el servicio ofrecido por Banamex pare establecer instrucciones do cargo Cuentas al
cual puede acceder el Cliente mediante Software instalado por Banamex en el Equipo de Computo del Cliente ii travØs do Internet
ulilizando BancaNet de acuerdo las disposiciones establecidas en Ia ClÆusula VIlI7 do este Contrato
1JDIS significa las unidades do inversion quo se refiere el Decreto por el que se establecen as obligaciones que podrOn denominarse en
Unidades do InversiOn reforma adiciona divorsas disposiciones del COdigo Fiscal do FederaciOn do Ia Ley del Impuesto Sobre Ia
Renta publicado en el Diana Oficial do Ia Federacin eli do abril de 1995
Unidad Especializada significa Ia unidad especializada de atenciOn usuarios do Banamex cuyo objeto es atender cualquier queja
reclamaciÆn del Cliente ubicada en 16 de Septiembre nOmero 71 piso colonia Centro DelegaciOn CuauhtØmoc 06000 Mexico Distrito
Federal Ia cual cuenta con los siguientes telØfonos en Ia Ciudad de Mexico 1226-2639 2262-6391 lade sin costo 01-800-021-2345 lada
sin costo desde Estados Unidos de America Canada 1-800-226-2639 su correo electrOnico es aclaracionesbmx23@banamex.com
Diclia Unidad Especializada cuenta con personal en cada Estado de Ia RepOblica Mexicana cuyos datos podrOn ser obtenidos pun el Cliente
on cualquier sucursal de Banamex
CAPITULO SEGUNDO
DEL DEPOSITO BANCARIO DE DINERO LA VISTA
CLAUSULA 11.1.- CUENTA En caso de que el Cliente asi Ia solicite Banarnex procederO abrirle una cuenta bancaria identificada con el
nUmero seæalado en Ia Solicitud en Ia cual el Cliente podrØ efectuar DepOsitos retiros de dinero en los tØrminos condiciones que mÆs
adelante se seæalan
En virtud de los Depositos el Cliente transfiere Ia propiedad del dinero Banamex obligendose este Oltimo restituir Ia suma depositada en Ia
misma especie de conformidad con Ia estipulado en el Contrato
En Cuenta se saldo de cual se compondrØ de interoses en su caso devenguen mismos
roflejarO el dinero el los DepOsitos que los
menos los retiros efectuados comisiones gastos demOs cargos
Al amparo del presente Contrato previa autorizaciOn de Banamex el Cliente podrO solicitar Ia asignacin de nOmeros de cuenta adicionales
Ia cual le permitirO dividir entre ellas el saldo total de los Depsitos Las distintas Cuentas abiertas al
amparo del Contrato se identificarOn con
el mismo nUmero do Cliente contenido en Ia Solicitud
Las distintas Cuentas deberOn ser salicitadas por el Cliente travOs de los medios formatos quo Banamex determine para tales efectos
incluso mediante Ia utilizaciOn do Banca ElectrOnica
todas las Cuentas les serOn aplicables las clOusulas contenidas en el presente instrumento por Ia que el tØrmino Cuenta se entenderO
referido todas las Cuentas abiertas al amparo del Cantrato
Ambas partos reconocen aceptan quo las Personas Autorizadas estarOn facultadas para disponer do los recursos depositados en tadas
cada una do las Cuentas salvo quo ol Cliente determine expresamente lo contrario Banamex
Asimisma las
partes convienen en quo las
persanas designadas par el Cliente en tØrminos de Ia estipulado en Ia ClAusula XllI.6 serOn
beneficiarios de todas las Cuentas abientas en virtud del presente Contrato menos de que el Cliente expresamente designe personas
distintas como beneficiarios de cada una de las citadas Cuentas lo cual deberO efectuar travØs de los formatos que Banamex le proparcione
para tales efectas
CLAUSULA 11.2.- FECHA DE CORTE Banamex determinarO Ia fecha do code mensual do Ia Cuenta Ia cual podrO ser consultada par eI
Cliente en el Estado de Cuenta dicha fecha de carte padre ser modificada par Banamex previa aviso par escnito quo envie al Cliente travØs
do cualquiera de los medios seæalados en ClÆusula XIII.8
CLAUSULA 11.3.- RENDIMIENTOS Dependiendo 01 tipo de Producto contratado el saldo de dinero favor del Cliente registrado en Ia
Cuenta podrO rendimientos los cuales serÆn brutos se computarÆn mensualmente se pagarÆn mediante abono Cuenta
generar Ia
mÆs tardar el Dia HObil siguiente Ia fecha do corte Si el Producto contratado genera rendimientos en Ia CarOtula se seæalarÆ Ia
tasa do inheres anual aplicable en su caso Ia GAT correspondiente
Los citados rendimientos so calcularOn sobre el promedio do saldos diarios que et Cliente mantenga depositado en Ia Cuenta
dividiendo Ia tasa do inheres anual determinada par Banamex entre 360 trescientos sesenta multiplicando el resultado asi obtenido
por el ncimero de dIas efectivamente transcurridos durante el perlodo en el cual se devenguen los rondimientos Ia tasa
correspondiente Los clculos so efectuarÆn corrindose centØsimas
Banamex se reserva el dorecho de revisar ajustar diariamente Ia tasa do interØs seæalada on los pÆrrafos anteriores el promedio
de saldos diarios vigentes quo los so aplicarÆ Østa Asimismo Banamex en cualquier momento podrO determiner los Productos
quo dejarÆn de generar rendimientos
El tratamiento fiscal de los rendimiontos estarÆ sujeto las disposiciones logalos aplicables
CLAUSULA SALDO MINIMO
11.4.- El Cliente acepta que Banamex tiene Ia facultad do determinar en su casa madificar el salda minima do
dinero que el Cliente debonO mantener depasitado en Ia Cuenta do acuerda at tipo de Producto contratada
En el supuesta do quo Banamex incremente el salda seæalado en et parrafa anterior deberO proceden notificanla al Cliente mediante
comunicado que le envle con al menos 30 treinta dies naturales do anticipaciOn que surta efectos Ia citada modificaciOn travOs do
cualquiera do las medios seæaladas on Ia ClOusula XIII.8
Si en Ia fecha de celebraciOn del presente instrumenta el Producta contratada requiere de un manto do aperture de un salda minima dichos
conceptos el imparte de las mismas saran determinados par Banamex en at anexo de comisiones referido en Ia ClOusula lxi
CLAUSULA 11.5.- DEPOSITOS LA CUENTA El Cliente cualquier tencera padnÆn efectuar DepOsitos pare sen abanados Ia Cuenta los
cuales deberOn realizar en Pesos excepta par Ia dispuesta en el Capitulo Tercero Las citados Depsitos podrOn efectuanse en efectiva con
Cheque mediante transferencia electrOnica do dinena travOs de cualquier otro media que Banamox autarice pare tales efectos on el
entendido do que Banamex en cualquier momenta padre modificar limitar rostningir Ia farma en quo necibirO las citadas DepOsitos Dichas
DepOsitas serOn acreditados en Ia Cuenta do Ia siguiente forma
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TratÆndose de en efectivo ci serd acreditado en Ia misma fecha en que so efectien cuando sean recibidos
DepOsitos importe siempre
por Banamex en Dias Hbiies dentro del Horario Bancario en caso contrario los Dopsitos serÆn acreditados el Dia HÆbil siguiente
En el supuesto de que los Depsitos so realicen con Cheque este ltimo ser recibido por Banamex salvo buen cobro por lo tanto el
importe que ampere ci mismo ser acreditado una vez que el Cheque sea cubierto por el obligado al pago
Cuando por cualquier causa Banamex no pueda cobrar ci Cheque Ia devolverÆ su tenedor pudiendo Banamex negarse recibir
nuevamente ci Cheque devuelto
El Cliente reconoce acepta quo Banamex estar facultado pare retener cuaiquier Cheque quo juicio de este Ultimo no cumpla con los
requerimientos minimos do seguridad que establezcan las disposiciones legales aphcables sus politicas internas
En caso de IJepsitos reahzados roediante transferencias electrnicas de dinero Ia cantidad respectiva se acreditarÆ en Ia fecha en que
Banamex efectivamente reciba dichos DepOsitos
Banamex tiene Ia facultad de determinar ci monto mÆximo de los
Depsitos ser recibidos en cada Operacin cuando Østa no se ajuste las
sanas practices bancarias
CLAUSULA 11.6.- OPERACIONES ILCITAS Cuando los ljepsitos sean considerados como derivados de una operaciOn ilicita
juicio
de
cusiquier autoridad competente Østa requiera Banamex reversidn del abono ci Chente autoriza Banamex cargar de inmediato ci
importe correspondiente asi como ci de las penalizaciones gastos de defensa haciØndose directamente responsable de as consecuencias
legalos que en su caso procedan
Asimismo Banamex tendrÆ Ia facultad do negarse recibir Depasitos Cuenta cuando considere necesario pare prevenir ci
encubrimiento Ia realizaciOn de operaciones con recursos do procedencia ilicita bien en cumplimiento sus politicas internas
CLAUSULA 11.7.- FORMA DE EFECTUAR RETIROS El Cliente las Personas Autorizadas siempre quo cumplen con las medidas do
seguridad que determine Banamex podran hacer retiros do dinero con cargo al saldo de Ia Cuenta travØs de cualquiera de las siguientes
formas
Disposicin de dinero en efectivo en las sucursales de Banamex en los estabiecimientos de los Negocios Afiliados comisionistas de
Banamex que se encuentren autorizados para tales efectos travØs del libramiento de Cheques de Ia presentacin de Ia Tarjeta do
DØbito
Cargos travØs del libramiento do Cheques para ser abonados en otras cuentas do depsito bancario de dinero abiertas en Banamex en
otras instituciones de crØdito
Disposicin de efectivo travØs de Cajeros AutomØticos en los cuales sea aceptada Ia Tarjeta de DØbito cualquier otro modlo
determinado por Banamex
Adquisicion de bienes Ia contratacin de servicios en los Negocios Afiliados mediante Ia utilizacin de Tarjeta de DØbito cualquior
otro media determinado por Banamex en Termineles Punto do Vonta
Ordenes de compra do bienes de contratacin de servicios celebrados con los Negocios Afiliados mediante Ia transmisin do Ia
informacin de Ia Tarjeta de DØbito cualquier otro medio determinado por Banamex travØs de redes de telecomunicaciones por
alguna via electrnica Optica do cualquier otra tecnologia
Transferencias de dinero mediante Ia utilizacin do Banca Electrnica
Banamex padre determinar otras formas para realizer retiros do dinero con cargo al saldo disponible de Ia Cuenta asimismo 01 Cliente
reconoce acopta quo Banamox estarÆ facultado para establecer en cualquier momenta ci monto mÆximo de dinero que se podrÆ retirar do
Ia Cuenta dopondiondo forma travØs de Ia cual so efecte oi citado retiro
CLAUSULA 11.8.- FORMALIZACION DE RETIROS Los retiros do dinero de Ia Cuenta serØn documentados oloccin de Banamex travØs
de alguno do los sigulontos medios Ia suscripcion autografa electrnica por parte del Cliente do las Porsonas Autarizadas de recibos
pagarØs vouchers cualesquiera otras constancias fisicas olectrnicas ii Ia expedicin do comprabantes fisicos electrnicos que omita
Banamex sus comisionistas los Negocios Afiliedos otras instituciones bancarias iii los rogistros contables que so generen en los
sistomas do Banamox de sus comisionistas de los Negocios Afiliados do otras institucionos bancarias
CLAUSULA 11.9.- SOBREGIRO El Cliente se oblige quo Ia suma do todos los retiros do dinero en ningUn momento excoda ci saido
disponible on Ia Cuenta par 10
que serØ su rosponsabilidad Ilevar en forma personal ci control sobro ci mismo evitando cualquier sobregiro
Pare cubrir posibles sobregiros en Ia Cuenta con 01 objeto de quo no se dejon de pager documentos suscritos par ci Cliente las Porsonas
Autorizadas Banamex padre otorger al Clionte un crØdito haste por ci monto plazo de disposicin que Banamox determine
El Cliente manifiosta oxpresamonto su voluntad disponor dol crØdito en ci momento en quo so prosento cualquier sobregira en Ia Cuente
pare quo abone
instruyendo Banamex Ia citada Cuonta Ia cantidad de dinero suficiente pare cubrir ci referido sobrogiro en 01 entondido do
quo Banamex ostarÆ facultado en todo momento pare restringir las disposiciones 01 importe del crØdita
El Cliente se obliga pagar Ia totahdad do las disposiciones del crØdito quo ofecte en tØrminas do Ia presente ClÆusula mØs tardar al die
siguiente en quo realico Ia misma mediante abono Ia Cuenta en caso de que no sea posiblo efectuar dicho abono haciondo 01
pago en
cualquiore de las sucursales de Banemex
El Cliento desde esto momenta autoriza Banamex pare cargarle el monto do Ia disposicin efectuada en tØrminos de presento ClÆusula
cualquier atra cuenta do depOsito bancario do dinero quo ci Chente tenga abierta con Banamex
Ambas partes reconocen acepten quo 01 crØdito canforido en tØrminos de Ia
prosente ClÆusula es distinto Ia Linea do CrØdita seæalada en
DØcimo del Contrato
ci CapItulo Segundo
CLAUSULA 11.10.- CARGOS LA CUENTA Banamex padre cargar Cuenta ci importo do los pagos quo el Cliento deba realizar
pravoedores do bienos servicias quo utilicen este mecanismo de pago siempre cuendo cuente con Ia autorizacin del Clionte bien ii
01 Cliente autorice los cargos por media del proveedor Øste travØs de Ia instituciÆn de crØdita quo Ic ofrezca el servicio do cobra respectivo
instruya Banamox realizar ci
cargo correspondiento en cuyo casa Ia eutorizacin del Chento podrØ quedar en poder del citado provoodor
en ambos supuestas Ia Cuonta deberÆ mantener saldo disponible suficiente pare realizer el cargo
El Cliente sin roquisito edicianal alguno en cualquier momenta padre solicitar Banamex Ia cancoiacin de las
cargos que so ofecten en
tØrminos del parrafa anterior sin
que so roquiere do Ia previa autorizacin de las respectivas proveedores do bienes servicios Ia cual surtirØ
ofoctos mÆs tardar las 10 dioz Dies HØbiles siguientes aquel en que Banemox reciba Ia instruccin correspondiente El Cliente reconoce
acopta quo Banamex no tondrØ responsabilidad alguna derivada de Ia citada cancelacin
01638
Las autorizaciones instrucciones qua se refiere Is presente ClÆusula podrn Ilevarse cabo 01 escrito con firma autgrafa mediante
utilizacin cle Banca ElectrÆnica travØs de otros medios electrnicos Opticos de cualquier otra tecnologia que Banamex determine para
tales efectos
El Cliente reconoce acepta que Banamex no tendrÆ responsabilidad alguna derivada de los cargos que etectCie en cumplimiento lo
dispuesto en Ia presente ClÆusula ni por Ia imposibilidad de efectuar los mismos en caso de que Ia Cuenta no mantonga saldo disponible
cut iciente
CLAUSULA 11.11.- COMPENSACION El Cliente en este acto autoriza de manera irrevocable Banamex para compensar bien para pagar
con recursos provenientes de Ia Cuenia cualquier adeudo de dinero cargo del Cliente favor de Banamex asi coma las operaciones que
en su caso celebren ambas partes al amparo de Øste otros contratos cualquier comisin interØs gasto derivado del Contrato
CAPITULO TERCERO
DEL DEPOSITO EN DIVISAS
CLAUSULA 111.1.- REQUISITOS El Cliente podra efectuar Depsitos de dinero en Divisas siempre cuando cumpla con cualquiera de los
siguientes supuesios
Se encuentre domiciliado en poblaciones localizadas en una franja de 20 veinte kilmetros paralela linea divisoria internacianal node
del Pals en los Estados de Baja California Baja California Sur bien
Si es ciudadano extranjero presta sus servicios en representaciones oficiales do gobiernos extranjeros organismos internacionales
instituciones anÆlogas SI es corresponsal extranjero en cualquier caso el Cliente deberÆ estar acreditado en Mexico ante las
autoridades correspondientes
Banamex requerirØ al Cliente Ia documentacin que su juicia demuestre que cumple con alguno de los supuestos anteriormente seflalados
obligÆndose el Cliente notificar Banamex cuando deja de cumplir con cualquiera de dichos Supuestos
CLAUSULA III.2.-DEPSITOS EN DIVISAS Los Depsitos en Divisas solo podrOn ser constituidos incrementados mediante traspasos
do fondos de depsitos bancarios denominados pagaderos en Divisas ii Ia entrega de documentos Ia vista denominados en Divisas
pagaderos sobre el exterior ii cuando Banamex asi autorice Ia entrega de Divisas Dichos Depsitos serÆn acreditados en Ia Cuenta do
Ia siguiente forma
En caso de Depsitos realizados mediante traspasos cantidad respectiva se acreditarO en Ia fecha en quo Banamex efectivamente
reciba dichos Depsitos
En el supuesto do que los DepOsitos se realicen mediante Ia entrega de documentos Is vista estos Oltimos serÆn recibidos por Banamex
salvo buen cobro por lo tanto el importe que amparen los mismos serÆ acreditado una vez que el documento sea cubierto por el
obligado al
pago
TratÆndose de entrega de Divisas el importe serO acreditado en Ia misma fecha en que Osta so efecte siempre cuando sean recibidas
por Banamex en DIas HObiles dentro del Horario Bancarlo en caso contrario los Depsitos serOn acreditados el Dia HÆbil siguiente
Banamex en cualquier momento podia modificar adicionar limitar restringir Ia forma en quo Se podrØn constituir incrementar los DepOsitos
en Divisas
CLAUSULA 111.3.- FORMA DE EFECTUAR RETIROS DE DIVISAS El Cliente las Persanas Autorizadas siempre que cumplan con las
rnedidas de seguridad que determine Banamex podrÆn hacer retiros de Divisas con cargo aI saldo disponible de Ia Cuenta travØs de
cualquiera de las siguientes formas
Situaciones do fondas en cuentas de depositos bancarios denominados pagaderos en Divisas
La entrega do dacumentas Ia vista denaminados en Divisas pagaderos sabre el exterior
La entrega de Ia Divisa respectiva Ia cual estarO en todo momenta condicianada Ia disponibilidad do billetes monedas metÆlicas de Ia
Divisa carrespondiente par parte de Ia sucursal en Is que el Cliente Ia Persona Autorizada el beneficiario pretenda efectuar el retiro do
quo se trate
Mediante el libramiento de Cheques con cargo las sucursales que Banamex tenga establecidas en las poblaciones que se refiere el
inciso de Ia ClOusula 111.1 cuanda eI Cliente se ubique en el supuesto senalado en dicho inciso ii en todo Mexico cuando el Cliente
cumpla con eI supuesto referido en el inciso de Ia citada ClOusula
El pago de los Cheques se efectuar eleccin del beneficiarlo respectivo mediante alguna de las formas previstas en las incisos que
anteceden
En su caso mediante Ia utilizacin do Tarjetas do DØbito
Banamex podr determinar otras formas para realizar retiros de Divisas asimismo el Cliente recanoce acepta que Banamex estarO facultado
pars establecer en cualquier momenta el monto mØximo do Divisas que podrØ retirar de Ia Cuenta dependiendo Ia forma travØs de Ia cual
se efect0e el citado retira
Banamex se obliga pager los recursos abonados en Ia Cuenta mediante entrega al Cliente de Ia misma Divisa quo Øste le hubiese
depositado excepta par lo dispuesto en el segundo pOrrafo de Ia ClÆusula XlIl.13 en cuyo caso el Cliente desde este momenta acepta
expresamente quo Banamex le entregue Pesos
CLAUSULA 111.4.- CONCEPTOS APLICABLES los DepOsitos en Divisas los serÆ aplicable Ia estipulada en el Capitulo anterior excepta par
10 en las ClOusulas 11.5 11.7
dispuesta
CAPITULO CUARTO
DE LA TARJETA DE DEBITO
CLAUSULA tv_I.- TARJETA Dependienda el tipa do Producta cantratado por el Cliente Banamex padrÆ proporcionarle una Tarjeta do DØbito
en casa de que el Cliente asi lo salicite Banamex podrO tambiØn praporcionarle Tarjetas de DØbito adicionales pare las Personas
Autorizadas Asimismo Banamex praparcionarØ al Cliente una Clave Canfidencial El Cliente reconoce acopta que Banamex padre restringir
emisin de Tarjetas do DØbito adicianales
Banamex asignarØ cada Tarjeta de DØbito Un nOmero Onico el coal se encontrarÆ impreso en el anverso do Ia misma Las Tarjetas do
DØbita serÆn intransferibles deberØn ser firmadas par el Tarjetahabiente en el panel de firma que se encuentra al reverso de las mismas
Todas las Tarjetas de DØbito serØn prapiedad do Banamex por 10
que el Cliente se obliga par ØI
par los demÆs Tarjetahabientes
devolverlasaBanamexen Ia fecha do encimientode asrnismasoalaterminaciOndeesteContrato
____
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El Cliente manifiesta expresamente su consentimiento para que Banamex en caso do que asi 10 considere conveniente hove cabo los actos
necesarios prepagada en nmero
tendientes que ha tarjeta que su caso el primero hubiese adquirido cuyo se incluye en Ia Solicitud
evolucione Tarjela de DØbito con Ia finahidad de que el Cliente puoda utihizarla pare disponer de dinero con Ia Cuenta
cargo
En el
supuesto anterior ambas partes convienen en dejar sin efeclos los tØrminos condiciones de ha tarjota prepagada correspondiente
instruyendo el Chiente Banamex pare que traspase Ia Cuenta el saldo de dinero que en su caso tenga disponible en Ia citada tarjeta
prepagada
CLAUSULA V.2.- UTILIZACION DE LA CLAVE CONFIDENCIAL Ambas partes aceptan quo Ia utilizacin de Ia Clave Confidencial
sustituirÆ Ia firma autografa del Tarjetahabiente por una de carÆcter electrnico por 10 que las constancias documentales tØcnicas
en donde aparezca producirÆn los mismos efectos que las leyes otorguen los documentos suscritos en consecuencia tendrÆn
valor
igual probatorio
El Cliente reconoce el carØcter intransferible do Clave cual
personal Ia Confidencial Ia quedarÆ bajo custodia control cuidado
del Tarjetahabiente por 10 que serÆ de Ia exclusiva responsabilidad del Cliente cualquier daæo perjuicio que pudiese sufrir como
consecuencia del uso indebido de Ia misma
La Clave Confidencial podrØ ser modificada por el Tarjetahabiente travØs de los medios que Banamex disponga para tales efectos
CLAUSULA lV.3- ENTREGA DE TARJETA Las Tarjetas de DØbito se entregarÆn al Chiente de acuerdo con el procedimiento Banamex
quo
determine en entendido de que Banamex estarØ facultado mismas
pare tales efectos oh
para entregar las Ia
persona que se encuentre en el
domicilio del Chiente Is persona fisica que este Øhtimo autorice tal fin Es responsabilidad exclusive del Chiente de las
para Is ontrega
Tarjetas de DØbito adicionales sus respecthvos Tarjetahabientes
Banamex entrogarØ desactivadas las Tarjetas de DØbito los
Tarjotahabientes deberÆn seguir las indicaciones Banamex les dØ at momento
quo
de Ia
para activarhas do esta manera poder efectuar retiros disposiciones con las mismas
entrea
Una vez ontregadas las Tarjetas do DØbito el Chiente serÆ 01 Unico responsable do todos los retiros
disposiciones que con ellas se efectien
por Io que este Ultimo reconoce acepta que Banamex no tendrÆ ninguna responsabilidad derivada del mal uso que se haga de as Tarjetas de
DØbito por culpa negligencia do los Tarjetahabientes
CLAUSULA lV.4- MEDIO DE DISPOSICION La Tarjeta de DØbito sÆlo representa un medio de disposiciOn de los Depsitos efectuados por
10
quo travØs de ha utilizacin de Ia misma el Tarjetahabiente podia efectuar nicamente retiros disposiciones do dinero hasta el limite
por
del sabdo disponible do ha Cuenta No obstante 10 anterior cuando Banamex lo autorice el Cliente podrÆ solicitar
por escrito un himite menor
para cualquiera de las Tarjetas de DØbito
CLAUSULA 1V5.- UTILIZACIN DE LA TARJETA Medhante Ia utilizacin de Ia de DØbito ha marcacin de Clave Confidencial Ia
Tarjeta Ia
suscripcin de los documentos que Banamex determine el Tarjetahabiente podrÆ efectuar retires disposiciones do dinoro con cargo Ia
Cuenta consultar el saldo de Ia misma travØs de los medios que Banamex autorico para tales efectos entre los cuales so podrØn incluir los
siguientes los Cajeros AutomÆticos de Banamox do otras instituciones bancarias con los quo Banamex Ia marca do ha Tarjeta do DØbito
celebrados acuerdos de do
tengan ii as sucursales Banamex iii los ostabbecimientos los comisionistas autorizados por Banamex iv las
sucursales do otras institucionos bancarias con las que Banamex mares de Ia Tarjeta do DØbito tengan celebrados acuerdos bien
los Negocios Afihiados
El Cliente reconoce acepta que el saldo de Ia Cuenta que le
proporcione Banamex haves de cualquiora do los modbos seæalados en 01
pÆrrafo anterior podrÆ no estar actualizado en razÆn do encontrarse pendiente do aplicar algØn cargo abono efectuado Ia misma
CLAUSULA IV.6.- IDENTIFICACIN PARA USO DE TARJETA Baaamox sus comisionistas otras instituciones bancarias los Negocios
Afiliados podrØn requerir al Tarjetahabionte se identifique debidamente provio que Østo efecte un retiro disposicin de dinero mediante Ia
utilizacin de Ia Tarjeta do DØbito
CLAUSULA V.7.- RETIROS DE DINERO Los retiros do dinero quo efectØe el
Tarjetahabiente mediante Is utilizacin do Tarjeta de DØbito
on Cajeros AutomØticos estarØn sujetos Is disponibilidad de efectivo quo oxista on eI Cajero AutomÆtico al memento do intontar efectuar
el retire ii los limites mØximos de disposiciÆn diana establecidos por Banamex otras instituciones bancarias segn sea el caso
CLAUSULA lV.8.- ROBO EXTRAVO DE LA TARJETA El Cliente se obliga por por Øl los demÆs Tarjetahabientes avisar do
manera inmediata Banamex travØs de medios su disposicin
los quo este Ultimo ponga para estos efectos el robo extravio do
cualquier Tarjeta do DØbito asi como su retencin en Cajeros AutomÆticos en el entondido de que Banamex no tendrÆ
rosponsabilidad alguna por los retiros disposiciones que en su caso so hubiesen efectuado mediante Ia utilizacin de Ia Tarjeta do
DØbito con antorioridad dicho aviso
Una voz ofectuado el aviso seæalado en el prrafo anterior Banamex procederÆ bloquear Ia Tarjeta de DØbito partir do lo cual
cesarª Ia rosponsabilidad del Cliente por el uso do Ia misma Banamex proporcionarª al Cliente una dave quo Øste deborÆ conservar
para futuras aclaraciones
Al momento de ser bloqueada Ia Tarjeta do DØbito Banamex procedera expedir una nueva Tarjeta de DØbito que al Cliente
entregarÆ
en tØrminos do lo dispuesto en Ia Clusula IV.3
Si el Cliente los domÆs Tarjetahabiontos recobrasen Ia Tarjeta do IJØbito despuØs de haber notificado su robo extravio retencin
deberØn abstenorse de usarla entregarla do inmediato Banamex
CLAUSULA IV.9.- RETENCIN Banamex estarØ facultado pare retener bloquear canceler sustituir en cualquier momonto as Tarjotas de
DØbito por cualquiera do las cuestiones que de manera enunciativa mØs no limitativa se seæalan continuaciOn por haberse terminado 01
presente Contrato ii por haber cambiado el tipo do Tarjeta de DØbito iii pars perrnitir el uso internacional de Ia Tarjeta do DØbito en case do
inicialmente solo fuese vØhida do de
quo en territorio nacional iv por motives soguridad derivado su robe oxtravio vi por Ia
implementacin de nuevas tecnologias vii por ha implemontacion do nuovas marcas on su caso viii porque el Cliente cumpha mayonia
de odad on osto Itimo caso el Chiente se obliga acudir cualquier sucursal de Banamex con Ia finalidad do sustituir is do DØbito
Tarjeta
correspondionte
CLAUSULA lV.1O.- NO RESPONSABILIDAD Banamex no asumirO responsabihidad ahguna
