ACCEPTED
02-15-00070-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
3/30/2015 5:00:12 PM
DEBRA SPISAK
CLERK
NO. 02-15-00070-CV
FILED IN
In the Court of Appeals for the2nd COURT OF APPEALS
FORT WORTH, TEXAS
Second Court of Appeals District of 03/30/2015
Texas 5:00:12 PM
DEBRA SPISAK
at Fort Worth Clerk
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IN RE: HOWARD KIRK GIBBS, Relator
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REQUEST TO SUPPLEMENT REPORTER’S RECORD
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From the Probate Court No. 2
Of Tarrant County, Texas
***********************************
Tim G. Sralla
tsralla@toase.com
Texas Bar No. 18982300
Daniel R. Barrett
dbarrett@toase.com
Texas Bar No. 01810400
Ashley D. Dierker
adierker@toase.com
Texas Bar No. 24065399
Members of the firm of:
Taylor, Olson, Adkins, Sralla
& Elam, L.L.P.
6000 Western Place, Suite 200
Fort Worth, Texas 76107
Telephone No.: (817) 332-2580
Fax No.: (817) 332-4740
ATTORNEYS FOR RELATOR
MOTION HEARING - March 03, 2015
· · · · · · · · · · ··REPORTER'S RECORD
· · · · · · · · · ··VOLUME 1 OF 1 VOLUMES
· · · · · ··TRIAL COURT CAUSE NO. 2005-0000126-2-D
· ·
· ·
· · · · · · · · · · · · · · · ··)
· · ·IN RE: ESTATE OF BERT· · ··) IN THE PROBATE COURT
· · ·HUGHES GIBBS, DECEASED;· ··)
· · · · · · · · · · · · · · · ··)
· · ·CANDACE WALTON AND· · · · ·)
· · ·KENNETH GIBBS,· · · · · · ·)
· · · · · · · · · · · · · · · ··)
· · · · · · ·Plaintiffs,· · · ··)
· · · · · · · · · · · · · · · ··)
· · ·VS.· · · · · · · · · · · ··) COURT NO. 2
· · · · · · · · · · · · · · · ··)
· · ·BEVERLY MILLER,· · · · · ··)
· · ·INDIVIDUALLY, AND AS· · · ·)
· · ·TRUSTEE OF THE GWB· · · · ·)
· · ·FRIENDS AND FAMILY TRUST,··)
· · ·ALBERT BARCROFT,· · · · · ·)
· · ·INDIVIDUALLY AND AS LEGAL··)
· · ·REPRESENTATIVE OF PENTEX· ·)
· · ·ROYALTY TRUST AND PENTEX· ·)
· · ·FOUNDATION, DANNY UNGER,· ·)
· · ·AS TRUSTEE OF GBU FRIENDS··)
· · ·AND ASSOCIATES TRUST, AND··)
· · ·HOWARD KIRK GIBBS,· · · · ·)
· · · · · · · · · · · · · · · ··)
· · · · · · ·Defendants.· · · ··)
· · · · · · · · · · · · · · · ··) TARRANT COUNTY, TEXAS
· ·
· · · · · · · · · · · · · ··*****
· · · · · · · · · · ·***MOTION HEARING***
· · · · · · · · · · · · · · ·*****
· ·
· · · ··On the 16th day of October, 2014, the following
· ·
· ·proceedings came on to be heard in the above-entitled
· ·
· ·and numbered cause before the Honorable
· ·
· ·Patrick Ferchill, Judge presiding, held in Fort Worth,
· ·
· ·Tarrant County, Texas;
· ·
· ·
· ·
· · · ··Proceedings reported by machine shorthand.
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·1· · · · · · · · · · ·A P P E A R A N C E S
· ··
·2· ·
· ··
·3· · · ··Ms. Christy Lee
· ·· · ··Attorney at Law
·4· · · ··SBOT NO. 24052302
· ·· · ··225 East Fireweed Lane
·5· · · ··Suite 200
· ·· · ··Anchorage, Alaska 99503
·6· · · ··Phone:··(907) 339-9931
· ·· · ··ATTORNEY FOR PLAINTIFFS
·7· ·
· ··
·8· · · ··Mr. Earl Hargrave
· ·· · ··Attorney at Law
·9· · · ··SBOT NO. 24010780
· ·· · ··750 Pipeline Court
10· · · ··Suite 107
· ·· · ··Hurst, Texas 76053
11· · · ··Phone:··(817) 282-0679
· ·· · ··ATTORNEY FOR DEFENDANT
12· · · ··BEVERLY MILLER
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·1· · · · · · · · · · · · · ·I N D E X
· ·· · · · · · · · · · · · ·VOLUME 1
·2· · · · · · · · · · · ·(MOTION HEARING)
· ·· · · · · · · · · · · · · · · · · · · · · · ·Page· ·Vol.
·3· ·
· ···OCTOBER 16, 2014
·4· ·
· ···Announcements. . . . . . . . . . . . . .· · ·4· · ··1
·5· ·
· ···Opening statement by Mr. Hargrave. . . .· · ·5· · ··1
·6· ··Response by Ms. Lee. . . . . . . . . . .· · ·13· · ·1
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·7· ·
· ··
·8· ··Court's Ruling on Motion to Abate . . . .· ··29· · ·1
· ··
·9· ··Court's Ruling on Motion to Compel and
· ···for Sanctions. . . . . . . . . . .··. . .· ··63· · ·1
10· ·
· ···Adjournment . . . . . . . . . . . . . . .· ··69· · ·1
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· ···Court Reporter's Certificate. . . . . . .· ··70· · ·1
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·1· · · · · · · · · ··P R O C E E D I N G S
·2· · · · · · · · ·THE COURT:··Ladies and gentlemen, the Court
·3· ·has next before it is Cause No. 2005-0000126-2-D.··This
·4· ·is styled Candace Walton and Kenneth Gibbs, plaintiffs,
·5· ·versus Beverly Miller, individually, and as trustee of
·6· ·GWB Family and Friends Trust, et al, defendants.
·7· · · · · · · · ·And we have apparently set for today,
·8· ·according to my docket sheet, we have a -- a motion for
·9· ·abatement, a motion to compel, a motion for sanctions
10· ·and special appearance.
11· · · · · · · · ··So I guess we ought to get everybody's
12· ·names for our record, please, starting with my left.
13· · · · · · · · ·MR. GIBBS:··Howard Gibbs, pro se, your
14· ·Honor.
15· · · · · · · · ·MR. HARGRAVE:··Earl Hargrave representing
16· ·Ms. Miller.
17· · · · · · · · ·MS. LEE:··Christy Lee representing
18· ·Candace Walton and Kenneth Gibbs.
19· · · · · · · · ·THE COURT:··Okay.··So lady and
20· ·gentle -- please be seated.··Lady and gentleman, which
21· ·of those are we going to go forward on, and if so, which
22· ·one first?
23· · · · · · · · ·MR. HARGRAVE:··I think the motion to abate
24· ·is the idea, because if I'm successful, then a lot of
25· ·the other stuff is not really relevant.
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·1· · · · · · · · ·THE COURT:··Sounds good to me.··And are you
·2· ·going to give argument to the Court or -- I don't
·3· ·suppose you have any witnesses?
·4· · · · · · · · ·MR. HARGRAVE:··No, I don't have any
·5· ·witnesses, argument to the Court.··I'm going to
·6· ·presuppose that you read all the pleadings and I'm just
·7· ·going hit on --
·8· · · · · · · · ·THE COURT:··Yes.··And you may stand or be
·9· ·seated, whichever makes you more comfortable.
10· · · · · · · · ·And are both parties opposing the motion to
11· ·abate?··I'm sure you are.
12· · · · · · · · ·MS. LEE:··Yes, your Honor.
13· · · · · · · · ·MR. GIBBS:··No, sir, I'm not.
14· · · · · · · · ·THE COURT:··You're not, okay.··So we have
15· ·one opposition.
16· · · · · · · · ·MR. HARGRAVE:··Essentially, my motion to
17· ·abate says that this very same matter is being handled
18· ·in another court, not very same, the core of this matter
19· ·is being handled in another court.··Since that motion
20· ·was filed, that court has -- on their own, as I
21· ·understand, decided to transfer the matter from Fannin
22· ·County to a district court in Tarrant County.··I wasn't
23· ·involved with that, but I saw the order that said that.
24· · · · · · · · ·And therefore, the summary judgment motion,
25· ·which I thought was going to be heard a month ago, has
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·1· ·not occurred and I'm not sure when it's going to occur.
·2· · · · · · · · ·But the -- the similarities between the
·3· ·cases are -- the -- what we're going to call the Fannin
·4· ·County court -- was trying to determine the proper split
·5· ·up of the assets of the estate.
·6· · · · · · · · ··Essentially there were four -- your
·7· ·Honor, I have something to go -- some documents to
·8· ·help -- help explain what I'm doing.
·9· · · · · · · · ·If I may approach, your Honor.
10· · · · · · · · ·THE COURT:··Yes, you may.
11· · · · · · · · ·MR. HARGRAVE:··Here's Exhibit A.
12· · · · · · · · ·THE COURT:··Look at a visual aid?
13· · · · · · · · ·MR. HARGRAVE:··Yeah.
14· · · · · · · · ·THE COURT:··Thank you.
15· · · · · · · · ·MR. HARGRAVE:··This is very difficult to
16· ·wade your way through.··In Exhibit A, this is the estate
17· ·of Bert Hughes Gibbs.··And 25 percent of the whole
18· ·estate went to another sibling, that's not involved in
19· ·this case.
20· · · · · · · · ·MS. LEE:··Your Honor, I'm going to object
21· ·to the admission of this document.··I don't think he
22· ·represents the estate of Bert Gibbs and I'm not quite
23· ·sure what the relevance of this is to a case about
24· ·abating this case.
25· · · · · · · · ·THE COURT:··Well, let's go ahead and hear
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·1· ·what he has to say, but I'll give you another
·2· ·opportunity to object.··Right now we're just looking at
·3· ·it as a visual aid for the Court --
·4· · · · · · · · ·MR. HARGRAVE:··So you can understand what
·5· ·I'm trying to say.
·6· · · · · · · · ·THE COURT:··Okay.
·7· · · · · · · · ·MR. HARGRAVE:··Of that 75 percent -- this
·8· ·is Exhibit B.
·9· · · · · · · · ·May I approach, your Honor?
10· · · · · · · · ·THE COURT:··Yes.
11· · · · · · · · ·MR. HARGRAVE:··Of the 75 percent, there
12· ·were certain promises made by the other three siblings,
13· ·Mr. Gibbs here and -- and his two siblings sitting in
14· ·the gallery, about how to split that up.
15· · · · · · · · ·And initially they gave up 22.5 percent of
16· ·it to -- to Barcroft, or the guy that came in that was
17· ·going to try to help them out the first time.
18· · · · · · · · ·And of -- and then later on, they gave
19· ·37.5 percent of it to a set of attorneys that were
20· ·successful in undoing -- in straightening out this
21· ·estate.··The 22.5 that went to Barcroft, it's my
22· ·understanding that he's not an attorney, but he's the
23· ·one that bankrolled the attorney that -- that tried to
24· ·do this first.··That's my understanding of his part in
25· ·it.··Leaving 15 percent of the purple part, was the only
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·1· ·thing that was left in the estate for these three
·2· ·children --
·3· · · · · · · · ·MS. LEE:··Your Honor, I just would like to
·4· ·assert this document as well, I object to the relevance.
·5· ·I'm still not understanding what the relevance is to
·6· ·this to abate the case.
·7· · · · · · · · ·THE COURT:··Your objection is so noted, but
·8· ·overruled at this time.
·9· · · · · · · · ·MS. LEE:··Thank you.
10· · · · · · · · ·MR. HARGRAVE:··Exhibit C further explains
11· ·what was going on.··In Exhibit C, we're looking at the
12· ·22.5, the light green, and how some of that was assigned
13· ·to a John Skotnik, an attorney that did some kind of a
14· ·service, I'm not exactly sure what Skotnik was doing,
15· ·but he received part out of what went to Barcroft, what
16· ·I would call the unsuccessful attorneys.
17· · · · · · · · ·THE COURT:··Okay.
18· · · · · · · · ·MR. HARGRAVE:··Okay.··Exhibit D, if I may I
19· ·approach, your Honor?
20· · · · · · · · ·THE COURT:··Yes.
21· · · · · · · · ·MR. HARGRAVE:··Exhibit D,
22· ·transfer -- demonstrates what was transferred to the GWB
23· ·Family and Friends Trust, for which my client was a
24· ·trustee.··So this -- the 20.04 percent in purple, the
25· ·part that was left over from the unsuccessful attorney
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·1· ·hiring an attorney, and the 15 percent, that was all
·2· ·that was left over of the original 75 percent in the
·3· ·hands of the -- of the three family members, this shows
·4· ·what was transferred to the trust.
·5· · · · · · · · ·And this is Exhibit E and this is the end
·6· ·of it.
·7· · · · · · · · ·MS. LEE:··And, again, your Honor, I'm
·8· ·objecting.
·9· · · · · · · · ·MR. HARGRAVE:··May I approach, your Honor?
10· · · · · · · · ·THE COURT:··I'll give you a running
11· ·objection, but I'm going to overrule the objection.
12· · · · · · · · ·MS. LEE:··Thank you.
13· · · · · · · · ·MR. HARGRAVE:··So as 57.19 percent of the
14· ·funds that went to the trust were -- were allocated for
15· ·the unsuccessful attorneys, as I refer to them.
16· · · · · · · · ·There's only 42.81 percent of the money
17· ·left to be spent among -- among the three -- the three
18· ·siblings and this is the reason why my client
19· ·distributed 57.19 percent to the -- to the unsuccessful
20· ·attorneys.··This is what's being discussed down in
21· ·Fannin County, to get the court to rule on these
22· ·calculations that, of course, is being transferred
23· ·somewhere else, probably just between me and the Court,
24· ·probably ought to all be right here, so it can all be
25· ·handled at one time.
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·1· · · · · · · · ·THE COURT:··How did it -- you said it was
·2· ·transferred to a district, you said, in Tarrant County?
·3· · · · · · · · ·MS. LEE:··No --
·4· · · · · · · · ·MR. HARGRAVE:··Yes, the paperwork indicates
·5· ·it was transferred -- the Fannin County district court,
·6· ·apparently sua sponte, decided this all needs to be in
·7· ·the district court in Tarrant County.··And I have an
·8· ·order here somewhere --
·9· · · · · · · · ·MS. LEE:··I don't mean to interrupt.··I was
10· ·present during the hearing.··Would you mind if I
11· ·interject --
12· · · · · · · · ·MR. HARGRAVE:··Sure, I don't know how that
13· ·happened.
14· · · · · · · · ·MS. LEE:··And then you can continue?
15· · · · · · · · ·MR. HARGRAVE:··Sure.
16· · · · · · · · ·MS. LEE:··Okay.··We had a hearing on
17· ·September 30th at the district court in Fannin County.
18· ·My motion was filed, a motion to transfer venue, because
19· ·the proper venue should be Tarrant County.
20· · · · · · · · ·The judge heard our arguments and ruled in
21· ·our favor.··And I filed a supplement to -- I filed a
22· ·supplement, your Honor, to this motion, in which I show
23· ·the order approving the motion to transfer and that --
24· ·the "Tarrant County" is actually my handwriting.· ··So
25· ·it is to be transferred.