Si cuahquiera do los Nogocios Afiliados comisionistas do Banamex no admite al Tarjetahabiente Ia
Tarjeta de DObito
Si el
Tarjotahabionto no puede efectuar retiros por Ia suspension de servicios on las sucursales do Banamex on los Cajoros AutomØticos
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Si el Tarjetahabiente no puede utilizar Tarjeta de DØbito por daæos en Ia banda magnØtica de Ia misma
Por Ia cantidad calidaci cualquier otra caracteristica de las mercancias servicios adquiridos par el Tarjetahabiente mediente
utilizacin de Ia Tarjeta de DØbito asi como de Is
entrega ejecucin de los mismos obligØndose ci Cliente presentar cualquier tipo de
reclamacibn por los conceptos antes mencionados exciusivamente ante ci Negocio Afiliado de que se trate
CLAUSULA VII.- TIPO DE CAMBIO Cuando el Tarjetahabiente utilice Is
Tarjeta de DØbito para realizar disposiciones de dinero en Divisas
bien para etectuar de bienes servicios en Divisas ci monto de disposicin pago siempre se cargar Ia Cuonta en Pesos en
pagos
su caso en Ia Divisa en que se encuentre denominada Ia Cuenta tratØndose de los Depsitos en Divisas que se refiere el Capitulo Tercero
El tipo de cambio que so utilice
para calcular equivalencia del Peso en relacion con el DOlar no podra oxceder de Ia cantidad que resulte de
multiplicar por 1.01 uno punto cero uno el tipo de camblo que el Banco de Mexico determine el dia de presentacin de los documentos de
cobro respectivos de conformidad con lo senalado en las Disposiciones aplicables Ia determinacin del tipo de cambio para solventar
obligaciones denominadas en moneda extraniera pagaderas en Ia RepØblica Mexicana que publique en el Diario Oficial de Federacin ci
Dia HÆbil siguiente
CLAUSULA V.12.- CARGOS PRESUNTAMENTE FRAUDULENTOS Banamex podrÆ restituir at Cliente el monto de los retiros
disposiciones que Banamex determine que fueron presuntamente efectuados mediante et uso fraudulento de Ia Tarjeta de DØbito an
cuando Ia misma no hubiese sido robada extraviada obligandose el Cliente colaborar en todo momonto con Banamex debiendo
entregarle toda Ia documontacin que Banamex le
requiera para que este Ciltimo se encuentre en condiciones de lievar cabo Ia
investigaciOn correspondiente
En caso de que el resultado de Ia investigacin efectuada por Banamex concluya que los retiros disposiciones no fueron
efectuados de manera fraudulenta el Cliente autoriza Banamex para cargar Ia Cuenta el monto que Øste le hubiese restituido en
tØrminos de to
dispuesto en el pÆrrafo anterior
CAPiTULO QUINTO
DELACHEQUERA
CLAUSULA V.1.- CHEQUERA Dependiendo ci tipo de Producto contratado por el Cliente Banamex podrÆ proporcionarle una mØs
Chequeras mediante las cuales el Cliente las Personas Autorizadas en su caso podrØn efectuar retiros disposiciones do dinero con cargo
al saldo registrado en Ia Cuenta favor del Cliente travØs del libramiento de Cheques
El Cliente no podrØ utilizar esqueletos de Cheques distintos los
quo Banamex le proporcione en Ia citada Chequera salvo aquellos casos en
que previa solicitud por escrito Banamex autorice al Cliente ci usa de formas esqueletos de Cheques especiales los cuales deberÆn cumplir
con las especificaciones bancarias aplicables
El Cliente reconoce que los Cheques especiales podrØn ser rechazados cuando no cumplan con las citadas especificaciones bancarias por Ia
que desde este momenta acepta que Banamex no sore responsable de los danos perjuicias quo el Cliente cualquier tercero pudiesen sufrir
como consecuencia de Ia falta de pago del Cheque rechazado aUn cuando existan fondos suficientes en Ia Cuenta
CLAUSULA V.2.- RETIROS CON CHEQUE Los retiros que se realicon travØs del libramiento do Cheques serØn cargados Cuenta en ci
momenta en quo so presenten Banamex para su cobro
CLAUSULA V.3.- ENTREGA DE LA CHEQUERA Banamex entregarØ Ia Chequera en Ia Sucursal en cualquier otro lugar que Banamex
determine previo acuse de recibo del Cliente ode Ia fisica ci Cliente autorice par escrito
persona quo
partir de Ia fecha del acuso do recibo respectivo ci Cliente serÆ el Ønico responsable do Ia guarda custodia uso de is Chequera estando
exento Banamex do cuaiquier rosponsabilidad derivada del mal uso quo so haga de los esqueletos do Cheques contenidos en Ia misma par
cuipa negligencia del Cliente do sus representantes de las Personas Autorizadas
CLAUSULA V.4.- CHEQUES ROBADOS EXTRAVIADOS El Cliente no tendrÆ accin legal para reclamar Banamex indemnizacin
por el pago de Cheques extraviados robados cuando el
primero no hubiere dada aviso do ello Banamex por escrito travØs de
cualquier medio que Banamex ponga disposicion del Cliente para ese efocto Dicho aviso tendrÆ quo presentarse do manera previa
quo se efecte el
pago del Cheque correspondiente
Una vez efectuado el aviso seæalado en el pÆrrafo anterior Banamex procederÆ bloquear los Cheques extraviados robados
partir de to cual cesarØ Ia responsabilidad del Cliente por el usa do los mismos Banamex proporcionarÆ at Cliente una dave quo
Øste deberÆ conservar para futuras aclaraciones
El Cliente solo tendrÆ acciOn para reclamar Banamex el
pago de Cheques alterados falsificados cuando Ia alteracin Ia
falsificacin fueren notorias juidio de Banamex
CLAUSULA V.5.- REVOCACION DE CHEQUES El Clionto las Personas Autorizadas no podrÆn revocar los Cheques librados ni oponerse
su pago sino dospuØs de quo transcurra el plaza do presentacin quo establezcan las disposicionos legalos aplicabios Transcurrido dicho
plaza ci Cliente podrØ revocar los Cheques so padre oponer su pago mediante notificacin quo entregue par escrito Banamex
CAPITULO SEXTO
DEL DEPSITO PLAZO DE LOS PAGARES
CLAUSULA Vl.1.- FORMALIZACION El Cliente podrØ instruir Banamox por escrito mediante Banca Electronics travØs do los medios
quo Banamex determine para tales ofectos fin de quo con cargo al saido disponible en Ia Cuenta so invierta ci dinero que ci propio Cliente
determine en Depsitos Plaza en prØstamos instrumentados medianto PagarØs bien travØs de otros pasivos cargo de Banamex tales
como depOsitos bancariqs do dinero do cuaiquier tipo quo Banamox so encuentre operando ofrezca sus clientes
Asimismo cuando Banamox asi Jo autorice as DepOsitos Piazo los Pagares podrØn ser constituidos sin Ia necesidad do quo ci Clionte
mantenga una Cuenta
En ci supuosto senalado on ci pOrrafo anterior Ia constitucin incremento do los DepOsitos Plaza do los PagarØs deborØn ser
formalizados por ci Cliente mediante Dopsitos los cuales les serO aplicable 10 estipulado en Ia CiÆusuia 11.5 del presente Contrato asimismo
ci Chente podrØ efectuar retiros travØs do cuaiquiora de las forrnas seæaiadas en los incisos do Ia ClÆusula 11.7 cuaiquior otra quo
Banamox determine para tales efectos
Banarnex determinarO hbremente los montos piazos partir de las cuales estarO dispuesto recibir DepOsitos Plazo prØstamos
documentados en PagarOs
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CLAUSULA Vl.2.- DOCUMENTACION Cada DepOsito Plazo prØstamo celebrado en los tØrminos del presente Capitulo se documentarÆn
mediante is emisiÆn de Constancias de Depsito de PagarØs respectivamente los cuales Banamex recibirØ del Cliente en depsito para su
guards administracidn acreditÆndose dicho depOsito con el comprobante de Operacin quo Banamex emita para tales efectos ci cual desde
este rnomento ci Cliente reconoce que no es un titulo de crØdito
Las Operaciones seæaladas en el pØrrafo anterior no podrØn vencerse anticipadamente por 10
que ci Cliente reconoce acepta que
inicamento podia retirar los recursos invertidos en dichas Operaciones at vencimiento del plazo de las mismas
CLAUSULA VL3.- INTERESES Banamex pagara al Cliente intereses sobre las sumas que Øste Ic entregue en Depsito Piazo en
prØstamo Ia tasa anual pactada entre las partes Ia cual padre corresponder Ia tasa de interØs que para dichas operaciones dØ
conocer Banamex en lugares abiertos al
piiblico en sus oficirias
Los intereses referidos en ci pÆrrafo anterior se causarØn partir del dia en que se constituya ci Depsita Piazo se otorgue el
prØstamo hasta ci dia anterior al de Ia conclusiOn del plazo correspandiente los cuales se caIcularÆn dividendo Ia tasa de interOs
anual aplicable entre 360 trescientos sesenta multiplicando el resultado asi obtenido por ci nmero do dias efectivamente
transcurridos durante ci perlodo en ei cual se devonguen los intereses tasa correspondiente Los cÆiculos se efectuarÆn
cerrÆndose centØsimas
Los intereses que devenguen las Operaciones antes senaiadas serØn brutos se pagarÆn al vencimiento de las mismas tratndose
de DepOsitos Plazo los intereses podrØn pagarse en las fechas quo ambas partos doterminen al momento do pactar Ia Operacion
El tratamiento fiscal de los rendimientos estarÆ sujeto las disposiciones legales aplicables
En Ia CarÆtula se seæala Ia tasa de interØs anual aplicable iThicamente en fecha de celebracin del Contrato Ia GAT del Depsito
Plazo del Pagare segn corresponda
CLAUSULA Vl.4.- PLAZO Al constituirse ci Depsito Plaza al expedirse ci Pagare que documente el prOstamo las partes pactarÆn ci
plaza de los mismos en dias naturales no debiendo ser menor un dia serØ forzoso para ambas partes Banamex podrO determinar ci
periodo minima respecta dcl cual estarØ dispuesto celebrar este tipo de Operaciones
Cuando ci vencimiento del Depsito Plaza del Pagare ocurra en un dia inhÆbil ci pago se efectuarÆ el Dia HÆbil inmediato siguiento en ci
entendido de que los intereses continuarÆn devengandose conforme se establece en Ia ClOusula anterior Is tasa do interØs originalmente
pactada
CLAUSULA Vl.5.- RENOVACIN DEL DEPOSITO PLAZO Banamex padrÆ renovar los Depsitos Plazo en forma automØtica su
vencimiento quedando sujeta Ia citada renovaciOn Ia aceptaciOn do Banamex
En caso de ser proccdcntc Ia rcnovacin del DepOsito Plaza ci mismo se cntenderÆ constituida al mismo plazo que el anterior siendo
aplicabie Ia tasa de interOs que Banamex hays dada conocer al pØbilco en general pars esa misma ciase de Operacion ci Dia HObil
correspondiente al do Ia renovacin
Cuando ci vencimiento del Depsito Piazo fuere en dia inhÆbil Ia Operacin serÆ renovada precisamente en dicha dia inhØbil at
apilcando
efecto Ia ass do interØs que Banamex hubiesc dada conocer el Dia HØbii inmediata anterior En este supuesto si el Cliente so prescntara el
Dia 1-lObil inmediato siguiente al de Ia renovaciOn padre retirar ci monto total del Depsito Plazo
CLAUSULA VI.6.- REINVERSION DEL PAGARE El Cliente instruye Banamex para quo ci monto derivado do Ia amartizaciªn del Pagare so
invierta en otro PagarØ par un piazo iguai al anterior aplicØndole Ia tasa do interOs que Banamex hays dada conacer al pØblico en general
para eSa misma clase de Operacin ci Dia I-IÆbii correspondiente al do reinversin En ado caso Ia reinversin antes seæalada queda
sujeta Ia aceptaciOn de Banarnex Cuando ci vencimienta del Pagare fuere en dia inhÆbil Ia reinversiOn sore efoctuada el Dia HØbil
posterior
El Cliente las Personas Autorizadas en cuaiquier momenta podrÆn instruir Banamex pars que no proceda efectuar Ia reinversin
seæalada en Ia presente ClÆusula
CLAUSULA VI.7.- ABONO LA CUENTA Cuando no proceda Ia renovacin del DepOsita Plaza Ia reinversin del Pagare Banamex
pondrØ disposicion del Cliente el manta derivado de Ia hquidacion total parcial dci primera bien do Ia amartizaciOn del Segundo mediante
abano Ia Cuenta de Ia cantidad de dinero que corresponds en caso do que ci Cliente no mantenga una Cuenta Banamex pandrØ
dispasiciOn del Cliente ci importe respectivo en efectivo Cheque cualquier otra farms quo Banamex determine
CLAUSULA VI.8.- OPERACIONES EN UDIS Las partes podrØn pactar quo las Operaciones que so refiere ci presente Capitulo sean
denominadas en UDIS en cuya caso el plaza do las mismas no padre ser inferior tres meses
CAPITULO SEPTIMO
DE LAS DIVERSAS CLASES DE PRODUCTOS
CLAUSULA Vll.1.- SOLICITUD DE PRODUCTOS Previa autorizacin de Banamex ci Cliento padrÆ soiicitar cualquiera do las Productas
incluidos en el Portal Banamex en el presente Capitulo pars Ia cual deberÆ cumplir can las caracteristicas requisitas que sean
determinadas par Banamex para Ia cantrataciOn de los mismos
El Cliente recanoce acepta quo Banamex estarØ facuitado para madificar las caracteristicas del Producta cantratado par ci Cliente inclusa
cambiaria otro Praducto bastanda pars ella un aviso par escrito dada al Cliente can 30 treinta dias do anticipaciOn Ia fecha en quo Ia
madificacin ci cambia cntrc on vigor raves de cualesquiera de los medias seæalados en is ClÆusuia XIII.8 Durante dicho plaza ci
Cliente tendrÆ derecho dar par terminada ci Contrato sin
quo Banamex pueda cobrarle cantidad adicionat alguna por este hecho con
oxcepcion do las adeudas que ya se hubieren generado Ia fecha en quo ci Cliente natifique Banamex Ia terminacin anies referida
SECCIN
ii
INVERSION INTEGRAL BANAMEX
ii
CLAUSULA VII.2.- DESCRIPCION InversiOn Integral Banamex es un depOsito de dinero Ia vista en Pesos quo genera rendimientos
diarios
El Cliente en cualquier rnomento podrÆ instruir Banamex par escrito mediante Ia utilizacin do Banca ElectrOnica travØs de los
medios que Banamox determine pars tales efectos para que este ltimo transfiera de Ia cuenta eje los recursos que eI Cliente desee
depositarenesteProductooviceversa
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El Cliente reconoce acepta que transferencia quo Se refiere el pÆrrafo anterior nicamente se podrÆ efectuar en Dias Hbilos
dentro de un horario de las 900 as 1500 horas hora del centro de Mexico en caso do el Cliente instruya Ia citada
que
transferencia fuora de los dias horario antes seæalado Østa se aplicar hasta el Dia HÆbil siguiente
Los rendimientos quo genere el dinero registrado en Inversion Integral Banamex serOn brutos se calcularn sobre el saldo diario
que el Cliente mantenga dopositado en dicho Producto dividiendo Ia tasa de interØs anual detorminada por Banamex entre 360
trescientos sesenta Los cOlculos se efectuarÆn cerrÆndose centØsimas
La tasa do interØs anual aplicable Ia GAT de InversiOn Integral se seæalan en Ia Cartula Banamex se reserva el derecho do revisar
ajustar diariamente Ia citada tasa de interØs
SECCIN II
INVERSION PERFILES BANAMEX
CLAUSULA Vll.3.- DESCRIPCIN Inversion Perfiles Banamex es un depOsito de dinero Ia vista en Pesos quo genera rendimientos
diarios
El Cliente en cualquier momento podrO instruir Banamex por escrito mediante Ia utilizaciOn de Banca Electrnica travØs de los
medios que Banamex determine para tales efectos para quo este Oltimo transfiera do Ia cuenta eje los recursos que el Cliente dosee
depositar en este Producto viceversa
El Cliente reconoce acepta que Ia transferencia que se refiere el parrafo anterior Onicamente so podrÆ efectuar en Dias HÆbiles
dentro de un horarlo de las 900 las 1500 horas hora del centro de Mexico en caso de quo el Cliente instruya Ia citada
transferencia fuera do los dias horario antes seæalado Østa se aplicarÆ haste el Die HÆbil siguiente
Los rendimiontos que genere el dinero registrado en InversiOn Perfiles Banamex serÆn brutos se calcularÆn sobre 01 saldo diaric
quo 01 Cllente mantenga depositado en dicho Producto dividiendo Ia tasa de interØs anual determinada por Banamex entre 360
trescientos sosenta Los cÆlculos se efectuarOn cerrÆndose centØsimas
La tasa do interØs anual aplicable Ia GAT do InversiOn Integral se seæalan en Ia CarÆtula Banamex se reserva el derecho do revisar
ajustar diariamonto Ia citada tasa de interØs
SECCION Ill
INVERSION INTELIGENTE BANAMEX
CLAUSULA Vll.4.- DESCRIPCION InversiOn Inteligente Banamex es un Depsito Plazo cuyo rendimiento se determine en funciOn do las
variaciones que se observen en los
precios de un subyacente los cuales pueden ser indices de precios sobre accionos coticen en una
que
boise de valores Pesos Divisas UDIS Hi indices do precios referidos Is inflacion bien Hi tasas de interØs nominales reales
sobretasas en las cuales quedan comprendidos cualquier titulo de deuda
En todo caso el Cliente reconoce acepta que este instrumento de inversiOn podrO no rendimientos estos ser inferiores los
generar
existentes en el mercado pero en ningn caso al vencimionto de Ia OperaciOn se podrO liquidar un importe nominal inferior al principal
invertido
CLAUSULA VII.5.- CONCEPTOS APLICABLES los DepOsitos Plazo descritos en Ia prosente Seccin les serÆn aplicables todas las
estipulaciones contenidas en el presente Contrato relatives Depsito Plazo asi como lo dispuesto en el documento denominado TØrminos
condiciones generales el cual se adjuntare oste instrumento inicamente en caso de que el Cliente desee celebrar este tipo de
Operaciones
CAPITULO OCTAVO
DE LA BANCA ELECTRONICA
CLAUSULA VIlt.1.- DE LOS MEDIOS ELECTRONICOS Ambas partes manifiestan expresamente su voluntad de pactar Oparaciones travØs
de Instrucciones quo el Clionte elija de las opciones habilitadas utilizando su Firma ElectrOnica
Las Operaciones pactadas travOs de los Medios ElectrOnicos podrOn estar asociadas contratos relacionados con operaciones activas
pasivas de servicios celebrados entre el Cliente Banamex supuesto en el cual los tØrminos condiciones de dichos contratos quedarOn
intactos seguirÆn surtiendo sus efectos con los alcances en ellos convenidos siendo que el presente Capitulo regularO Onicamente Ia forma
en Ia cue las partes convendrØn las referidas Operaciones
Asimismo eI Cliente podrÆ dar de alta su niimero de PIN mediante AudiomOtico siendo Østa de un solo uso toda vez que una vez dentro del
Medio ElectrOnico so le pedirO Cliente quo digite otro nOmero
Banamex manifiesta que en cualquier momento posterior al de Ia formalizacin de este Contrato el Cliente tiene derecho solicitarle Ia
activaciOn de aquellos Servicios que no hubiere habilitado inicialmente modificar las condiciones de los previamente pactados debiendo
manifostar su consentimiento expreso medante los medios que senale Banamex pare tel fin asi como Ia instalacin del Software en su Equipo
de Cmputo para Ia recepciOn do los Servicios que asi lo requieran en el entendido quo dicha solicitud se deberO realizar mediante
identficaciOn plena satisfacciOn de Banamex do conformidad con los tØrminos condiciones establecidos en este documento de Ia
legislaciOn
El Cliente reconoce quo Ia Banca Electronics estO conformada por diversos Medios do ComunicaciOn que cada uno do ellos estÆ programado
pare prestar determinados Servicios Ia totaidad de los mismos por lo
que reconoce quo solamente podrO recibir los Servicios que
correspondan al Medio do Comunicacin do que se trate
La Banca Electronics estO programada pare que el Cliente pueda dar Instruccionos sujeto los Horarios de Serviclo publicados en los mismos
medios limitaciones especificaciones que correspondan en cada caso El Cliente se oblige seguir las Instrucciones que le
indique el Medio
de ComunicaciOn para poder toner acceso los Servicios que correspondan El Cliente cuando eel lo requiera podrÆ bajo su estricta
responsabilidad cancelar Instrucciones previamente realizadas siempre que se operen en el mismo dia en que las Instrucciones fueron
efectuadas En todos los casos so requerira de Ia confirmaciOn aceptaciOn por parte de Banamex respecto de Ia lnstruccin de Ia
cancelaciOn fin de que sea vlida misma El Cliente manifiesta estÆ de acuerdo en que las Instrucciones canceladas no aparecerOn en
sus estados de cuenta
El Cliente estO de acuordo que Ia moneda ye sean Pesos DOlares de las Cuentas las
que se hagan cargos doberÆn coincidir con Ia
moneda do las Cuentas las quo se hagan abonos salvo que el Cliente opte por Ilevar cabo una operaciOn de compraventa de divisas en el
entendido que el Cliente acepta quo el tipo de cambio aplicable dicha operaciOn sea el tipo de cambio que determina discrecionalmente
Bananiex mismo quo le serO notificado travØs de los Medios de Comunicacin al momento en que Ia lnstruccin respective sea procesada
es responsab frenteChente de los so efectenaotras cuentas ya sean cuentasenBanarnexoen
traspasosoabonos_quo
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otros bencos por lo que respecta al tipo de cuenta ni Ia relacin causal que exista pudiere existir ontre eI Clionte los titulares de dichas
cuentas as que se hagan traspasos abonos con cargos las Cuentas Incorporadas considerando que en ningOn caso Banemex asumirO
obligaciOn responsabilidad alguna que derive de operaciones que desconozca el Cliente al haber entre otras causes comprometido su Firma
ElectrOnica por no seguir las recomendaciones de seguridad quo se publican en el Portal Banamex
El Cliente Onicamente podrÆ pactar las Operaciones que los Medios Electrnicos antes seæalados le pormitan manifestando expresamente
saber que el acuerdo de voluntades relacionado con cada OperaciOn pactada travOs de los mismos se tendr perfeccionado todos
por pars
los efoctos legales que hays luger al momento en que 01 Medio ElectrOnico utilizado le proporcione el NOmero do AutorizaciOn
Banamex podrÆ restringir limitar los Medios ElectrOnicos antes seOalados asi como determinar olros adicionales travØs de los cuales el
Cliente podrO efectuar Operaciones asimismo Cliente deberO Banamex as direcciones do Internet
el otorgar para facilitarle el servicio do
Banca Electrnica ad como el nOmero telefnico do Ia lines de TelØfono MOvil pare los servicios do Pago Mvil Banca Mvil
El Cliente reconoce podrØ contratar modificar canceler do Servicios Banamox
quo yb cualquiera los que ponga su disposicin modianto Ia
Banca Electrnica dobiendo utilizar el Factor do AutenticaciOn corrospondiento
CLAUSULA VIIL2.- OPERACIONES Do conformidad con lo dispuesto en Ia Ley do Institucionos de CrØdito ambas partes convienen que
Banamox podrØ suspender cancelar las lnstrucciones do las operaciones yb Servicios que el Cliente protonda realizar utilizer mediante los
Modios do Comunicacin Banca Electronics BancaNet Banamex MOvil Pago MOvil Blink GssNet cualquier otro Banamox
que ponge
disposiciÆn del Cliento siempre cuando Banamex cuente con elementos suficientes pare presumir quo Autonticacin del Cliente su
Certificado Digital Clave Confidencial Clave DinÆmica Firma Electronics Clave de NOmoro do ldentificacin
Accoso NIP Personal
Password Token NetKey NOmero Confidencial FIEL Firma Electrnica Avanzada ha sido comprometida utilizados en forms indebida bion
cuando so detecte algUn error en Ia nstruccin respectiva Pars ol acceso los distintos servicios do Ia Banca Electrnica Banamex le
proporcionarÆ el Cliente distintos medios de autenticacin pare ol acceso Ostos En caso de no contar con ellos ol Cliento no podrÆ utilizar
los Servicios que se describen en el prosonte Contrato considerando quo
Banamex podrÆ bloquear el serviclo do Banca Electrnica en caso de que ol Clionte introduzca su Firma Electrnica en diversas
ocasiones situaciOn por Ia que deberO acudir Ia sucursal Banamex pars desbloquear el sorvicio deberO otorgar otro nOmero pars
restablecer el sorvicio
Cuando Banamex hubiese recibido recursos mediante alguno de los Modios do ComunicaciOn cuente con elementos suficientes para
prosumir que los medios de AutenticaciOn del Cliente han sido utilizados en forma indobida podrO rostringir hasta por 15 quince Dies
HObiles Ia disposicin de tales recursos fin de Ilevar cabo las investigaciones las consultas seen necesarias con otras
que
instituciones do crØdito relacionadas con Ia operaciOn de que se trate Banamex podrÆ prorrogar discrecionalmente ol plazo anies referido
hasta por 10 diez Dies HÆbilos mOs siempro quo se hays dado vista Ia autoridad compotonte sobre probables hechos ilicitos cometidos
en virtud do Ia lnstrucciOn respoctiva
En los casos en que por motivo do las investigacionos referidas en el inciso anterior Banamex tenga ovidencia do Ia
que para
formalizaciOn del Contrato so con informacin documentaciOn medios de
presente proveyO falsa bien quo los autenticacin del Cliento
para Ia emisin de las instrucciones de quo so traten fueron utilizados en forms indobida podrO bajo su responsabilidad Ia
cargar
Cuenta sea Concentradora do Abono de Cargo Global do Proveedores de terceros Eje Incorporada Propia el importe respoctivo con
el propsito do que se abone en Ia Cuonta de Ia que procodieron los recursos correspondientes
En caso de que Banamex hubiese abonado por error dinero una Cuenta eI Cliente desde este momento faculta Banamex pars cargar
el importe respectivo Ia referida Cuenta con el propsito do corregir el error cometido
El
Cliente reconoce expresamente el derocho quo so reserva Banamex suspender una mØs funcionalidades del Servicio en caso do
quo las Cuontas hayan sido canceladas bloquoadas so encuentron en algOn estatus que impida reslizar algOn abono asi como
cargo
cualquier otra cause vinculada con Ia licitud do los fondos relacionada con Ia identificsciOn del Cliente
Banamox pondrÆ disposicin del Cliente los medios altornos para recibir Ia prostaciOn do los Servicios quo on su caso requiera Los
tØrminos condiciones bajo los cuales se regirØn los medios altornos serÆn los dados conocer aI Cliente en las sucursales do Banamox
medianto los Medios do Comunicacin quo correspondan
En caso do robo extravio del Dispositivo do Accoso los Medios ElectrOnicos el Cliente doberO do notificarlo Banamex debiØndoso
comunicar al Centro do AtenciOn TelefOnica pars solicitar Ia cancelacin podrO solicitarlo on linea medio del Administrador de
por
Seguridad
El Cliente deberØ do acudir sucursal Banamex pars quo posteriormento Ia notificacin indicada on prosonto clÆusula Ilene el
formato correspondionto para que se le haga entrega del nuovo dispositivo de seguridad aqui referido
CLAUSULA VlIl.3.- FIRMA ELECTRONICA Las Panes otorgan su consentimionto en que Ia Firma ElectrOnica sustituirÆ para todos los
efectos legales quo haya lugar Ia firma autgrafa del Cliente do su representante legal con plonas facultades produciendo los
niismos efoctos que las leyes otorgan Ia firma autografa de su representante legal con plenas facultades incluyendo el valor
probatorlo de Østa
El Cliente manifiesta conoce el alcance en Contrato Se Firma Electrnica
que que el presente le atribuye Ia
por 10 quo su uso