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·1· · · · · · · · ·However, the parties have filed a motion
·2· ·for reconsideration.··And I have read the motion for
·3· ·reconsideration, your Honor, and as an officer of the
·4· ·Court, the arguments are 100 percent identical, so I
·5· ·certainly don't think that it will be overruled and stay
·6· ·in Fannin County.
·7· · · · · · · · ·We do have a hearing set for November 12th
·8· ·in Fannin County concerning the motion to reconsider.
·9· ·But it is still our stance and obviously the judge
10· ·believes that the case should be transferred to Tarrant
11· ·County and, of course, as soon as it gets transferred, I
12· ·think the cases should be consolidated, as I argued
13· ·before, and I'm not trying to step in front of him, they
14· ·are not the same cases.··This case is --
15· · · · · · · · ·MR. HARGRAVE:··That's --
16· · · · · · · · ·MS. LEE:··You want me to stop.
17· · · · · · · · ·MR. HARGRAVE:··Yes, I'd rather you just
18· ·explain.
19· · · · · · · · ·May I approach, your Honor?
20· · · · · · · · ·THE COURT:··Yes.
21· · · · · · · · ·MR. HARGRAVE:··This is the order that she's
22· ·discussing.
23· · · · · · · · ·THE COURT:··Thank you.
24· · · · · · · · ·MR. HARGRAVE:··As I was saying in my first
25· ·amended motion to abate, that's attached to the original
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·1· ·petition that was being heard in the Fannin County
·2· ·court, and the original petition is all about -- well,
·3· ·there's other things going on, but a declaratory
·4· ·judgment to determine whether these calculations are the
·5· ·way the money should be split up or not.
·6· · · · · · · · ·And because of that -- because of
·7· ·that -- primarily it's my understanding that the primary
·8· ·reason you have for removing my client is because she
·9· ·couldn't explain why she came up with the 57.19 percent
10· ·when she allocated.··There were other problems --
11· · · · · · · · ·THE COURT:··Yes.
12· · · · · · · · ·MR. HARGRAVE:··-- I'm not glossing over,
13· ·but there were other problems, but if it turns out that
14· ·district court determines that that was the proper way
15· ·to do, then this -- then a whole lot of the fussing
16· ·that's been going on in this Court will have been moot,
17· ·because it's my belief the real reason we're here is
18· ·because suddenly the -- well, we're here because people
19· ·are unhappy with how things are going.
20· · · · · · · · ·But in any case, I can imagine that court
21· ·saying -- some district court in Tarrant County saying
22· ·that it's -- she split the money up properly, and then
23· ·this Court has already ruled that she didn't do it
24· ·right, one of the many things, we might have a conflict
25· ·between the two courts.··And that's the core reason for
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·1· ·the abatement.
·2· · · · · · · · ·The abatement also discusses the fact that
·3· ·my opposing counsel has filed some notice of Family
·4· ·Medical Leave Act and I don't really understand how that
·5· ·would work in this case, since she is self employed and
·6· ·she continues to come to court and she continues to make
·7· ·filings.
·8· · · · · · · · ·At that time, I was asking either that, you
·9· ·know, it's abated for that reason or that, you know, we
10· ·just go on, anyway, to have discovery.··And I believe we
11· ·already have a ruling -- a scheduling order that's
12· ·working through, so the family medical leave act does
13· ·not appear to be a problem, your Honor.··The -- I think
14· ·it's been taken care by the fact we have a scheduling
15· ·order or about to have one.
16· · · · · · · · ·My core problem is the -- one of biggest
17· ·issues that we have here is supposed to be handled
18· ·sometime in a district -- district court, of which I
19· ·personally believe it ought to all be handled by the
20· ·same court, but until that -- that court or everything
21· ·is merged into this Court, I think that -- this matter
22· ·here should be abated.
23· · · · · · · · ·Thank you, your Honor.
24· · · · · · · · ·MS. LEE:··Your Honor, I would like the
25· ·Court to notice that on July 31st, there was a plea of
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·1· ·abatement with the same arguments from Howard Kirk and
·2· ·the Court overruled that argument.··It's the exact same
·3· ·arguments.
·4· · · · · · · · ·I'm not sure what these exhibits have to do
·5· ·with removing a trustee, getting back assets that were
·6· ·inappropriately taken and terminating this trust that
·7· ·was a tax sham.
·8· · · · · · · · ·And, your Honor, the Fannin County case is
·9· ·over a contract for sale --
10· · · · · · · · ·MR. HARGRAVE:··Objections, your Honor, to
11· ·the allegation this was a tax scam.··There is no
12· ·evidence before the Court of that.
13· · · · · · · · ·MS. LEE:··There will be, there will be,
14· ·your Honor.··We'll be amending our petition concerning
15· ·the motion to compel.··I have evidence to show it was a
16· ·tax scam, that's why -- you will hear evidence on that.
17· · · · · · · · ·THE COURT:··Well, at least tax -- tax
18· ·motivation --
19· · · · · · · · ·MS. LEE:··No, your Honor, it is a tax sham,
20· ·it's a shell corporation.··I have -- and you will hear
21· ·that today.
22· · · · · · · · ·THE COURT:··All right.
23· · · · · · · · ·MR. HARGRAVE:··Your Honor, is she alleging
24· ·some criminal activity?
25· · · · · · · · ·THE COURT:··I don't know.
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·1· · · · · · · · ·MS. LEE:··You will hear that during my
·2· ·motion for -- my motion to compel, your Honor.
·3· · · · · · · · ·So going back with the motion to abate.
·4· ·This is about Al Barcroft and a contract for sale for
·5· ·land.··This has nothing to do -- this is not being
·6· ·heard, these exhibits are not being heard in Fannin
·7· ·County.··We're just going to call it the Fannin County
·8· ·case, that's what we called it, even though there's
·9· ·issue with venue --
10· · · · · · · · ·MR. HARGRAVE:··I have no --
11· · · · · · · · ·MS. LEE:··Objections.
12· · · · · · · · ·MR. HARGRAVE:··Describing as Fannin.
13· · · · · · · · ·MS. LEE:··Okay.··So the Fannin County
14· ·case --
15· · · · · · · · ·THE COURT:··Right.
16· · · · · · · · ·MS. LEE:··-- the petition specifically
17· ·states that my clients owe him attorney fees that should
18· ·be distributed to him.··It has nothing to do with assets
19· ·that were distributed out of GWB.··We're not arguing
20· ·that.··They're arguing that a contract for sale is
21· ·valid.··That has nothing to do with this case.
22· · · · · · · · ·And in addition, the Court's already ruled
23· ·on the plea of abatement, the exact same arguments, on
24· ·July 31st, and ruled against it.··They just keep wanting
25· ·to abate this and abate it until when?··We have no
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·1· ·Court?··Right now, the Fannin County case is in limbo
·2· ·and that discovery is halted.··And you're going to find
·3· ·out through the rest of the hearings today, that that's
·4· ·their tactic, a delay tactic.
·5· · · · · · · · ·And I'm not quite sure why Mr. Hargrave
·6· ·keeps bringing up the FMLA that was discussed with
·7· ·Morrisett during our scheduling hearing, which I think
·8· ·was August 20th, and I thought we had worked out all
·9· ·those issues.
10· · · · · · · · ·But we're setting depositions.··I never
11· ·refused any requests from Mr. Hargrave, I haven't, you
12· ·know, I've never not responded to him in an adequate
13· ·amount of time, so I'm not quite sure what his complaint
14· ·is.··I did tell Judge Morrisett, my father is very ill
15· ·right now and I just would like to spend time with him
16· ·and all I've asked is that opposing parties please
17· ·doesn't set hearings without consulting with me and that
18· ·they --
19· · · · · · · · ·THE COURT:··Which they really shouldn't --
20· · · · · · · · ·MS. LEE:··They shouldn't do and that was a
21· ·problem --
22· · · · · · · · ·THE COURT:··Should conference with you, if
23· ·they can.
24· · · · · · · · ·MS. LEE:··Correct.··And that's what we
25· ·talked about with Judge Morrisett and he was very
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·1· ·adamant about how things were going to go forward, about
·2· ·just being courteous in scheduling, so I'm not sure why
·3· ·that's an issue.
·4· · · · · · · · ·But here is the order, your Honor.··I do
·5· ·not have a copy, if I can approach.
·6· · · · · · · · ·I'm sorry, I do not have another copy.
·7· · · · · · · · ·That is what was given to the Court and
·8· ·it's my understanding has been signed by the Court.
·9· · · · · · · · ·MR. HARGRAVE:··I have a copy.··I have a
10· ·signed copy.
11· · · · · · · · ·MS. LEE:··Okay.··And it specifically states
12· ·that the plea in abatement that has been brought before
13· ·this Court has been denied.··So there's the order.··It's
14· ·my understanding, through Judge Morrisett, that you
15· ·signed that order, so we're back here, again, arguing
16· ·the same thing.
17· · · · · · · · ·THE COURT:··I agree.
18· · · · · · · · ·MS. LEE:··Okay.··So -- thank you.
19· · · · · · · · ·THE COURT:··But now, let me ask you this,
20· ·if it is -- if the other case, even though -- well,
21· ·let's just leave as so -- on the fence as to whether or
22· ·not how intertwined and related these may or may not be,
23· ·but if the other case is indeed coming to Tarrant County
24· ·and you do intend to file a motion for consolidation --
25· · · · · · · · ·MS. LEE:··Yes.
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·1· · · · · · · · ·THE COURT:··-- into the probate court?
·2· · · · · · · · ·MS. LEE:··Yes, your Honor.
·3· · · · · · · · ·THE COURT:··Would that be a reason for
·4· ·abatement, in and of itself?
·5· · · · · · · · ·MS. LEE:··Why would that be a reason for
·6· ·abatement?
·7· · · · · · · · ·THE COURT:··Well, I mean, until that's
·8· ·done.
·9· · · · · · · · ·MS. LEE:··Well, no, your Honor, it's in
10· ·limbo, though.··We need to move forward on this case,
11· ·because it's only on a motion to reconsider right now
12· ·and their motion to reconsider --
13· · · · · · · · ·THE COURT:··Okay.··So the motion to
14· ·reconsider --
15· · · · · · · · ·MS. LEE:··Is for the change of venue.
16· · · · · · · · ·THE COURT:··So it's possibly a while before
17· ·this case file gets to Tarrant County.
18· · · · · · · · ·MS. LEE:··And they have stated in their
19· ·motion to reconsider that if she doesn't approve it,
20· ·they will file a mandamus, so who knows when that's
21· ·going to be done.
22· · · · · · · · ·MR. HARGRAVE:··Your Honor, I'm not any part
23· ·of the they said -- said thing.··I'm just saying, I
24· ·would like the Court to consider the motion.··I don't
25· ·know how well the motion was pled and argued the first
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·1· ·time, that was before my time.··But I would point out to
·2· ·the Court, on page -- it's Bates stamp 335 -- is an
·3· ·example of how intertwined the facts are in Fannin
·4· ·County.··They talked about 30 percent share, the
·5· ·20.04 percent, all the different numbers involved in the
·6· ·pie charts I gave you.
·7· · · · · · · · ·THE COURT:··But it was on attorneys' fees?
·8· · · · · · · · ·MS. LEE:··Yes, your Honor.
·9· · · · · · · · ·THE COURT:··The real crux of it, though, is
10· ·the collection of attorneys' fees.
11· · · · · · · · ·MR. HARGRAVE:··And the reason for that is
12· ·under the agreement that the -- that led up -- that got
13· ·us to this point, the -- what we call the unsuccessful
14· ·defense attorneys, he was going to try to -- that guy
15· ·was going try to help this family out.
16· · · · · · · · ·And it said, specifically, in the
17· ·agreement, that the family themselves could go hire
18· ·another attorney, but the other attorney would come out
19· ·of their money, his 30 percent would not be touched --
20· · · · · · · · ·MS. LEE:··But, your Honor, I would like to
21· ·object for him to call Al Barcroft the unsuccessful
22· ·attorney, he's not an attorney.··That's an issue we have
23· ·about Al Barcroft, because he likes to draft legal
24· ·documents without -- practicing law without a license.
25· · · · · · · · ·THE COURT:··The Court is well
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·1· ·aware Mr. Barcroft is not an attorney.
·2· · · · · · · · ·MR. HARGRAVE:··Yeah, I'm using that as a
·3· ·label because -- or the unsuccessful attempt, whatever
·4· ·you want.··It was clear if the unsuccessful -- if
·5· ·Mr. Barcroft and the attorney he hired were unsuccessful
·6· ·and the family went and hired somebody else, they would
·7· ·pay for the somebody else out of their pocket.··It would
·8· ·not affect the 30 percent that was coming to
·9· ·Mr. Barcroft for his efforts.
10· · · · · · · · ·And the attorney's fees that were --
11· · · · · · · · ·THE COURT:··But don't we have to determine,
12· ·what were Mr. Barcroft's efforts?
13· · · · · · · · ·MR. HARGRAVE:··I believe he funded an
14· ·attorney to try to fix this.
15· · · · · · · · ·MS. LEE:··Your Honor, I'm not sure if
16· ·that's even relevant, but I don't know what his -- it
17· ·would be for the contract for sale.··For the contract of
18· ·sale, he can say he drafted a document and therefore he
19· ·wants to have it implemented and these were -- these
20· ·were his efforts and this is what he should get.
21· · · · · · · · ·But your Honor, it's not my client's fault
22· ·that this document was drafted or that Mr. Hargrave
23· ·hasn't read the file to see the plea of abatement has
24· ·already been filed.··Judge Morrisett, during the
25· ·August 20th hearing, had already been filed and denied
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·1· ·by this Court.··And it's truly a frivolous motion and my
·2· ·clients are seeking attorney's fees to respond to the
·3· ·motion that's already been drafted, heard in front of
·4· ·this Court, and denied.
·5· · · · · · · · ·THE COURT:··Your -- you get the
·6· ·last -- it's your -- it your argument, it's your motion.
·7· · · · · · · · ·MR. HARGRAVE:··I think I covered all the
·8· ·areas --
·9· · · · · · · · ·THE COURT:··And why did you choose to bring
10· ·this back before the Court again?
11· · · · · · · · ·MR. HARGRAVE:··At the time I was bringing
12· ·its back before the Court, we were like two weeks or so
13· ·away from the summary judgment hearing that was supposed
14· ·to be heard the first time in the -- end of last month
15· ·or something.··I'm not sure --
16· · · · · · · · ·MS. LEE:··I think he's talking about a
17· ·possible summary judgment hearing in Fannin County, not
18· ·this Court, your Honor.
19· · · · · · · · ·MR. HARGRAVE:··Not this Court.
20· · · · · · · · ·THE COURT:··And the new information you're
21· ·purporting to the bring to the Court as to why you
22· ·should have a second shot at a plea in abatement has to
23· ·do with these graphs you've presented?··The court not
24· ·understanding what the case was about, up in Fannin
25· ·County?
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·1· · · · · · · · ·MR. HARGRAVE:··I'm not sure -- I'm not sure
·2· ·it was fully explained to the court.··It's a very
·3· ·difficult concept to figure out just why 57.19 percent
·4· ·of it was supposed to go to one side or the other.
·5· · · · · · · · ·And in our emergency hearing that we had,
·6· ·my client was unable to explain that.
·7· · · · · · · · ·THE COURT:··Well, it sounded like instead
·8· ·of doing a fiduciary task, she did what someone told me,
·9· ·based on her own testimony.