digitacion en los Medios Electrnicos es bajo su estricta responsabilidad asi como el hecho do quo su uso sea realizado por
represontantos legales del Cliente quo cuenten con plenas facultades pars convenir los Servicios El Clionte en de sus
protecciOn
propios intereses deberÆ mantener Ia Firma Electrnica como confidencial prevenir sus representantes quo lo reconozcan
dicho carÆcter toda vez que el uso de dicha Firma ElectrOnica pare todos los efoctos legales que hays lugar en todo caso serÆ
atribuido al Cliento aUn cuando medie caso fortuito fuorza mayor
Las partes convienen en que serÆn aplicables en su momento los tØrminos del Cdigo de Comercio cualquier otra disposicin
aplicable respecto de Ia identidad expresion do consentimiento de las mismas por medios electrnicos ptico do otra
cualquier
tocnologIa mediante el uso do Ia firma electrnica avanzada fin de quo los Mensajos de Datos sean comunicados entre las partes
do manera segura en su identificacin autØnticos integros on su contonido no ropudiables respecto do emisor receptor
El Cliente reconoce ser 01 tnico exclusivo responsable del use quo so haga de las Firmas Electrnicas el
para accoso
operacin manejo de los Servicios conviene on sacar en paz salvo Banamex de cualquier responsabilidad que pudiere Ilegar
generarse su cargo por el uso indebido quo le diera las Firmas Electrnicas El Cliente se oblige modificar peridicamente
Ia Clavo Confidencial con Ia finalidad do mantener en confidencialidad las Firmas Electrnicas seguir estrictamente las
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El Cliente manifiesta conocer el riesgo existente en el uso do los Medios de ComunicaciOn el alcance legal quo Ia legislacin
aplicable atribuye las Firmas Electrnicas por lo
quo su uso en cualquiera de los Medios de Comunicacin yb Ia Banca Electrnica
es bajo su estricta responsabilidad independientemente de Ia persona que las use por 10 que Banamex no serÆ responsable de los
daæos perjuicios que el uso indebido do las Firmas Electrnicas le pudiere causar al Cliente aCm cuando exista caso fortuito
fuerza mayor La responsabilidad del Cliente cesarÆ por defunciOn robo extravio hechos ilicitos partir de que Østos sean
notificados Banamex
Es responsabihdad del Cliento habilitar Ia Firma Electrnica por cualquiera do los Medios de Comunicacin que asi lo requiera
inmediatamente despuØs do que Ia reciba siguiendo el procedimiento que Banamex hubiera instruido al Cliente para tales efectos
El Cliente reconoce quo al momento de recibir por primora vez Is dave Confidenciat so encontrarÆ salvo indicacin expresa vencida
inactiva no podrÆ ser utilizada para recibir los Servicios salvo para tenor acceso inicial algCn Medlo de Comunicacin
modificar su vez Ia Clave Confidencial Una vez modificada Ia Clave Confidencial por ende Ia Firma ElectrOnica el Cliente podrÆ
recibir los Servicios travØs de Ia Banca Electrnica
En caso do que con anterioridad Ia fecha de ejecucin del presente el Cliente ya hubiora tenido acceso alguno de los Medios de
ComunicaciOn con base en algn otro contrato celebrado entre el Cliente Banamex caso en el quo Banamex no entregara al Cliente
una Firma ElectrOnica adicional por lo
quo el Cliente continuarÆ utilizando las Firmas ElectrOnicas quo le hubieran sido dadas de
Alta en los Medios de Comunicacin
CLAUSULA VIII.4.- EQUIPO PROGRAMAS DE COMPUTO El Cliente expresamente conviene en obligarse de conformidad con las
disposiciones de esta ClÆusula respecto al Equipo de Cmputo allos Programas de Cmputo que sean instalados en el Equipo de
COmputo del Cliente su uso como parte de los Medios de Comunicacin P01 lo que
El
Equipo de Cmputo ser utilizado pars instalacin del los Programas de Cmputo serÆ suministrado exclusivamente por el Cliente
deberÆ reunir el minimo de caracteristicas que Banamex el tercero autorizado 01 Banamex determine como necesarias para que
dichos Programas de Cmputo funcionen adecuadamente
Cliente serÆ responsable de todos necesarios dar mantenimiento mismo de que estØ
El los gastos para reparacin al fin siempre en
buenas condiciones pars su uso
El Cliente reconoce que Banamex es el nico exclusivo titular de los derechos do autor sobre los Programas de Computo en su caso
quo Banamex cuenta con los derechos para el uso explotacin licenciamiento de dichos Programas de Cmputo Todos los derechos
de patentes propiedad intelectual derechos de autor marcas secretos industriales relacionados con los Servicios los Programas de
Cmputo relacionados con los Medios de Comunicacin son propiedad nica exclusiva de Banamex tiene derecho al uso do los
mismos par Ia que el Cliente no podrÆ por ningn motivo de ninguna forms copiar modificar suprimir alterar los Programas de
Cmputo indicados
El Cliente serØ el Unico responsable del mal uso que pudiera darse los Programas de Cmputo que estØn instalados en su Equipo de
COmputo
Banamex otorga al Cliente una licencia limitada intransferible sin exclusividad para que utilice el los Programas de Cmputo que Øste
requiera para tener acceso los Servicios sujeto que el Cliente utilice el los Programa de Cmputo en los tØrminos bajo las
condiciones del presente Contrato ii los Programas de Cmputo sean utilizados exclusivamente pars los fines aqui establecidos en el
curso ordinario de los negocios del Clients
El Cliente se obliga tratar do manera confidencial el los Programas de Cmputo no divulgar ninguna persona el contenido
formato caracteristicas do los mismos El Cliente so obliga indemnizar Banamex de los daæos perjuicios que le
IlegarØ causar el
incumplimiento do Ia obligacion do confidencialidad pactada en este inciso
Banamex no serØ responsable par los daæos perjuicios causados al Clients cualquier persons por las fallas do los Programas de
COmputo de Ia Banca ElectrOnica en el Equipo do Cmputo cuando dichas fallas no sean imputables directamente Banamex
CLAUSIJLA VIlI.5- SERV1CIOS TRAVES DEL PORTAL BANAMEX BANCANET BANCA MOVIL AUDIOMATICO OPERADOR
TELEFONICO travØs de los Medios de Comunicacin cualquier otro disponible en Ia fecha de celebracin de este Contrato en eI futuro
el Cliente padre recibir los Servicios habilitados en el Medio quo corresponda
El Clients podrØ obtener algunos do los Servicios autenticØndose dando las Instrucciones que en cads caso sean necesarias para Ia
obtencin de dichos Servicios en el entendido de que los mismos estÆn sujetos las limitaciones condiciones horarios montos demÆs
reglas aplicables quo se detallan en cads Medio do Comunicacin que se refiere esta ClÆusula El Clients so obliga cumplir con los
procesos reglas que Banamex establezca travØs de los Medios de Comunicacin para poder recibir los Servicios Una Sesin inactiva par
el tiempo que determine Banamex serÆ suspendida
Banamex padre en toda mamento adicionar nuevos Servicios para ser prestados travØs de cualesquier Medios de Comunicacin el Cliente
que doses utilizar dichos nuevos Servicios estarØ sujeto las limitaciones condiciones horarios montas demÆs reglas aplicables que se
detallen en cada Medio de Comunicacin quo corresponda Asimisma Banamex podrÆ en tado momenta adicionar nuevos Medios de
Comunicacin pars que los Clientes puedan recibir las Servicios
Banamex podrÆ ofrecer de conformidad con Ia IegislaciOn vigente Ia presentacin de los estados de cuenta resimenes de movimientos de
los distintos Productos Servicios ye sea que Østos sean enviados electrnicamente al Cliente quo residan en los sistemas de Banamex
fin do quo el propia Cliente acceda elba pars su consults
El Clients padre utilizer coma cantingencia los Medios de Comunicacin Lines Banamex Digitem TEF asi coma recibir
algunos do los
Servicios en las sucursales de Banamex en las que el Cliente tenga establecidas Cuentas de las cuales Øl sea el titular
Las partes convienen en que dentro del Media de Comunicacin se ofrece en cumplimienta de las disposiciones Iegales procedimientos para
establecer limites los montos individuales agregados diarios que en caso de no ser definidas por el Cliente serÆn sugeridos par Banamex
En el eventa de que se afrezcan servicios de entidades relacionadas con Banamex de terceros mediante enlaces electrnicos Banamex en
cumplimiento do disposiciones legales cerrarØ Ia Sesin establecida una vez que ingrese aquella otra
cuya seguridad no depende ni es
responsabilidad de Banamex
travØs de Ia Lines Banamex Digitem el Cliente padre entre otros consultar saldas mavimientos estados de cuenta de las Cuentas
Incorparadas ii realizar traspasos do fondos de una Cuenta Incorporada otra Cuenta lncorparada una Cuenta de terceros iii expedir
rdenes de pago pars ser cubiertas en efectivo en otras plazas en sucursabes de Banamex iv realizar depsitos par concopto de servicios
impuestos federales con fondos de Cuentas Incorparadas enviar recibir correos electrOnicos Banamex otros Clientes de Banamex
vi realizar pagos interbancarios baja las
reglasy condiciones que tongs pactados Banamex con atros bancos vii dar de Alta Cuentas baja
cualesquiera Cuentas Incorparadas Cuentas de terceros Ox dar de AftayBajaFirmas
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ElectrÆnicas administrar sus facultades carnbio de Clove Confidencial xi consults do ostado do choquos librados oporaciones pars
protoccin do choquos on caso do robos oxtravios xii solicitud do talonarios do chequoras de las Cuontas lncorporadas do as que el
Clionto es titular xiii los domÆs Sorvicios quo en su momonto puedan efectuarso mediante Ia digitacin do las Instrucciones
correspondientes on el Programs do COmputo denominado Linea Banamox Digitem
El Cliento reconoco estÆ do acuordo en que Banamex podr libromente sin Iirnitacin alguna realizer todas las modificaciones tØcnicas
fisicas mecÆnicas do cualquier otra naturaleza quo sean necesarias para mejorar actualizar suprimir algunas de las funciones de los
Medios ElectrOnicos inclusivo Is eliminacin de algunas Operaciones Ia oliminacin total do algunos do los Medios Eloctrnicos sogUn
Banamox 10 considere necesario
Asimismo el Cliente reconoce quo Banamex podrÆ ojocutar las
Operaciones en lines hacer los
cargos abonos correspondiontes con
posterioridad al momento on quo el Clionto envie las Instrucciones travØs de los Medios Eloctrnicos
Banamox no serÆ responsable frente al Cliente do cualesquiera daæos perjuicios quo se le pudieren ocasionar este Ultimo en virtud do las
modificaciones quo Banamex efecte en los Medios Electrnicos
El Clionte reconoco expresamento quo Banamox no serÆ responsablo de los danos perjuicios quo Ilegaren causÆrsele per Ia no
disponibilidad do los Medios Electrnicos No obstanto ello Banamex podrÆ poner disposiciOn del Cliente en sus sucursales los medios
alternos Operaciones
pars pactar
Banamex no responde por las fallas en los Medios Electrnicos cuando Østos sean motivados por case fortuito causas de fuerza mayor
CLAUSULA VllL6 SERVICIOS DE BANCA MOVIL PAGO MOVL El Cliente que tongs contratado activado serviclo do Banamex Mvil
podr acceder mediante su TelØfono Mvil los Servicios que Banamex proporcione per esta via pudiendo realizar entre otras las siguientes
operaciones de consulta do saldos movimiontos transferencias pagos cuentas page de servicios compra de tiempo aire
Todas las operaciones previamonte descritas aquellas que en un futuro so adhieran al presente servicio pars el conocimiento del cliente
serØn notificadas via mensaje de texto SMS
CLAUSULA VIJl.7.- SERVJCOS TRAVES DE TEF travØs del serviclo de TEF el Cliente podrØ entre otros realizar depositos modianlo
Instrucciones Banamex pars que cargue en Ia Cuenta do Cargo Global del Cliente el monto Global en alguna de las Cuentas Incorporadas
come Propias deposite cualquier Cuenta cuyo titular sea un tercero ii realizar cobros mediante Instrucciones Banamex pars que cargue
ciertas sumas las Cuentas lncorporadas cuyos titulares sean terceros cuyas Cuentas hayan side incorporadas mediante autorizacin por
escrito del tercero page de contraprestaciones laborales sociales mercantiles de cualquier naturaleza sujeto las condiciones
tØrminos que en su memento determine informe Banamex iv los demØs Servicios que en su memento puedan efectuarse mediente Ia
digitacion de las lnstrucciones correspondientes trevØs del Serviclo de TEF
Cuando el Servicio implique Ia aplicacion de un archivo de pages el Cliente se oblige proveer fondos suficientes Cuenta de Cargo Global
per el monto Global con anticipacin Ia fecha en que Banamex deba realizer Ia aplicacion de los
cargos conforme los convenios
establecidos con los demØs bancos para pagOs interbancarios sujetos Ia regulacion jurldica vigente
CLAUSULA VIIL8.- SERVICIO DE DOMICILIACIN El Cliente tenga contratado un Medio de Comunicacin podrÆ realizer
que cargos
automÆticos las cuentas do sus propios Clientes para el
pago do un bien servicio do conformidad con las siguientes disposiciones
El Cliente deberÆ firmer entregar de acuerdo sus necesidades el documento autorizado que contendrÆ al menos las
especificeciones de
periodicidad de Cargos Programados los montos minimos mØximos sin limite de dichos cargos sal como Is Cuenta de Abono en Ia
que
Banamex acreditarØ los Cargos Programados
Para quo los terceros autoricen Banamex realizer Cargos Programados deberØn en sucursal firmar entregar el formato de autorizaciOn
travØs de Ia Banca EloctrOnica el Cliente podrÆ efectuar sus Cargos Programados travØs de algn Medio de ComunicaciÆn Esta alternativa
solo podrO ser utilizada por aquØllos terceros quo tengan contratado el Servicio de Banca ElectrOnics El NOmero de Autorizacin que se
asigne dicha operacin sore utilizado cualquier aclaraciOn posterior
pars
Banamex entregarO al Cliente un archive electrOnice en los Dias HÆbiles que contendrO el listado do los terceros que hayan autorizade el
alta baja modificacin do Cargos Programados ii un archive con los
cargos que se pudieron no realizar iii un archivo que contieno los
reversos El Cliente libera Banamex de cualquier incenformidad quo so presente por porte del Torcero con Ia limitacin de monies mØximos
estipulados
El Cliente reconoce que los terceros quo hayan autorizado Banamex Ia realizacin de cargos automÆticos programados podrOn revocar
dichas Instrucciones cuando sal lo deseon sin ningCn costo siguiendo las disposiciones legales aplicables
El Clionto libera Banamex do los daæos perjuicios no se harÆ responsable al no poder realizer el cobro do los Cargos Programados
cuando las Cuentas de los terceros tengan fondos insuficientes hayan sido canceladas por cualquier causa quo imposibilite Banamex
realizer los
cargos
El Cliente autoriza Banamex cargarle en su Cuenta el monto acumuledo de los reversos dontro del plazo legal los
cargos no reconocidos
de los cuales no se entrogue Ia carta autorizaciOn del tercero en los siguientes 10 diez dies su solicitud teniendo Ia pesibilidad de al no
encontrer fondos en Ia Cuenta utilizer de manera discrecional su elecciOn los sistemas de bsqueda do fondos de cualquier Cuenta que se
encuentre el nornbre del Cliente dicho cobro El no del derecho antes mencionado no limits su elimina su
baja para ejerciclo aplicacin
ejecucin
Toda eclaraciOn deberª efectuarse por escrito entre el Cliente Banamex dentro del plazo legal Si el Cliente no responde Ia solicitud de
aclaraciOn Banamex cargarO Ia Cuenta do Abono el importe sujeto Ia aclaraciOn
No obstante Ia anterior el Cliente podrO cancelar en cualquier memento el servicio antes descrito sin perjuicio caste alguno
CLAUSULA Vlll.9.- SERVICIOS BMICARIOS FINANCIEROS INPORMATIVOS OPERADOS TRAVES GE YERCEROS Banamex podrO
prosier alguno algunos do los Servicios travØs de terceros autorizedos en ol entendido que en determinedas operaciones so realizarÆn
utilizando los niveles de seguridad necesarios para Ia transmisiOn do Mensajes do Gatos sujeto entre otras las siguientes condiciones
tØrminos
El Cliente queda en libertad de determinar si desea recibir Servicios de dar Instrucciones Banamex trevØs do dichos terceros en el
entendido de que cuando asi Ia hega el Cliente estÆ de acuerdo en que Benamex transmita informaciOn sobre canfirmaciones rechazas
devoluciones del Cliente por conducto do dichos terceros
Los Servicios Financieros Oporados travØs do terceros se canforman de Mensajes do Datos quo lnstruyen Banamox para realizer
cargos en Cuentas Incorporedas del Cliente pare su abono otras Cuentas tanto del Cliente como de otras torcoros Cuentas quo
oonotrasistItucionesnancieras
igaje aem
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El Cliente reconoce que tratÆndose do Instrucciones sobre abonos Cuentas quo no sean de Banamex dichas Instrucciones se realizarÆn
conforme os convenios establecidos con dichas Instituciones para pagos interbancarios estarÆn sujetas regulacion juridica vigente
P01 Jo el Cliente so obliga revisal Ia aplicacin de las Instruccionos efecto de confirmar lnstruccin ha sjdo rechazada
que si alguna 01
otras instituciones financieras
En el caso do que prestacion de los Servicios Financieros Operados travØs de terceros se Ileve cabo con Certificados dicha
Digitales
prestacin estÆ sujeta que Banamex active 01 Cortificado Digital Banamex tondrÆ el derecho no activar et Certificado Digital
cancelar el mismo en cuslquier momento en caso do que los datos quo el Cliente hays proporcionado al solicitarlo no concuerden con
informacin que Banamex tonga al
respecto En tal caso el Cliente podrÆ acudir cualquiera do las sucursales Banamex efecto do
proporcionar los datos correctos solicitar nuevamente emisin del Certificado Digital conforme los
procodimientos ostablecidos por
Banamex Banamex notificarÆ al Cliente Is cancelacin del Certificado Digital en base los dabs proporcionados en el mismo El
Cliente asume cualquier responsabilidad sobre el uso do su Certificado tendrÆ libertad de determinar el
Digital quien Ia si usa Certificado
Servicios Financieros travØs do terceros
Digital para rocibir los Operados
Los Terceros quo preston por Banamex servicios informativos do comercio electrnico se sujetarØn las politicas de soguridad
transparencia identificacin quo determine discrecionalmente Banamex
Cuando travØs de los Medios Electrnicos se convengan los Servicios tales como cargos cuentas propias titular sea persona
cuyo distinta
al Cliente Øste deberØ entregar en cualquiera de las sucursales do Banamex en las que el Cliente tenga aperturadas cuentas de las Øste
que
sea titular Ia autorizacin 01 escrito firmada por el tercero que es titular de Ia cuenta que se doses incorporar coma cuenta propia su
representante que cumpla con las
disposiciones legales quo sean aplicables los requisitos quo Banamex establezca La omisin en Ia
realizacin de los actos seæalados no obligarØ Banamex prestar los Servicios antes precisados sin quo P01 ello asuma responsabilidad
alguna frente al Cliente
Los Servicios de alta baja de cuentas autorizadas podrÆn ser convenidos travØs de sucursales BancaNet aquellos Medios Electrnicos
que Banamex estipule en un futuro en cumplimiento las indicaciones prevenciones que se nluestren en el cuadro de diÆlogo quo aparezca
en el mdulo denominado Alta/Baja de Cuentas BancaNet por coda alta de cuentas autorizadas generarØ un NØmero do Autorizacin no
obstante no se realice afectacin las estados contablos de Banamex El Cliente podrÆ optar por instruir alta baja de cuentas autorizadas en
las sucursales en as Øste cuentas de sea cual
quo tenga aperturadas incorporadas las
que propietario supuesto en el dichas instrucciones
surtirØn sus efectos transcurridos ireinta dias de Ia fecha en quo Banamex haya recibido en sus sucursales as Instrucciones correspondientes
Jo anterior sin perjuicio de quo Banamex las ejecute en cualquiertiempo comprendido dontro de dicho plaza
Cuando travØs de los Medios Electrnicos so realicen aperaciones quo tengan objeto el terceros do bienes servicios
por pago las
relaciones del Cliente dichos terceros se convenios celebrado dichos
regirØn par los propios que hayan para efectos por Jo
quo Banamox no
asumirØ responsabilidad alguna derivada de esas relaciones juridicas ya sea por el
pago par Ia insuficiencia en prestaciªn de los bienes
servicios por lo que el Cliente se obliga indemnizar sacar en paz salvo Banamex do cualquier reclamacin quo se relacione con Ia
anterior
Banamex solo tendrO obligacion do prestar los Servicios relacionados transferencias do fondos en el evento do en cuentas
quo las propias
cuenten con los fondos que sean suficientos para dar cumplimiento dichas transferencias Par Ia
que Banamex no asumirÆ responsabilidad
alguna derivado de Ia anterior
Asimismo el Cliente reconoce que Banamex podrÆ prestar los Servicios inmediatamente con pasterioridad al momento en que el Cliente
envie las Instrucciones en Banca Electrnica efecto de Jo anterior Banamex informarØ mediante Ia presentacin de una ventana que
contenga informacin rolativa Ia operaciOn habiendo sido ejecutada se incluirO un nOmero de autorizacin un nOmero do rocepcin si
Ia misma so ejecutarO posteriormente Adicionalmente Ia notificacin que se realice en el media do comunicacin utilizada se natificarO al
correo electrnica seflalado 01 el Cliente
CLAUSULA VIlIlO.- LA BITACORA ESTADOS DE CUENTA La Banca ElectrOnica una BitOcora de
guarda las operaciones realizadas
misma quo podrO ser consultada impresa el Cliente do conformidad con Instrucciones Medio de CamunicaciOn de
par las del
que Se trate El
Cliente es respansable do verificar
que las Instruccianes operadas hayan quedado debidamente registradas en Ia BitÆcora
Dicha BitØcora contendrfl Ia fecha hora hhmmss nØmero do cuenta origen destino demÆs informacin quo permita identificar el
mayor
nØmero do elementos involucrados en los accesos los Medios do ComunicaciOn los datos de las cansultas oporaciones incluyendo on su
caso las direcciones do los protacalos de Internet similares
El Cliente podrÆ consultar Ia informacin sobre Instrucciones se hayan en relacin con Cuentas
las quo aperado las Incarporadas tanto en Ia
Banca Electrnica coma en las sucursales obtener estados do cuenta travØs de algunos de las Medios de ComunicaciOn Asimisma el
Cliente podrO pragramar quo Ie sean enviados ostados do cuentas travØs de los Medios do ComunicaciOn cuando estos Ia permitan La
BitOcara tendrØ validez legal cuando se cumplan las requerimientos de Ia Iegislacion vigente
Banamex padre ofrecer de conformidad con Ia
legislaciOn vigento Ia presentacin de las estados de cuenta resimenes de movimiontos do
las distintas Productas Servicios ya sea que Ostas sean enviados electrnicamente al cliente que residan en las sistemas de Banamex fin
de quo el prapio Cliente acceda ellos pars su consulta partir del momenta en que estØn dispasiciOn del Cliente dichas estados do
Cuenta correrAn los plazos establecidas par Ley pars Ia presentaciOn do aclaracianes transcurrido el cual el Cliente manifiesta exprosamente
su aceptacin las operaciones ahi contenidas
Los estados de cuenta los quo el Cliente tiene acceso travØs do as Medios do Comunicacin no so consideran efectos
comprobantes pars
fiscales tendrÆ carOcter nicamente informativo salvo que en virtud de las dispasiciones Iegales aplicables Banamex establezca Ia validez
contractual legal yb fiscal de dichos estados do cuenta
CLAUSULA Villil.- CONCESIONES Pars efectos do prevenir una cantroversia futura las partes convienen en atargarse las siguientos
reciprocas concesiones
El usa de Ia Firma ElectrOnics tendrO pars tados los efectos Iogales que hays lugar las mismos efectos implicacianes do Ia firma
autOgrafa autOntica dentra do los cuales de manera enunciativa mOs no limitativa se seæalan Ia do representar el acuerdo do voluntades
entre el Cliente Banamex sustentada en facultades suficientes pars abligarles en los tØrminas candicianes do las canvenios relativas
las Operacianes
El Cliente express manifiesta acepta Operaciones Instrucciones realice medianto usa do Firma
quo las quo el Ia Electronics Ia
identifican plenamente ante Banamex par Ia
que Ia expresin de su cansentimiento otorgada por estos medios respecto de las
Operacianes sorOn absalutamente vÆlidos no pudiendo ser desconocidos revocadas ropudiados rechazadas por el Cliente tanto
respectodedichaidentificacian coma de Ia ejecumon de Operaciones que Se hubiosen reahzado
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as Operaciones le son aplicables todos los tØrminos condiciones establecidos en el presente Capitulo en los contratos que en su
caso se asocien Østas 01 aquellos que se establezcan en los cuadros de dilogos de los propios Medios ElectrOnicos por los efectos
que el uso de los Medios Electrnicos convencin de as Operaciones tengan sobre los contratos asociados Østos
Los asientos contables efectuados por Banamex Is BitÆcora los estados de cuenta el Nmero de Autorizacin as uichas documentos
de las asi como las demÆs constancias documentales tØcnicas
que se generen con motivo ejecucin de Operaciones derivadas del
uso de los Medios Electrnicos harØn prueba plena de Ia existencia validez de las Operaciones pactadas travØs de ellos
Las Operaciones pactadas travØs de los Medios Electrnicos mediante el uso de Ia Firma Electrnica represents el acuerdo de
voluntades entre el Clients Banamex cuyo perfeccionamiento se rigs por as reglas de los convenios celebrados entre presentes
CLAUSULA VIIl.12.- MICRO PAGOS Banamex podrØ no requerir Ia Clave Confidencial firma autografa del Cliente cuando Øste instruya
travØs del TelØfono Mvil de Terminales Punto de Venta Operaciones por un importe determinado en las disposiciones legales aplicables
En este supuesto Banamex asumirØ los riesgos por In tanto los costos de tales Operaciones que no sean reconocidas por el Cliente
obligandose abonar en Cuenta el importe de Ia OperaciÆn no reconocida mÆs tardar 48 cuarenta ocho horas postoriores que el
Cliente hubiese presentado reclamaciOn correspondiente
CAPITULO NOVENO
CO MIS ION ES
CLAUSULA DE LAS COMISIONES
IX.1.- El Clients se obliga pagar Banamex las cantidades que se deriven do las comisiones que
se describen endocumento
el que como anexo se adjunta al presente Contrato el cual se considerar para todos los efectos legales
haya lugar como parte integrante del mismo
quo
Al monto do las comisiones se les adicionarÆ el lmpuesto al Valor Agregado l.V.A.
El Cliente podr consultar las comisiones vigentes en cualquier sucursal Banamex en el Portal Banamex
Banamex podrÆ incrementar el imports de las comisiones anteriormente selialadas asi como establecer nuevas comisiones previo
aviso que publique en el Portal Banamex en lugaros abiertos al ptblico en sus oficinas bien previa notificacin enviada al
Clients travØs de cualquiera de los medios seæalados en Ia ClÆusula XllI.8 cualquiera de ellos con al menos 30 treinta dias de
anticipacin que surtari efectos las mismas
El Cliente que no estØ de acuerdo con el incremento con las nuevas comisiones podrÆ solicitar Ia terminacin del Contrato dentro
de los 30 treinta dIas posteriores al aviso arriba seæalado sin responsabilidad alguna su cargo tras lo cual Banamex Is deberÆ
entregar el saldo disponible do La Cuenta sin aplicar comisin adicional alguna con excepcin do los adeudos que ya se hubieren
generado Ia fecha en que el Cliente retire el citado saldo
CLAUSULA lX.2.- COBRO DE COMISIONES El Cliente autoriza expresamente Banamex pars cobrar las comisiones seæaladas en el
presents Capitulo mediante cargo Cuenta en el entendido de que si por cualquier causa Banamex no efecta el cargo respectivo el
Cliente no quedarÆ eximido de cumplir con sus obligaciones de pago
CLAUSULA IX.3.- FALTA DE PAGO El Clients manifiesta estar de acuerdo en que Banamex bloqueØ su acceso los Medios ElectrOnicos en
caso de el primero no cubra Banamex en tiempo forma las comisiones anteriormente pactadas La falta do ejecucin del derecho
quo
antes indicado no limits elimina modifica el mismo
CAPiTULO DECIMO
ESTADO DE CUENTA
CLAUSULA X.1.-DEL ESTADO DE CUENTA Banamex estarÆ obligado enviar al Cliente dentro de los primeros 10 diez dias siguientes
Ia fecha de code un Estado de Cuenta con Ia relaciOn de todos los movimientos efectuados en Ia Cuonta durante el periodo al
que
corresponds el mismo
Se entenderÆ pars todos los efectos legales que haya lugar quo Banamex ha enviado el Estado de Cuenta al Cliente en cualquiera de los
siguientes supuestos pactados en Ia Solicitud en el formato que Banamex determine pars tal fin
Banamex envia ltimo domicilio determinado Cliente al Correo Electrnico Cliente
Si In al por el pars recibir correspondencia quo el haya
proporcionado Banamex bien
Si Banamex lo
pone disposiciOn del Cliente para su consults en Ia Sucursal travØs de Medios Electrnicos
El Cliente en este acto acepta expresamente que cualquier comunicado que le sea dado conocer por Banamex travØs de los Estados de
Cuenta surtirÆ
plenos efectos legalos como si Ia notificaciOn hubiese sido realizada en forma personal
CLAUSULA X.2.- SUSPENSION DE ENV1O Cuando Ia Cuenta no presente ninglin tipo de movimiento en el transcurso de 30 treinta dias
consecutivos Banamex estarÆ facultado para suspender el envio del Estado do Cuenta con Is periodicidad pactada en Ia ClÆusla anterior
obligandose enviar dicho Estado de Cuenta cuando menos una vez cads seis meses De existir un movimiento posterior Ia suspension
Banamex deberO reanudar el envio del Estado de Cuenta
No obstante In anterior el Cliente podra en todo momento consultar el saldo de Ia Cuenta en caso de que mantenga saldo disponible podrO
solicitar Banamex que reanude el envio del Estado de Cuenta correspondiente
CLAUSULA X.3.- CONSULTA DE SALDO El Clients podra consultar el saldo de Ia Cuenta asi como una relaciOn de los movimientos del
periodo en cualquier sucursal de Banamex travØs de Banca ElectrOnics en su caso travØs de los Cajeros AutomOticos
El Clients podrÆ solicitar Banamex en cualquiera de sus sucursales travØs do los formatos quo Øste ponga su disposiciOn para tales
efectos una relaciOn de los saldos movimientos presentados en Ia Cuenta en otros periodos Ia cual le serÆ entregada por Banamex denim
de los 15 quince dias siguientos Ia fecha en que sea recibida su solicitud
CAPITULO DECIMO PRIMERO
ACLARAC ION ES
CLAUSULA XI.1.- DEL PROCEDIMIENTO ACLARATORIO De coriformidad con lo dispuesto en el articulo 23 de Ia Ley para Ia
Transparoncia Ordenamiento de los Servicios Financieros cuando el Cliente no estØ do acuerdo con alguno de los movimientos
que aparezcan en el Estado de Cuenta podrÆ solicitar Banamex Ia aclaracin correspondiente Ia cual deberÆ presentar por escrito
en Ia Sucursal en Ia Unidad Especializada travØs de cualquier otro medio que Banamex ponga su disposicin para tales
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efectos dentro de los 90 noventa dias siguientes contados partir do fecha do corte La solicitud deberÆ contener de forma
detallada los movimientos con los cuales no estØ do acuerdo asi como Ia direccin donde so le pude enviar Is respuesta en su
caso copia do su identificacin
Una vez recibida Ia solicitud de aclaraciOn Banamox tendrÆ un plazo de 45 cuarenta cinco dias para entregar at Cliente el
dictamen correspondiente En caso de aclaraciones rolativas Operaciones realizadas en el extranjero el plazo previsto on este
pÆrrafo serÆ hasta do 180 ciento ochenta dias
Banamex dentro del plazo senalado en el pÆrrafo anterior entregarÆ at Cliente ol dictamen travØs del Servicio Postal Mexicano
cualquier servicio de mensajeria que el primero determine si transcurrido el plazo estipulado el Cliente no ha recibido respuesta
Øste podrØ acudir Ia Unidad Especializada Ia sucursal donde present su reclamacin para que pueda recoger el dictamen
correspondiente
Asimismo dentro del plazo de 45 cuarenta cinco dias contado partir de Ia
entrega del dictamen que se refiere pÆrrafo
anterior Banamex pondrÆ disposicin del Cliente en Ia Sucursal bien en Ia Unidad Especializada el expediente generado con
motivo de Ia solicitud de acaracin
CLAUSULA Xl.2.- SUSPENSION DEL PROCEDIMIENTO El procedimiento previsto en Ia ClÆusula anterior quedarØ sin efectos partir de que
el Clionte presente su demanda ante autoridad jurisdiccional conduzca su reclamacin en tØrminos do Ia Ley de Proteccin Defensa al
Usuario de Servicios Financieros
CLAUSULA Xl.3.- COMISION MERCANTIL PARA ACLARACIONES En este acto el Cliente otorga Banamex una comisiOn mercantil para
que este Ultimo en su caso 10 represente ante cualquier tercero hubiese participado en transacciOn movimiento Cliente no
que Ia que eI
reconozca en virtud del cual jnicjO el procedimiento aclaratorio referido en Ia ClÆusula Xl.1 anterior
CAPITULO DECIMO SEGUNDO
DEL CREDICHEQUE
CLAUSULA Xll.1.- AUTORIZACION SUSCRIPCIN DE CONTRATO Sujeto as autorizaciones de crØdito correspondientes posterior
celebracin del Contrato de Apertura de CrØdito Banamex podra otorgar at Cliente un crØdito en Pesos bajo Ia forms do apertura de crØdito
en cuenta corriente hasta por una cantidad igual Ia
consignada en Ia comunicacin que Banamex dirija al Cliente por escrito bastando pars
ello con anotacin correspondiente que se haga en ol estado de cuenta que mØs adelante se hace mencin
En el supuesto de que Banamex otorgue al Cliente Ia Linea de CrØdito referida en el pÆrrafo anterior ambas partes deberÆn suscribir el
Contrato de Apertura de CrØdito correspondiente travØs del cual estipularÆn los tØrminos condiciones quo regularØn Ia Lines de CrØdito
CLAUSULA XII.2.- DISPOSICIONES Una vez suscrito el Contrato de Apertura de CrØdito el Cliente las Personas Autorizadas en su caso
podrØn efectuar disposiciones con cargo Ia Lines do CrØdito travØs do cualquiora de los
siguientes medios
Por Banca ElectrÆnica por via telefnica en el Centro de Atencin Telefnica debiendo el Cliente utilizar el nmero confidencial le
que
serØ proporcionado por Banamex do conformidad con lo quo disponga el Contrato do Apertura de CrØdito Los servicios quo presto el
Centro de Atencin Telefnica Banca Electronics ostarØn disponibles dentro del horario que Banamex comunique do tiempo en tiempo al
Cliente
Mediante el libramiento de Cheques denominados CrediCheque
Las disposicionos do Ia Lines do CrØdito se formalizarØn mediante abonos de dinero quo Banamex efectuarÆ on Ia Cuenta mismos quo
estarOn sujetos los dias horarios que Oste determine
Banamex podrO ofrecer al Cliente las Personas Autorizadas en su caso acceso Ia Linea do CrØdito travØs do otros canalos
mecanismos previa notificacin por lo
quo Ia utilizaciOn por parte del Cliente de dichos canales mocanismos constituirÆ aceptaciOn los
tØrminos do los mismos
CLAUSULA XII.3.- DEL CREDICHEQUE En Ia Chequera proporcionada at Cliente de acuerdo con lo estipulado en ClOusula Banamex
V.1
podrO incluir esqueletos de Cheque quo denominarÆ CrodiCheque travØs de los cuales el Clionte las Porsonas Autorizadas en su caso
podrOn realizar Desembolsos
Con Ia finalidad do que el Cliente puoda distinguir el titulo do crØdito seæalado en 01 pÆrrafo anterior en el mismo so incluirÆ Ia leyenda
CrediChoquo sore do un color distinto los demOs esquolotos incluidos on Ia Chequora
CLAUSULA XII.4.- NATURALEZA DEL CREDICHEQUE Ambas partes reconocen aceptan quo Ia naturaleza juridica del CrediCheque es Is
de un Cheque toda vez que reOne las caractoristicas legales necosarias pars ser considerado como tal For Io anterior al CrediCheque le
sorOn aplicables todas las estipulaciones contenidas en el prosento Contrato relativas al Cheque Ia Chequera en general
CLAUSULA XII.5.- USO En el
supuosto de quo ol Cllento tenga autorizada una Lines do CrOdito hubiese suscrito el Contrato do Apertura do
CrOdito correspondiente Osto acopta expresamente que travØs del Iibramionto de los Cheques denominados CrediChoque hare uso do Ia
citada Linea do CrOdito aOn cuando mantenga saldo disponible en Is Cuonta
El monto do los Desembolsos solicitados por el Clionto per las Porsonas Autorizadas on su caso travOs del libramiento de Cheques
donominados CrediChoque serOn acroditados por Banamex Ia Cuenta
El Cliente reconoce acepta quo pars pocler disponer do Is Linea de CrØdito en los tØrminos antes seæalados es necesario quo Is misma estØ
vigento saldo disponible suficiento cubrir el importo del CrediCheque se encuentro corriento en sus on caso
mantenga para al
pagos
contrario el importe del CrediChequo sore cubierto con rocursos provenientes del saldo disponible on Ia Cuenta
CAPTULO DECIMO TERCERO
DISPOSICIONES GENERALES
CLAUSULA XlII.1.- CUENTA EJE Ambas partos ostOn de acuordo en que Is Cuonta pueda sor eje do cualquior otro producto que el Cliento
tenga contratado con Banamex siempro cuando Østo asl lo autorice
CLAUSULA XIII.2.- TRAMITE DE OPERACIONES De conformidad con 10 dispuesto en Ia Loy do Institucionos do CrØdito ambas partes
convienen quo
Banamex padre suspender cancelar el trOmito do Operaciones quo ol Cliento pretends realizar mediante el usc do equipos medios
electrnicos Opticos de cualquier otra tocnologIa sistomas automatizados do procesamiento do datos redes do telecomunicaciones ya
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sean privados pblicos incluyendo Banca Electrnica siempre cuando Banamex cuente con elementos suficientes pare presumir que
los medios de identificacin pactados pars tal efecto han sido utilizados en forms indebida bien cuando Banarnex detecte algn error en
Ia instruccin respectiva
Cuando Banamex hubiese recibido recursos mediante alguno de los equipos medios seæaiados en inciso anterior cuente con
elementos suuicientes para presumir que los medios de identificacin pactados para tel efecto han sido utilizados en forma indebida podrÆ
restringir hasta por 15 quince Dies l-lÆbiles Ia disposicin de tales recursos fin de lever cabo las investigaciones las consultas que
sean necesarias con otras instituciones de crØdito relacionadas con Operacin de qua se irate Banamex podrÆ prorrogar el
plazo antes
referido haste por 10 thee Dias HØbiles mØs siempre que se haya dado vista autoridad competente sabre probables hechos iUcitos
cometidos en virtud de Ia Operacin respective
En los casos en qua por motivo de las investigaciones referidas en el inciso anterior Banamex tenga evidencia de que el
presente
Contrato fue celebrado con informacin documentacin falsa bien que los medios de identificaciOn pactados pars Ia realizaciOn de Ia
Operacion de que se irate fueron utilizados en forms indebida podra bajo su responsabilidad cargar Ia Cuenta el importe respectivo con
el propsito de que se ebone en Ia cuenta de Ia
que procedieron los recursos correspondientes
En caso de que Banamex hubiese abonado par error dinero Ia Cuenta el Cliente desde este momenta faculta Banamex para cargar el
importe respectivo Ia referida Cuenta con el propsito de corregir el error cometido
Banamex notificarØ al Cliente travØs de cualquiera de los medios senaledos en ClÆusula XIll.8 Is realizaciOn de las ecciones qua hubiese
llevedo cabo de conformidad con Ia previsto en los incisos anteriores
Asimismo el Cliente reconoce acepta que Banamex podrÆ bloquear Ia Cuenta en cualquier momento por motivos de seguridad
CLAUSULA XtiI.3.- AUTORIZACION BANCA ELECTRONICA El Cliente reconoce que en el Contrato se encuentran comprendidos los
servicios de Banca Electrnica cuyos tØrminos condiciones acepta expresamente
CLAUSULA XIlt.4.- GARANTIA IPAB Banamex hace del conocimiento del Cliente que nicamente estÆn garantizados por el IPAB los
depsitos bancarios de dinero Ia vista retirables en dies preestablecidos de ahorro plaza con previo aviso asi como los prØstamos
crØditos que acepte Banamex haste por el equivalente 400000 cuatrocientas mil UDIS por persona cualquiera que sea el nimero tipo
clase de dichas obligaciones su favor cargo do Banamex
CLAUSULA XUL5.- CONTRATO INDIVIDUAL Las partes convienen expresamente que el Contrato es individual par lo que el Cliente serØ el
nico titular de los derechos obligationes derivados del mismo
En virtud de que el Cliente es el mica titular del Contrato Øste tendrÆ derecho al pago del saldo de las obligaciones garantizadas de acuerdo
con lo
estipulado en Ia ClÆusula anterior par 10 tanto desde este momento es seæalado expresamente coma titular garantizado ante el IPAB
CLAUSULA XUI.6.- BENEFICIARIOS Conforme lo dispuesto en Ia Ley de lnstituciones de CrØdito el Cliente seæala coma beneficiarios del
saldo de los Operaciones las personas mencionadas en Ia Solicitud en el formato que Banamex le proporcione pars tales efectos el
cual debidamente firmado par el Cliente ontregado Banamex pasarØ formar pane integrante del Contrato dichos beneficierios
tendrÆn derecho recibir cuando acrediten fehacientemente satisfaccin de Banamex el fallecimiento del Clients su identidad el
importe correspondiente del saldo disponible de cads OperaciÆn
Si fueran verbs los beneficiarios designados Banamex les entregarØ Ia
pane proporcional determinada por el Cliente si flO se hubiere
establecido Ia proporciOn qua cada uno de ellos le corresponds es entregarØ par partes iguales el saldo que tengan derecho de acuerdo
lo estipulado en presente Clthusula
En cualquier momento el Cliente podrÆ adicionar nuevos beneficiarios bien sustituir retirar los previamente designados 10 cual deberÆ
efectuar mediante el formato que Banamex le proporcione en cualquier sucursal travØs de los medios qua Banamex determine para tales
efectos
En caso de que el Cliente no hubiese designado ningn beneficiario de conformidad con Ia seæalado anteriormente Banamex devolverØ el
saldo de las Operaciones los derechohabientes de las mismas determinados do acuerdo con Ia legislacion comin
Una vez acreditado el fallecimiento del Cliente Banamex procederÆ bloquear Ia Tarjeta de DØbito que en su caso le hubiese entregado de
conformided con Ia dispuesto en el Contrato partir de 10 cual cesarØ Ia responsabilidad del Cliente par el uso de misma Banamex
proporcionarØ Is persona que acredite eI fallecimiento del Cliente una dave que Østa deberØ conservar para futuras aclaraciones
CLAUSULA XIIl.7.- TERMINACIN La duracin del Contrato es indefinida pudiendo cualquiera de las partes darlo por terminado en
forms inmediata de acuerdo con 10 siguiente
En caso de que Banamex pretenda terminar el Contrato deberÆ informar tel situacin al Cliente por escrito entregado en
cualquiera de las sucursales de Banamex bien travØs de un comunicado enviado al Cliente travØs de cualquiera de los
medios estipulados en Ia ClÆusula XIIL8 del Contrato
deberÆ saldo de Cuenta dentro de los fecha en que terminaclØn
El Clients retirar el Ia cinco dIas siguientes Ia surta efectos Is
del Contrato de to contrario Banamex podrÆ contabilizarlos disposicin del Cliente en Ia forma que el primero determine
TratÆndose de Depsitos Plazo PagarØs el Cliente deberÆ retirar el saldo de dichas Operaciones al vencimiento de las
mismas
Por su parte el Clients podrÆ dar por terminado el Gontrato mediante solicitud por escrito que presents en cualquier sucursal de
Banamex debiendo acompaæar dicha solicitud los medios de disposicin vinculados Ia Cuenta una manifestacin por
escrito bajo protesta de decir verdad de que fueron destruidos que no cuenta con ellos
Banamex estarÆ facultado para establecer otros medios travØs de los cuales el Cliente podrØ notificarle su voluntad de dar por
terminado el Contrato
Una vez quo Banamex se cerciore de Ia identidad del Cliente proporcionarÆ Øste un acuse de recibo dave de confirmacion
folio quo el Cliente deberª conservar pars futuras aclaraciones
La terminacin solicitada por el Cliente surtirØ efectos al momento en que Øste retire el saldo disponible que mantenga su favor
en su caso cubra los adeudos comisiones devengados esa fecha de acuerdo to establecido en el Contrato
El Cliente contarÆ con un periodo de 10 diez Dias Hbiles posteriores Ia firma del Contrato para terminar Øste sin
responsabilidad alguna de su parte en cuyo caso Banamex no podrÆ cobrar comisin alguna siempre cuando el Cliente no
hubieseutilizadouoperadoninurmodeosProductos ________
sLp
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El Clionte podrÆ solicitar por escrito Ia terminacin del Contrato por conducto do otra entidad financiera autorizada para captar
recursos del ptiblico Ia que so denominarÆ receptora Ia cual deberª abrir una cuenta nombre del Cliente remitir Banamex
los documentos originales en los que conste manifestacin de Ia voluntad de dar por terminada Ia relacin contractual fin de
quo Banamex transfiera el saldo disponible do Ia Cuenta Ia receptora quien llevar los trÆmites respectivos bajo su exciusiva
responsabilidad
Una vez presentada Ia solicitud para terminar eI Contrato Banamex deberÆ cancelar los medios do disposicin vinculados Ia
Cuenta ii rechazar cualquier disposicin quo protenda ofectuarse con postorioridad Ia cancelaciOn do los modios de disposicin
por lo quo no se podran hacer nuevos cargos adicionales partir del momento en quo se roalico Ia cancelacin oxcepto los ya
gonorados iii cancolar sin su responsabilidad los servicios de domiciliacin on Ia fecha do Ia solicitud do terminaciOn con
indopendencia do quien conserve Ia autorizacin de los cargos correspondientes iv abstenerse de condicionar Ia terminacin Ia
devolucin del Contrato quo obre en poder del Cliente abstenerse do cobrar al Cliente comisin ponalizacin por
terminacin del Contrato
CLAUSULA Xlll8.- NOTIFICACIONES El Cliente reconoce acepta quo cuslquier aviso Banamex le tenga dar conocer
quo que
relacionado con el Contrato Øste podrÆ hacerlo haves de un comunicado por escrito enviado al domicilio del Cliente entregado en
cualquier sucursal Banamex ii un mensaje contenido en el Estado de Cuenta iii un mensaje enviado al Correo Electrnico al TelØfono
MOvil del Cliente bien iv un mensaje dado conocer travØs del Portal Banamex de Banca Electrnica del Cajero AutomØtico
Los avisos cualquier otra comunicacin del Cliente Banamex deberØn ser por escrito entregados en Ia Sucursal salvo que en el Contrato
so ostipule que deban ser presentados travØs de otro media
CLAUSULA XIII.9.- DOMICILIOS Para efectos del Contrato Banamex seæala coma su domicilio el ubicado en Isabella Catlica nUmero 44
Colonia Centro Delegacion CuauhtØmoc 06000 Mexico Distrito Federal eI Cliente el indicado en Ia Solicitud
El Cliente deberÆ notificar Banamex cualquier cambio de domicillo de Correo Electrnico mediante escrito entregado en Ia Sucursal
debiendo adjuntar los documentos que Banamex le solicite para tales efectos en el entendido de que dicha notificaciOn surtirC efectos mÆs
tardar los tres Dias HØbiles siguientes quo Østa se hubiese recibido El cambio de domicilio de Banamex podrÆ ser notificado Cliente
mediante un aviso enviado travØs de cualquiera do los medios contenidos en Ia ClØusula anterior
En caso do que no sea notificado por las partes el camblo do domicillo en los tØrminos pactados en el Contrato las notificaciones que se
realicen en los domicilios previamente seæalados surtirØn penos ofectos legales para las
partes
CLAUSULA XIII.10.- MODIFICACIONES AL CONTRATO El Cliente reconoce expresamente el derecho do Banamex de modificar 01
Contrato en cualquier tiempo bastando para ello un aviso por escrito dado al Cliente con 30 treinta dias de anticipacin Ia fecha
en que las modificaciones entren en vigor travØs de cualesquiera de los medios seflalados en Ia ClÆusula XIII.8 mediante
publicaciones en poriodicos de amplla circulacin
En el evento do que el Cliento no ostØ de acuerdo con las modificaciones al Contrato Øste podrÆ solicitar Banamex Ia terminaciOn
del mismo de conformidad con 10 dispuosto en Ia ClÆusula XIII.7 sin responsabilidad alguna su cargo para Ia cual contarÆ con un
plazo de hasta 30 treinta dias posteriores al aviso arriba soæalado bajo las condiciones anteriores Ia modificacin en el
entendido do quo las modificaciones al Contrato entrarÆn en vigor en el plazo referido en el pÆrrafo precedente
Se entenderÆ quo el Cliente acepta las modificaciones efectuadas al Contrato si Øste celebra cuslquier Operacin en fecha posterior
que tales modificaciones entren en vigor manteniendo vigente su derecha dar por terminado el Contrato en tØrminos do 10
seæalado en el parrafo anterior
Ambas partes reconocen aceptan que cualquier adecuacin las comisiones seæaladas en el CapItulo Noveno incluso Ia
determinacin de nuevas comisiones no se entendern como modificacin al Contrato por lo
que en dichos supuestos no serØ
aplicable lo dispuesto en 01 primer pÆrrafo de Ia
presente ClÆusula
CLAUSULA XIII.11.- IMPUESTOS En caso de que las disposiciones fiscales asi 10 estoblezcan Banamex retendrØ enterarØ las
autoridades fiscales correspondientes cualquier impuesto cargo del Cliente quo se genere en virtud del Contrato
CLAUSULA Xlll.12.- INCUMPLIMIENTO El Cliente reconoce acepta que Banamex no responderØ por los daæos perjuicios que en su
caso se le causen par el incumplimiento do las obligaciones cargo do Banamex derivado de caso fortuito por causas de fuerza mayor
CLAUSULA XIII.13 CUENTA GLOBAL El Cliente reconoce que Banamex le informO que de acuerdo con lo dispuesto en Ley do
Instituciones de CrØdito el principal los intereses depositados en Ia Cuenta en su caso do las Operaciones celebradas al
amparo del
Contrato quo no tengan fecha do vencimiento bien quo teniØndola se ronueven reinviertan en forma automØtica asi coma las
transferencias do dinero las inversiones vencidas no reclamadas que en el transcurso de tres aæos no hayan tenido movimiento par
Depsitos retiros despuØs do quo se haya dado aviso par escrito en el domicilio del Cliente que conste en eI expediente respectivo con
noventa dIas do antelacin serØn abonados en una cuenta global quo IlevarØ Banamex para estos efectos El dinero aportado dicha cuenta
Cinicamente generarØ un inheres mensual oquivalente at aumento en el Indice Nacional do Precios al Consumidor en el periodo respectivo
Ambas partes convienen estØn de acuerdo en quo las Operaciones denominadas en Divisas podran ser convertidas Pesos par Banamex el
DIa HÆbil anterior que Østas sean abonadas en Ia cuenta global referida en el pØrrafo quo antecede para lo cual Banamex deberØ utilizar el
de cambio solventar denominadas en moneda en Mexicana
Tipo para obligaciones extranjera pagaderas Ia Rep6blica que publique el Banco
de Mexico en el Diario Oficial de Ia Federacin el die de Ia conversiOn
Cuando el Cliente se presente para realizar un depOsito retiro reclamar Ia transferencia inversiOn Banamex deberO retirar de Ia cuenta
global eI importe total efecto de abonarlo Ia Cuenta entrogOrsolo al Cliente
Los derechos derivados de los DepOsitos inversiones sus intereses que se refiere esta ClÆusula sin movimientos en el transcurso de
tres aæos contados partir do que estos Oltimos so depositen en Ia cuenta global cuyo importe no exceda por cuenta al equivalento 300
trescientos dias do salario minima general vigente en ol Distrito Federal prescribirOn favor del patrimonio de Ia boneficencia pblica lo
par
quo Banamex estarØ obligado entregarle dichos recursos
El Cliente renuncia ejercer cualquior accin que pudiese derivarse en contra do Banamex en razOn del cumplimiento lo dispuesto en Ia
presente ClÆusula
CLAUSULA Xlll.14.- SEGUROS El Cliente autoriza Banamex para que lo incluya sin costa alguno en Is colectividad asegurada
correspondiente Ia pliza do seguro que en su caso Øste contrate para titularos do los Productos determinados par Banamex lo el
par que
Clientedesde este omento instruyea Banarnox para que proporone sus datosala cornpania aseguradora con Ia cual contrate Ia cftada
01651
pliza La anterior en el entendido do quo Banamex no estarØ obligado incluir maritener al Cliente en colectividad asegurada en cuestin
Este beneficio estarÆ sujeto los tØrminos condicianes exciusiones consignados en Ia pOliza vigente para todos los efectos legales que
hays lugar el Cliente d.esde este momento designs coma beneficiarlos del seguro Iss mismas personas designadas coma
beneficiarios do acuerdo con lo estipulado en Ia ClÆusula XlIl.6
El Certificado del Seguro que en su caso le corresponda al Cliente Se encontrarØ disposicin de Øste partir de los 45 cuarenta cinco
dies posteriores Is contratacin de cualquiera de los productos senalados en el pÆrrafo anterior obligndose el Cliente solicitar el mismo al