10· · · · · · · · ·MR. HARGRAVE:··I under --
11· · · · · · · · ·THE COURT:··It's certainly part and parcel,
12· ·being a fiduciary, understanding the mathematics behind
13· ·it.··But before you get there, it has to be more than
14· ·somebody telling you what to do it.
15· · · · · · · · ·Fiduciaries are not conduits.··They have
16· ·standalone, as you well know, standalone duties and
17· ·responsibilities that are not waived by law.
18· · · · · · · · ·MR. HARGRAVE:··I understand, your Honor.··I
19· ·believe my client was unprepared for that hearing.
20· · · · · · · · ·THE COURT:··Yes, I think she's unprepared
21· ·to serve as a fiduciary, but that's really not for here
22· ·today.
23· · · · · · · · ·MR. HARGRAVE:··That may be , but since that
24· ·hearing, she has recalled that she did talk to an
25· ·attorney.··I know that doesn't have much to do about the
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·1· ·removal, but she does recall having talked to an
·2· ·attorney and the attorney has sent me a letter saying he
·3· ·did talk to her.··It may well have been Skotnik that she
·4· ·talked to.
·5· · · · · · · · ·THE COURT:··But wouldn't -- whether or not
·6· ·there were any attorney's fees due, wouldn't that be
·7· ·related to how this Court finds in regard to the matter
·8· ·before it, if all these transactions are modified,
·9· ·nullified, whatever you might want to call it, canceled,
10· ·even if they're confirmed, that's still a -- there's a
11· ·possibility there would be no need for the Fannin County
12· ·case, there aren't going to be any attorney's fees.
13· · · · · · · · ·MR. HARGRAVE:··Apparently I haven't
14· ·explained myself correctly.··My -- my client -- Barcroft
15· ·appears to be arguing that he got less of the money from
16· ·the trust than he should have gotten, because he was
17· ·paying part of the attorney fees that should have been
18· ·paid by the -- by the three siblings.
19· · · · · · · · ·THE COURT:··And he's suing them for
20· ·attorney fees.
21· · · · · · · · ·MS. LEE:··Yes, your Honor.
22· · · · · · · · ·THE COURT:··Right?··That's what he's
23· ·basically suing them for.
24· · · · · · · · ·MS. LEE:··Just the one little caveat, that
25· ·I think you'll agree.··Al Barcroft is saying that the
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·1· ·attorney fees that Howard Kirk Gibbs and my two clients
·2· ·are to pay to the estate, of Bert Gibbs' attorneys, he
·3· ·should have received --she should have received more
·4· ·money and they owe him additional money that has nothing
·5· ·to do with the GWB Trust.··It's not the same thing.
·6· ·They are two very different cases.
·7· · · · · · · · ·Now, I agree, I think they should be
·8· ·consolidated just for simplicity sake.··I can't imagine
·9· ·having two juries listen to these two very different
10· ·convoluted things.··I don't understand why removing a
11· ·trustee, getting back assets and terminating a trust has
12· ·anything to do with if my client paid him the
13· ·appropriate amount of attorney fees.
14· · · · · · · · ·THE COURT:··I'm still in agreement with you
15· ·and so I'll deny the plea in abatement.
16· · · · · · · · ·MS. LEE:··And, you honor, I do have --
17· · · · · · · · ·THE COURT:··Did you wish to say something
18· ·for the record?
19· · · · · · · · ·MR. GIBBS:··I would like to say something,
20· ·if I could.
21· · · · · · · · ·THE COURT:··You may.··As a pro se, sure.
22· · · · · · · · ·MR. GIBBS:··Whenever we originally made the
23· ·agreement, Ken, Candy and myself with Al Barcroft, we
24· ·agreed to pay him 30 percent from whatever he recovered
25· ·from the estate of my parents.··That was the agreement
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·1· ·to do that.
·2· · · · · · · · ·And at that time, there had already been a
·3· ·final judgment.··It had been way past any time to do any
·4· ·kind of standard reversal or going to the appellate
·5· ·court or anything of that nature, so we had, basically,
·6· ·lost, with about a million dollars judgment against us,
·7· ·from the Denton County court, we've been fighting for a
·8· ·number of years.
·9· · · · · · · · ·And what Al Barcroft said he would do is,
10· ·he said for 30 percent of whatever he could recover for
11· ·us from the estates -- my parents' two estates, what he
12· ·would do, for the 30 percent, he would fund whatever
13· ·could be done to try to reverse the situation, get us
14· ·some inheritance we all lost, plus we had a million
15· ·dollar judgment, just about, against us.
16· · · · · · · · ·So not only losing all my parents -- their
17· ·estate, we had about million dollars that we owed to 4th
18· ·brother, that's in Corpus Christi, Kip Gibbs.
19· · · · · · · · ·So what Al did was, he was going to fund
20· ·all the legal research that was done by Danny Unger.··He
21· ·was going to hire John Skotnik to do the legal work.··Al
22· ·was also, I guess you'd call him a paralegal, so he
23· ·ended up spending, basically, his life savings trying to
24· ·overturn what had been done up in Denton County.
25· · · · · · · · ·Once he got it overturned, the agreement
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·1· ·said very clearly that he got 30 percent, and if us
·2· ·three kids chose to hire someone else, we could, but if
·3· ·we hired someone else, we had to pay the legal fees.
·4· · · · · · · · ·Well, we tried to go the route with -- with
·5· ·John Skotnik, went up here to the Second Court of
·6· ·Appeals, that was not successful.··So what we ended up
·7· ·doing is we decided to go and get a local attorney,
·8· ·which is, Rickey Brantley, and they basically put
·9· ·together what we thought was a dream team of attorneys
10· ·from four different areas of expertise and we ended up
11· ·getting it back in front of the Second Court of Appeals.
12· ·The case was overturned up in Denton County, so now we
13· ·got our inheritance back.
14· · · · · · · · ·And at that point, our agreement with those
15· ·attorneys, these four attorneys, was Ken and Candy and I
16· ·were to pay 50 percent of whatever we get for attorneys'
17· ·fees, that was the contingency fee on that.
18· · · · · · · · ·So we had agreed to pay 30 percent to Al
19· ·and we had, and we had agreed to pay 50 percent to the
20· ·attorneys, and we did.··And I will tell you I could not
21· ·believe how much money we gave up to get this done.··And
22· ·whenever all this rift happened between Candy and Al
23· ·Barcroft and we ended up getting in litigation and went
24· ·in that direction and then this money was pulled out of
25· ·GWB and GBU, I did not think it was right.
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·1· · · · · · · · ·Once I finally saw the numbers, I relented,
·2· ·I didn't like it, but that's what the contract says.
·3· ·These numbers that Mr. Hargrave here has put forth, I
·4· ·don't like them, but they're numbers.··And if the
·5· ·numbers are wrong, Ms. Lee is an attorney and a CPA, she
·6· ·ought to be able to show where these numbers are
·7· ·incorrect, if, in fact, they're incorrect.··I mean,
·8· ·because I've tried to prove them wrong and I couldn't.
·9· · · · · · · · ·And that's why these numbers, I believe,
10· ·stand upon themselves.··If ever a court looks at all the
11· ·numbers, I believe this is going to be proven.··I don't
12· ·like that 57 percent was taken out of GWB, it took money
13· ·out of my pocket like it did Ken and Candy's, but the
14· ·numbers are the numbers and I'm not willing to steal
15· ·from Al just in order to not go with what the contract
16· ·said.
17· · · · · · · · ·THE COURT:··I think we kind of got off
18· ·track there --
19· · · · · · · · ·MS. LEE:··Yeah, I'm not sure --
20· · · · · · · · ·THE COURT:··He is pro se --
21· · · · · · · · ·MS. LEE.··I didn't think that it's
22· ·relevant.
23· · · · · · · · ·May I please approach.
24· · · · · · · · ·THE COURT:··Yes.
25· · · · · · · · ·MS. LEE:··I have drafted an order.··And as
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·1· ·you can see from the bottom -- shoot, your Honor, I'm
·2· ·sorry -- number two does specifically talk about how,
·3· ·you know, as this has already been heard once before,
·4· ·this was a frivolous motion and my clients would like
·5· ·attorney fees.
·6· · · · · · · · ·MR. HARGRAVE:··I don't think we heard any
·7· ·testimony that said it's frivolous.··The phrase
·8· ·frivolous is a specific term that has a specific meaning
·9· ·to it --
10· · · · · · · · ·MS. LEE:··It has --
11· · · · · · · · ·MR. HARGRAVE:··-- basis in law and fact.
12· · · · · · · · ·MS. LEE:··It was actually already filed,
13· ·the exact same arguments, the exact same arguments
14· ·already heard.
15· · · · · · · · ·And even in light of the transfer of venue,
16· ·I thought, for sure, this would be gone and he still
17· ·stood here and argued it.··His whole argument is that it
18· ·should be Fannin County, that's why it should be abated,
19· ·so that case should be heard.··If that case comes to
20· ·Tarrant County, I'm sure the cases will be consolidated.
21· ·Your Honor has already discussed this before, just
22· ·speaking during a hearing, that if they're -- if it
23· ·comes here, it would be consolidated.··So why is he
24· ·still coming in front of the Court wasting our time,
25· ·when the case is coming here.
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·1· · · · · · · · ·THE COURT:··Well, possibly and some day.
·2· ·It still has -- you, yourself, said there's a motion to
·3· ·reconsider and possibly a mandamus, the potential of
·4· ·one.
·5· · · · · · · · ·MS. LEE:··Correct.
·6· · · · · · · · ·THE COURT:··I'm still going to deny the
·7· ·plea in abatement and I'm not ready to sanction him with
·8· ·attorneys fees.··This is a complicated case and I think
·9· ·it has some moving parts, anyway, and I'm not ready to
10· ·do that at this time.
11· · · · · · · · ·But, Mr. Gibbs, we still have an issue.··We
12· ·removed the trustee because whether she intended to or
13· ·not, she became a fiduciary under the laws of the state
14· ·of Texas.··And I never heard, frankly, in many many
15· ·years, such deplorable testimony from someone who was
16· ·supposed to be a fiduciary.
17· · · · · · · · ·So it's kind of apples and oranges.··I
18· ·mean, it was a travesty what this woman testified to in
19· ·this Court.
20· · · · · · · · ·MR. GIBBS:··Your Honor, I'm not defending
21· ·Ms. Miller --
22· · · · · · · · ·THE COURT:··But you're kind acting like I
23· ·should shut everything down and end everything, because
24· ·you're happy with percentages.
25· · · · · · · · ·MR. GIBBS:··I'm not happy, your Honor --
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·1· · · · · · · · ·THE COURT:··Well, you accepted some
·2· ·percentages.
·3· · · · · · · · ·MR. GIBBS:··Well, can I change the facts,
·4· ·your Honor?··I don't think I've got the right to do
·5· ·that --
·6· · · · · · · · ·THE COURT:··No, also you can't change the
·7· ·fact that is this -- this woman for, whatever her
·8· ·motives, voluntarily, well, I suppose, became a
·9· ·fiduciary.··And when she did so, took on a whole mantle
10· ·of Texas case and statutory law, which she clearly, not
11· ·only didn't understand, had very little respect for --
12· · · · · · · · ·MR. GIBBS:··Your Honor --
13· · · · · · · · ·THE COURT:··-- like I said, I've never seen
14· ·anybody, layperson or otherwise, do such a pitiful job
15· ·of trying to justify actions that she purportedly took
16· ·as a legal fiduciary.
17· · · · · · · · ·MR. GIBBS:··Your Honor, I'm not defending
18· ·anything she did.··All I'm saying is, the numbers are
19· ·correct.··That's all.··I'm not saying anything about
20· ·Ms. Miller.··I just said these numbers, the
21· ·57.19 percent, that is correct.··And that's all I said,
22· ·your Honor.··I explained to you how we got to where we
23· ·are and that's where the rift comes in, because the
24· ·attorney's fee that -- that Al has pulled out with the
25· ·GBU -- or the attorneys fee that Ken and Candy and I
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·1· ·were supposed to be paying, that Al has been paying for
·2· ·those past years, so that's why the 57.19 percent went
·3· ·back to the original contract.
·4· · · · · · · · ·THE COURT:··You -- you are, in fact,
·5· ·contesting the way in those were quote/unquote pulled
·6· ·out?
·7· · · · · · · · ·MS. LEE:··Yes, your Honor, the crux of the
·8· ·lawsuit --
·9· · · · · · · · ·THE COURT:··That's the whole case.
10· · · · · · · · ·MS. LEE:··Yes, your Honor.··And we are soon
11· ·going to be filing a motion for summary judgment to get
12· ·them pulled back in, because there wasn't authority to
13· ·pull it out.··But that's another day.
14· · · · · · · · ·I have given you the order, your Honor, and
15· ·if you would --
16· · · · · · · · ·THE COURT:··Yeah, I'm going to deny it, but
17· ·I'm not ready -- I'm not ready yet to sanction
18· ·Mr. Hargrave with attorney's fees.
19· · · · · · · · ·MS. LEE:··Would you like -- I think you can
20· ·cross out number two.
21· · · · · · · · ·THE COURT:··I just put a zero.
22· · · · · · · · ·MS. LEE:··Okay.
23· · · · · · · · ·THE COURT:··All right.··So now, the next
24· ·matter is yours.
25· · · · · · · · ·MS. LEE:··The next motion would be the
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·1· ·motion to compel?
·2· · · · · · · · ·THE COURT:··Yes.
·3· · · · · · · · ·MS. LEE:··Okay.··So, your Honor, I do
·4· ·have -- may I please approach, your Honor.
·5· · · · · · · · ·THE COURT:··Yes.
·6· · · · · · · · ·MS. LEE:··These are -- your Honor, I do not
·7· ·have a copy for Mr. Hargrave, and apparently he --
·8· · · · · · · · ·THE COURT:··Of what?
·9· · · · · · · · ·MS. LEE:··Of those.··He's sitting by
10· ·Mr. Gibbs, so he can look upon Mr. Gibbs'.··I think the
11· ·easiest way to do this, your Honor, is to discuss --
12· · · · · · · · ·THE COURT:··Just -- just let me hold you
13· ·just one second.
14· · · · · · · · ·MS. LEE:··Yes.
15· · · · · · · · ·THE COURT:··We're talking about the
16· ·plaintiffs' motion to compel discovery responses by
17· ·Howard Kirk Gibbs --
18· · · · · · · · ·MS. LEE:··Yes.
19· · · · · · · · ·THE COURT:··-- and motion for sanctions
20· ·filed on July 29, 2014, on behalf of Candace, Candy
21· ·Walton, and Kenneth, Ken Gibbs, as plaintiffs?
22· · · · · · · · ·MS. LEE:··Yes, your Honor.
23· · · · · · · · ·THE COURT:··Okay.··All right.··Proceed.
24· · · · · · · · ·MS. LEE:··Okay.··Since this filing, he has
25· ·provided me with the documents that I've given you, that
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·1· ·is what he's provided me.
·2· · · · · · · · ·So I think the easiest thing to do would be
·3· ·to talk about the production of documents first and
·4· ·those are your first two documents.
·5· · · · · · · · ·The production of documents,
·6· ·Mr. Howard Kirk Gibbs, he did timely object to the
·7· ·production of documents that Candy asserted that -- I'm
·8· ·sorry, this is all the -- he did timely file to the
·9· ·production of documents and asking for productive order.