telØfono 1226-8222 en el Distrito Federal 01-800-888-8432 pars todo Mexico
El Cliente reconoce acepta que Banamex so reserva el derecho unilateral do terminar anticipadamente Is pliza de seguro seOalada en el
primer pØrrafo que antecede bien de no renovarla ii incluir excluir Productos de citada pliza do seguro iii modificar el tipo do
seguro contratada bastando para ello un aviso por escrito enviado al Cliente travØs do cualquiera de os medios seæalados en Ia ClÆusule
XllI.8 anterior con cuando menos 3D treinta dies de anticipacin
CLAUSULA XIIi.15.- BENEFICIOS El Cliente autoriza Banamex pars que lo
incluya sin costo alguno en cualquier programa de beneficios
cresdo por Banamex favor de sus clientes travØs de los cuales Banamex podrØ de manera enunciativa mÆs no limitativa cubrir
reembolsos compensaciones comisiones al Cliente asi coma incluir Øste en sorteos programas de lealtad de recomendaciOn rio puntos
de cualquier otro tipo Lo anterior en el entendido de quo dichos beneficios programas podrØn ser modificados suspendidos cancelados
en cualquier momento par Banamex sin causa do responsabilidad
CLAUSULA XIILI6.- CESION El Cliente no podrØ ceder delegar transferir negaciar enajenar transmitir en forms alguna los derechos las
obligaciones que asume en virtud del presents Contrato sin Ia autorizacin previa par escrito do Banamex
CLAUSULA XIIt.17. JURISDICCION El presente Contrato so rogirÆ por las leyes do Mexico sometiØndose las partes expresamente Ia
jurisdiccin de los tribunales de Ia Ciudad de Mexico Distrito Federal renunciando cualquier otro fuero que par cualquier motivo les pudiere
corresponder
CLAUSULA XIILI8.- AVISO DE PRIVACIDAD En cumplimienta lo dispuesto en Ia Ley Federal de ProtecciOn do Datos Personales en
Posesin de los Particulares Banamex informs sI Cliente quo los dabs obtenidos en virtud do Ia celebrecin del Contrato serØn tratados de
manors confidencial travØs do los sistemas provistos pars tales efectos serÆn usados para Ia operacion registro de los productos que el
Clients hubiese contratado asi coma para ofrecerle en su caso otros productos bancarios financieros de Banamex de cualquiera do sus
afiliadas subsidiarias controladoras asocisdas comisionistas sociedades integrantes del Grupo Financiero Banamex promociones de
otros bienes servicios relacionados con los citados bancarios
productos
El Clients padre consultar eI aviso de privacidad en direccin do Internet
completo Ia siguiente www.banamex.com/avisodeprivacidad
Banamex notificarØ al Clients cualquier modificacin al aviso de privacidad mediante un comunicado par escrito enviado travØs de
cuatesquiera de los medios seæalados en Ia ClÆusula XIII.8 bien travØs do mensajes publicados on las sucursales de Banamox
CLAUSULA XIILI9.- TITULO DE LAS CLAUSULAS Ambas partes estØn do acuerdo en quo el objeto de los tItulos de as ClÆusulas es
meramente informativo por que el contenido de dichos titulos no tiene efecto vinculatorio alguno
Leido que fue par as partes el
presente Contrato enteradas de su contenido alcanco juridico lo firman en el espacio correspondiente de
Is Solicitud par duplicado quedando un ejemplar en poder de cada una de ellas
01652
O1653
EXHIBIT 6A
01654
CLAUSE XIII 17 JURISDICTION The present Contract will be governed by the laws of
Mexico the parties shall expressly accept the jurisdiction of the courts of Mexico City waiving
any other that may correspond to them under whatever circumstance
01655
TRANSPERFECT
City of New York State of New York County of New York
Alitasha Younger document Banamex Clause
hereby certify that the Jurisdiction is
to the best of my knowledge and belief true and accurate translation from Spanish into
English
Alitasha
Youn
Sworn to before me this
August 27 2015
Th2
Signaureryy
Public
res 13
CommIssion
Stamp Notary Public
THREE PARK AVENUE 39TH FLOOR NEW YORK NY 10016 212 689.5555 212689.1059 WWW.TRANSPERFECT.COM
OFFCES 90 OTES WORLDWIDE
01656
01657
EXHIBIT 103
01658
CASE NUMBER 14.270
IN THE ESTATE OF IN PROBATE COURT NO ONE
DOROTHY LOUISE LONGORTA
DECEASED HARRIS COUNTY TEXAS
FIRST AMENDED DISCLOSURES OF
JAMES THOMAS DORSEY INDEPENDENT EXECUTOR
OF THE ESTATE OF DOROTHY LOUISE LONGORIA
TO PLAINTIFF SHELBY LONGORIA by and through his
attorneys of record
James Thomas Dorsey as Independent Executor of the Estate of Dorothy Louise
Longoria Deceased the Executor hereby timely amends his responses to the Requests
for Disclosure served on him by Shelby Longoria
The correct names of the parties to the lawsuit
RESPONSE
Contestant/Counter-Defendant Shelby Longoria
Defendants/Counter-Plaintiffs James Thomas Dorsey Independent Executor of
the Estate of Dorothy Louise Longoria Deceased
Sylvia Rene Dorsey
Adriana Longoria
the name address and telephone number of any potentiaJ parties
RESPONSE
Eduardo Wayo Longoria Jr
1702 Cresthaven Drive
Austin Texas 78704
telephone 512-535-0105
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page
01659
the legal theories and in general the factual bases of the responding
partys claims or defenses
RESPON SE
The Executor generally denies the allegations of Shelby Longorias Third Amended
Contest of 2010 Will and any subsequently filed pleading in which the same or similar
allegations are made and demands strict proof thereof in accordance with Texas law
The Executor pleads the following additional defense in response to Shelby
Longorias Third Amended Contest of 2010 Will and any subsequently filed pleading in
which the same or similar allegations are made but he does not assume the burden of proof
with respect to this defense except to the extent required by law
Shelby Longoria lacks standing to maintain an action for removal of James Thomas
as the duly appointed Independent Executor of the Estate of Dorothy Louise
Dorsey
Longoria Deceased
James Thomas Dorsey is the Independent Executor of the Estate of Dorothy Louise
Longoria Deceased and he is defending in good faith and with just cause the Last Will and
Testament of Dorothy Louise Longoria dated January 21 2010 which this Court admitted
to probate on October 2012 Consequently pursuant to Section 352.052 of the Texas
Estates Code and other applicable law James Thomas Dorsey Independent Executor of the
Estate of Dorothy Louise Longoria Deceased is entitled to and hereby requests allowance
out of the Estate of Dorothy Louise Longoria Deceased of his necessary expenses and
disbursements including reasonable attorneys fees in these proceedings
The Executor has pleaded as counterclaims the following claims against Shelby
Longoria
On July 1942 Eduardo Longoria Eduardo and Dorothy Louise Kowalski
Dorothy were married in the City of Laredo in Webb County Texas
When they were married Dorothy was citizen of the United States of America and
Eduardo was citizen of the United Mexican States Mexico but he had been living in
the United States and after the wedding the couple initially settled in McAllen Texas
The marriage of Eduardo and Dorothy was subject to the laws of the State of Texas
including the law of community property
Eduardo and Dorothy had four children all of whom are living Their names are
Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo Longoria
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page
01660
Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All of them
reside in Texas
Eduardo and Dorothy amassed considerable wealth through variety of business
activities and investments
Over time Shelby took control over the business and investments owned by Eduardo
and Dorothy
Shelby managed property and accounts owned by Dorothy and represented to her that
he was doing so for her benefit Indeed the account statements were not even sent to
Dorothy even though she was identified as the sole owner of the accounts The accounts
included but are not limited to the following accounts collectively Dorothys Accounts
in Mexico
Banarnex Account Number
Banamex Account Number
BanRegio Account Number
In addition Shelby expressly agreed to hold in trust for the benefit of Dorothy property that
Shelby obtained from Eduardo In letter to Dorothy dated August 1983 for example
Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us as long as
you live we will hold them as if they were yours and we will make the fruits available
to you for your direction as to their use These promises were made by Shelby while he was
in Texas and they were set forth in letter that was sent to Dorothy from an address
residing
in Texas Shelby breached these promises to Dorothy by failing to account for the property
that was given to Shelby by Eduardo by concealing from Dorothy material facts about that
property including its nature extent value and profitability by failing to hold and maintain
that property as if it
belonged to Dorothy by paying himself income generated by the
by failing to disclose to Dorothy that he had done so and by failing generally to
property
make the fruit of that property available to her for her use
Likewise in letter dated October 2007 which Shelby sent to Dorothy at her
residence in Houston Texas Shelby made specific promises with respect to large sum of
money that Eduardo wished for Dorothy to have upon his death Admitting that beheld such
funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate to her
daughters Shelby promised that within thirty days after Dorothy died he would pay
$100000 to Sylvia and $100000 to Adriana Upon Dorothys death Shelby repudiated and
breached this promise to Dorothy While he did tender check for $100000 to Sylvia and
check for $100000 to Adriana he printed on the checks language that if the checks were
negotiated would have resulted in release of their rights in Dorothys estate and rights
against Shelby self-serving conditions which Shelby had no right to impose The fact that
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page
01661
demanded such releases for his benefit as conditions on his performance
Shelby arbitrarily
that
of an unconditional duty to pay $100000 to Sylvia and $100000 to Adriana proves
Shelby knew that Dorothy owned valuable claims against him Shelby knew that Dorothy
intended to leave her entire estate to and Adriana and Shelby knew that Sylvia and
Sylvia
Adriana themselves had valuable claims against him all of which he now dishonestly
denies
Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as trustee
of an express trust for the benefit of Dorothy and in addition or in the alternative
pursuant to an informal fiduciary relationship with Dorothy
In contravention of his fiduciary duty to Dorothy under Texas law Shelby failed to
advise Dorothy fully and fairly regarding the nature and extent of her property and his actions
her property and was for her
with respect to the property he holding in trust supposedly
benefit
In fact Shelby managed for his own benefit Dorothys property as well as property
he was holding in trust supposedly for her benefit He caused income from the property to
be paid to him or to others for his benefit and failed to disclose to Dorothy that he had done
so
Eduardo died on January 26 2005 at the age of 91 He was born on October 25
1913 When Eduardo died all of the property in his estate was community property of
which one-half was owned by Dorothy under Texas law Eduardo died in Webb County
Texas where he and Dorothy had lived for many years
After the death of Eduardo Shelby continued to manage Dorothys property and
continued to to her that he was managing her property for her benefit but he
represent
intentionally concealed from Dorothy the nature extent and value of her property what he
had done with her property over the years and how much money he had been paid or
otherwise derived from the property
In fact Shelby managed the property for his own benefit and engaged in self-dealing
transactions that he failed to disclose to Dorothy
Dorothy died in Harris County Texas on April 2012 at the age of 92 She was
born on May 1919
order dated October 2012 Court admitted Dorothys Last Will
By this to probate
and Testament dated January 21 2010 and appointed James Thomas Dorsey Independent
Executor of the Estate of Dorothy Letters Testamentary were issued to James Thomas
Dorsey on the same day and such Letters Testamentary are currently in full force and effect
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page
01662
First Cause of Action
Demand for Accounting
Pursuant to Section 489B of the Texas Probate Code Section 113.15 of the Texas
Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled to and
hereby requests that Shelby provide full accounting of1 all of his activities as an agent
for Dorothy all transactions done or caused by him involving property owned in whole
or in part by Dorothy including but not limited to Dorothys Accounts in Mexico and
all transactions involving property held by him in trust for Dorothy
In connection with this claim the Executor is entitled to and is seeking herein an
award of fees reasonably and incurred in
attorney including litigation expenses necessarily
connection with this action as permitted by Section 113.151 of the Texas Trust Code and
other applicable Texas law
Second Cause of Action
Breaches of Fiduciary Duty
Under Texas law Shelby breached his fiduciary duty to Dorothy by failing to
disclose to her fully and fairly all information that might affect her interests in property
managed by him including both her community property and property held by Shelby in trust
for to act with utmost good faith and fair dealing in the management of her
her failing
activities her interests
property and property held in trust for her and in his other affecting
failing to act with undivided loyalty to Dorothy in the management of her property and
her interests and
property held by him in trust for her and in his other activities affecting
in self-dealing transactions that were detrimental to her and in addition or in the
engaging
alternative improperly benefitted him
The breaches of fiduciary duty by Shelby proximately caused compensable harm to
Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby
ofjudgment against Shelby for actual damages in an amount to be determined
requests entry
by the trier of fact in accordance with Texas law The damages awarded should include all
amounts of money which were withdrawn from Dorothys Accounts in Mexico and which
Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her
fully informed consent
The breaches of fiduciary duty by Shelby constituted fraud gross negligence and
malice as those terms are defined in Chapter 41 of the Texas Civil Practice and Remedies
Code Despite his fiduciary duty under Texas law to disclose to Dorothy all facts that might
affect her interests Shelby intentionally or in the alternative with reckless disregard for
Dorothys rights concealed from Dorothy the nature extent and value of her property what
he had done with her property over the years and how much money he had been paid or
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONOOBJA DECEASED Page
01663
otherwise derived from the property Under Texas law Counter-Plaintiff is entitled to and
hereby requests entry ofjudgment against Shelby for exemplary damages in an amount to
be determined by the trier of fact in accordance with Texas law
Shelby derived profits by means of the breaches of his fiduciary duty to Dorothy
Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment
decreeing that Shelby jlisgorge all profits received by him or by his wife his children or any
other persons designtdby him as result of the breaches of his fiduciary duty to Dorothy
Shelby acquired property by means of the breaches of his fiduciary duty to Dorothy
Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment
imposing constructive trust on all property acquired by Shelby or by his wife his children
or any other persons designated by him by means of the breaches of his fiduciary duty to
Dorothy
In connection with this claim the Executor is entitled to and is seeking herein an
award of attorney fees including litigation expenses reasonably and necessarily incurred in
connection with this action as permitted by Section 114.064 of the Texas Trust Code
Third Cause of Action
Breach of Promise To Hold Property for Dorothys Benefit
Shelby promised Dorothy that he would hold in trust for Dorothy all of the assets that
Eduardo gave to Shelby and Wayo and that he would make the income from such property
available to her for her direction as to their use These promises were made by Shelby while
he was residing in Texas Shelby breached these promises to Dorothy by failing to account
for the property that was given to Shelby and Wayo by Eduardo by concealing from Dorothy
material facts about that property including its nature extent value and profitability by
failing to hold and maintain that property as if it
belonged to Dorothy by paying himself
income generated by the property by failing to disclose to Dorothy that he had done so and
by failing generally to make the fruit of that property available to her for her use
These breaches by Shelby proximately caused compensable harm to Dorothy and her
estate Based on the doctrines of breach-of-contract promissory estoppel and money-had-
and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry of
judgment against Shelby for actual damages in an amount to be determined by the trier of
fact in accordance with Texas law
In connection with this cause of action the Executor is entitled to and is seeking
herein an award of attorney fees including litigation expenses reasonably and necessarily
incurred in connection with this action as permitted Chapter 38 of the Texas Civil Practice
and Remedies Code and other applicable Texas law
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page
01664
Fourth Cause of Action
Breach of Promise To Pay $100000 to Adriana and $100000 to Sylvia
Shelby promised Dorothy that within thirty days ofher death he would pay $100000
to Adriana and $100000 to Sylvia These promises were made by Shelby while he was
residing in Texas and they were directed to Dorothy at her residence in Houston Texas
Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia checks that
they could not negotiate without waiving their rights in Dorothys estate and their rights
against Shelby self-serving conditions which Shelby had no right to impose
Based on the doctrines of breach-of-contract promissory estoppel and money-had
and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry of
judgment against Shelby for $200000 in accordance with Texas law
In connection with this claim the Executor is entitled to and is seeking herein an
award of attorney fees including litigation expenses reasonably and necessarily incurred in
connection with this action as permitted by Chapter 38 of the Texas Civil Practice and
Remedies Code and other applicable Texas law
Fifth Cause of Action
Declaration of Invalidity of Donation Agreement dated January 11 2005
On January 2015 Shelby produced for the first time photocopy of document
dated January 11 2005 written in Spanish entitled CONTRATO DE DONAC1ON the
Donation Agreement The Donation Agreement purports to be signed by Eduardo and
Dorothy
By order dated January 29 2014 Shelby was ordered by this Court to produce
documents such as the Donation Agreement no later than February 28 2014 His production
of the Donation Agreement on January 2015 was over ten months late
On the date of the Donation Agreement Eduardo was dying and on hospice care
Fifteen days later Eduardo died The Executor believes and now avers that on January 11
2005 Eduardo lacked the requisite mental capacity to make legally enforceable contract
The Donation Agreement states that it was signed in Reynosa Tamaulipas Eduardo
was not in Reynosa on the date of the Donation Agreement
In the seven that Dorothy lived after the date of the Donation Agreement she
years
never mentioned it to either of her daughters both of whom lived near her in Houston or to
her son-in-law the Executor whom she saw frequently or in her correspondence which
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY iNDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page
01665
was extensive or in her personal notes where she wrote extensively about her financial
situation Indeed during those seven she made numerous statements both written and
years
oral that are inconsistent with the existence of the Donation Agreement
Based on the foregoing facts and others the Executor believes and therefore avers
that the Donation Agreement is forgery
The Executor believes and avers that the Donation Agreement is unenforceable for
lack of consideration or in the alternative for failure of consideration
There exists an actual controversy between the Executor and Shelby as to whether or
not the Donation Agreement is valid and enforceable contract
Consequently under Chapter 37 of the Texas Civil Practice and Remedies Code the
Executor hereby requests entry of judgment declaring that the Donation Agreement is
invalid and wholly unenforceable
Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code the
Executor is
seeking an award of costs and reasonable and necessary attorneys fees as are
equitable and just in connection with this cause of action
Anticipating that Shelby will plead the defense of limitations in
response to some or
all of the aforementioned causes of action Counter-Plaintiff pleads that Section 16.069 of
the Texas Civil Practice and Remedies Code is applicable and precludes application of any
statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery
rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure
Shelby concealed from Dorothy the nature extent and value of her property what he had
done with her property over the years and how much money he had been paid or otherwise
derived from the property The nature of the injuries to Dorothy and her estate were
inherently undiscoverable because of the relationship of trust and confidence between
Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts
that might affect Dorothys interests The injuries to Dorothy and her estate are objectively
verifiable because money that should have been paid to Dorothy was withheld from her and
diverted to Shelbys benefit
Based on the foregoing causes of action the Executor is
seeking the following relief
under Texas law
decree commanding CounterDefendant Shelby to render an
Longoria
accounting of all property that was owned in whole or in part by Dorothy Louise Longoria
and that was within his possession custody or control and all transactions affecting her
property and an accounting of all actions taken by him as her agent or trustee specifically
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page
01666
including complete accounting of all monies withdrawn from Dorothys Accounts in
Mexico
an award of actual damages from and against Counter-Defendant Shelby
amounts be determined by the of fact accordance with Texas law but
Longoria in to trier in
the maximum amount of actual damages currently sought by Counter-Plaintiff while
reserving his right under Texas law to amend this pleading to request greater or lesser
amount as more evidence is uncovered and the whole truth comes to light is $43500000
an award of exemplary damages from and against Counter-Defendant Shelby
in amounts to be determined by the of fact in accordance with Texas law but
Longoria trier
the maximum amount of exemplary damages currently sought by Counter-Plaintiff-- while
reserving his right under Texas law to amend this pleading to request greater or lesser
amount as more evidence is uncovered and the whole truth comes to light is $10000000
an award of attorney fees including litigation expenses reasonably and
incurred by Counter-Plaintiff in connection with each of his causes of actions
necessarily
under Texas law
decree commanding Counter-Defendant Shelby Longoria to disgorge all
profits received by him or by others for his benefit as result of breach by him of his
fiduciary duty to Dorothy Louise Longoria
decree constructive trust on all acquired by Counter-
imposing property
Defend ant Shelby Longoria or by others for his benefit by means of breach of fiduciary
duty owed to Dorothy Louise Longoria
an award of prejudgment interest on all actual damages at the highest rate
authorized by law to the date ofjudgment
an award of all costs incurred by Counter-Plaintiff in the course of preparing
and prosccuting this civil action
an award of postjudgment interest on all monetary relief at the highest rate
by law from the date
authorized ofjudgment until paid
10 judgment declaring that the Donation Agreement dated January 112005
is invalid and wholly unenforceable
11 all writs and processes necessary to collect the judgment and
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page
01667
12 al other relief to which Counter-Plaintiff is entitled or which the Court may
deem appropriate under the circumstances and the applicable law
The amount and any method of calculating economic damages
RESPONSE
Shelby Longoria Shelby managed property and accounts owned Dorothy Longoria
Dorothy and represented to her that he was doing so for her benefit These accounts
included but are not limited to Dorothys Accounts in Mexico Dorothys Accounts in
Mexico are more specifically identified as follows
Banamex Account Number
Banamex Account Number
BanRegio Account Numbe
Shelby made or caused to be made withdrawals from these accounts without
Dorothys knowledge or consent Thus the Executor seeks to recover the amounts
wrongfully withdrawn from Dorothys Accounts in Mexico The total amount of wrongful
withdrawals sought by the Executor based on the information currently available to the
Executor is $28878274.54
This amount was calculated by adding the amount of withdrawals made in each of