10· · · · · · · · ·And, your Honor, these three documents, I'm
11· ·not going go through every single thing, because if I
12· ·did, we would be here for days.··He objected to, not the
13· ·production of the documents, but to the interrogatories
14· ·and to almost every single admission.
15· · · · · · · · ·So I want to focus on number three, four,
16· ·and five of the requests for production of documents --
17· · · · · · · · ·THE COURT:··Okay.
18· · · · · · · · ·MS. LEE:··-- for Candy.··Number three is
19· ·where I requested -- I think three and four are
20· ·interrelated.··I asked for him to prevent -- to produce
21· ·statements of his bank accounts that he has held since
22· ·January 1, 2008.··That's the same year that GWB was
23· ·created and established.
24· · · · · · · · ·And number four are his tax returns for
25· ·2008, your Honor.··And he objects to them.··I'm -- I'm
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·1· ·not trying to speak for Mr. Gibbs, but Hoffman versus
·2· ·Fifth Circuit Court of Appeals, I read the case, I have
·3· ·it.··I have no idea what he's talking about.
·4· · · · · · · · ·And then for the tax returns, he says that
·5· ·he's not entitled to those because he cites some cases,
·6· ·I have the cases, and that's not a correct cite.··For
·7· ·the tax returns, your Honor, you're entitled to them,
·8· ·the case is very clear, if they are germane to this case
·9· ·and they're pertinent and they're discoverable.
10· · · · · · · · ·And then, obviously, the bank statements,
11· ·as well, are very pertinent.··And I don't know if you
12· ·want me to tell you why or you would like to hear
13· ·Mr. Hargrave -- Mr. Gibbs' argument first.
14· · · · · · · · ·THE COURT:··No, go ahead and continue with
15· ·the bank statements.
16· · · · · · · · ·MR. GIBBS:··Your Honor, I would like to
17· ·hold my objections to the end.··Would that be all right?
18· · · · · · · · ·THE COURT:··Yes.
19· · · · · · · · ·MR. GIBBS:··Okay.··Thank you.
20· · · · · · · · ·MS. LEE:··So when Candy became the trustee,
21· ·and we still don't have the order yet, your Honor, I do
22· ·have a copy for you to sign, if you could, for us.
23· · · · · · · · ·When she became the trustee, Beverly
24· ·Miller, through her attorney, did provide us with some
25· ·of the documents, a lot of documents, but they're are
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·1· ·not all there.··We're missing a lot of information.
·2· · · · · · · · ·But nonetheless, he did produce quite a bit
·3· ·of documents and most substantially, what he produced is
·4· ·tax returns, 1099s, and bank statements.
·5· · · · · · · · ·MR. HARGRAVE:··Excuse me, your Honor, our
·6· ·turning over documents, how is that relevant to
·7· ·Mr. Gibbs' discovery?
·8· · · · · · · · ·MS. LEE:··Oh, I'm getting there.
·9· · · · · · · · ·MR. HARGRAVE:··I appreciate it, but --
10· · · · · · · · ·MS. LEE:··I promise, I'm getting there.
11· · · · · · · · ·Well, because it's also relevant because we
12· ·haven't received all the documents.
13· · · · · · · · ·But in reviewing the documents, and I'm not
14· ·a CPA, I'm a tax attorney, I have an LLM, in a taxation
15· ·from the University of Florida, so reviewing these, I
16· ·look at them in a different light than most individuals
17· ·do.
18· · · · · · · · ·And the documents from Beverly Miller show
19· ·tax fraud, through the accounts and through 1099s, that
20· ·were perpetrated -- and I'm going to show it, that were
21· ·committed by Beverly Miller, at the request of
22· ·Al Barcroft and Howard Gibbs.··And I have here -- your
23· ·Honor, what happens when a trustee distributes money to
24· ·any party, that amount of money that she distributes,
25· ·because it's income, has to be on a person's 1099.
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·1· · · · · · · · ·THE COURT:··Right.
·2· · · · · · · · ·MS. LEE:··Okay.··I have the 1099.··Well, I
·3· ·have proof that's not what happened.··May I please
·4· ·approach.
·5· · · · · · · · ·THE COURT:··Yes.
·6· · · · · · · · ·MS. LEE:··Here's just a few documents, but
·7· ·because I have -- I mostly focussed on '12 and '13.
·8· ·First document is from Howard Gibbs that states, Beverly
·9· ·if any time I want to split my money to another member
10· ·of the trust, I hereby authorize that transfer.
11· · · · · · · · ·You go to the next page.··In August
12· ·of 2013, it states, Howard Gibbs requested this money be
13· ·deducted from his August split, which is $2,000, and
14· ·sent to Pentex for Al Barney.··Which, your Honor, you're
15· ·going to find out later that Al Barney is the alias for
16· ·Al Barcroft.
17· · · · · · · · ·Then you go to the next page, it also shows
18· ·that Howard kirk is giving to $3,120 to Pentex and they
19· ·just keep going on.··I don't want to go through all of
20· ·them.··So that happened in 2013.
21· · · · · · · · ·May I approach, your Honor?
22· · · · · · · · ·THE COURT:··Yes, ma'am.
23· · · · · · · · ·MS. LEE:··Here are the 1099s for 2013.
24· ·Ken, Candy and Howard Kirk had the exact same interest.
25· ·The very first document is Howard Kirk.··If you look at
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·1· ·number five, you can look at number four and number
·2· ·five, 86,971; if you look at Candy's, 86,971, you look
·3· ·at Ken's 86,971, you look at Pentex 86,809.··These tax
·4· ·returns were not done correctly.··That is tax fraud.
·5· · · · · · · · ·What Howard Kirk did was he using this as
·6· ·his own bank account.··The money that was going to
·7· ·Howard Kirk had to be paid to Howard Kirk, that is tax
·8· ·law.··But he has, in just the few documents I sent you,
·9· ·where he's telling her, give money to Al -- there's even
10· ·one in here from Al that says, hold out 321 -- $3,120
11· ·out --
12· · · · · · · · ·MR. HARGRAVE:··Your Honor, if I might
13· ·object.··I thought we're here trying to get some
14· ·documents.··If she would like for him to turn over some
15· ·documents or would she like to try the case?
16· · · · · · · · ·MS. LEE:··No, your Honor, what I'm trying
17· ·to show is the reason why I need his tax returns and
18· ·bank accounts, I mean, unless you would like to just
19· ·say, yes, I can have them --
20· · · · · · · · ·THE COURT:··Well, yes, of course you can --
21· · · · · · · · ·MS. LEE:··I can have them then --
22· · · · · · · · ·THE COURT:··-- we're in litigation.
23· ·Obviously, I will listen to your objection --
24· · · · · · · · ·MS. LEE:··Okay.··I don't need to say any
25· ·more anymore.
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·1· · · · · · · · ·THE COURT:··-- when you get into
·2· ·litigation, that's the risk.
·3· · · · · · · · ·MS. LEE:··Well, then, I'm done.
·4· · · · · · · · ·MR. GIBBS:··May I make a statement?
·5· · · · · · · · ·THE COURT:··Yes, sir.
·6· · · · · · · · ·MR. GIBBS:··Okay.··Ms. Lee has put before
·7· ·the Court today that there's a tax sham and I'm involved
·8· ·in it.··And the last 24 hours, this has completely
·9· ·changed the case because she has leveled a charge of
10· ·federal tax fraud against me, claiming to have all the
11· ·evidence and proclaiming that she is going to turn it
12· ·all over to the authorities.
13· · · · · · · · ·MS. LEE:··I have not stated that.
14· · · · · · · · ·MR. GIBBS:··Your Honor, I would like put
15· ·something in evidence in just a minute about that.
16· · · · · · · · ·MS. LEE:··That's --
17· · · · · · · · ·MR. GIBBS:··All this is not correct, but
18· ·she says she has evidence.··Until she produces that
19· ·evidence and I see what it affects, it would not be
20· ·prudent or proper of me to turn over anything in a civil
21· ·court or for the Court to require me to do so.
22· · · · · · · · ·This morning I consulted with an attorney
23· ·and he stated any evidence obtained by this Court could
24· ·be used in a federal tax fraud case against me;
25· ·therefore, I cannot provide any more discovery, because
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·1· ·it may be used against me in a criminal matter Ms. Lee
·2· ·threatened me with yesterday.
·3· · · · · · · · ·Therefore, I ask the Court for a
·4· ·continuance, pending me locating a criminal defense
·5· ·attorney.
·6· · · · · · · · ·MS. LEE:··Your Honor, I'm not -- first of
·7· ·all, I'd like to know, what attorney did you talk to?
·8· · · · · · · · ·THE COURT:··Just a moment -- just a minute.
·9· ·Yes, sir?
10· · · · · · · · ·MR. GIBBS:··Your Honor, may I put something
11· ·in as evidence to the threat that was posed against me,
12· ·please.
13· · · · · · · · ·MS. LEE:··Your Honor, it's a settlement
14· ·offer.··There's no threat --
15· · · · · · · · ·THE COURT:··If it's a settlement offer --
16· · · · · · · · ·MS. LEE:··It's for settlement purposes
17· ·only --
18· · · · · · · · ·THE COURT:··I can't take that into
19· ·evidence -- I can't take that into evidence.··I don't
20· ·want to know about it.
21· · · · · · · · ·MR. GIBBS:··Okay.··May I read the
22· ·information --
23· · · · · · · · ·MS. LEE:··No.
24· · · · · · · · ·THE COURT:··No, no, no --
25· · · · · · · · ·MS. LEE:··And, your Honor, as an officer --
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·1· · · · · · · · ·THE COURT:··-- it's not admissible and we
·2· ·don't want to taint the Court with whatever may or may
·3· ·not have happened in an attempted -- or settlement
·4· ·offers.
·5· · · · · · · · ·MS. LEE:··And, your Honor, I would like to
·6· ·reiterate --
·7· · · · · · · · ·THE COURT:··I think the next thing would
·8· ·be, sir, I'm going to go ahead and order this because
·9· ·it's -- it's part of litigation.··I wouldn't like
10· ·to -- to divulge my personal records or taxes, either,
11· ·but when you get in litigation and clearly I think she's
12· ·shown enough that she should at least be able to see it.
13· · · · · · · · ·Now, I don't know if she's going to make
14· ·any of this -- you know, she's thrown a lot against the
15· ·wall and none of it may stick, but you're a party to
16· ·litigation, she certainly got a right to
17· ·see -- especially with the apparent rapport or apparent
18· ·direction between you and the former trustee, it all
19· ·looks like it, at least, might lead to some discoverable
20· ·evidence.
21· · · · · · · · ·So, I guess, the next thing to do would be
22· ·for you to hire your attorney and --
23· · · · · · · · ·MR. GIBBS:··Well, your Honor --
24· · · · · · · · ·THE COURT:··-- and when she files a motion
25· ·for contempt, if you fail to do this, the next step will
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·1· ·be motion for contempt.
·2· · · · · · · · ·MR. GIBBS:··Well, your Honor, do I not get
·3· ·to the relevance of the information she's trying to get?
·4· ·Does that -- does that not come into the Court, whether
·5· ·this information is relevant or not?
·6· · · · · · · · ·THE COURT:··You can do it for the record,
·7· ·sir, but it seems to me it's rather elementary.··It's
·8· ·relevant.
·9· · · · · · · · ·MS. LEE:··Your Honor, and I also would
10· ·request -- could I please approach the bench.
11· · · · · · · · ·THE COURT:··Why do you think it's not
12· ·relevant?
13· · · · · · · · ·MR. GIBBS:··Well, your Honor, and I'm not a
14· ·lawyer --
15· · · · · · · · ·THE COURT:··I know you're not, that's --
16· · · · · · · · ·MR. GIBBS:··-- but I'm trying to explain to
17· ·you, the things that I have read, what I understood in
18· ·order for this kind of information to be turned over,
19· ·it's got to be relevant to the case.
20· · · · · · · · ·THE COURT:··I believe it is.
21· · · · · · · · ·MR. GIBBS:··Okay.··It's relevant since
22· ·2008?
23· · · · · · · · ·MS. LEE:··That's when the trust was
24· ·created, your Honor.
25· · · · · · · · ·MR. GIBBS:··So --
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·1· · · · · · · · ·THE COURT:··I --
·2· · · · · · · · ·MS. LEE:··And, your Honor, he's had
·3· ·$600,000 of federal tax liens.··I --
·4· · · · · · · · ·THE COURT:··I -- you know, sidebar remarks
·5· ·and -- we don't need the character assassination.··I
·6· ·don't know anything about this gentleman, here.··I just
·7· ·know he got in litigation, you showed me enough to see
·8· ·you should be able to see his bank accounts and tax
·9· ·records.
10· · · · · · · · ·And if he thinks that's not a good idea, he
11· ·needs to bring his attorney in here on or before the
12· ·time your next step would be to file a motion for
13· ·contempt, which --sanctions and contempt.··And just
14· ·because, you know, it's been a long, long time, I don't
15· ·have the paperwork to put somebody in jail, but I did it
16· ·four or five year ago, but probate courts can do that,
17· ·you know, for failure to comply with -- with discovery
18· ·requests and motions to compel.
19· · · · · · · · ·And that's just an FYI.··That's not a
20· ·threat, that just a for-your-information, because a lot
21· ·of people tend to think of these courts as somehow less
22· ·important.
23· · · · · · · · ·MS. LEE:··May I please approach, your
24· ·Honor, I would also like to request the Court, this is a
25· ·form that I'm requesting the Court to ask -- in
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·1· ·conjunction with the tax returns, it's an IRS form 4506,
·2· ·it's just a copy for a tax return, it has my name, where
·3· ·they deliver it, these are the tax years,
·4· ·I -- obviously, my clients will pay the fees for the IRS
·5· ·to deliver the tax return.
·6· · · · · · · · ·Frankly, I'm not going believe if Mr. Gibbs
·7· ·produces a tax return that that was the one that was
·8· ·adequately -- or accurately filed with the IRS.··This is
·9· ·a normal return.··This type of form is what -- in
10· ·litigation, as well as if you want a mortgage on a
11· ·house, and they need to verify the tax return or you
12· ·want a loan, you want anything to do with the bank, this
13· ·is what the bank would file with the IRS to ensure the
14· ·tax return you provided to them was accurate.
15· · · · · · · · ·I'm requesting the Court have Mr. Gibbs and
16· ·his wife sign that and return that to my office.
17· · · · · · · · ·THE COURT:··Mr. Gibbs, I do want to tell
18· ·you that probably, if you were represented by counsel,
19· ·that counsel would want some sort of agreement of
20· ·confidentiality --
21· · · · · · · · ·MS. LEE:··Absolutely.
22· · · · · · · · ·THE COURT:··-- he's entitled, and I
23· ·don't -- you know, to varying degrees of
24· ·confidentiality.··Some stuff that might be only for your
25· ·eyes and some that may or not be for your clients' eyes,
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·1· ·certainly none of it to be disseminated by anyone , but
·2· ·I'm not sure that --
·3· · · · · · · · ·MS. LEE:··I would agree to that, your
·4· ·Honor.··I would like -- if it's just for my eyes only,
·5· ·it doesn't help if -- I mean, I do need to discuss with
·6· ·my clients, maybe may be some of the contents, not the
·7· ·actual numbers.
·8· · · · · · · · ·THE COURT:··I wasn't attempting to impose
·9· ·limited parameters.··I'm stating that if he were here
10· ·with an attorney, that that's probably something you-all
11· ·would work out, in writing some sort of confidentiality
12· ·agreement that meets whatever the exigencies or the
13· ·particular concerns are.