Dorothys Accounts in Mexico as reflected on the account statements produced by Shelby
Because some of the statements reflect transactions in pesos each such withdrawal was
converted from pesos to dollars The exchange rates used in these calculations were from
xe.com for transactions after November 2001 and from oanda.com for transactions prior to
November 2001 Both of these websites are identified by the Internal Revenue Service as
credible sources for exchange rates The attached spreadsheets reflect these calculations
Because Shelby owed fiduciary duty to Dorothy with respect to Dorothys Accounts
in Mexico which were owned by her Shelby has the duty to account to the Executor of
Dorothys estate for all withdrawals from the accounts and the burden to prove that all such
withdrawals were fully disclosed to Dorothy and properly made for her benefit and not for
Shelbys benefit Shelby has failed and refused to provide such accounting or such proof with
regard to any of the withdrawals listed in the attached spreadsheets so Shelby is personally
Some of the monthly bank statements for each of Dorothys Accounts in Mexico
have not produced including the bank statements for Banamex Account Number
for any month during the years 2011 and 2012 The Executor reserves the
right to amend this calculation once all of the bank statements have been produced
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 10
01668
liable to pay as damages the full amount of such withdrawals In the event that Shelby
demonstrates with credible evidence that particular withdrawal was merely transfer to
another account that was owned by Dorothy and disclosed to her or was used to pay living
or medical expenses actually incurred by Dorothy the Executor will withdraw his
expenses
claim for damages to the extent of that withdrawal
The Executor also seeks $25000000 which is an estimate based on information that the
businesses that Shelby managed or was supposed to manage for the benefit of Dorothy
made profits of approximately $10000000 per year Assuming but without admitting that
it was reasonable for the businesses to retain one-half of that amount then Shelby should
have distributed to Dorothy as the beneficiary of the fiduciary relationship at least one-half
of the remaining amount or $2500000 per year Over period of ten years the total
amount that should have been distributed is $25000000 The Executor is also requesting
an award of prejudgment interest on all amounts that should have been distributed to
Dorothy
Shelby made an unconditional promise to Dorothy in letter dated October 2007 that he
would pay $100000 to Sylvia Dorsey and $100000 to Adriana Longoria Shelby did not
fulfill his promise The Executor also seeks recovery of the $200000 that is the subject of
his promise to Dorothy
The name address and telephone number of persons having knowledge of
relevant facts and brief statement of each identified persons connection with
the case
The following individuals have knowledge of relevant facts
Alejandra Arguindegui granddaughter ofDecedent
315 Stratford Lane
Laredo Texas 78041
telephone 956-206-7773
Silvia Auila RN nurse who cared for Eduardo Longoria
Laredo Home Health
1700 Hendricks 2nd Floor
Laredo Texas 78040
telephone 956-796-3266
Adriana Banks daughter ofAdriana Longoria
6138 San Felipe Street
Houston Texas 77057
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY ThDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 11
01669
Carolyn Beckett provided legal services to
Beckett Tackett Jetel PLLC Decedent Shelby and Wayo
7800 North Mopac Expressway
Suite 210
Austin Texas 78759
telephone 512-436-9102
Cardenas LBSW social worker who evaluated Eduardo Longoria
Laredo Home Health
1700 Hendricks 2nd Floor
Laredo Texas 78040
telephone 956-796-3266
Johnny Carter attorney for Shelby Longoria
Susinan Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
telephone 713.653.7818
Leonides Cigarroa Jr M.D physician who treated Eduardo Longoria
Laredo Cigarroa Heart Vascular Institute
1710 Saunders St
Tower 5th Floor
Laredo Texas 78041
telephone 956-725-0833
Cynthia Coffrnan nurse who cared for Decedent
931 West 23rd Street Unit
Houston Texas 77008
telephone 713-304-1353
Cherry amianoff acquaintance ofDecedent
23 Journeys End
The Woodlands Texas 77381
telephone 713-303-1216
Juannic Rodriguez de Chavez provided care to Eduardo Longoria
516 Prescott Loop
Laredo Texas 78046
telephone 956-652-8661
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 12
01670
Cezar Dc Los Rios nurse who cared for Decedent
6722 Sylmar Road
Houston Texas 77074
telephone 713-240-4081
Teauie Dielyn RN nurse who cczred for Eduardo Longoria
Laredo Home Health
1700 Hendricks 2nd Floor
Laredo Texas 78040
telephone 956-796-3266
Marilyn Doherty acquaintance ofDecedent
Montebello Condominiums
1100 Uptown Park Boulevard
Houston Texas 77056
telephone 713-993-1100
James Thomas Dorsey Independent Executor of the Estate
do James Fisher ofDorothy Louise Longoria Deceased
Fisher Welch Respondent and Counter-Plaintiff herein
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
telephone 214-661-9400
Robert Edward Wayo Dorsey son of Applicant and Executor
15308 Sunset Blvd
Pacific Palisades California 90272
Sylvia Dorsey daughter of Decedent
do James Fisher Defendant and Counter-Plaintiff herein
Fisher Welch
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
telephone 214-661-9400
Ali Fazel witness to will signing
The Law Offices of Scardino Fazel
1004 Congress Street Third Floor
Houston Texas 77002
telephone 713-229-9292
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 13
01671
Elizabeth Dorsey Fertitta granddaughter of Decedent
2706 Eastgrove Lane
Houston Texas 77027
Zachary Fertitta attorney for Dorothy Louise Longoria
The Fertitta Law Firm
1004 Congress Street
Houston Texas 77002
telephone 713-228-5900
James Fisher attorney for Sylvia Dorsey Adriana Longoria and
Fisher Welch James Thomas Dorsey Independent Executor
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
telephone 214-661-9400
Pedro Frommer M.D physician who treated Dorothy Longoria
10023 Main Street Suite C9
Houston Texas 77025
telephone 713-791-1633
Rafael Dc Jesus Carbajal Galindo signatory on the Mexican
Heroes 121 bank accounts in Dorothys name
Rio Bravo Mexico 88900
telephone 899-909-0350
Neal Oittleman prosthodontist who saw Dorothy
50 Briar Hollow Lane Suite 150 West
Houston Texas 77027
telephone 713-993-0003
Micki Grimland psychologist who treated Decedent
Southwest Psychotherapy Associates .A
2500 Wilcrest Drive Suite 300
Houston Texas 77042
telephone 713-954-4851
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 14
01672
Dan Hancock acquaintance ofDecedent
Montebello Condominiums
1100 Uptown Park Boulcvard
Houston Texas 77056
telephone 713-993-1100
Raymond Hart grandson ofDecedent
5834 Candlewood Lane
Houston Texas 77057
telephone 713-818-2387
Adrian Hernandez Decedent and Contestants
Adrian Hcrnandez Associates PC accountant
9543 Bissonnct St
Houston Texas 77036
telephone 713-961-0262
Richard Hess attorney for Shelby Longoria
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
telephone 713.653.7818
Carlos Gonzalez Hinojosa attorney that prepared several wills for Decedent
Libramiento Luis Echevarria 630
Reynosa Tamaulipas
Holly Holmes M.D physician who treated Decedent
MD Anderson Cancer Center
1515 Holcombe Boulevard
Houston Texas 77030
telephone 877-632-6789
Wesley Holmes attorney for Sylvia Dorsey Adriana Longoria and
The Holmes Law Firm James Thomas Dorsey Independent Executor
10000 North Central Expressway Suite 400
Dallas Texas 75231
telephone 214-890-9266
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 15
01673
Carlos Hornedo III D.O physician who treated Eduardo Longoria
Laredo Home Health
1700 Hendricks 2nd Floor
Laredo Texas 78040
telephone 956-796-3266
czar Iliescu M.D physician who treated Decedent
MD Anderson Cancer Center
1515 Holcombe Boulevard Unit Number 1451
Houston Texas 77030
telephone 877-632-6789
Karen Ledbetter acquaintance of Decedent
Montebello Condominiums
1100 Uptown Park Boulevard
Houston Texas 77056
telephone 713-993-1100
Philippe Licause Decedents hairdresser
3614 Montrose Blvd 206
Houston Texas
telephone 214-794-2149
Adriana Longoria daughter of Decedent
do James Fisher Defendant and Counter-Plaintiff herein
Fisher Welch
2800 Lincoln Plaza
500 North Akard Street
Dallas Texas 75201
telephone 214-661-9400
Eduardo Wayo Longoria Jr son of Decedent
1702 Cresthaven Drive
Austin Texas 78704
telephone 512-535-0105
Enriqueta Chapa Longoria wife of Shelby Longoria
c/o Shelby Jordan
Jordan Hyden Womble Cuibreth Hoizer P.C
500 North Shoreline Boulevard Suite 900
Corpus Christi Texas 78401
361-884-5678
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 16
01674
Shelby Longoria Contestant and Counter-Defendant
do Johnny Carter
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002-5096
telephone 713-651-9366
Shelby Longoria Jr son of Shelby Longoria
do Shelby Jordan
Jordan Hyden Womble Cuibreth Holzcr P.C
500 North Shoreline Boulevard Suite 900
Corpus Christi Texas 78401
telephone 361-884-5678
Lynne Meiers acquaintance of Decedent
115 Munger Street
Pasadena Texas 77505
telephone 713-304-1592
Mario Gonzalez Mendoza notary to several documents
Dr Mier 3113 signed in Mexico
Nuevo Laredo Tamaulipas CP 88000
Elizabeth Morgan Wayo Longoria lawyer
Elizabeth Morgan Associates LLP
5150 Tarniami Trail Suite 207
Naples Florida
Telephone 512-370-2750
Domnica Portillo Dorothy Longoria housekeeper
7206 Rising Brook Drive in Houston for /2
years
Cypress Texas 77433
Telephone 832-293-0392
Sandra Ramirez LVN nurse who cared for Eduardo Longoria
Laredo Home Health
1700 Hendricks 2nd Floor
Laredo Texas 78040
telephone 956-796-3266
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 17
01675
Sofia Rodriguez CNA who provided care to Eduardo Longoria
9013 Seller Loop
Laredo Texas 78045
telephone 956-319-0414
Anna Rubjo director of Laredo Home Health
Laredo Home Health
1700 Hendricks 2nd Floor
Laredo Texas 78040
telephone 956-796-3266
will
Anthony Scardino witness to signing
The Law Offices of Scardino Fazel
1004 Congress Street Third Floor
Houston Texas 77002
telephone 713-229-9292
Carlos Solis acquaintance ofDecedent
Montebello Condominiums
1100 Uptown Park Boulevard
Houston Texas 77056
telephone 281-777-4892
Crispin Soto chaplain who provided spiritual
Laredo Home Health support to Eduardo Longoria
1700 Hendricks 2nd Floor
Laredo Texas 78040
telephone 956-796-3266
Marco Torres administrative director of Grupo Inlosa
Sierra Nevada 1208 Col Fuentes
Reynosa Tamaulipas
Patricia Vasquez treasurer for Grupo Inlosa
Playa Hcrmosa 507 Col Militar Marte
Iztacalco Mexico
Randall Weber M.D physician who treated Decedent
MD Anderson Cancer Center
1515 Holcombe Boulevard Unit Number 1445
Houston Texas 77030
telephone 713-745-0497
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONOORIA DECEASED Page 18
01676
Maria Del Carmen Torres Zamarron signatory on Mexican
Sierra Negra 301 bank accounts in Dorothys name
Reynosa Mexico 88700
telephone 899-909-0350
custodian of records of MD Anderson Cancer Center
1515 Holcombe Boulevard
Houston Texas 77030
telephone 877-632-6789
custodian of records of Laredo Home Health
Laredo Home Health
1700 Hendricks 2nd Floor
Laredo Texas 78040
telephone 956-796-3266
custodian of records of Montebello ondominiums
Montebello Condominiums
1100 Uptown Park Boulevard
Houston Texas 77056
telephone 281-777-4892
The Executor Sylvia and Adriana incorporate herein by reference all of the
disclosures by other parties to this case of persons who may have knowledge of
relevant facts In so doing the Executor Sylvia and Adriana do not admit that any
individual does in fact have of relevant fact
particular knowledge
For any testifying expert
the experts name address and telephone number
the subject matter on which the expert will testify
the general substance of the mental and
experts impressions
opinions and brief summary of the basis for them or if the expert
is not retained by employed by or otherwise subject to the control
of the responding party documents such
reflecting information
if the expert is retained by employed by or otherwise subject to
control of the responding party
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 19
01677
all documents tangible things reports models or data
compilations that have been provided to reviewed by or
prepared by or for the expert in anticipation of the experts
testimony and
the experts current resume and bibliography
First Designated Expert Witness Mario Gonzalez Mendoza
Mario Gonzalez Mendoza
Dr Mier 3113
Nuevo Laredo Tamaulipas CP 88000
The subject matter ofthe testimony ofMr Gonzalez is the agreement allegedly
signed by Dorothy and Eduardo in 1983 with respect to certain community
property owned them Tamaulipas Mexico
by and the judicial proceedings in
with regard to that agreement
The general substance ofthe mental impressions and opinions ofMr Gonzalez
as reflected in his deposition testimony given on October 2014 in
connection with this case is that the alleged agreement between Dorothy and
Eduardo and the related proceedings did not affect any community property
that was not specifically identified in the agreement and all such property
continued to be community property In other words under the laws of
Tamaulipas Dorothy retained her community interest in any property that is
not specifically mentioned in the agreement and related proceedings The
basis of these mental impressions and opinions is Mr Gonzalezs education
and extensive experience as an attorney and notario publico in Tamaulipas
Mexico which education and experience is described in his deposition
testimony To the extent consistent with this disclosure the deposition
testimony of Mr Gonzalez is
incorporated by reference into this disclosure
Mr Gonzalez was not retained by employed by or otherwise subject to the
control of the Executor
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 20
01678
Second Designated Expert Witness James Austin Fisher
James Austin Fisher
Fisher Welch Professional Corporation
Ross Tower Suite 2800
500 North Akard Street
Dallas Texas 75201
214-661-9400
The subject matter of Mr Fishers expert testimony will be the necessity and
reasonableness of legal services rendered and litigation expenses incurred in
this case
The general substance of Mr Fishers mental impressions and opinions is as
follows
The legal services rendered to the Executor have been necessary and
the amounts of time expended in rendering those legal services have
been reasonable
For the legal services rendered by the attorneys for the Executor in
connection with this case an hourly rate of $500 is reasonable given
their experience and qualifications and such rate is within the range of
what is customary in Harris County Texas In addition for purposes
of an determining an appropriate award of attorneys fees under Texas
law an enhancement of at least 100 percent should be added to this rate
because the attorneys for the Executor are in fact working for
contingent fees rather than fees based on hourly rates and billed
currently and such enhancement is reasonable in light of the
circumstances and demands of the litigation the complexity of the
issues the amounts at stake the characteristics of the parties and the
disparity of resources between the parties
The litigation expenses incurred by counsel for the Executor in
connection with this civil action are reasonable and were necessary
Some of the legal services rendered to Shelby Longoria were
unnecessary and unreasonable including but not limited to asserting
meritless claim against Adriana for tortious interference with
inheritance rights and ii presenting to the Probate Court meritless
motion to dismiss for forum non conveniens and presenting to the Court
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 21
01679
of Appeals and the Supreme Court of Texas meritless petitions for writ
of mandamus
Mr Fisher may be asked to render an opinion as to total amount that would
be reasonable attorneys fee for the legal services rendered to the Executor
for the prosecution of the claims asserted by her The total amount however
cannot be determined until the time of trial
Mr Fisher also may be asked to consider and to opine as to the validity of the
expert testimony if any offered by Shelby Longoria in this civil action with
regard to legal services rendered or litigation expenses incurred including
legal services rendered or litigation expenses incurred on behalf of Shelby
Longoria To date Shelby Longoria has not made proper disclosure of the
expert testimony if any that Shelby Longoria is planning to offer in this case
brief of the basis of these mental impressions and opinions as
summary is
follows the timing and content of the documents filed and/or served in the
course of this proceeding Mr Fishers experience practicing law in Harris
County Texas and elsewhere his knowledge of rates customarily charged by
attorneys in Harris County Texas and elsewhere for the same or similar
services and application of the factors listed in Texas Disciplinary Rule of
Professional Conduct .04b Mr Fisher generates time records reflecting the
specific amounts of time expended the services rendered and the litigation
expenses incurred The billing records may contain privileged information but
it will be redacted prior to production in this case Mr Fisher is not relying on
the redacted information as basis for any of his opinions The redacted
billing records will be produced at least 30 days before trial or by such other
date as may be ordered by the Court or as the parties may agree
Mr Fisher is an attorney who has been engaged to represent the Executor
Sylvia and Adriana in this case Mr Fisher has not been retained by the
Executor Sylvia and Adriana to serve as an expert witness and he is not
employed by or subject to the control of the Executor Sylvia or Adriana
Third Designated Expert Witness Wesley Holmes
Wesley Holmes
The Holmes Law Firm
10000 North Central Expressway Suite 400
Dallas Texas 75231
214.890.9266
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 22
01680
The subject matter ofMr Holmess expert testimony will be the necessity and
reasonableness of legal services rendered and litigation incurred in
expenses
this case
The general substance of Mr Holmess mental impressions and opinions is as
follows
The legal services rendered to the Executor Sylvia and Adriana have
been necessary and the amounts of time expended in rendering those
legal services have been reasonable
For the legal services rendered by the attorneys for the Executor Sylvia
and Adriana in connection with this case an hourly rate of $500 is
reasonable given their experience and qualifications and such rate is
within the of what is customary in 1-larris County Texas In
range
addition for purposes of an determining an appropriate award of
attorneys fees under Texas law an enhancement of at least 100 percent
should be added to this rate because the attorneys for the Executor
Sylvia and Adriana are in fact working for contingent fees rather than
fees based on hourly rates and billed currently and such enhancement
is reasonable in light of the circumstances and demands of the
litigation the complexity of the issues the amounts at stake the
characteristics of the parties and the disparity of resources between the
parties
The litigation expenses incurred by counsel for the Executor in
connection with this civil action are reasonable and were necessary
Some of the legal services rendered to Shelby Longoria were
unnecessary and unreasonable including but not limited to asserting
meritless claim against Adriana for tortious interference with
inheritance rights ii asserting meritless objections to discovery
requests and meritless opposition to motion to compel discovery
iii presenting to the Probate Court meritless motion to dismiss for
forum non conveniens and iv presenting to the Court of Appeals and
the Supreme Court of Texas meritless petitions for writ of mandamus
Mr Holmes may be asked to render an opinion as to total amount that would
be reasonable attorneys fee for the legal services rendered to the Executor
for the prosecution of the claims asserted by her The total amount however
cannot be determined until the time of trial
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 23
01681
Mr Holmes also
may be asked to consider and to opine as to the validity of the
expert testimony if any offered by Shelby Longoria in this civil action with
regard to legal services rendered or litigation expenses incurred including
legal services rendered or litigation expenses incurred on behalf of Shelby
Longoria To date Shelby Longoria has not made proper disclosure of the
that is offer in this case
expert testimony if any Shelby Longoria planning to
brief summary of the basis of these mental impressions and opinions is as
follows the timing and content of the documents filed and/or served in the
course of this proceeding Mr Holmess experience practicing law in Harris
County Texas and elsewhere his knowledge of rates customarily charged by
attorneys in Harris County Texas and elsewhere for the same or similar
services and application of the factors listed in Texas Disciplinary Rule of
Professional Conduct 1.04b Mr Holmes generates time records reflecting
the specific amounts of time expended the scrvices rendered and the litigation
expenses incurred The billing records may contain privileged information but
it will be redacted prior to production in this case Mr Holmes is not relying
on the redacted information as basis for
any of his opinions The redacted
billing records will be produced at least 30 days before trial or by such other
date as may be ordered by the Court or as the parties may agree
Mr Holmes is an attorney who has been engaged to represent the Executor
Sylvia and Adriana in this case Mr Holmes has not been retained by the
Executor Sylvia or Adriana to serve as an expert witness and he is not
employed by or subject to the control of the Executor Sylvia or Adriana
Fourth Designated Expert Witness Christopher Ticknor M.D
Christopher Ticknor M.D
1202 Sonterra Boulevard Suite 202
San Antonio Texas 78258
Telephone 210 692 7775
The subject matter of the testimony of Dr Ticknor will include his education
qualifications and experience in the fields of psychiatry and forensic
psychiatry the tasks he has performed in reaching his conclusions in this case
his opinions and mental impressions regarding the testamentary capacity of
Dorothy Louise Longoria and his review of the qualifications opinions
and/or testimony of any expert designated by Contestant on the issue of
testamentary capacity
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF TIlE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 24
01682
The general substance of Dr Ticknors mental impressions and opinions
include Dr Ticknors conclusion that based on reasonable medical
Louise Longoria had as defined in
probability Dorothy testamentary capacity
Texas law on January 21 2010 Dr Ticknor may also testify as to the
meaning and significance ofvarious medical records related to Dorothy Louise
Longoria It is anticipated that Dr Ticknor will also testify that his
and experience are more suitable for making determinations
qualifications
regarding testamentary capacity than those of George Glass M.D Dr
Ticknor will also respond to the testimony if any of George Glass M.D
and any of Dorothy Louise Longorias healthcare providers If Dr Ticknor
is deposed his deposition testimony is
incorporated herein by reference
4A The following items have been provided to reviewed by or prepared
by or for the expert in anticipation of the experts testimony
The definition of testamentary capacity
Application for Probate of January 21 2010 Will and Issuance
of Letters Testamentary dated June 28 2012
Preliminary Inventory Appraisement and List of Claims dated
August 27 2013
Shelby Longorias Amended Contest of2OlO Will dated August
30 2013
Original Counterclaims of James Thomas Dorsey Independent
Executor of the Estate of Dorothy Louise Longoria Deceased
to Shelby Longorias Amended Contest of 2010 Will dated
September 26 2013
Original Answer of James Thomas Dorsey Independent
Executor of the Estate of Dorothy Longoria Deceased to
Shelby Longorias Amended Contest of 2010 Will dated
September 26 2013
Original Answer of Sylvia Rene Dorsey to Shelby Longorias
Amended Contest of 2010 Will dated September 26 2013
Last Will and Testament of Dorothy Louise Longoria dated
April 1988
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 25
01683
Last Will and Testament of Dorothy Louise dated
Longoria
December 112009
10 Last Will and Testament of Dorothy Louise Longoria dated
January 82010
11 Last Will and Testament of Dorothy Louise Longoria dated
January 21 2010
12 Last Will and Testament of Dorothy Louise Longoria
purportedly signed in July of 2011
13 Directive to Physicians and Family or Surrogates Living Will
signed on February 2010
14 Medical Power of Attorney dated February 2010
15 Inpatient Physician Orders No Cardiopulmonary Resuscitation
Orders DNR dated November 2011
16 Records from M.D Anderson Cancer Center
17 Shelby Longorias Supplemental Response to Request for
Disclosures
18 The CV of GeorgeS Glass M.D
19 Records from Daniela White M.D
20 Transcripts of the depositions of the following witnesses
James Thomas Dorsey
Sylvia Rene Longoria Dorsey
Adriana Longoria three volumes
Shelby Longoria
Zachary Fertitta
Elizabeth Dorsey Fertitta and
Raymond Hart
21 Checks written and signed by Dorothy Longoria from
November 2009 through July 2010
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 26
01684
22 The records of Micki Grimland Ph.D Bates labeled SWPA