14· · · · · · · · ·MR. HARGRAVE:··Your Honor, as a person
15· ·who's entitled to receive these responses also, I would
16· ·like to make sure that I get a copy of whatever she
17· ·gets.
18· · · · · · · · ·MS. LEE:··Well, that would be up to
19· ·Howard Kirk.··I mean, I think he just said -- would you
20· ·like for this to be confidential?
21· · · · · · · · ·MR. HARGRAVE:··I'm sorry, that wasn't what
22· ·I was discussing.··I was discussing the discovery
23· ·responses --
24· · · · · · · · ·THE COURT:··You're piggy-backing onto her
25· ·motion to compel?
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·1· · · · · · · · ·MR. HARGRAVE:··No, I'm saying if she gets
·2· ·anything -- I know I'm entitled, under the rules, to get
·3· ·a copy of it.
·4· · · · · · · · ·MR. GIBBS:··And, your Honor --
·5· · · · · · · · ·MS. LEE:··I think Howard Kirk should
·6· ·provide that to you.··I don't think I should have to
·7· ·incur the costs of copying documents and providing that
·8· ·to him, unless he would like to pay per copy fee.
·9· · · · · · · · ·THE COURT:··Well, the Court's not going to
10· ·say you're not entitled to it, but the Court's not going
11· ·to determine how that's going to happen today.··Let's
12· ·find out --
13· · · · · · · · ·MR. HARGRAVE:··Okay.
14· · · · · · · · ·MR. GIBBS:··Your Honor, I think it would be
15· ·a lot easier if I had an attorney.··Would the Court
16· ·agree with that?
17· · · · · · · · ·THE COURT:··That's entirely your choice.
18· · · · · · · · ·MR. GIBBS:··No, but --
19· · · · · · · · ·THE COURT:··What I'm telling you is I'm
20· ·going to go ahead and enter orders and that, most
21· ·likely, you need to go find an attorney who's going to
22· ·come here and keep you from being held in contempt in
23· ·the event you do not comply with the request.
24· · · · · · · · ·MR. GIBBS:··Well, your Honor, what I'm
25· ·saying is I would love to have an attorney as well.··But
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·1· ·being as is Ms. Lee has tied up the money for the last
·2· ·seven months that I would be getting from the estate, if
·3· ·I had the money that was in GWB transferred like it
·4· ·should have been, I know Candy is just apparently -- I
·5· ·didn't know the papers were signed and I didn't know
·6· ·Ms. Lee was going to give you the papers to turn over
·7· ·the trusteeship to Candy, but if that's the case,
·8· ·whenever the funds are disbursed, then I will get an
·9· ·attorney.··I've talked to an attorney, but I've got to
10· ·have the money.··They don't go for anything beside
11· ·money, so I wish you --
12· · · · · · · · ·THE COURT:··You have that for the record,
13· ·sir, but we're here on her motion today and so far I've
14· ·found it meritorious.
15· · · · · · · · ·MS. LEE:··I do have somewhat of an order,
16· ·if you want me to fill in -- like, for example, may I
17· ·please request that Howard Kirk fill out that
18· ·document --
19· · · · · · · · ·THE COURT:··Correct.
20· · · · · · · · ·MS. LEE:··-- and then when would that be
21· ·required for him to return that to me, I can write that
22· ·in my order?
23· · · · · · · · ·THE COURT:··What would be your preferred
24· ·time, reasonable -- reasonable time?
25· · · · · · · · ·MS. LEE:··Oh, for that?
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·1· · · · · · · · ·THE COURT:··Uh-huh.
·2· · · · · · · · ·MS. LEE:··Seven days.
·3· · · · · · · · ·THE COURT:··No, better make that 14.
·4· · · · · · · · ·MS. LEE:··14 days, so today is 16th --
·5· · · · · · · · ·THE COURT:··He'll get a chance to find a
·6· ·lawyer and talk to his lawyer.
·7· · · · · · · · ·MS. LEE:··Okay.··So October 30th?
·8· · · · · · · · ·THE COURT:··Yeah.
·9· · · · · · · · ·MS. LEE:··And then to produce -- and going
10· ·on with the documents, your Honor, the number five, are
11· ·phone records, your Honor.··I've -- I've requested phone
12· ·records --
13· · · · · · · · ·THE COURT:··I would just like everything
14· ·else to be due within 30 days and we'll expect his
15· ·attorney will come forward and negotiate additional time
16· ·as needed.
17· · · · · · · · ·MS. LEE:··Okay, November 15th.··Okay.
18· · · · · · · · ·THE COURT:··If not, he needs to deliver
19· ·that to you.··This has been going on long enough.
20· · · · · · · · ·MS. LEE:··Yes, thank you, your Honor.··And
21· ·the other production of documents, there's only two
22· ·other things I want to discuss concerning Ken, the
23· ·responsive documents for production of Kenneth Gibbs,
24· ·would be number 11 and 12.
25· · · · · · · · ·THE COURT:··Yes, ma'am.
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·1· · · · · · · · ·MS. LEE:··11 is to produce all
·2· ·correspondence with Sharron Cox concerning GWB Trust,
·3· ·GBU Trust and this lawsuit.··This is not his attorney,
·4· ·your Honor.··This -- this somebody who -- this was not
·5· ·his attorney.··And I've requested anything, including
·6· ·letters, e-mails and tape recordings and I know he has a
·7· ·tape recording which Sharron Cox was involved, because
·8· ·she was at the hearing that he taped.
·9· · · · · · · · ·And his response is, I do not know of any
10· ·documents that meet that criteria.··I'm unclear as to
11· ·what that means.
12· · · · · · · · ·THE COURT:··Sharron Cox is not his attorney
13· ·today, but was there a point in time when there an
14· ·attorney-client relationship there --
15· · · · · · · · ·MS. LEE:··No, your Honor.
16· · · · · · · · ·MR. HARGRAVE:··No, I think Sharron Cox
17· ·previously represented my client --
18· · · · · · · · ·THE COURT:··Oh, the previous -- oh, yes --
19· · · · · · · · ·MR. HARGRAVE:··Ms. Miller.
20· · · · · · · · ·THE COURT:··Yes, yes.
21· · · · · · · · ·MR. HARGRAVE:··I believe that -- that those
22· ·communications are confidential, because they were
23· ·communications between co-defendants -- possibly
24· ·planning trial strategy and therefore would not be
25· ·discoverable.
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·1· · · · · · · · ·MS. LEE:··But your Honor, he's not an
·2· ·attorney.··He's a layperson.
·3· · · · · · · · ·THE COURT:··He was a layperson who was sent
·4· ·copies -- in other words, anything that was sent to him.
·5· · · · · · · · ·MS. LEE:··And he does have a tape recording
·6· ·and I know he does, because he's quoted that tape
·7· ·recording for a hearing that she was present.
·8· · · · · · · · ·THE COURT:··But he was a pro se party, even
·9· ·though he was -- well, of course, that's not a
10· ·confidentiality.··That's an interesting issue.
11· · · · · · · · ·Now, tell me again what they allegedly are
12· ·and why he would have them.
13· · · · · · · · ·MS. LEE:··I'm asking for anything
14· ·concerning this lawsuit that he has had correspondence
15· ·with Sharron Cox and one of things is a tape
16· ·recording --
17· · · · · · · · ·THE COURT:··And she was never his attorney,
18· ·we know that.
19· · · · · · · · ·MS. LEE:··That is correct, never his
20· ·attorney.··But concerning this specific lawsuit, I would
21· ·like to have the correspondence.··And his answer is, I
22· ·don't know of any documents that meet this criteria.
23· · · · · · · · ·And I don't understand what that means,
24· ·but -- instead of like, I don't have anything.··And
25· ·that's most of his answers for everything, I don't know
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·1· ·of any documents that meet this criteria.
·2· · · · · · · · ·THE COURT:··I'm going to find that answer
·3· ·insufficient and order that he produce any written
·4· ·correspondence that he may have.
·5· · · · · · · · ·MS. LEE:··Okay.
·6· · · · · · · · ·THE COURT:··As well as any alleged tape
·7· ·recording, you put that in your order -- I'm going to
·8· ·sign an order, correct?
·9· · · · · · · · ·MS. LEE:··Yes, your Honor --
10· · · · · · · · ·THE COURT:··And you're going to put exactly
11· ·in the order what it is.
12· · · · · · · · ·MS. LEE:··Yes, your Honor.··I have it right
13· ·here, it says --
14· · · · · · · · ·MR. HARGRAVE:··I'm sorry.··For
15· ·clarification, propounded by either one of them to be
16· ·turned over or just stuff that he asked her -- how do
17· ·you want that, going both ways or how would you do that?
18· · · · · · · · ·THE COURT:··Yes, there's no attorney-client
19· ·privilege between him.
20· · · · · · · · ·MS. LEE:··And then number 12, produce all
21· ·correspondence with Al Barcroft concerning GWB Trust,
22· ·GBU Trust, Pentex Foundation, Pentex Royalty Trust as
23· ·they relate to this lawsuit, including letters, e-mails,
24· ·and tape recordings.
25· · · · · · · · ·And he says, I've misplaced or lost the
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·1· ·letter and after a thorough search, I cannot locate it.
·2· · · · · · · · ·THE COURT:··Well, we'll order him again and
·3· ·if he comes back with the same answer, then, you know,
·4· ·we'll --
·5· · · · · · · · ·MS. LEE:··Okay.
·6· · · · · · · · ·THE COURT:··-- see what happens.··If we
·7· ·find those later, then that could be a matter of
·8· ·perjury.
·9· · · · · · · · ·MS. LEE:··So moving on to admissions.
10· ·Instead of going through each admission, if the Court
11· ·would just bear with me, just with some dates.
12· · · · · · · · ·On May 2nd -- so May 2nd, Howard Kirk Gibbs
13· ·filed his answer, a plea to the jurisdiction, and an
14· ·admission request to my client, Candy, and my client,
15· ·Candy, answered.
16· · · · · · · · ·On May 28th, so about 26 days later, Candy
17· ·served him with his -- with the discovery request.··And
18· ·on June 3rd, Ken served Howard Kirk with a discovery
19· ·request.
20· · · · · · · · ·Then on June 20th, two-and-a-half months
21· ·after this had started and he started discovery, he
22· ·filed a temporary protection order saying I don't --
23· ·please, your Honor, protect me because -- because
24· ·there's a jurisdiction issue and so discovery must be
25· ·suspended.··Well, the case doesn't state, that the case
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·1· ·says that the courts can -- can not allow discovery
·2· ·until a jurisdiction issue, but that doesn't come into
·3· ·play when Howard Kirk already started the discovery
·4· ·process.
·5· · · · · · · · ·He started the discovery process and did
·6· ·not answer, did not provide anything except for the
·7· ·production of documents he did appropriately object to
·8· ·those in a timely manner for Candy.··He doesn't even
·9· ·mention in his protective order, doesn't mention once,
10· ·anything that says, Hey, I don't want to answer the
11· ·interrogatories or the admissions.
12· · · · · · · · ·I sent him a letter, and it's Exhibit D on
13· ·my document, where I explain to him that he effectively
14· ·waived his right to request a suspension of production
15· ·of discovery because he already started it and now he's
16· ·not going to produce anything.
17· · · · · · · · ·Even after the hearing on July 31st, for
18· ·the jurisdiction issue, even after that was heard, I
19· ·still didn't hear from him.
20· · · · · · · · ··So I finally, on August 13th, six weeks
21· ·after it was due, he provides me with astonishing
22· ·admissions.··Now, I do know that he's pro se, but most
23· ·of the admissions are not -- are not even complete.
24· · · · · · · · ·So, your Honor, before I even start going
25· ·through the admissions, Howard Kirk is not someone who
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·1· ·is ignorant at all.··He is very savvy for a pro se, he
·2· ·files lots of documents.··And even though he gets a lot
·3· ·of the case law wrong, he finds some case law that
·4· ·maybe, possibly could be relevant.
·5· · · · · · · · ·This is also an individual who has filed
·6· ·documents with the court for himself in 2004, and he was
·7· ·found guilty of simulating legal processes --
·8· · · · · · · · ·MR. HARGRAVE:··Your Honor, you've already
·9· ·ruled we're not going to have character assassination.
10· · · · · · · · ·MS. LEE:··It's not character assassination.
11· ·I'm trying to tell, your Honor, I want all the
12· ·admissions admitted.··He knew what he was doing.··He did
13· ·not file an appropriate document to this Court.··He does
14· ·not respect the judicial process.··He has shown that
15· ·time and time again.··He's been determined a vexatious
16· ·litigant.
17· · · · · · · · ·It's not to be a character attacking, at
18· ·all.··It's to show his behavior and that this Court
19· ·shouldn't allow him six extra weeks, and he doesn't
20· ·even -- the admissions are pretty much null and void and
21· ·I can go through just some of them to tell you how he
22· ·answered them.··Now, he has agreed to a deposition, so
23· ·at least I can maybe get some of those answers from him
24· ·then.
25· · · · · · · · ·But he knew very well, when he filed the
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·1· ·plea of abatement and plea of jurisdiction on May 2nd,
·2· ·it was his motion, then he filed admissions.··He started
·3· ·discovery that he received from my client.··And then he
·4· ·says, oh, I want to be protected.··Six weeks later, he
·5· ·sends it.
·6· · · · · · · · ·Anybody else, all those would be admitted
·7· ·and I want him to be treated like anybody else.··So I'm
·8· ·asking the Court, first, if he would please admit all
·9· ·his admissions; if not, then we need to go through some
10· ·of them.
11· · · · · · · · ·THE COURT:··Your response to this
12· ·protective order, sir, do you have one?
13· · · · · · · · ·MR. GIBBS:··The protective order?··Your
14· ·Honor, I did what I thought was the best thing to do.
15· ·I've not done this before, so this is kind of new ground
16· ·for me and due to money tied up where I can't hire an
17· ·attorney, I'm kind of in a bad position here.
18· · · · · · · · ·So I'm doing the best I can do and I don't
19· ·know all the legal ramifications on how to read case law
20· ·and how to determine all these things, but I'm doing the
21· ·best I can do, your Honor, and that's all --
22· · · · · · · · ·THE COURT:··Well, you did begin discovery
23· ·and I'm going to agree with her, discovery will not be
24· ·postponed.
25· · · · · · · · ·This has something that Ms. Cox has filed
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·1· ·that they found in the clerk's office, but it doesn't
·2· ·look like it -- it's a motion for continuance from
·3· ·Sharron Cox that doesn't look like it has anything to do
·4· ·with today's hearing.
·5· · · · · · · · ·MS. LEE:··No, your Honor.
·6· · · · · · · · ·MR. HARGRAVE:··This has to do with
·7· ·disgorgement --
·8· · · · · · · · ·THE COURT:··Disgorgement.
·9· · · · · · · · ·MS. LEE:··I would like to say --
10· · · · · · · · ·THE COURT:··I'm not sure that I'm prepared
11· ·or that it's proper for me to, across the board, deem
12· ·all of his admissions admitted.··I do agree if he hasn't
13· ·properly responded, that you may entitled to have it
14· ·deemed admitted.
15· · · · · · · · ·MS. LEE:··Your Honor, I would like to
16· ·reiterate that in his response to my motion to compel,
17· ·he states that the reason he filed the protective order
18· ·is he did not believe he should be a party to this case.
19· · · · · · · · ·Again, I have here, he has substantial
20· ·legal history of filing legal documents with the Court.
21· ·And I think he should be -- if he was anybody else, your
22· ·Honor, it would have been admitted.··One date day late,
23· ·gone to an attorney, it would have been admitted.
24· · · · · · · · ·And I informed him it was going to be
25· ·admitted.··And I was going to ask the Court of this, in
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·1· ·my letter to him, and he still waited six weeks, even
·2· ·after the hearing on July 31st, he still waited another
·3· ·two weeks to comply and this is way after I filed my
·4· ·motion to compel.
·5· · · · · · · · ·MR. HARGRAVE:··I think the solution to this
·6· ·problem is -- is the deposition he's already set to
·7· ·have.··If he has not answered properly, then perhaps
·8· ·everyone of them deemed admitted just by operation of
·9· ·law --
10· · · · · · · · ·MS. LEE:··Your Honor, with all due
11· ·respect --
12· · · · · · · · ·MR. HARGRAVE:··Excuse me.··He can try to
13· ·have undeemed at some point, but I think it's going to
14· ·be resolved.··Any question she has, she can ask at the
15· ·deposition.
16· · · · · · · · ·MS. LEE:··Your Honor, with all due respect,
17· ·I'm not sure that Mr. Hargrave is defending Howard Kirk,
18· ·who's representing himself.
19· · · · · · · · ·THE COURT:··I don't think it's really -- I
20· ·appreciate your attempting to advise the Court, but I
21· ·don't think you can speak for Mr. Gibbs.
22· · · · · · · · ·No, actually, you know, I don't want the
23· ·fact that you waited and gave him more and more time to
24· ·work against you, but I do think the Court's going to
25· ·have to decide -- and I would think she would want to go
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·1· ·into your deposition with these things admitted -- the
·2· ·one's that are admitted are already admitted.
·3· · · · · · · · ·MR. LEE:··Your Honor, can I just go
·4· ·through, briefly, the way he answers his admissions,
·5· ·briefly?··I've got just a few.
·6· · · · · · · · ·THE COURT:··All right.··I'm looking at it.
·7· · · · · · · · ·MS. LEE:··Okay.··For the one for
·8· ·Candy Walton, for example, 21, admit or deny you drove
·9· ·out of state of Texas in August 2004 to collect a check
10· ·for over $500,000 drawn from an account owned by KCH
11· ·Investment.··And he answers, it's beyond my scope of
12· ·knowledge or memory.··He doesn't remember a $500,000
13· ·check that he got?
14· · · · · · · · ·If you -- and those go on.··Like number 43,
15· ·admit or deny -- no, I'll go to 52, admit or deny that
16· ·you established KCH Investments.··And he says, I'm
17· ·unclear as to the meaning of established.
18· · · · · · · · ·Okay.··So he doesn't answer that one.
19· ·These are just few.··Number 66, admit or deny you and
20· ·your wife, Laura, file tax returns each year.
21· ·Objection, privilege and meant for harassment.
22· · · · · · · · ·And doesn't even say, but otherwise admit
23· ·or deny.··He doesn't answer that one.··And they go on
24· ·and on and on.
25· · · · · · · · ·With that being said, your Honor, I've been
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·1· ·informed by other counsel that on occasion,
·2· ·Judge Morrisett has been requested and has served as
·3· ·a maybe -- I don't want to say mediator, but has
·4· ·attended depositions.··And I can foresee a deposition
·5· ·going like this, no, I'm not going to give you that; no
·6· ·that's privileged; no, I don't know; no, I don't
·7· ·remember.
·8· · · · · · · · ·And I was wondering -- and that's why I
·9· ·didn't even bring the interrogatories, because he didn't
10· ·answer those either -- if the Court is not going to
11· ·admit the admissions, instead of going through each one,
12· ·asking him to please admit them or going through a
13· ·failed deposition, and there are so many parties that
14· ·it -- these depositions are not going to be heard until
15· ·the -- until the very end, like two days before our
16· ·discovery is finished, so in December -- the last day to
17· ·do depositions is December 12th and it looks like 9th
18· ·and 10th is going to be days of discovery -- I mean, the
19· ·depositions.
20· · · · · · · · ·So what am I going to do when I got to a
21· ·deposition and all he says is, I don't know or that's
22· ·harassment, I'm not going to answer it?
23· · · · · · · · ·THE COURT:··Well, I guess you could have
24· ·the deposition down here and I could be in my office and
25· ·come out each time and order him to answer or not, I
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·1· ·suppose.
·2· · · · · · · · ·MS. LEE:··That would be great.··If we could
·3· ·do something like that.
·4· · · · · · · · ·THE COURT:··But that's happened before, I'm
·5· ·just -- but I'm just -- but I don't understand, I'm not
·6· ·prepared today to just, I mean, automatically deem all
·7· ·those admitted.
·8· · · · · · · · ·Now, if you want me -- I do agree with you
·9· ·on the one you've brought to my attention, it's past the
10· ·deadline, I don't think that number 21 is a proper
11· ·answer.··But I'm not going to -- I mean, you're either
12· ·going to have to -- we have to --
13· · · · · · · · ·MS. LEE:··If you -- your Honor, I mean, I
14· ·could go through this whole entire document, if you
15· ·agree that we could have it in the courtroom -- if it's
16· ·possible -- not courtroom, but we could have it here and
17· ·if we hit issues, we could ask you or Judge Morrisett to
18· ·assist us --
19· · · · · · · · ·THE COURT:··We do it all the time.··We
20· ·don't do it every day, but I mean it's not something
21· ·that's unheard of.
22· · · · · · · · ·MS. LEE:··Okay.··Then I would be willing to
23· ·post --
24· · · · · · · · ·THE COURT:··But when you do the regular
25· ·notice for deposition, just make sure it's a day you can
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·1· ·use the courtroom.
·2· · · · · · · · ·MS. LEE:··Okay.
·3· · · · · · · · ·THE COURT:··You can have the deposition
·4· ·wherever you want to --
·5· · · · · · · · ·MS. LEE:··I know , your Honor --
·6· · · · · · · · ·THE COURT:··We often have them down here
·7· ·for neutral -- I would rather deal with it in person
·8· ·than on the telephone, you know, and then, otherwise you
·9· ·have to postpone and have the hearing later, whether or
10· ·not the Court's going to order it answered.··And it
11· ·just -- I think makes for much cleaner procedure if you
12· ·do it here.
13· · · · · · · · ·MS. LEE:··Okay.··Your Honor, may I please
14· ·approach, I've taken those admission off, we'll just --
15· · · · · · · · ·THE COURT:··I'm not prepared to do the
16· ·admissions today.
17· · · · · · · · ·But sir, you know, you get these deemed
18· ·admitted against you, Mr. Hargrave's right, it's awfully
19· ·hard to get something undeemed, especially when you've
20· ·chosen to enter into litigation pro se.··And I'm sorry I
21· ·can't help you with -- there's no court appointed
22· ·attorneys in civil litigation, at least not
23· ·for -- unless someone's incapacitated.
24· · · · · · · · ·MS. LEE:··And at the very end, we also,
25· ·again, because we do feel his actions were purposeful to
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·1· ·delay, because that's all they've been trying to do, and
·2· ·we're asking for our attorney fees to be paid to come
·3· ·here, draft these documents, come here in front of this
·4· ·court in order to compel these documents which we're
·5· ·entitled to.
·6· · · · · · · · ·And I can assure you, I only went through
·7· ·two -- I only went through very few documents.··He did
·8· ·provide me some documents, but I could have gone through
·9· ·every single one and these are the ones that are most
10· ·pertinent, just for brevity's sake.
11· · · · · · · · ·MR. GIBBS:··Well, your Honor, I was going
12· ·to bring up another point.··The thing with the federal
13· ·tax lien, the threat that was given to me by e-mail
14· ·yesterday, I'm concerned that anything that I bring
15· ·forth here is going to put me in liability and I want to
16· ·ask the Court if you're going to give me full immunity
17· ·for any information I give over in discovery that
18· ·might be used in a criminal case --
19· · · · · · · · ·THE COURT:··I'm not prepared to grant you
20· ·immunity.··I wouldn't have the authority to do that.
21· ·I'm a county probate judge.
22· · · · · · · · ·MR. GIBBS:··Okay.··If -- you've got that,
23· ·your Honor, then I don't guess I've got any choice but
24· ·I've got to say I need to plead the 5th Amendment, so I
25· ·don't incriminate myself by giving information on a --
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·1· ·if there's a particular thing that's asked, I'm not
·2· ·going to do a blanket fifth, but if there's a particular
·3· ·thing that's asked that I think is going to incriminate
·4· ·myself, I have to choice on that particular question, to
·5· ·take the 5th Amendment.
·6· · · · · · · · ·THE COURT:··Thank you.··That's so noted for
·7· ·the record.··And how much are you seeking in attorney's
·8· ·fees for purposes of this motion to compel?
·9· · · · · · · · ·MS. LEE:··$2,800, your Honor.
10· · · · · · · · ·THE COURT:··How did you arrive at that
11· ·figure?
12· · · · · · · · ·MS. LEE:··I actually did the calculations
13· ·through my own invoices.··And it was little bit more,
14· ·but I didn't compensate for today's hearing or for
15· ·travel time to get to today's hearing.
16· · · · · · · · ·THE COURT:··Would you like to cross-examine
17· ·her on the amount of attorney fees she's seeking for
18· ·this hearing, sir?
19· · · · · · · · ·MS. LEE:··I can produce the invoice, your
20· ·Honor, I can redact the invoices and produce it to him.
21· · · · · · · · ·MR. GIBBS:··Your Honor, I'm not prepared to
22· ·do that.··I -- if she's going to give you the invoices,
23· ·your Honor, that would be fine.
24· · · · · · · · ·MS. LEE:··It will show more than $2,800,
25· ·your Honor, but I will tell you, your Honor, I will
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·1· ·redact some of the information because it is
·2· ·client-attorney privilege.··Are we okay --
·3· · · · · · · · ·THE COURT:··I'm granting the motion to
·4· ·compel and I'm ordering $2,800 in sanctions.
·5· · · · · · · · ·And, sir, all I can tell you is that
·6· ·ultimately you can be stripped of your pleadings and
·7· ·there can be default judgment entered against you in
·8· ·litigation when you either do not meet deadlines or do
·9· ·not answer discovery, again, that's -- that's your
10· ·choice at to what happens in this case, but I strongly
11· ·suggest that you go find counsel, because I presume this
12· ·is not our last courtroom session.
13· · · · · · · · ·Ms. Lee's next step, if she doesn't get
14· ·this or doesn't get all of it, I'm sure will be a motion
15· ·for contempt.
16· · · · · · · · ·This hearing is in recess.··Bailiff, I want
17· ·to make sure you give them all copies of the orders
18· ·which have been signed.··There is one and here is two
19· ·and --
20· · · · · · · · ·MS. LEE:··Your Honor --
21· · · · · · · · ·THE COURT:··-- I believe that's it.
22· · · · · · · · ·MS. LEE:··I think we were going to -- were
23· ·we going to address Al Barcroft's, he filed a --
24· · · · · · · · ·THE COURT:··Special appearance?
25· · · · · · · · ·MS. LEE:··Yes, your Honor.
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·1· · · · · · · · ·THE COURT:··Isn't that his motion to
·2· ·address?
·3· · · · · · · · ·MS. LEE:··Well, and he's not here, but,
·4· ·your Honor, I would like to talk to Court for five
·5· ·minutes, max, on the rule of costs on his -- he filed
·6· ·a --
·7· · · · · · · · ·THE COURT:··We're back on the record.··And
·8· ·there is -- I did see we had one, but isn't it his
·9· ·special appearance, is that not something for him to
10· ·argue --
11· · · · · · · · ·MS. LEE:··Yes, your Honor --
12· · · · · · · · ·THE COURT:··-- were he to appear?
13· · · · · · · · ·MS. LEE:··But he's not appearing.
14· · · · · · · · ·THE COURT:··I know that, but were he to
15· ·come, that would be his argument, not yours.
16· · · · · · · · ·MS. LEE:··I know, your Honor, but I want to
17· ·argue the 143 rule for cost, asking the Court, on its
18· ·own motion, to assess costs.··Mr. Barcroft has provided
19· ·me a 150-page answer, he provided it to me, I believe,
20· ·and the other opposing parties -- or the other parties
21· ·yesterday, stating that, I guess, he does have
22· ·jurisdiction and even argues that having a social life
23· ·and personal life in Texas doesn't give this Court
24· ·jurisdiction, but he's going to go ahead and answer.
25· · · · · · · · ·Mr. Barcroft, 55 pages is written word.··I
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·1· ·mean, he wrote 55 pages, counterclaims, affirmative
·2· ·defenses, and change of venue, motion to transfer venue.
·3· ·But most importantly, your Honor, he is -- as you can
·4· ·see from this Court, we have had a plea of abatement
·5· ·filed by Howard Kirk and it was denied; we've had a
·6· ·motion to abate by Beverly Miller, it was denied; we've
·7· ·had Howard Kirk file a motion to disqualify me as the
·8· ·attorney saying there's conflict of interest.··We've had
·9· ·the case being transferred over here from Tarrant
10· ·County , but they're doing everything they can to stop
11· ·that.
12· · · · · · · · ·And then as of yesterday, Al Barcroft
13· ·stated that he's going to add me as a third party
14· ·defendant, as all of this is my fault.··If he files
15· ·that, your Honor, there is -- I can't represent
16· ·individuals.··They have tried everything they can to
17· ·abate this case.
18· · · · · · · · ·So Rule 143 states that a party seeking
19· ·affirmative relief -- and he informed me through
20· ·multiple e-mails, that he kept sending me, that he wants
21· ·$3.1 million from me, that this Court can rule security
22· ·for costs at any time, for the cost of -- for costs that
23· ·could be incurred for hearings.··And this Court can rule
24· ·on it on its own motion.
25· · · · · · · · ··And, your Honor, I have, just by Googling
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·1· ·Al Barcroft and not doing any major research, I have
·2· ·these cases, Barcroft versus Commissioner of IRS, 1999,
·3· ·and it states, quote/unquote, his arguments are
·4· ·meritless, comma, indeed, comma, they are frivolous.
·5· · · · · · · · · ·Then I have In re: A purported judgment
·6· ·lien against Al Barcroft, 2001, same thing.··Al Barcroft
·7· ·versus Paul O'Neill, 2002, same thing, Al Barcroft
·8· ·versus County of Fannin and State, 2003.··And that was
·9· ·concerning that he was a republic form of government and
10· ·he's one of the sovereign American people and that was
11· ·dismissed.··U.S. versus Barcroft, same thing, 2008, he's
12· ·a sovereign immunity.
13· · · · · · · · ·I have 55 written pages, out of this, and
14· ·going to sue me, third party, as he states all this is
15· ·myself.··Not quite sure how I can be a third-party
16· ·defendant, but I would like the Court to consider, and
17· ·I've really briefly drafted an order for rule of costs,
18· ·because I can assure you, you think this is bad, the
19· ·pleadings are just going to be outrageous, that are
20· ·going to come down.··He's already sent me a not saying I
21· ·want to depose you --
22· · · · · · · · ·MR. HARGRAVE:··This doesn't involve you.
23· · · · · · · · ·THE COURT:··I was going to say, it isn't on
24· ·the docket.
25· · · · · · · · ·MS. LEE:··Well, because this just happened
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·1· ·yesterday.··This just happened and he filed an answer.