0000001-S WPA 0000083
23 Affidavit of Dr George Glass and
24 copy of the handwritten journal of Dorothy Longoria Bates
labeled DORSEY 003712 DORSEY 003751
Dr Ticknor may also review additional documents depositions medical records and
other materials as this case progresses
4B Dr Ticknors current curriculum vitae was provided on January 15
2015 It is incorporated herein by reference
Fifth Designated Expert Witness Holly Holmes M.D
Holly Holmes M.D
The University of Texas MD Anderson Cancer Center
1515 Holcombe Blvd
Houston Texas 77030
713 792 2121
The subject matter of the testimony of Dr Holmes is her education
and in the fields of internal and geriatric
qualifications experience
medicine her participation in the care and treatment of Dorothy Louise
Longoria the medical conditions for which she treated Dorothy Louise
her observations diagnoses and conclusions throughout their
Longoria
doctor-patient relationship and the mental status including the
testamentary capacity of Dorothy Louise Longoria
The general substance of the mental impressions and opinions of Dr
Holmes are reflected in the medical records of Dorothy Louise
Longoria including but not limited to the records form the University
of Texas MD Anderson Cancer Center These medical records have
previously been produced in this case It is anticipated that Dr Holmes
will also testify that based on reasonable medical probability Dorothy
Louise Longoria had testamentary capacity as defined in Texas law
on January 21 2010 If Dr Holmes is deposed her deposition
testimony is incorporated herein by reference
Dr Holmes was not retained by employed by or otherwise subject to
the control of the Executor
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 27
01685
Sixth Designated Expert Witness Cezar Iliescu M.D
Cezar Iliescu M.D
The University of Texas MD Anderson Cancer Center
1515 Holcombe Blvd
Houston Texas 77030
713 792 2121
The subject matter of the testimony of Dr Iliescu is his education
qualifications and experience in the field of cardiology his
in the care and treatment of Dorothy Louise the
participation Longoria
medical conditions for which he treated Dorothy Louise his
Longoria
observations diagnoses and conclusions throughout their doctor-
patient relationship and the mental status including the testamentary
capacity of Dorothy Louise Longoria
The general substance of the mental impressions and opinions of Dr
Iliescu are reflected in the medical records of Louise
Dorothy
Longoria including but not limited to the records form the University
of Texas MD Anderson Cancer Center These medical records have
previously been produced in this case It is anticipated that Dr iliescu
will also testify that based on reasonable medical probability Dorothy
Louise had as defined Texas
Longoria testamentary capacity in law
on January 212010 If Dr Iliescu is
deposed his deposition testimony
is incorporated herein by reference
Dr Iliescu was not retained by employed by or otherwise subject to
the control of the Executor
Seventh Designated Expert Witness Randal Weber M.D
Randal Weber M.D
The University of Texas MD Anderson Cancer Center
1515 Holcornbe Blvd
Houston Texas 77030
713 792 2121
The subject matter of the testimony of Dr Weber is his education
qualifications and experience in the field ofhead and neck surgery his
participation in the care and treatment ofDorothy Louise Longoria the
medical conditions for which he treated Dorothy Louise Longoria his
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 28
01686
observations diagnoses and conclusions throughout their doctor-
relationship and the mental status including the testamentary
patient
capacity of Dorothy Louise Longoria
The general substance of the mental impressions and opinions of Dr
Weber are reflected in the medical records of Dorothy Louise
Longoria including but not limited to the records form the University
of Texas MD Anderson Cancer Center These medical records have
previously been produced in this case It is anticipated that Dr Weber
will also testify that based on reasonable medical probability Dorothy
Louise Longoria had testamentary capacity as defined in Texas law
on January 21 2010 If Dr Weber is deposed his deposition testimony
is incorporated herein by reference
Dr Weber was not retained by employed by or otherwise subject to
the control of the Executor
Reservation of Right To Call Experts Designated by Other Parties The
Executor hereby cross-designates each and every person designated in the past
or in the future by another party to this civil action to be testifying expert
and the Executor reserves the right to elicit opinions from such experts on any
subject matter for which they were designated to testify for any other party
Reservation of Right To Call Rebuttal Experts In the event that Shelby
designates one or more expert witnesses the Executor reserves the right to call
one or more experts in same fields to critique and to rebut the expert testimony
presented by Shelby
Reservation ofRights To Designate and To Call Additional Expert Witnesses
As of the time of this response it has not been decided whether or not other
expert witnesses will be called to testify on behalf of the Executor The
Executor reserves the rights to amend and to supplement this
response as may
be necessary
Any witness statements described in Rule 192.3h
Response
The Executor refers to the depositions upon oral examination that have been
taken in this case all of which were attended by at least one attorney of record
for Shelby and the affidavits which have been filed in the record for this case
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 29
01687
Other than those depositions and affidavits the Executor does not have what
he understands to be witness statement within the of RLIIC
meaning
192.3h but he does have copies of letters ernails notes and other documents
written by people who are likely to be called as witnesses in this case Al
such items of which the Executor aware have already been
is
produced by the
parties to this case
the name address and telephone number of any person who may be
designated as responsible third party
Response
Contestant has filed motions to James Thomas
designate Dorsey Raymond
Hart Sylvia Dorsey and Adriana Longoria as responsible parties The Executor
does not believe that these four people as responsible third parties
designating
is
proper and the Executor is not aware of any other person who may be
properly designated as responsible third party
RESERVATION OF RIGHTS TO AMEND AND TO SUPPLEMENT
The Executor reserves the rights to amend and to supplement the foregoing
disclosures or any part thereof in accordance with Texas law
DATED June 2015
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 30
01688
Respectfully submitted
/s/Shannon L.K Welch
James Austin Fisher
State Bar of Texas Number 07051650
email jfisher@fisherwelch.com
Shannon L.K Welch
State Bar of Texas Number 90001699
email swelch@fisherwelch.com
FISHER WELCH
Professional Corporation
Ross Tower Suite 2800
500 North Akard Street
Dallas Texas 75201
Telephone 214.661.9400
Facsimile 214.661.9404
Wesley Holmes
State Bar of Texas Number 09908495
email wes@wesholmes.com
THE HOLMES LAW FIRM
10000 North Central Expressway Suite 400
Dallas Texas 75231
Telephone 214.890.9266
Facsimile 214890.9295
ATTORNEYS FOR
ADRIANA LONGORIA
SYLVIA DORSEY AND
JAMES THOMAS DORSEY
INDIVIDUALLY AND AS
INDEPENDENT EXECUTOR OF THE
ESTATE OF DOROTHY LOUISE
LONGORIA DECEASED
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 31
01689
CERTIFICATE OF SERVICE
hereby certify that on June 82015 true and correct copy of this document was
served on Shelby Longoria through his attorneys of record named below in the manner
indicated and in compliance with Texas law
Johnny Carter Richard Hess and Kristen Schlemmer
Susman Godfrey L.L.P
1000 Louisiana Street Suite 5100
Houston Texas 77002
BY EMAIL TOjcarter@susmangodfrey.com rliess@susrn angodfrey corn and
ksch lernrn er@susrn angodfrey corn
Robert Macintyre Jr
Maclntyre McCulloch Stanfield Young
2900 Weslayan Suite 50
Houston Texas 77027
BYEMAIL TO macintyre@mrnlawtexas.com
/s/Shannon Lii Welch
Shannon L.K Welch
FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT
EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 32
01690
01691
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
3/18/2005 $16928.84 0.0894966 $1515.07
4/15/2005 $15190.00 0.090185354 $1369.92
4/15/2005 $35860.00 0.090185354 $3234.05
4/20/2005 $16928.84 0.090394207 $1530.27
5/4/2005 $330188.68 0.091013652 $30051.68
5/5/2005 $451189.50 0.091334478 $41209.16
5/5/2005 $660377.36 0.091334478 $60315.22
5/5/2005 $566037.74 0.091334478 $51698.76
5/13/2005 $1210.00 0.090717504 $109.77
5/20/2005 $16928.84 0.09115308 $1543.12
5/27/2005 $660377.36 0.091859657 $60662.04
6/9/2005 $283018.86 0.091953116 $26024.47
6/21/2005 $16928.84 0.092677952 $1568.93
6/30/2005 $0.62 0.092820649 $0.06
6/30/2005 $0.06 0.092820649 $0.01
7/14/2005 $16928.84 0.094052247 $1592.20
8/18/2005 $16928.84 0.093857938 $1588.91
8/19/2005 $1782000.00 0.092943352 $165625.05
8/19/2005 $1637820.00 0.092943352 $152224.48
8/19/2005 $144180.00 0.092943352 $13400.57
8/30/2005 $343053.18 0.092267609 $31652.70
Page
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Rate Withdrawals
Exchange Dollars
8/30/2005 $85763.29 0.092267609 $7913.17
8/30/2005 $128644.94 0.092267609 $11869.76
8/30/2005 $325900.52 0.092267609 $30070.06
8/30/2005 $643224.70 0.092267609 $59348.80
8/30/2005 $171526.59 0.092267609 $15826.35
8/30/2005 $814751.29 0.092267609 $75175.15
8/30/2005 $600345.05 0.092267609 $55392.40
8/30/2005 $857632.93 0.092267609 $79131.74
9/19/2005 $16928.24 0.092098658 $1559.12
9/23/2005 $2000000.00 0.09223452 $184469.04
9/26/2005 $643224.70 0.092033449 $59198.19
9/26/2005 $814751.29 0.092033449 $74984.37
9/26/2005 $343053.17 0.092033449 $31572.37
9/26/2005 $85763.29 0.092033449 $7893.09
9/26/2005 $128644.94 0.092033449 $11839.64
9/27/2005 $325900.51 0.091869359 $29940.27
9/27/2005 $600343.05 0.091869359 $55153.13
9/28/2005 $3213.40 0.092187623 $296.24
9/28/2005 $857632.93 0.092187623 $79063.14
10/20/2005 $16928.84 0.092210049 $1561.01
10/28/2005 $3842195.53 0.092240886 $354407.52
10/31/2005 $857632.93 0.092684435 $79489.22
10/31/2005 $171526.59 0.092684435 $15897.85
10/31/2005 $600343.05 0.092684435 $55642.46
Page
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
10/31/2005 $814751.29 0.092684435 $75514.76
10/31/2005 $343053.17 0.092684435 $31795.69
10/31/2005 $85763.29 0.092684435 $7948.92
10/31/2005 $128644.94 0.092684435 $11923.38
10/31/2005 $325900.51 0.092684435 $30205.90
10/31/2005 $643224.70 0.092684435 $59616.92
11/1/2005 $814751.29 0.092858225 $75656.36
11/1/2005 $643224.70 0.092858225 $59728.70
11/1/2005 $857632.92 0.092858225 $79638.27
11/1/2005 $325900.51 0.092858225 $30262.54
11/1/2005 $600343.05 0.092858225 $55746.79
11/4/2005 $85763.29 0.09304409 $7979.77
11/4/2005 $128644.94 0.09304409 $11969.65
11/4/2005 $343053.17 0.09304409 $31919.07
11/9/2005 $293332.95 0.093317797 $27373.18
11/14/2005 $57177.13 0.093597791 $5351.65
11/21/2005 $16928.84 0.093990907 $1591.16
11/30/2005 $0.62 0.094546798 $0.06
11/30/2005 $0.06 0.094546798 $0.01
12/2/2005 $85763.28 0.095639135 $8202.33
12/2/2005 $343053.17 0.095639135 $32809.31
12/2/2005 $128644.94 0.095639135 $12303.49
12/2/2005 $85763.28 0.095639135 $8202.33
12/2/2005 $857632.82 0.095639135 $82023.26
Page
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Rate
Exchange Withdrawals Dollars
12/2/2005 $600343.05 0.095639135 $57416.29
12/2/2005 $814751.29 0.095639135 $77922.11
12/2/2005 $643224.70 0.095639135 $61517.45
12/7/2005 $857632.93 0.095651284 $82033.69
12/7/2005 $128644.94 0.095651284 $12305.05
12/7/2005 $85763.29 0.09565 1284 $8203.37
12/7/2005 $85763.29 0.095651284 $8203.37
12/7/2005 $343053.17 0.095651284 $32813.48
12/7/2005 $600343.05 0.095651284 $57423.58
12/7/2005 $643224.70 0.095651284 $61525.27
12/7/2005 $814751.29 0.095651284 $77932.01
12/9/2005 $502560.00 0.093992978 $47237.11
12/14/2005 $16928.84 0.09302667 $1574.83
12/19/2005 $140000.00 0.093294661 $13061.25
12/29/2005 $500000.00 0.093467862 $46733.93
12/29/2005 $400000.00 0.093467862 $37387.14
12/30/2005 $400000.00 0.094081982 $37632.79
12/30/2005 $382311.00 0.094081982 $35968.58
1/19/2006 $16928.84 0.094795319 $1604.77
2/8/2006 $750000.00 0.09497466 $71230.99
2/20/2006 $16928.84 0.09583901 $1622.44
2/22/2006 $400000.00 0.095348301 $38139.32
2/23/2006 $350000.00 0.095201724 $33320.60
Page
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
3/10/2006 $377358.49 0.093423046 $35253.98
3/10/2006 $16928.84 0.093423046 $1581.54
3/16/2006 $12000.00 0.094141488 $1129.70
3/17/2006 $1872.30 0.093466733 $175.00
3/17/2006 $16928.84 0.093466733 $1582.28
3/27/2006 $330188.67 0.091405861 $30181.18
4/6/2006 $150000.00 0.090259821 $13538.97
4/19/2006 $16928.84 0.090937984 $1539.47
4/21/2006 $760000.00 0090298815 $68627.10
4/21/2006 $2000008.20 0.090298815 $180598.37
4/24/2006 $1900000.00 0.090337174 $171640.63
4/27/2006 $11145.00 0.090116813 $1004.35
5/9/2006 $200000.00 0.091465839 $18293.17
5/9/2006 $1000.00 0.091465839 $91.47
5/18/2006 $16928.84 0.089091593 $1508.22
5/22/2006 $25000.00 0.088609071 $2215.23
5/23/2006 $10000.00 0.089417004 $894.17
5/25/2006 $66000.00 0.08937723 $5898.90
5/25/2006 $66000.00 0.089377236 $5898.90
Page
BANAMEX ACCOUNT NO
Date Wfthdrawals Pesos Exchange Rate Withdrawals bollarsj
Missing daily
transactions part of this
statement Value is
0.088639888
estimated by monthly
exchange rate instead of
6//2006 $46928.84 $4159.77 daily
7/21/2006 $16928.84 0.091660194 $1551.70
8/21/2006 $16928.84 0.092534045 $1566.49
9/11/2006 $4446.67 0.090366588 $401.83
9/19/2006 $16928.84 0.091414876 $1547.55
9/28/2006 $700000.00 0.09049115 $63343.81
9/28/2006 $170000.00 0.09049115 $15383.50
9/28/2006 $150000.00 0.09049115 $13573.67
9/28/2006 $200000.00 0.09049115 $18098.23
9/28/2006 $200000.00 0.09049115 $18098.23
9/28/2006 $250000.00 0.09049115 $22622.79
10/2/2006 $1000000.00 0.091161747 $91161.75
10/5/2006 $1050000.00 0.090773917 $95312.61
10/5/2006 $50000.00 0.090773917 $4538.70
10/18/2006 $16928.84 0.09241388 $1564.46
10/19/2006 $250000.00 0.092588597 $23147.15
10/20/2006 $1000000.00 0.09241108 $92411.08
Page
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
10/20/2006 $200000.00 0.09241108 $18482.22
10/20/2006 $700000.00 0.09241108 $64687.76
10/26/2006 $150000.00 0.093187031 $13978.05
10/30/2006 $5000.00 0.092924998 $464.62
10/31/2006 $0.62 0.092869876 $0.06
10/31/2006 $0.06 0.092869876 $0.01
11/7/2006 $1050000.00 0.092496987 $97121.84
11/7/2006 $170000.00 0.092496987 $15724.49
11/10/2006 $146874.38 0091606048 $13454.58
11/22/2006 $16928.84 0.091154124 $1543 13
11/22/2006 $300000.00 0.091154124 $27346.24
11/23/2006 $400000.00 0.091167481 $36466.99
11/23/2006 $500000.00 0.091167481 $45583.74
11/23/2006 $200000.00 0.091167481 $18233.50
11/23/2006 $1000000.00 0.091167481 $91167.48
11/23/2006 $700000.00 0.091167481 $63817.24
11/23/2006 $340000.00 0.091167481 $30996.94
11/24/2006 $700000.00 0.09070996 $63496.98
11/24/2006 $1000000.00 0.090709967 $90709.97
11/30/2006 $1.86 0.090926298 $0.17
11/30/2006 $o 18 0.090926298 $0.02
11/30/2006 $350000.00 0.090926298 $31824.20
12/5/2006 $2100000.00 0.091841997 $192868.19
12/20/2006 $16928.84 0.09247769 $1565.54
Page
BANAMEXACCOLJNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
12/22/2006 $150000.00 0.092098006 $13814.70
12/22/2006 $350000.00 0.092098006 $32234.30
12/22/2006 $1050000.00 0.092098006 $96702.91
12/22/2006 $200000.00 0.092098006 $18419.60
12/22/2006 $340000.00 0.092098006 $31313.32
12/27/2006 $250000.00 0.091898939 $22974.73
12/27/2006 $400000.00 0.091898939 $36759.58
12/27/2006 $1000000.00 0.091898939 $91898.94
12/27/2006 $700000.00 0.091898939 $64329.26
12/27/2006 $25oooooo 0.091898939 $22974.73
12/27/2006 $150000.00 0.091898939 $13784.84
12/27/2006 $1000000.00 0.091898939 $91898.94
12/27/2006 $1050000.00 0.091898939 $96493.89
12/28/2006 $700000.00 0.091951508 $64366.06
12/29/2006 $3.10 0.092591641 $0.29
12/29/2006 $0.31 0.092591641 $0.03
1/12/2007 $34241.99 0.091076353 $3118.64
1/15/2007 $34000.00 0.091399775 $3107.59
2/9/2007 $9769.50 0.091278396 $891.74
2/14/2007 $2500000.00 0.091597187 $228992.97
2/14/2007 $51991.82 0.091597187 $4762.30
2/14/2007 $245779.00 0.091597187 $22604.25
2/14/2007 $295549.00 0.091597187 $27071.46
2/14/2007 $349076.40 0.091597187 $31974.42
Page
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
2/28/2007 $6.00 0.089626167 $0.54
2/28/2007 $0.60 0.089626167 $0.05
3/30/2007 $1.24 0.09053237 $0.11
3/30/2007 $0.12 0.09053237 $0.01
3/30/2007 $150.00 0.09053237 $13.58
3/30/2007 $15.00 0.09053237 $1.36
4/30/2007 $150.00 0.091515002 $13.73
4/30/2007 $15.00 0.091515002 $1.37
5/31/2007 $1.24 0.093122836 $0.12
5/31/2007 $0.12 0.093122836 $0.01
5/31/2007 $9200.00 0.093122836 $856.73
5/31/2007 $6.00 0.093122836 $0.56
5/31/2007 $0.60 0.093122836 $0.06
5/31/2007 $150.00 0.093122836 $13.97
5/31/2007 $15.00 0.093122836 $1.40
6/29/2007 $103.75 0.092667499 $9.61
6/29/2007 $10.37 0.092 667499 $0.96
7//07 STATEMENT MISSING
8//07 STATEMENT MISSING
9/5/2007 $444000.00 0.090187287 $40043.16
Page
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
9/5/2007 $322200.00 0.090187287 $29058.34
9/5/2007 $227325.00 0.090187287 $20501.83
9/5/2007 $317585.00 0.090187287 $28642.13
9/5/2007 $32814.00 0.090187287 $2959.41
9/5/2007 $332250.00 0.090187287 $29964.73
9/5/2007 $54200.00 0.090187287 $4888.15
9/7/2007 $1110834.65 0.089868318 $99828.84
9/10/2007 $12359.68 0.089698161 $1108.64
9/10/2007 $91650.00 0.089698161 $8220.84
9/10/2007 $4007.00 0.089698161 $359.42
9/19/2007 $2000000.00 0.091011842 $182023.68
9/24/2007 $2240000.00 0.091416951 $204773.97
9/24/2007 $2240000.00 0.091416951 $204773.97
10/31/2007 $3053070.00 0.093433513 $285259.05
10/31/2007 $3083802.00 0.093433513 $288130.45
10/31/2007 $4913207.00 0.093433513 $459058.19
10/31/2007 $4009800.00 0.093433513 $374649.70
Missing daily
transactions part of this
statement Value is
estimated by monthly
exchange rate instead of
11//07 $7729862.79 0.093737606 $724578.83 daily
Page 10
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
12/4/2007 $1200000.00 0.091675567 5110010.68
12/4/2007 $235049.05 0.091675567 $21548.25
12/4/2007 $1264150.94 0.091675567 $115891.75
12/4/2007 $603773.58 0.091675567 $55351.29
12/4/2007 $745283.02 0.091675567 $68324.24
12/5/2007 $306603.77 0.092137913 $28249.83
12/5/2007 $745283.02 0.092137913 $68668.82
12/5/2007 $235849.06 0.092137913 $21730.64
12/6/2007 $603773.58 0.092292979 $55724.06
12/6/2007 $236849.06 0.092292979 $21859.51
12/6/2007 $745283.02 0.092292979 $68784.39
12/6/2007 $632075.47 0.092292979 $58336.13
12/11/2007 $745283.02 0.092588392 $69004.56
12/14/2007 $306603.77 0.092368839 $28320.63
12118/2007 $3792452.83 0.092077484 $349199.51
12/18/2007 $1528301.89 0.092077484 $140722.19
12/18/2007 $1886792.45 0.092077484 $173731.10
12/18/2007 $943396.20 0.092077484 $86865.55
12/18/2007 51400000.00 0.092077484 $128908.48
12/18/2007 $2991132.04 0.092077484 $275415.91
12/18/2007 $2641509.40 0.092077484 $243223.54
12/19/2007 $951000.00 0.092196736 $87679.10
12/20/2007 $3000000.00 0.092237059 $276711.18
12/20/2007 51090000.00 0.092237059 $100538.39
12/20/2007 $1090000.00 0.092237059 $100538.39
12/20/2007 5857632.93 0.092237059 579105.54
Page 11
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
12/20/2007 $1254150.94 0.092237059 $115679.19
12/20/2007 $910377.36 0.092237059 $83970.53
12/20/2007 $600000.00 0.092237059 $55342.24
12/20/2007 $745283.02 0.092237059 $68742.71
12/20/2007 $235649.06 0.092237059 $21735.58
12/24/2007 $1029159.51 0.092508646 $95206.15
1/30/2008 $745283.02 0.092296063 $68786.69
1/30/2008 $428816.47 0.092296063 $39578.07
1/30/200 $600000.00 0.092296063 $55377.64
1/30/2008 $1264150.94 0.092296063 $116676.15
1/30/2008 $235849.06 0.092296063 $21767.94
1/31/2008 $745283.02 0.092425223 $68882.95
1/31/2008 $428816.47 0.092425223 $39633.46
1/31/2008 $910377.36 0.092425223 $84141.83
21/OS $0.00 $0.00
31108 $0.00 $0.00
4/10/2008 $20000.00 0.094793655 $1895.87
4/16/2008 $180000.00 0.095578826 $17204.19
4/25/2008 $849056.60 0.095529704 $81110.13
4/30/2008 $1037735.85 0.095152532 $98743.19
5/2/2008 $377358.49 0.095646975 $36093.20
5/2/2008 $377358.49 0.095646975 $36093.20
5/2/2008 $1886792.45 0.095646975 $180465.99
Page 12
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
5/2/2008 $943396.23 0.095646975 $90233.00
6/17/2008 $7566.00 0.096949296 $733.52
6/24/2008 $4000.00 0.097137584 $388.55
6/24/2008 $2500.00 0.097137584 $242.84
7//08 $0.00 $0.00
8/19/2008 $25000.00 0.098154035 $2453.85
8/28/2008 $77000.00 0.097999057 $7s4s.3
9/1/2008 $2215035.53 0.096643994 $214069.88
9/1/2008 $2200000.00 0.096643994 $212616.79
9/1/2008 $2220000.00 0.096643994 $214549.67
9/4/2008 $2000000.00 0.0955293 $191058.60
9/4/2008 $2002068.50 0.0955293 $191256.20
9/4/2008 $2000000.00 0.0955293 $191058.60
9/5/2008 $3600000.00 0.09528028 $343009.01
9/5/2008 $2000000.00 0.09528028 $190560.56
9/5/2008 $3600000.00 0.09528028 $343009.01
9/5/2008 $10825.78 0.09528028 $1031.48
9/10/2008 $50000.00 0.094388457 $4719.42
9/18/2008 $80000.00 0.09215 1537 $7372.12
10/31/2008 $1.86 0.078904629 $0.15
10/31/2008 $0.18 0.078904629 $0.01
Page 13
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Rate Withdrawals
Exchange Dollars
111108 $0.00 $0.00
12/16/2008 $4802590.37 0.075665004 $363388.02
12/17/2008 $1647524.00 0.075937512 $125108.87
1/15/2009 $87000.00 0.070625161 $6144.39
21109 $0.00 $0.00
3/3/2009 $80000.00 0.065168528 $5213.48
3/31/2009 $0.62 0.070393833 $0.04
3/31/2009 $0.06 0.070393833 $0.00
4/30/2009 $o62 0.0724446 $0.04
4/30/2009 $0.06 0.0724446 $0.00
5//09 $0.00 $0.00
6//09 $0.00 $0.00
Missing daily
transactions part of this
statement Value is
estimated by monthly
exchange rate instead of
71109 $11152.24 0.076331754 $851.27 daily
8/31/2009 $1.24 0.074977588 $0.09
8/31/2009 $0.12 0.074977588 $0.01
8/31/2009 $14438.81 0.074977588 $1082.59
Page 14
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
91109 $0.00 $0.00
10/30/2009 $0.62 0.076007132 $0.05
10/30/2009 $0.06 0.076007132 $0.00
11/30/2009 $2.48 0.077408228 $0.19
11/30/2009 $0.24 0.077408228 $0.02
Missing daily
transactions part of this
statement Value is
estimated by monthly
exchange rate instead of
12//09 $13212.30 0.077785256 $1027.72 daily
1//10 $0.00 $0.00
2/10/2010 $9275.00 0.076607076 $710.53
3/25/2010 $222.00 0.080039004 $17.77
3/31/2010 $10.00 0.081293487 $0.81
3/31/2010 $1.10 0.081293487 $0.09
41110 $0.00 $0.00
51110 $0.00 $0.00
6//10 $0.00 $0.00
7//10 $0.00 $0.00
Page 15
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
81/lU STATEMENT MISSING
STATEMENT MISSING
10//10 $0.00 $0.00
111/lU $0.00 $0.00
12/20/2010 $11276.56 0.080558385 $908.42
11111 $0.00 $0.00
2/11/2011 $2857142.85 0.082857639 $236736.11
2/14/2011 $952380.95 0.083018128 $79064.88
2/28/2011 $1.86 0.082549386 $0.15
2/28/2011 $0.20 0.082549386 $0.02
2/28/2011 $24.00 0.082549386 $1.98
2/28/2011 $2.64 0.082549386 $0.22
3//li $0.00 $0.00
47/il $0.00 $0.00
51/li $0.00 $0.00
61/li $0.00 $0.00
7//il $0.00 $0.00
81/il $0.00 $0.00
9/12/2011 $8486.00 0.078277219 $664.26
9/30/2011 $12.00 0.072619447 $0.87
9/30/2011 $1.32 0.072619447 $0.10
107/il $0.00 $0.00
111/li $0.00 $0.00
Page 16
BANAMEX ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
12/9/2011 $11975.69 0.073448392 $879.60
12/30/2011 $12.00 0.071662224 $0.86
12/30/2011 $1.32 0.071662224 $0.09
$0.00
1/23/2012 $79410.00 0.076053019 $6039.37
1/31/2012 $12.00 0.076682584 $0.92
1/31/2012 $1.32 0.076682584 $0.10
2/7/2012 $76050.00 1079161481 $6020.23
2/29/2012 $12.00 0.078150624 $0.94
2/29/2012 $1.32 0.078150624 $0.10
3/5/2012 $76920.00 0.077973108 $5997.69
3/5/2012 $1063.00 0.077973108 $82.89
3/30/2012 $24.00 0.078036978 $1.87
3/30/2012 $2.64 0.078036978 $0.21
4/9/2012 $77895.00 0.076971936 $5995.73
4/16/2012 $4235.79 0.075607558 $320.26
TOTALS $183452714.49 $16888823.95
Page 17
01709
BANAMEXACCOUNTNO
Date Withdrawals Dollars Monthly Totals
12/6/1999 $3000.00
$3000.00
1/6/2000 $3000.00
$3000.00
2/7/2000 $3000.00
$3000.00
3/6/2000 $3000.00
3/24/2000 $2000.00
$5000.00
4/6/2000 $5000.00
4/6/2000 $3000.00
4/28/2000 $1417.00
$9417.00
5/4/2000 $3000.00
$3000.00
6/5/2000 $3000.00
$3000.00
7/3/2000 $3000.00
$3000.00
8/4/2000 $3000.00
$3000.00
9/5/2000 $3000.00
$3000.00
10/5/2000 $3000.00
$3000.00
11/6/2000 $3000.00
$3000.00
12/5/2000 $3000.00
$3000.00
1/4/2001 $3000.00
$3000.00
2//01 $0.00
$0.00
3/5/2001 $3000.00
3/20/2001 $2000.00
$5000.00
STATEM
41101 MISSING
STATEM ENT
51/Ui MISSING
STATEMENT
61/Ui MISSING
Page
01710
BANAMEX ACCOUNT No
Date Withdrawals Dollars Monthly Totals
STATEMENT
71/Ui MISSING
8/5/2001 $3000.00
$3000.00
9/4/2001 $3000.00
$3000.00
10/4/2001 $3000.00
10/16/2001 $4000.00
$7000.00
11/5/2001 $3000.00
$3000.00
All rates
exchange
from this date
forward were
referenced from
12/6/2001 $3000.00 xe.com
$3000.00
STATEM ENT
11102 MISSING
2/6/2002 $3000.00
2/26/2002 $600.00
$3600.00
3/5/2002 $3000.00
3/5/2002 $600.00
$3600.00
4/4/2002 $3000.00
4/4/2002 $600.00
4/16/2002 $1000.00
$4600.00
5/6/2002 $3600.00
$3600.00
STATEM ENT
6//02 MISSING
7/5/2002 $3600.00
$3600.00
8/5/2002 $3600.00
$3600.00
9/5/2002 $3600.00
9/17/2002 $10000.00
Page
01711
BANAMEX ACCOUNT
Date Withdrawals Dollars Monthly Totals
$13600.00
10/4/2002 $3600.00
$3600.00
11/5/2002 $3600.00
$3600.00
12/5/2002 $3600.00
12/24/2002 $10200.00
$13800.00
1/6/2003 $3600.00
$3600.00
2/4/2003 $3600.00
$3600.00
3/6/2003 $3600.00
$3600.00
4/4/2003 $3600.00
$3600.00
5/5/2003 $3600.00
$3600.00
61103 $0.00
$0.00
7/3/2003 $3600.00
$3600.00
8/6/2003 $3600.00
$3600.00
STATEM ENT
91103 MISSING
10/6/2003 $3600.00
$3600.00
11/6/2003 $3608.00
$3608.00
12/5/2003 $13608.00
$13608.00
1/5/2004 $3608.00
$3608.00
2/6/2004 $3608.00
2/13/2004 $658.00
2/20/2004 $10000.00
2/23/2004 $3608.00
$17874.00
3/5/2004 $3608.00
$3608.00
4/2/2004 $3608.00