·2· · · · · · · · ·THE COURT:··Yeah, and his motion --
·3· · · · · · · · ·MS. LEE:··No, the answer, your Honor --
·4· · · · · · · · ·THE COURT:··The special appearance was on
·5· ·the docket for today.
·6· · · · · · · · ·MS. LEE:··Yes, your Honor.
·7· · · · · · · · ·THE COURT:··He did not appear to argue it.
·8· · · · · · · · ·MS. LEE:··Correct.··So in my special
·9· ·appearance, your Honor, everything -- I have proved that
10· ·everything he has said in his special appearance is not
11· ·true.··Like, for example, he was here in your Court
12· ·January 7th.··He states in here, I haven't been to Texas
13· ·in six years.··But in here -- I'm telling you and I have
14· ·proof, he was here January 7th, in your courtroom,
15· ·sitting back there, because he wanted an accounting
16· ·concerning the estate of Bert Gibbs.
17· · · · · · · · ·And in his answer here, he talks about the
18· ·jurisdiction.··And he does state that, yes, he admits
19· ·he's been in Texas, but having a social and personal
20· ·life in Texas doesn't give the court jurisdiction over
21· ·me.
22· · · · · · · · ·This is a guy who has -- and I've got
23· ·copies for, your Honor, continued issues with the
24· ·government, he files frivolous lawsuits, and I would
25· ·like the Court to consider a rule for costs
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·1· ·because -- and we want a cash money deposited into the
·2· ·county clerk, because if it's a bond, we'll never see
·3· ·that money.··I mean, he's Guatemala.
·4· · · · · · · · ·And he's served counterclaims and now if
·5· ·there is going to be a third-party defendant against me,
·6· ·then after all of these pleadings out there and
·7· ·everybody has fought to abate this case, it's going to
·8· ·potentially be abated until there can be a summary
·9· ·judgment ruled by this Court.
10· · · · · · · · ·THE COURT:··Ms. Lee, I think you're getting
11· ·ahead of yourself.··I know what motions for costs are
12· ·and, you know, I don't think that I'm going to do that
13· ·sua sponte.··I think you have a right to file motion for
14· ·security of costs, but I'm not prepared to do that
15· ·today.
16· · · · · · · · ·You know, there is a -- this Court has the
17· ·ability to have somebody -- there's a whole process for
18· ·deeming somebody a vexatious litigant.··The other
19· ·court's done that, I haven't done that yet.··I guess I
20· ·could learn, if I have to.
21· · · · · · · · ·That's all we're going to do for today.
22· · · · · · · · ·MS. LEE:··Thank you.
23· · · · · · · · ·THE COURT:··If you want to take that cost
24· ·matter up, you need to get that before the Court at
25· ·another time.
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70
1 THE STATE OF TEXAS)
2 COUNTY OF TARRANT)
3 I, Ashlee Wells, Official Court Reporter in and for
4 the Probate Court No. 2 of Tarrant County, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record, in the
10 above-styled and -numbered cause, all of which occurred
11 in open court or in chambers and were reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14 exhibits, if any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $ and
17 was paid/will be paid by Mr. Daniel Barrett .
18 WITNESS MY OFFICIAL HAND this the 11th day of
19 March, 2015.
20
21 ASHLEE WELLS, Texas CSR 8684
Expiration Date: 12/31/15
22 Official Court Reporter,
Probate Court No. 2
23 Tarrant County, Texas
24
25
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· · · · · · · · · · ··REPORTER'S RECORD
· · · · · · · · · ··VOLUME 1 OF 1 VOLUMES
· · · · · ··TRIAL COURT CAUSE NO. 2005-0000126-2-D
· ·
· ·
· · · · · · · · · · · · · · · ··)
· · ·IN RE: ESTATE OF BERT· · ··) IN THE PROBATE COURT
· · ·HUGHES GIBBS, DECEASED;· ··)
· · · · · · · · · · · · · · · ··)
· · ·CANDACE WALTON AND· · · · ·)
· · ·KENNETH GIBBS,· · · · · · ·)
· · · · · · · · · · · · · · · ··)
· · · · · · ·Plaintiffs,· · · ··)
· · · · · · · · · · · · · · · ··)
· · ·VS.· · · · · · · · · · · ··) COURT NO. 2
· · · · · · · · · · · · · · · ··)
· · ·BEVERLY MILLER,· · · · · ··)
· · ·INDIVIDUALLY, AND AS· · · ·)
· · ·TRUSTEE OF THE GWB· · · · ·)
· · ·FRIENDS AND FAMILY TRUST,··)
· · ·ALBERT BARCROFT,· · · · · ·)
· · ·INDIVIDUALLY AND AS LEGAL··)
· · ·REPRESENTATIVE OF PENTEX· ·)
· · ·ROYALTY TRUST AND PENTEX· ·)
· · ·FOUNDATION, DANNY UNGER,· ·)
· · ·AS TRUSTEE OF GBU FRIENDS··)
· · ·AND ASSOCIATES TRUST, AND··)
· · ·HOWARD KIRK GIBBS,· · · · ·)
· · · · · · · · · · · · · · · ··)
· · · · · · ·Defendants.· · · ··) TARRANT COUNTY, TEXAS
· ·
· ·
· · · · · · · · · · · · · ··*****
· · · · · · · · · · ·***MOTION HEARING***
· · · · · · · · · · · · · ··*****
· ·
· · · ··On the 27th day of February, 2015, the following
· ·
· ·proceedings came on to be heard in the above-entitled
· ·
· ·and numbered cause before the Honorable Patrick
· ·
· ·Ferchill, Judge presiding, held in Fort Worth, Tarrant
· ·
· ·County, Texas;
· ·
· ·
· ·
· · · ··Proceedings reported by machine shorthand.
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·1· · · · · · · · · · ·A P P E A R A N C E S
· ··
·2· ·
· ··
·3· ··Ms. Christy Lee· · · · · · ··Mr. James Ravsten
· ···Attorney at Law· · · · · · ··BAKUTIS & MCCULLY
·4· ··SBOT NO. 24052302· · · · · ··SBOT NO. 24046683
· ···225 East Fireweed Lane· · · ·500 West 7th Street
·5· ··Suite 200· · · · · · · · · ··Suite 725
· ···Anchorage, Alaska 99503· · ··Fort Worth, Texas 76102
·6· ··Phone:··(907) 339-9931· · · ·Phone:··(817) 335-2208
· ···ATTORNEY FOR PLAINTIFFS· · ··ATTORNEY FOR DEFENDANT
·7· · · · · · · · · · · · · · · · ·ALBERT BARCROFT
· ··
·8· ·
· ··
·9· ·
· ···Mr. Daniel Barrett
10· ··TAYLOR, OLSON, ADKINS,
· ···SRALLA, ELAM
11· ··SBOT NO. 01810400
· ···6000 Western Center Place
12· ··Suite 200
· ···I-30 at Bryant Irvin Raod
13· ··Fort Worth, Texas 76107
· ···Phone:··(817) 332-2580
14· ··ATTORNEY FOR DEFENDANT
· ···HOWARD KIRK GIBBS
15· ·
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·1· · · · · · · · · · · · · ·I N D E X
· ·· · · · · · · · · · · · ·VOLUME 1
·2· · · · · · · · · · · ·(MOTION HEARING)
· ·· · · · · · · · · · · · · · · · · · · · · · ·Page· ·Vol.
·3· ·
· ···FEBRUARY 27, 2015
·4· ·
· ···Announcements. . . . . . . . . . . . . .· · ·4· · ··1
·5· ·
· ··
·6· ··Opening statement by Mr. Barrett . . . .· · ·6· · ··1
· ···Response by Ms. Lee. . . . . . . . . . .· · ·17· · ·1
·7· ·
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·8· ·
· ···Court's Ruling on Motion to Reconsider. .· ··25· · ·1
·9· ·
· ···Court's Ruling on Motion to Quash and
10· ··Motion for Protective Order . . . . . . .· ··67· · ·1
· ··
11· ··Adjournment . . . . . . . . . . . . . . .· ··72· · ·1
· ··
12· ··Court Reporter's Certificate. . . . . . .· ··73· · ·1
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·1· · · · · · · · · ··P R O C E E D I N G S
·2· · · · · · · · ·THE COURT:··Good morning and please be
·3· ·seated.··Let's get everybody on the record first,
·4· ·beginning with you, ma'am.
·5· · · · · · · · ·MS. LEE:··Yes, your Honor.··Christy Lee for
·6· ·Candace Walton and Kenneth Gibbs, plaintiffs.
·7· · · · · · · · ·MR. BARRETT:··Dan Barrett for Howard Gibbs,
·8· ·one of the defendants.
·9· · · · · · · · ·MR. RAVSTEN:··James Ravsten, I'm here for
10· ·Michael Wiist, who represents Mr. Al Barcroft.
11· · · · · · · · ·THE COURT:··Does the -- I see we have a
12· ·number of things here.··What is -- does anybody wish to
13· ·suggest what we might take up first?
14· · · · · · · · ·MS. LEE:··Yes, your Honor.··We -- that
15· ·motion to distribute assets, may I please approach?
16· · · · · · · · ·THE COURT:··Yes.
17· · · · · · · · ·MS. LEE:··We have agreed, surprisingly, but
18· ·we have agreed --
19· · · · · · · · ·THE COURT:··Well, when it comes to money.
20· · · · · · · · ·MS. LEE:··The order, if you see the back of
21· ·the order, your Honor, the three parties, we have agreed
22· ·and everybody else has been notified of the motion, as
23· ·well as the hearing, they're not here to oppose it and
24· ·this is to distribute the assets, so we ask the Court to
25· ·please enter a ruling.
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·1· · · · · · · · ·THE COURT:··No problem.
·2· · · · · · · · ·MR. BARRETT:··That's right.
·3· · · · · · · · ·MS. LEE:··And, your Honor, just to let you
·4· ·know, I think that will alleviate any other motions to
·5· ·distribute for a while.
·6· · · · · · · · ·MR. BARRETT:··Yeah, that's --
·7· · · · · · · · ·THE COURT:··This is -- are we distributing
·8· ·seven figures, so to speak?
·9· · · · · · · · ·MS. LEE:··No, your Honor, it's just to
10· ·continue the administration of -- I'll keep this -- it's
11· ·just to continue the administration of the trust, as
12· ·well as some -- Scott Smith, according to the oil and
13· ·gas companies, had called and caused some issues with
14· ·the oil and gas royalties to GWB Trust, so some of the
15· ·oil and gas companies had suspended the royalties, but
16· ·they have released them and this order is just to
17· ·protect them.··We all agree GWB Trust assets aren't in
18· ·dispute.
19· · · · · · · · ·THE COURT:··Fine. So what are we going to
20· ·dispute today?
21· · · · · · · · ·MR. BARRETT:··Judge, I think we have the
22· ·motion to reconsider and the motion to quash and for
23· ·protective order.
24· · · · · · · · ·THE COURT:··Want to take the motion to
25· ·reconsider first?
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·1· · · · · · · · ·MR. BARRETT:··Yes, your Honor, if we might.
·2· ·And I'm going apologize to the Court in advance, I'm a
·3· ·bit under the weather and --
·4· · · · · · · · ·THE COURT:··Well, you may be seated.··You
·5· ·may do this however you're more comfortable, standing,
·6· ·seated, or some of both, sir.
·7· · · · · · · · ·MR. BARRETT:··I'm afraid if I sit, I may
·8· ·not get back up, Judge.
·9· · · · · · · · ·THE COURT:··Well, if you decide you need to
10· ·take a break, just speak up, please.
11· · · · · · · · ·MR. BARRETT:··I think, your Honor, the
12· ·easiest way and quickest way to approach this -- well,
13· ·first of all, I would ask the Court that the Court take
14· ·judicial notice of the contents of its file in this
15· ·case, so that we can discuss those documents without --
16· · · · · · · · ·THE COURT:··Thank you.··There being no
17· ·objection, the Court will do so.
18· · · · · · · · ·MR. BARRETT:··And I have documents --
19· · · · · · · · ·MS. LEE:··Thanks.
20· · · · · · · · ·MR. BARRETT:··The first document in the
21· ·packet that I've just handed the Court, your Honor, is a
22· ·copy of selected pages from the plaintiffs' original
23· ·petition that was filed in this case.··It is selected
24· ·pages, because it includes only the face sheet of the
25· ·document and then pages 22 through the end of the
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·1· ·document, 25, which encompass the plaintiffs' prayer for
·2· ·relief and the relief being sought in the action.
·3· · · · · · · · ·The reason for highlighting this document
·4· ·is to illustrate to the Court that in that document, the
·5· ·only relief requested with respect to monetary damages
·6· ·is set out under paragraph Roman Numeral VII on page 24
·7· ·in paragraph number 73.··And as you can see, what is
·8· ·requested in that paragraph is damages, simply, quote,
·9· ·the loss of at least $250,000.
10· · · · · · · · ·The next document in the packet is simply a
11· ·copy of Texas Rules of Civil Procedure Rule 47, which
12· ·was amended in 2013.··Rule 47, obviously, has been
13· ·around a long time -- sorry -- but Rule 47 as amended
14· ·and as applicable to the matter at hand, is a mandatory
15· ·self-effectuating rule, your Honor.··It is mandatorily
16· ·phrased and says that the pleading of the plaintiff
17· ·shall contain various things.
18· · · · · · · · ·And in subparagraph (c), says that except
19· ·in suits governed by the Family Code, the pleading shall
20· ·contain a statement that the party seeks, and then there
21· ·are various options there setting out a range of damages
22· ·that have to be specified by the plaintiff.
23· · · · · · · · ·If you go to the second page, subsection
24· ·(d), the -- the self-effectuating part of this says that
25· ·a party -- excuse me -- a party that fails to comply
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·1· ·with subsection (c) may not conduct discovery until the
·2· ·party's pleading is amended to comply.
·3· · · · · · · · ·And now, I say that it's
·4· ·"self-effectuating," Judge, in that it does not require,
·5· ·as some other portions of Rule 47 do, as you know,
·6· ·require the defendant to bring forward a special
·7· ·exception in order to -- in order to invoke the
·8· ·provisions.
·9· · · · · · · · ·This portion of the rule does not require
10· ·any special exception and it simply says that the
11· ·party -- the plaintiff requesting relief, if they do not
12· ·have the statement that is required by subsection (c),
13· ·then that party may not conduct discovery until the
14· ·party's pleading is amended to comply.
15· · · · · · · · ·The next document in the packet is simply a
16· ·copy of the order in this case.··What happened was that
17· ·the plaintiff did forward some discovery, Mr. Gibbs, who
18· ·was pro se at the time, as you know, filed some sort of
19· ·response, I think there was some objections to responses
20· ·and whatnot, and then the plaintiffs filed a motion to
21· ·compel additional responses.
22· · · · · · · · ·The Court held a hearing in October, on
23· ·October 16, 2014, during which time the plaintiffs' live
24· ·pleading was the original petition, which did not
25· ·contain the statement required by Rule 47.
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·1· · · · · · · · ·And the Court, in that hearing, entered the
·2· ·order that is included as the next -- as the next
·3· ·document in the packet.··And that order was signed on
·4· ·the 16th of October, 2014, before any amendment by -- by
·5· ·the plaintiff.
·6· · · · · · · · ·The next packet -- the next document of the
·7· ·packet is simply the face sheet and the certificate of
·8· ·service sheet of the amended pleading in this case.
·9· · · · · · · · ·THE COURT:··Right.