Page
01712
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
$3608.00
5/6/2004 $3608.00
5/20/2004 $10000.00
$13608.00
6/7/2004 $3608.00
$3608.00
7/6/2004 $3600.00
7/23/2004 $10000.00
$13600.00
8/13/2004 $3600.00
8/26/2004 $1700.00
$5300.00
9/7/2004 $3600.00
$3600.00
10/6/2004 $3600.00
$3600.00
11/8/2004 $3600.00
$3600.00
12/7/2004 $3600.00
$3600.00
1/6/2005 $3600.00
$3600.00
2/4/2005 $3600.00
2/7/2005 $7500.00
2/7/2005 $4385.00
2/28/2005 $1075.95
$16560.95
3/2/2005 $11883.00
3/4/2005 $3608.00
3/4/2005 $4383.00
3/7/2005 $39595.19
3/8/2005 $22917.00
3/16/2005 $2715.50
3/17/2005 $40000.00
3/18/2005 $40000.00
3/29/2005 $3008.00
3/31/2005 $384.00
$168493.69
4/4/2005 $3608.00
4/4/2005 $5008.00
4/5/2005 $5683.60
4/5/2005 $14686.18
4/5/2005 $364.00
Page
01713
I3ANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
4/5/2005 $14618.19
4/5/2005 $23345.00
4/5/2005 $4405.00
4/8/2005 $14105.24
4/8/2005 $7958.00
4/11/2005 $1008.00
4/11/2005 $2917.00
4/12/2005 $1100.51
4/12/2005 $1008.00
4/14/2005 $3418.00
4/15/2005 $2008.00
4/15/2005 $5519.00
4/19/2005 $750.00
4/21/2005 $3758.00
4/25/2005 $508.00
4/25/2005 $27198.55
4/26/2005 $41100.00
4/26/2005 $2008.00
4/27/2005 $150.00
4/27/2005 $384.00
$186616.27
5/2/2005 $28020.00
5/2/2005 $5600.64
5/2/2005 $691.18
5/2/2005 $3608.00
5/2/2005 $4383.00
5/4/2005 $951.00
5/4/2005 $364.00
5/5/2005 $22686.88
5/6/2005 $14618.19
5/5/2005 $7530.00
5/6/2005 $15010.00
5/6/2005 $23425.00
5/5/2005 $19909.41
5/6/2005 $2917.00
5/9/2005 $74.66
5/9/2005 $15.93
5/9/2005 $3905.85
5/11/2005 $258.00
5/16/2005 $21711.00
5/27/2005 $5238.00
5/27/2005 $40000.00
5/31/2005 $29892.60
Page
01714
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
$250810.34
6/3/2005 $28020.00
6/3/2005 $691.18
6/3/2005 $5461.48
6/3/2005 $15010.00
6/3/2005 $6508.00
6/3/2005 $3608.00
6/7/2005 $38139.19
6/7/2005 $684.00
6/7/2005 $12233.44
6/9/2005 $100025.00
6/9/2005 $1108.00
6/10/2005 $508.00
6/14/2005 $5008.00
6/17/2005 $25912.00
6/20/2005 $2460.00
6/23/2005 $20000.00
6/23/2005 $2917.00
6/27/2005 $2681.50
6/28/2005 $3888.00
6/29/2005 $1000.00
$275862.79
7/1/2005 $608.00
7/4/2005 $15000.00
7/4/2005 $25000.00
7/5/2005 $1986.22
7/5/2005 $28020.00
7/5/2005 $691.18
7/5/2005 $7508.00
7/5/2005 $3608.00
7/8/2005 $3008.00
7/8/2005 $37689.19
7/11/2005 $2008.00
7/12/2005 $20000.00
7/12/2005 $2917.00
7/13/2005 $45.71
7/15/2005 $15000.00
7/15/2005 $30026.00
7/19/2005 $2608.00
7/29/2005 $4858.00
$200581.30
8/2/2005 $33348.98
8/2/2005 $608.00
Page
01715
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
8/2/2005 $12.00
8/3/2005 $691.18
8/3/2005 $19000.00
8/4/2005 $3608.00
8/8/2005 $7508.00
8/8/2005 $37738.19
8/9/2005 $20000.00
8/9/2005 $2917.00
8/12/2005 $180030.00
8/15/2005 $4008.00
8/15/2005 $10008.00
8/18/2005 $151675.00
8/30/2005 $4858.00
8/31/2005 $15010.00
$491020.35
9/1/2005 $19886.19
9/1/2005 $808.00
9/2/2005 $23027.52
9/2/2005 $28711.18
9/2/2005 $12000.00
9/2/2005 $3608.00
9/5/2005 $2352.00
9/6/2005 $15010.00
9/6/2005 $7969.00
9/6/2005 $22000.00
9/12/2005 $40000.00
9/20/2005 $5008.00
9/22/2005 $8008.00
9/22/2005 $2116.79
9/27/2005 $2508.00
9/28/2005 $1008.00
9/28/2005 $15.00
9/28/2005 $2.25
9/30/2005 $6068.00
9/30/2005 $1984.25
9/30/2005 $1008.00
$203098.18
10/3/2005 $28020.00
10/3/2005 $691.18
10/3/2005 $5446.32
10/3/2005 $808.00
10/3/2005 $6008.00
10/5/2005 $15210.00
Page
01716
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
10/5/2005 $2917.00
10/5/2005 $8350.00
10/5/2005 $7508.00
10/7/2005 $40638.19
10/7/2005 $208.00
10/11/2005 $3008.00
10/13/2005 $3608.00
10/18/2005 $5008.00
10/18/2005 $300.00
10/19/2005 $294.72
10/21/2005 $7308.00
10/24/2005 $6057.82
10/27/2005 $7008.00
10/27/2005 $100.00
10/28/2005 $6492.89
10/31/2005 $2219.52
10/31/2005 $60000.00
$217209.64
11/1/2005 $158350.00
11/1/2005 $808.00
11/1/2005 $691.18
11/1/2005 $5449.36
11/1/2005 $28020.00
11/2/2005 $56000.00
11/3/2005 $300.00
11/3/2005 $7508.00
11/3/2005 $3608.00
11/3/2005 $30000.00
11/4/2005 $888.00
11/4/2005 $40669.19
11/7/2005 $919.00
11/7/2005 $2000.00
11/7/2005 $13000.00
11/7/2005 $5008.00
11/17/2005 $70000.00
11/18/2005 $3008.00
11/21/2005 $2008.00
11/22/2005 $3908.00
11/22/2005 $7027.89
11/24/2005 $131.00
11/30/2005 $2219.52
$441521.14
12/1/2005 $691.18
Page
01717
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
12/1/2005 $5309.81
12/1/2005 $28020.00
12/1/2005 $408.00
12/2/2005 $18631.90
12/5/2005 $23046.00
12/6/2005 $17618.19
12/6/2005 $22.00
12/6/2005 $4608.00
12/6/2005 $7508.00
12/6/2005 $1855.00
12/7/2005 $20000.00
12/14/2005 $100000.00
12/14/2005 $28.00
12/14/2005 $3342.89
12/14/2005 $36000.00
12/14/2005 $10000.00
12/20/2005 $10360.00
12/20/2005 $2219.52
12/20/2005 $8.00
12/20/2005 $4000.00
$293676.49
1/3/2006 $4305.97
1/3/2006 $1404.70
1/3/2006 $5370.77
1/3/2006 $8.00
1/3/2006 $28020.00
1/6/2006 $3608.00
1/6/2006 $7508.00
1/9/2006 $37161.19
1/10/2006 $20000.00
1/10/2006 $1855.00
1/12/2006 $8.00
1/12/2006 $3000.00
1/20/2006 $15000.00
1/20/2006 $22000.00
1/26/2006 $40000.00
1/31/2006 $31016.00
1/31/2006 $2219.52
$222485.15
2/2/2006 $28020.00
2/2/2006 $591.18
2/2/2006 $2274.79
2/3/2006 $508.00
Page
01718
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
2/7/2006 $37161.19
2/7/2006 $5296.48
2/7/2006 $3608.00
2/8/2006 $20000.00
2/8/2006 $1763.00
2/10/2006 $4408.00
2/14/2006 $285.00
2/15/2006 $22852.47
2/15/2006 $30000.00
2/16/2006 $15013.00
2/28/2006 $2219.52
$174100.63
3/1/2006 $18631.90
3/1/2006 $1508.00
3/1/2006 $25583.53
3/1/2006 $508.00
3/1/2006 $691.18
3/2/2006 $5000.00
3/3/2006 $3608.00
3/6/2006 $39654.19
3/6/2006 $10008.00
3/6/2006 $6011.43
3/7/2006 $1721.00
3/7/2006 $20000.00
3/10/2006 $150020.00
3/13/2006 $44000.00
3/22/2006 $8008 00
3/23/2006 $60000.00
3/27/2006 $6008.00
3/30/2006 $2219.52
3/31/2006 $60000.00
$463180.75
4/3/2006 $5536.25
4/3/2006 $4426.80
4/3/2006 $28020.00
4/4/2006 $3608.00
4/4/2006 $5296.48
4/5/2006 $37060.19
4/5/2006 $1185.05
4/5/2006 $2278.94
4/6/2006 $20000.00
4/6/2006 $15000.00
4/7/2006 $3418.00
Page 10
01719
BANAMEX ACCOUNT No
Date Withdrawals Dollars Monthly Totals
4/7/2006 $15010.00
4/7/2006 $6008.00
4/10/2006 $60000.00
4/11/2006 $1638.00
4/12/2006 $12.00
4/12/2006 $21000.00
4/18/2006 $1513.00
4/20/2006 $100025.00
4/26/2006 $100.00
4/27/2006 $3008.00
4/28/2006 $2219.52
4/28/2006 $100025.00
$436388.23
5/3/2006 $5615.10
5/3/2006 $691.18
5/3/2006 $28020.00
5/3/2006 $5296.48
5/3/2006 $3608.00
5/4/2006 $18180.19
5/5/2006 $21870.00
5/8/2006 $20000.00
5/8/2006 $1221.00
5/8/2006 $2008.00
5/8/2006 $15015.00
5/9/2006 $1000.00
5/9/2006 $300.00
5/12/2006 $6013.00
5/17/2006 $100.00
5/23/2006 $15000.00
5/30/2006 $2264.00
5/30/2006 $18633.90
$164835.85
6/1/2006 $19000.00
6/1/2006 $1185.00
6/1/2006 $15000.00
6/1/2006 $23020.00
6/1/2006 $567.18
6/2/2006 $5720.45
6/7/2006 $36381.19
6/7/2006 $10815.00
6/7/2006 $3808.00
6/7/2006 $5292.48
6/8/2006 $8008.00
Page 11
01720
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
6/9/2006 $2006.00
6/16/2006 $7000.00
6/16/2006 $8000.00
$145803.30
7/3/2006 $4006.00
7/3/2006 $6003.00
7/3/2006 $9645.68
7/3/2006 $11015.00
7/3/2006 $4427.27
7/3/2006 $28020.00
7/3/2006 $6008.00
7/3/2006 $3608.00
7/5/2006 $35281.19
7/6/2006 $1138.00
7/6/2006 $20000.00
7/11/2006 $50000.00
7/11/2006 $5006.00
7/14/2006 $2008.00
7/21/2006 $2284.00
7/21/2006 $1883.00
7/21/2006 $10000.00
7/27/2006 $100025.00
$300358.14
8/1/2006 $4008.00
8/1/2006 $8008.00
8/1/2006 $11015.00
8/1/2006 $5809.03
8/1/2006 $28020.00
8/1/2006 $587.27
8/1/2006 $3008.00
8/1/2006 $6008.00
8/2/2006 $10010.00
8/4/2006 $20000.00
8/4/2006 $1000.00
8/7/2006 $37770.19
8/15/2006 $50000.00
8/16/2006 $20000.00
8/21/2006 $100000.00
8/25/2006 $3008.00
8/28/2006 $38624.01
8/29/2006 $2284.00
8/29/2006 $18333.90
8/31/2006 $20000.00
Page 12
01721
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
$387493.40
9/1/2006 $567.27
9/1/2006 $28020.00
9/1/2006 $6008.00
9/1/2006 $3808.00
9/1/2006 $15015.00
9/1/2006 $5533.29
9/1/2006 $6008.00
9/4/2006 $1059.00
9/5/2006 $37616.19
9/13/2006 $958.00
9/13/2006 $2678.00
9/14/2006 $3008.00
9/19/2006 $5008.00
9/25/2006 $1300.00
9/28/2006 $2254.00
9/29/2006 $688.00
9/29/2006 $50000.00
$169528.75
10/2/2006 $6008.00
10/2/2006 $15015.00
10/2/2006 $28020.00
10/2/2006 $3608.00
10/2/2006 $10010.00
10/2/2006 $5597.74
10/2/2006 $4985.48
10/5/2006 $16628.19
10/5/2006 $20604.00
10/6/2006 $20879.00
10/17/2006 $68000.00
10/19/2006 $100000.00
10/25/2006 $1000.00
10/25/2006 $100000.00
10/27/2006 $2008.00
10/31/2006 $2264.00
$404627.41
11/1/2006 $6000.00
11/1/2006 $15000.00
11/1/2006 $6008.00
11/1/2006 $28020.00
11/1/2006 $786.30
11/1/2006 $5424.98
11/1/2006 $3608.00
Page 13
01722
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
11/6/2006 $20764.00
11/6/2006 $16618.19
11/6/2006 $22.00
11/7/2006 $20000.00
11/7/2006 $555.00
11/8/2006 $50000.00
11/9/2006 $2058.00
11/9/2006 $164.35
11/10/2006 $100000.00
11/14/2006 $2797.00
11/28/2006 $6008.00
11/29/2006 $2234.00
11/29/2006 $18633.90
$304701.72
12/4/2006 $6000.00
12/4/2006 $15000.00
12/4/2006 $3608.00
12/4/2006 $6008.00
12/4/2006 $28020.00
12/4/2006 $786.30
12/4/2006 $5568.61
12/6/2006 $10618.19
12/6/2006 $10.00
12/7/2006 $20000.00
12/7/2006 $513.00
12/7/2006 $20661.00
12/7/2006 $12.00
12/7/2006 $20661.00
12/11/2006 $30010.00
12/13/2006 $22602.00
12/15/2006 $161338.00
12/18/2006 $100015.00
12/18/2006 $4008.00
12/20/2006 $30047.47
12/21/2006 $2264.00
12/22/2006 $9208.00
$496958.57
STATEMENT IS
1/2/2007 $6008.00 INCOMPLETE
STATEMENT IS
1/2/2007 $3608.00 INCOMPLETE
STATEMENT IS
1/2/2007 $786.30 INCOMPLETE
Page 14
01723
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
STATEMENT IS
1/2/2007 $28020.00 INCOMPLETE
STATEMENT IS
1/5/2007 $16628.19 INCOMPLETE
STATEMENT IS
1/8/2007 $20000.00 INCOMPLETE
STATEMENT IS
1/9/2007 $30000.00 INCOMPLETE
STATEMENT IS
1/23/2007 $7530.00 INCOMPLETE
STATEMENT IS
1/24/2007 $3590.00 INCOMPLETE
STATEMENT IS
1/30/2007 $2264.00 INCOMPLETE
$118434.49
2/2/2007 $6008.00
2/2/2007 $28020.00
2/2/2007 $786.30
2/2/2007 $4459.69
2/2/2007 $3608.00
2/7/2007 $16628.19
2/8/2007 $20000.00
2/12/2007 $285.00
2/13/2007 $3000.00
2/16/2007 $30020.00
2/18/2007 $80000.00
2/23/2007 $10000.00
2/28/2007 $50000.00
2/28/2007 $50000.00
2/28/2007 $100000.00
2/28/2007 $18633.90
2/28/2007 $2264.00
$423713.08
3/1/2007 $6008.00
3/1/2007 $3608.00
3/1/2007 $786.30
3/1/2007 $28020.00
3/5/2007 $5134.98
3/5/2007 $15010.00
3/6/2007 $50000.00
3/8/2007 $50000.00
3/15/2007 $15000.00
3/16/2007 $15000.00
Page 15
01724
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
3/22/2007 $57020.00
3/23/2007 $672.45
3/27/2007 $3008.00
3/27/2007 $2264.00
$251531.73
4/2/2007 $15810.00
4/2/2007 $6008.00
4/2/2007 $3608.00
4/12/2007 $3418.00
4/17/2007 $1813.00
4/27/2007 $2264.00
$32921.00
5/2/2007 $15810.00
5/2/2007 $6008.00
5/2/2007 $3608.00
5/21/2007 $1008.00
5/30/2007 $18633.90
5/30/2007 $2264.00
5/31/2007 $850.00
$48181.90
6/1/2007 $15800.00
6/1/2007 $10.00
6/1/2007 $6008.00
6/1/2007 $3608.00
6/5/2007 $5008.00
6/13/2007 $2008.00
6/15/2007 $2158.00
6/26/2007 $2264.00
6/26/2007 $2008.00
$38872.00
7/5/2007 $15800.00
7/5/2007 $10.00
7/5/2007 $8008.00
7/5/2007 $3608.00
7/11/2007 $4337.20
7/31/2007 $2264.00
$34027.20
8/1/2007 $2000.00
8/1/2007 $2153.00
8/1/2007 $3008.00
8/1/2007 $15810.00
8/1/2007 $3608.00
8/1/2007 $8008.00
Page 16
01725
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
8/6/2007 $2000.00
8/8/2007 $5100.00
8/10/2007 $214.39
8/10/2007 $400.00
8/21/2007 $10000.00
8/30/2007 $19633.90
8/30/2007 $2264.00
$74199.29
STATEMENT IS
9/4/2007 $15800.00 INCOMPLETE
STATEMENT IS
9/4/2007 $10.00 INCOMPLETE
STATEMENT IS
9/4/2007 $3608.00 INCOMPLETE
STATEMENT IS
9/4/2007 $8008.00 INCOMPLETE
STATEMENT IS
9/4/2007 $1500.00 INCOMPLETE
STATEMENT IS
9/5/2007 $28773.30 INCOMPLETE
STATEMENT IS
9/5/2007 $28773.30 INCOMPLETE
STATEMENT IS
9/5/2007 $28773.30 INCOMPLETE
STATEMENT IS
9/5/2007 $12000.00 INCOMPLETE
STATEMENT IS
9/5/2007 $12000.00 INCOMPLETE
STATEMENT IS
9/5/2007 $1500.00 INCOMPLETE
STATEMENT IS
9/5/2007 $12000.00 INCOMPLETE
STATEMENT IS
9/12/2007 $295.00 INCOMPLETE
STATEMENT IS
9/17/2007 $2879.00 INCOMPLETE
STATEMENT IS
9/17/2007 $735.00 INCOMPLETE
STATEMENT IS
9/17/2007 $3008.00 INCOMPLETE
$159662.90
10/2/2007 $15810.00
10/2/2007 $3608.00
Page 17
01726
BANAMEX ACCOUNT NO
Date Withdrawas Dollars Monthly Totals
10/2/2007 $8008.00
10/10/2007 $80000.00
10/15/2007 $12000.00
$119426.00
Missing daily
transactions part of
11//2007 $120029.00 this statement
$120029.00
12/3/2007 $8008.00
12/3/2007 $3608.00
12/3/2007 $15810.00
12/19/2007 $20012.00
12/19/2007 $2264.00
12/20/2007 $3408.00
12/20/2007 $7545.50
$60655.50
1/2/2008 $3608.00
1/2/2008 $8008.00
1/3/2008 $15800.00
1/3/2008 $10.00
1/4/2008 $3508.00
1/4/2008 $180025.00
1/11/2008 $2008.00
1/11/2008 $7545.50
1/22/2008 $1908.00
1/28/2008 $2008.00
1/28/2008 $2358.00
$226786.50
2/1/2008 $lsaio.oo
2/1/2008 $3608.00
2/1/2008 $8008.00
2/7/2008 $10008.00
2/11/2008 $8000.00
2/11/2008 $8.00
2/18/2008 $50000.00
2/29/2008 $18633.90
$114075.90
3/4/2008 $15810.00
3/4/2008 $3608.00
3/4/2008 $8008.00
3/13/2008 $60000.00
3/25/2008 $3008.00
3/27/2008 $25000.00 $115434.00
Page 18
01727
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
4/1/2008 $15810.00
4/1/2008 $3608.00
4/1/2008 $8008.00
4/1/2008 $95000.00
4/7/2008 $5006.00
4/17/2008 $3419.00
4/25/2008 $100000.00
4/29/2008 $633.00
4/29/2008 $2359.00
$233843.00
5/2/2008 $3608.00
5/2/2008 $8008.00
5/2/2008 $15810.00
5/7/2008 $7000.00
5/7/2008 $8300.00
5/14/2008 $7000.00
5/14/2008 $13825.00
5/19/2008 $3000.00
5/30/2008 $8000.00
5/30/2008 $18631.90
$93182.90
6/2/2008 $15810.00
6/2/2008 $8008.00
6/2/2008 $3608.00
6/5/2008 $17435.50
6/11/2008 $100025.00
6/16/2008 $1508.00
6/17/2008 $10008.00
$156402.50
7/1/2008 $15810.00
7/1/2008 $400.00
7/1/2008 $7608.00
7/1/2008 $3608.00
7/4/2008 $60000.00
7/14/2008 $7700.00
7/28/2008 $75000.00
$170126.00
8/4/2008 $15800.00
8/4/2008 $10.00
8/4/2008 $3608.00
8/4/2008 $7608.00
8/4/2008 $400.00
Page 19
01728
BANAMEXACCOUNTNO
Date Withdrawals Dollars Monthly Totals
8/4/2008 $35000.00
8/13/2008 $14700.00
8/18/2008 $104020.00
8/19/2008 $35000.00
8/28/2008 $18633.90
$234779.90
9/1/2008 $161032.00
9/2/2008 $3608.00
9/2/2008 $7608.00
9/2/2008 $15810.00
9/2/2008 $400.00
9/5/2008 $1609.26
9/8/2008 $260.00
9/15/2008 $55000.00
9/24/2008 $2408.00
9/24/2008 $50000.00
9/30/2008 $383.00
$298118.26
10/1/2008 $15810.00
10/1/2008 $7608.00
10/1/2008 $3608.00
10/1/2008 $400.00
10/1/2008 $16350.00
10/3/2008 $5008.00
10/14/2008 $3930.00
10/16/2008 $5000.00
10/20/2008 $341.45
10/21/2008 $45000.00
10/23/2008 $651.50
10/30/2008 $4683.00
10/31/2008 $50000.00
$158389.95
11/3/2008 $15810.00
11/3/2008 $400.00
11/3/2008 $3608.00
11/3/2008 $7608.00
11/3/2008 $2008.00
11/14/2008 $3391.00
11/25/2008 $2092.00
11/26/2008 $18633.90
11/26/2008 $500.00
$54050.90
12/1/2008 $15810.00
Page 20
01729
BANAMEX ACCOUNT No
Date Withdrawals Dollars Monthly Totals
12/1/2008 $400.00
12/1/2008 $7608.00
12/1/2008 $3608.00
12/8/2008 $20595.00
12/10/2008 $50000.00
12/15/2008 $3311.00
12/16/2008 $4032.00
12/22/2008 $34903.65
$140267.65
1/5/2009 $15810.00
1/5/2009 $400.00
1/5/2009 $7608.00
1/5/2009 $3608.00
1/14/2009 $35000.00
1127/2009 $3508.00
1/29/2009 $2468.00
1/29/2009 $990.00
1/30/2009 $9529.34
1/30/2009 $4571.29
$83492.63
2/3/2009 $3608.00
2/3/2009 $7608.00
2/3/2009 $400.00
2/3/2009 $15810.00
2/4/2009 $1008.00
2/5/2009 $8500.00
2/10/2009 $14241.98
2/19/2009 $38203.00
2/26/2009 $2468.00
2/26/2009 $18633.90
2/26/2009 $10000.00
$120480.88
3/2/2009 $3008.00
3/2/2009 $15810.00
3/2/2009 $400.00
3/2/2009 $3608.00
3/2/2009 $7608.00
3/19/2009 $4719.00
3/30/2009 $2468.00
$37621.00
4/1/2009 $15810.00
4/1/2009 $3608.00
4/1/2009 $7608.00
Page 21
01730
BANAMEX ACCOUNT No
Date Withdrawals Dollars Monthly Totals
4/1/2009 $400.00
4/3/2009 $2000.00
4/13/2009 $24892.00
4/15/2009 $30000.00
4/17/2009 $3418.00
4/21/2009 $8879.00
4/29/2009 $2468.00
$99083.00
5/4/2009 $15810.00
5/4/2009 $3608.00
5/4/2009 $7608.00
5/4/2009 $400.00
5/22/2009 $4554.00
5/27/2009 $18633.90
5/27/2009 $2468.00
5/29/2009 $600.00
$53681.90
6/1/2009 $15800.00
6/1/2009 $10.00
6/1/2009 $400.00
6/1/2009 $7608.00
6/1/2009 $3608.00
6/9/2009 $2383.00
6/9/2009 $3983.00
6/25/2009 $2468.00
6/26/2009 $16000.00
6/26/2009 $2000.00
6/29/2009 $15800.00
$10.00
$70070.00
Missing daily
transactions part of
7//2009 $19124.00 this statement
7/30/2009 $2468.00
7/31/2009 $20000.00
$41592.00
8/4/2009 $15800.00
8/4/2009 $10.00
8/4/2009 $7608.00
8/4/2009 $400.00
8/4/2009 $3608.00
8/28/2009 $900.00
8/28/2009 $21093.90
Page 22
01731
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
8/31/2009 $29000.00
$78419.90
9/1/2009 $260.00
9/1/2009 $15800.00
9/1/2009 $10.00
9/1/2009 $3608.00
9/1/2009 $7608.00
9/1/2009 $400.00
9/22/2009 $2515.00
9/30/2009 $2468.00
$32669.00
10/1/2009 $15800.00
10/1/2009 $10.00
10/1/2009 $7608.00
10/1/2009 $400.00
10/1/2009 $3608.00
10/7/2009 $50000.00
10/13/2009 $1051.00
10/19/2009 $15479.00
10/29/2009 $2468.00
$96424.00
11/3/2009 $15800.00
11/3/2009 $10.00
11/3/2009 $400.00
11/4/2009 $3608.00
11/4/2009 $7608.00
11/12/2009 $40000.00
11/17/2009 $1008.00
11/20/2009 $20000.00
11/20/2009 $12.00
11/26/2009 $1000.00
11/27/2009 $2468.00
11/27/2009 $15036.81
11/30/2009 $25000.00
$131950.81
12/2/2009 $7608.00
12/2/2009 $400.00
12/2/2009 $3608.00
12/3/2009 $15800.00
12/3/2009 $10.00
12/11/2009 $8381.58
12/16/2009 $226.30
12/18/2009 $2758.00
Page 23
01732
BANAMEXACCOUNTNO
Date Withdrawals Dollars Monthly Totals
12/18/2009 $1027.00
12/18/2009 $2468.00
12/18/2009 $3983.00
12/18/2009 $34912.00
$81181.88
1/4/2010 $7608.00
1/4/2010 $3608.00
1/4/2010 $400.00
1/6/2010 $15810.00
1/6/2010 $10.00
1/14/2010 $1608.00
1/29/2010 $2468.00
$31512.00
2/2/2010 $3608.00
2/2/2010 $7608.00
2/2/2010 $400.00
2/2/2010 $15810.00
2/8/2010 $20010.00
2/9/2010 $800.00
2/10/2010 $10000.00
2/26/2010 $2558.00
$60794.00
3/1/2010 $7608.00
3/1/2010 $3608.00
3/1/2010 $400.00
3/8/2010 $15810.00
3/10/2010 $46000.00
3/12/2010 $300.00
3/26/2010 $20000.00
3/26/2010 $2558.00
$96284.00
4/5/2010 $400.00
4/5/2010 $15810.00
4/5/2010 $6841.00
4/5/2010 $3608.00
4/6/2010 $5000.00
4/9/2010 $1000.00
4/13/1940 $3410.00
4/14/2010 $50000.00
4/19/2010 $1200.00
4/28/2010 $2558.00
$89827.00
5/4/2010 $15810.00
Page 24
01733
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
5/4/2010 $400.00
5/4/2010 $7608.00
5/4/2010 $3608.00
5/5/2010 $24000.00
5/7/2010 $2008.00
5/11/2010 $4000.00
5/28/2010 $2608.00
$60042.00
6/1/2010 $15810.00
6/1/2010 $400.00
6/1/2010 $7608.00
6/1/2010 $3608.00
6/21/2010 $32000.00
$59426.00
7/1/2010 $3608.00
7/1/2010 $7608.00
7/1/2010 $400.00
7/5/2010 $15810.00
7/28/2010 $2608.00
$30034.00
8/2/2010 $15810.00
8/2/2010 $7608.00
8/2/2010 $3608.00
8/2/20 10 $400.00
8/18/2010 $66000.00
8/30/2010 $2608.00
$96034.00
9/1/2010 $7608.00
9/1/2010 $400.00
9/1/2010 $3608.00
9/6/2010 $500.00
9/7/2010 $15810.00
9/9/2010 $3692.31
9/10/2010 $41000.00
9/30/2010 $2608.00
$75226.31
10/1/2010 $3608.00
10/1/2010 $7608.00
10/1/2010 $400.00
10/27/2010 $2608.00
$14224.00
11/1/2010 $400.00
11/1/2010 $3608.00
Page 25
01734
BANAMEX ACCOUNT NO
Date Withdrawals Dollars Monthly Totals
11/1/2010 $7608.00
11/1/2010 $600.00
11/4/2010 $70000.00
11/17/2010 $16285.00
11/18/2010 $50.00
11/18/2010 $2307.69
11/29/2010 $2608.00
$103466.69
12/1/2010 $3608.00
12/1/2010 $7608.00
12/1/2010 $400.00
12/3/2010 $1500.00
12/6/2010 $2258.00
12/6/2010 $3988.00
12/6/2010 $34912.00
12/17/2010 $1000.00
12/17/2010 $20000.00
12/17/2010 $275.00
12/20/2010 $2608.00
$78157.00
TOTAL $11875165.59 $11875165.59
Page 26
01735
01736
8ANREGIO ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
2/28/2007 $15.00 0.089626167 $1.34
2/28/2007 $1.50 0.089626167 $0.13
3/30/2007 $200.00 0.09053237 $18.11
3/30/2007 $20.00 0.09053237 $1.81
3/30/2007 $15.00 0.09053237 $1.36
3/30/2007 $1.50 0.09053237 $0.14
4/30/2007 $200.00 0.091515002 $18.30
4/30/2007 $20.00 0.091515002 $1.83
4/30/2007 $15.00 0.091515002 $1.37
4/30/2007 $1.50 0.091515002 $0.14
5/31/2007 $200.00 0.093122836 $18.62
5/31/2007 $20.00 0.093122836 $1.86
5/31/2007 $15.00 0.093122836 $1.40
5/31/2007 $1.50 0.093122836 $0.14
6/29/2007 $200.00 0.092667499 $18.53
6/29/2007 $20.00 0.092667499 $1.85
6/29/2007 $15.00 0.092667499 $1.39
6/29/2007 $1.50 0.092667499 $0.14
7//Q7 STATEMENT MISSING
8/30/2007 $5500.00 0.090199364 $496.10
Page
BANREGIO ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
9/11/2007 $42831.25 0.090019825 $3855.66
9/11/2007 $17466.25 0.090019825 $1572.31
9/25/2007 $31305.08 0.091379949 $2860.66
9/27/2007 $24669.36 0.091512317 $2257.55
9/28/2007 $5500.00 0.091471989 $503.10
10/29/2007 $5500.00 0.093333548 $513.33
10/29/2007 $24240.72 0.093333548 $2262.47
11/15/2007 $5500.00 0.091567365 $503.62
11/27/2007 $24804.72 0.091117673 $2260.15
11/27/2007 $204747.79 0.091117673 $18656.14
12/14/2007 $5500.00 0.092368839 $508.03
12/14/2007 $50.00 0.092368839 $4.62
12/14/2007 $5.00 0.092368839 $0.46
12/17/2007 $50.00 0.092129131 $4.61
12/17/2007 $5.00 0.092129131 $0.46
12/17/2007 $31384.00 0.092129131 $2891.38
12/17/2007 $38402.00 0.092129131 $3537.94
12/17/2007 $46326.00 0.092129131 $4267.97
12/17/2007 $45490.00 0.092129131 $4190.95
12/19/2007 $93080.68 0.092196736 $8581.73
12/31/2007 $15.00 0.091594524 $1.37
12/31/2007 $1.50 0.09.1594524 $0.14
Page
BANREGIO ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
1/31/2008 $15.00 0.092425223 $1.39
1/31/2008 $1.50 0.092425223 $0.14
1/31/2008 $5500.00 0.092425223 $508.34
1/31/2008 $9815.00 0.092425223 $907.15
2/18/2008 $17539.00 0.093172318 $1634.15
2/21/2008 $5500.00 0.09 2606633 $509.34
2/28/2008 $25156.75 0.09367407 $2356.54
2/28/2008 $1500 0.09367407 $1.41
2/28/2008 $1.50 0.09367407 $0.14
31108 STATEMENT MISSING
4/2/2008 $24839.50 0.093388121 $2319.71
4/11/2008 $5500.00 0.092583897 $509.21
4/17/2008 $17939.00 0.09274403 $1663.74
4/30/2008 $15.00 0.093506008 $1.40
4/30/2008 $1.50 0.093506008 $0.14
5/14/2008 $9539.00 0.095342972 $909.48
5/16/2008 $5500.00 0.0959003 27 $527.45
5/19/2008 $1210.00 0.096375589 $116.61
5/20/2008 $36000.00 0.09616552 $3461.96
5/30/2008 $15.00 0.096816649 $1.45
Page
BAN REGIO ACCOUNT NO
Date Withdrawals Pesos Rate Withdrawals
Exchange Dollars
5/30/2008 $1.50 0.096816649 $0.15
5/30/2008 $24310.75 0.096816649 $2353.69
6/13/2008 $13739.00 0.096467006 $1325.36
6/30/2008 $5500.00 0.097046713 $533.76
6/30/2008 $15.00 0.097046713 $1.46
6/30/2008 $1.50 0.097046713 $0.15
7/10/2008 $13738.00 0.097057071 $1333.37
7/11/2008 $24287.25 0.097016537 $2356.26
7/17/2008 $5500.00 0.097765111 $537.71
7/29/2008 $23711.50 0.099451034 $2358.13
7/31/2008 $15.00 0.09959284 $1.49
7/31/2008 $1.50 0.09959284 $0.15
8/13/2008 $5500.00 0.09800645 $539.04
8/15/2008 $13740.00 0.097984901 $1346.31
8/28/2008 $23946.50 0.097999057 $2346.73
8/29/2008 $15.00 0.097093475 $1.46
8/29/2008 $1.50 0.097093475 $0.15
9/12/2008 $13739.00 0.094576737 $1299.39
9/18/2008 $5500.00 0.092151537 $506.83
9/25/2008 $25356.50 0.092851989 $2354.40
9/30/2008 $15.00 0.091119841 $1.37
9/30/2008 $1.50 0.091119841 $0.14
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BAN REGIO ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
10/17/2008 $13739.00 0.077937694 $1070.79
10/22/2008 $5500.00 0.073557361 $404.57
10/29/2008 $30467.75 0.077388457 $2357.85
10/31/2008 $15.00 0.078904629 $1.18
10/31/2008 $1.50 0.078904629 $0.12
11/14/2008 $13739.00 0.0769487 $1057.20
11/25/2008 $5500.00 0.075334653 $414.34
11/26/2008 $31149.25 0.075627291 $2355.73
11/28/2008 $15.00 0.074666107 $1.12
11/28/2008 $1.50 0.074666107 $0.11
12/10/2008 $5500.00 0.074245405 $408.35
12/15/2008 $13739.00 0.075147692 $1032.45
12/16/2008 $15924.00 0.075665004 $1204.89
12/16/2008 $32551.31 0.075665004 $2462.99
12/31/2008 $15.00 0.072282233 $108
12/31/2008 $1.50 0.072282233 $0.11
1/15/2009 $85000.00 0.070625161 $6003.14
1/15/2009 $11.00 0.070625161 $0.78
1/15/2009 $1.10 0.070625161 $0.08
1/30/2009 $15.00 0.06979577 $1.05
1/30/2009 $1.50 0.06979577 $0.10
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BAN REGIO ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
2/5/2009 $14049.00 0.069847645 $981.29
2/27/2009 $15.00 0.066259906 $099
2/27/2009 $1.50 0.066259906 $0.10
3/31/2009 $15.00 0.070393833 $1.06
3/31/2009 $1.50 0.070393833 $0.11
4/30/2009 $15.00 0.0724446 $1.09
4/30/2009 $1.50 0.0724446 $0.11
5/29/2009 $15.00 0.075825963 $1.14
5/29/2009 $1.50 0.075825963 $0.11
6/30/2009 $15.00 0.075919646 $1.14
6/30/2009 $1.50 0.075919646 $0.11
7/31/2009 $15.00 0.075703378 $1.14
7/31/2009 $1.50 0.075703378 $0.11
8/31/2009 $15.00 0.074977588 $1.12
8/31/2009 $1.50 0.074977588 $0.11
9/30/2009 $15.00 0.074170889 $1.11
9/30/2009 $1.50 0.074170889 $0.11
10/30/2009 $15.00 0.076007132 $1.14
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BANREGIO ACCOUNT NO
Date Withdrawals Pesos Exchange Rate Withdrawals Dollars
10/30/2009 $1.50 0.076007132 $0.11
11/30/2009 $15.00 0.077408228 $1.16
11/30/2009 $1.50 0.077408228 $0.12
12/31/2009 $15.00 0.076557568 $1.15
12/31/2009 $1.50 0.076557568 $0.11
1/29/2010 $15.00 0.076769436 $1.15
1/29/2010 $1.50 0.076769436 $0.12
2/26/2010 $15.00 0.078376193 $1.18
2/26/2010 $1.50 0.078376193 $0.12
3/31/2010 $20.00 0.081293487 $1.63
3/31/2010 $2.20 0.081293487 $0.18
4/30/2010 $50.00 0.081769228 $4.09
4/30/2010 $5.50 0.081769228 $0.45
5/31/2010 $30.00 0.077413066 $2.32
5/31/2010 $3.30 0.077413066 $0.26
6/30/2010 $30.00 0.077947941 $2.34
6/30/2010 $3.30 0.077947941 $0.26
Page
BAN REGIO ACCOUNT NO
Date Withdrawals Pesos Rate
Exchange Withdrawas Dollars
7/30/2010 $30.00 0.079072507 $2.37
7/30/2010 $3.30 0.079072507 $0.26
8/31/2010 $30.00 0.075940725 $2.28
8/31/2010 $3.30 0.075940725 $0.25
9/30/2010 $30.00 0.07917369 $2.38
9/30/2010 $3.30 0.07917369 $0.26
10/29/2010 $30.00 0.081016027 $2.43
10/29/2010 $3.30 0.081016027 $0.27
11/30/2010 $30.00 0.080285916 $2.41
11/30/2010 $3.30 0.080285916 $0.26
11/30/2010 $200.00 0.080285916 $16.06
11/30/2010 $22.00 0.080285916 $1.77
12/31/2010 $30.00 0.081O1816 $2.43
12/31/2010 $3.30 0.081018186 $0.27
12/31/2010 $200.00 0.081018186 $16.20
12/31/2010 22.00 0.081018186 $1.78
TOTALS $1284014.61 $114284.99
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