10· · · · · · · · ·MR. BARRETT:··It is this amended pleading
11· ·that was filed on December 22, some two months after the
12· ·order that we're here to talk about.··And that amended
13· ·pleading is the one that did comply with Rule 47 and
14· ·because it did comply with Rule 47, the plaintiff was
15· ·then free to conduct its discovery.
16· · · · · · · · ·Now, the next document in the packet is a
17· ·copy of the opinion from the Edinburg Court of Appeals,
18· ·Corpus Christi Court of Appeals in the Greater McAllen
19· ·Star Properties case, in which this very provision and
20· ·the operation of the provision of Rule 47 that we're
21· ·talking about was discussed and the parameters outlined.
22· · · · · · · · ·And this case, while it -- it also dealt
23· ·with a lot of other things, but what the case holds, and
24· ·I have highlighted the appropriate holdings back at the
25· ·end of the case.··What the case holds is that Rule 47
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·1· ·means exactly what it says that it means and that
·2· ·discovery cannot be conducted before the pleading is
·3· ·amended to comply with Rule 47.··It also holds that it's
·4· ·not necessary for the plaintiff the re-propound any
·5· ·discovery that was propounded during the time when
·6· ·Rule 47 prevents or prohibits discovery from being
·7· ·conducted.
·8· · · · · · · · ·And so by application of the law as
·9· ·explained in the Greater McAllen case, as applied to
10· ·this case, no discovery that was propounded by the
11· ·plaintiffs before December 22nd was proper, but they did
12· ·not have to re-propound -- and what happened on
13· ·December 22nd when counsel -- excuse me -- when Ms. Lee
14· ·filed the amended petition, was that from that point
15· ·forward, then the -- whatever parties had received
16· ·discovery earlier in the case, that's when their time
17· ·period began to run.
18· · · · · · · · ·THE COURT:··Okay.
19· · · · · · · · ·MR. BARRETT:··The effect of all this, your
20· ·Honor, is that the order of October 16th that we have
21· ·requested the Court to reconsider and set aside is an
22· ·order -- I'm sorry -- is an order that compels Mr. Gibbs
23· ·to answer discovery and imposes sanctions against
24· ·Mr. Gibbs for failure to answer discovery that the
25· ·plaintiffs were not authorized to promulgate or to
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·1· ·propound.
·2· · · · · · · · ·So what happened after the discovery was
·3· ·authorized on December 22nd is, now amended answers, or
·4· ·amended responses to the discovery have been -- excuse
·5· ·me -- have been sent and served upon plaintiffs'
·6· ·counsel.··They are not without controversy.··We have
·7· ·propounded objections --
·8· · · · · · · · ·MS. LEE:··To everything.
·9· · · · · · · · ·MR. BARRETT:··Not quite everything, but
10· ·several objections, your Honor.
11· · · · · · · · ·And plaintiffs have now filed a motion to
12· ·bring those objections to the Court -- before the Court
13· ·for ruling at an appropriate time.··But what we're
14· ·asking is that the Court set aside the order that --
15· ·that essentially imposed sanctions and compelled
16· ·responses to discovery that the plaintiffs had no
17· ·authority to propound.
18· · · · · · · · ·THE COURT:··And it's your contention that
19· ·the Court's 30 day plenary power doesn't have anything
20· ·to do with this particular order?
21· · · · · · · · ·MR. BARRETT:··Absolutely not.
22· · · · · · · · ·THE COURT:··And how is that?
23· · · · · · · · ·MR. BARRETT:··Because the plenary power
24· ·concept of the court only applies, your Honor, when the
25· ·court acts to divest itself of jurisdiction of a pending
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·1· ·action.··The court, while the action is still pending
·2· ·in the court, can -- while the action is still pending
·3· ·in the court, can reconsider anything that it has done
·4· ·at any point in the past.
·5· · · · · · · · ·The discussion that we had here last week,
·6· ·there was some confusion about that --
·7· · · · · · · · ·THE COURT:··There is, to me, because of the
·8· ·probate -- of course, we're not under the Probate Code,
·9· ·with it's bill of review, we're under Civil Procedure.
10· · · · · · · · ·MR. BARRETT:··This is Civil Procedures.
11· ·This is a case under the Rules of Civil Procedure.
12· · · · · · · · ·And with respect to the Texarkana court and
13· ·what happened up in Fannin County, when -- when the
14· ·Fannin County court ruled that the motion to transfer
15· ·venue, that Ms. Lee had filed, should be granted and
16· ·said it's granted --
17· · · · · · · · ·THE COURT:··Okay.
18· · · · · · · · ·MR. BARRETT:··-- what that did is it had
19· ·the effect of divesting that court over its jurisdiction
20· ·over that action and saying it should be transferred to
21· ·Tarrant County, which would then become the proper court
22· ·of venue and jurisdiction.
23· · · · · · · · ·Since the judge, in acting to divest itself
24· ·of jurisdiction, did not reconsider that within the 30
25· ·day plenary power --
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·1· · · · · · · · ·THE COURT:··Right.··Okay.
·2· · · · · · · · ·MR. BARRETT:··-- it had no power to do
·3· ·so --
·4· · · · · · · · ·THE COURT:··I agree.··And so the court of
·5· ·appeals said so.
·6· · · · · · · · ·MR. BARRETT:··And that's exactly what the
·7· ·court of appeals said.
·8· · · · · · · · ·THE COURT:··Okay.
·9· · · · · · · · ·MR. BARRETT:··And so -- but the point is
10· ·that whenever a court retains -- if that court had
11· ·retained its authority over that action and denied the
12· ·motion to transfer, it could be reconsidered at any time
13· ·up until a final judgement or other order divesting the
14· ·court of power over the case was signed.
15· · · · · · · · ·THE COURT:··Okay.··Well, then let me ask
16· ·you this, of course, if you had Mr. Gibbs' lawyer,
17· ·perhaps, at that point in this saga, I'm sure you would
18· ·have brought up, if indeed, this is a legitimate
19· ·objection, you would have brought it up at the time and
20· ·the Court would have considered it timely.··It seems
21· ·that Mr. Gibbs gets two bites of the apple of his own --
22· ·of his own choosing.
23· · · · · · · · ·MR. BARRETT:··But, your Honor, that sounds
24· ·similar to a waiver argument in saying that he perhaps
25· ·waived his objection under Rule 467.
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·1· · · · · · · · ·THE COURT:··No, he chose to represent
·2· ·himself after the, you know, the appropriate admonitions
·3· ·and cautionary advice given to him by the Court.··And I
·4· ·told him he was subject to all Rules of Civil Procedure
·5· ·and all Rules of evidence and it was his -- it was his
·6· ·choice.
·7· · · · · · · · ·MR. BARRETT:··I understand that, your
·8· ·Honor --
·9· · · · · · · · ·THE COURT:··Okay.··So now we're going to go
10· ·back and revisit it, because he wasn't a lawyer and
11· ·didn't bring it up at the time?
12· · · · · · · · ·MR. BARRETT:··No, your Honor, with all due
13· ·respect, we're going back to visit because the
14· ·plaintiffs did not comply with Rule 47 when they filed
15· ·their original petition.··And therefore, the
16· ·self-effectuating sanction, if you will, in Rule 47 says
17· ·that because they did not file the correct petition,
18· ·they cannot conduct discovery.··They have no authority
19· ·to do so.··It's --
20· · · · · · · · ·THE COURT:··And just for the record, and
21· ·take me through this, what is the defect you see in
22· ·the -- in regard to subsection (c)?
23· · · · · · · · ·MR. BARRETT:··Subsection (c) says --
24· · · · · · · · ·THE COURT:··Because she says, at least
25· ·250,000, is that the --
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·1· · · · · · · · ·MR. BARRETT:··Yes, your Honor, subsection
·2· ·(c) says -- if I can find my copy.
·3· · · · · · · · ·THE COURT:··Uh-huh.··I'm looking.
·4· · · · · · · · ·MR. BARRETT:··That it shall contain --
·5· · · · · · · · ·THE COURT:··Right.
·6· · · · · · · · ·MR. BARRETT:··-- the petition shall
·7· ·contain --
·8· · · · · · · · ·THE COURT:··Right.··Fair notice --
·9· · · · · · · · ·MR. BARRETT:··-- that the claim is only
10· ·monetary relief of a hundred thousand or less or
11· ·monetary relief of 100,000 or less and nonmonetary
12· ·relief, or if over a hundred thousand, a range, a
13· ·hundred thousand to 200,000, 200,000 to one million, or
14· ·monetary relief over one million.
15· · · · · · · · ·Those ranges set by the Supreme Court when
16· ·it promulgated the Rules of Civil Procedure, mean
17· ·exactly what they say.··The petition has to say one of
18· ·those things.··Saying that it's a claim for at least
19· ·$250,000 does not meet the requirements of Rule 47.
20· · · · · · · · ·And the Greater McAllen --
21· · · · · · · · ·THE COURT:··Well, so you're saying this
22· ·rises to quote/unquote statutory wording, I mean, we can
23· ·just put quotation marks around say subsection four and
24· ·that exact phrase has to be in the petition and that in
25· ·any way substituting or saying it a different -- a
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·1· ·different way, is some sort of defect?
·2· · · · · · · · ·MR. BARRETT:··Absolutely.··And the reason
·3· ·for that, your Honor, is --
·4· · · · · · · · ·THE COURT:··How can the loss of at least
·5· ·$250,000 not fit with in subsection four, monetary
·6· ·relief over 250,000, but not more than a million?
·7· · · · · · · · ·MR. BARRETT:··Because it might be more than
·8· ·a million.··At least $250,000 could be more than a
·9· ·million.··We don't know what that means.
10· · · · · · · · ·And whether it's -- whether the Supreme
11· ·Court was committing sophistry or whatever when it
12· ·promulgated Rule 47 -- the amendments to Rule 47, it's
13· ·up to us to comply with that.··I don't know what their
14· ·reason was, but their reasoning is clearly revealed by
15· ·the reading of the -- I keep wanting to say statute, but
16· ·of the rule.
17· · · · · · · · ·THE COURT:··Of course, it does say, may not
18· ·conduct discovery, didn't say, shall not.··Does that not
19· ·give some wiggle room?
20· · · · · · · · ·MR. BARRETT:··I think not, your Honor.
21· · · · · · · · ·THE COURT:··Okay.
22· · · · · · · · ·Well, without taking away from your
23· ·argument and knowing that you'll have a chance to speak
24· ·again, may I hear from Ms. Lee?··I know she's going to
25· ·have the opposite opinion.
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·1· · · · · · · · ·MS. LEE:··Yes, your Honor.··And first let
·2· ·me --
·3· · · · · · · · ·THE COURT:··But take me through it from
·4· ·your point of view.
·5· · · · · · · · ·MS. LEE:··The very first important thing I
·6· ·would like to point out to the Court, the sanctions that
·7· ·were handed down to Howard Kirk on that day was not
·8· ·because of all the shenanigans that he did, which he
·9· ·did, and I could go through a big, long list of not
10· ·complying with the discovery.
11· · · · · · · · ·It was because of his behavior.··He was
12· ·rude, he was in inappropriate. If you recall, he sat
13· ·here and asserted the Fifth Amendment right and started
14· ·reading -- and this is Fifth Amendment and I'm not going
15· ·to -- and when you told him he had to produce these
16· ·documents, he stated, I will not.··And you said, if you
17· ·don't, I'm going to file contempt charges against you.
18· · · · · · · · ·And he was incredibly inappropriate to this
19· ·Court.··That's why the sanctions were handed down.··Not
20· ·because he started -- let's just go back.··He started
21· ·discovery.··He was the very first person in this entire
22· ·lawsuit who served discovery upon my clients.··He did
23· ·that on May 2nd, which my clients complied, which my
24· ·clients gave him discovery, he filed a protective order
25· ·and said, you know, jurisdiction and venue need to be
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·1· ·heard first, even though he had started discovery and
·2· ·received our discovery.··We gave it to him.··He never
·3· ·objected, he didn't come in front of this Court.
·4· · · · · · · · ·THE COURT:··That's true.
·5· · · · · · · · ·MS. LEE:··Then we had the jurisdiction and
·6· ·venue hearing, and you invoked jurisdiction and venue.
·7· ·And did he answer?··No, he did not.
·8· · · · · · · · ·So we had to file a motion to compel.··Six
·9· ·weeks late, we got a motion -- he finally gave us the
10· ·information.··His admissions were six weeks late.··And
11· ·because he was pro se and even though this Court
12· ·shouldn't give leniency, nor myself, I only picked very
13· ·specific documents.
14· · · · · · · · ·I picked five requests out of all requests
15· ·and he gave me almost no documents.··I picked five.
16· ·This Court ruled that he was to give me those five types
17· ·of documents, which I'm going to go through.
18· · · · · · · · ·So then we had -- so we had the hearing.
19· ·The day the documents were due, the day, he files an
20· ·entry of appearance -- the day before he files an entry
21· ·of appearance, and that day when the documents were due,
22· ·he filed a motion to reconsider.
23· · · · · · · · ·On the motion to reconsider, your Honor,
24· ·there was one thing that Mr. Barrett stated and that was
25· ·we're not giving the documents due to my client's right
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·1· ·to privacy.··I didn't even understand his document.··I
·2· ·even had to send him an e-mail and say, so you're not
·3· ·going to give me anything?··He said, no.
·4· · · · · · · · ·It wasn't until February 13th that
·5· ·he -- I'm sorry, your Honor, it was February 12th that
·6· ·he asserts the Rule 47.
·7· · · · · · · · ·MR. BARRETT:··Actually, that's not true.
·8· · · · · · · · ·MS. LEE:··Is it not true?
·9· · · · · · · · ·MR. BARRETT:··No, it was in the additional
10· ·authority that we filed --
11· · · · · · · · ·MS. LEE:··Okay.··If Mr. Barrett says there
12· ·was additional authority, then I do believe him, but
13· ·from what I have, it wasn't until very recently that he
14· ·asserts this Rule 47.··And if he states it was before
15· ·that, I --
16· · · · · · · · ·MR. BARRETT:··I think it was the date of
17· ·our -- the first hearing that I
18· ·appeared -- December 4th --
19· · · · · · · · ·MS. LEE:··Okay, so December 4th.··So
20· ·October 16th, he files a motion to reconsider, only
21· ·concerning the invasion, that it's not the right to
22· ·privacy, which for bank records and phone records and
23· ·communication between Al Barcroft, which, by the way, he
24· ·asserts attorney-client privilege with anything
25· ·concerning Al Barcroft.
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·1· · · · · · · · ·So Howard Kirk being pro se and starting
·2· ·discovery himself, he waived and forfeited his own right
·3· ·to assert a Rule 47.··I mean, he -- I have it here.
·4· ·It's here where he started discovery and now they want
·5· ·to say, oh, we're not going to give it.
·6· · · · · · · · ·But if Mr. Barrett would like, we can go
·7· ·through everything that they object to and we can get
·8· ·another ruling today, but again, I want to reiterate the
·9· ·sanctions were not because of his behavior with the --
10· ·with not filing documents on time, which he wasn't
11· ·doing.
12· · · · · · · · ·And, your Honor, I don't believe this Court
13· ·would have allowed an individual who's represented by an
14· ·attorney to be six weeks late and allow them to amend
15· ·their admissions, which, by the way, your Honor, out of
16· ·over a hundred admissions, I believe only two were
17· ·actually answered, everything else was objected to,
18· ·attorney-client privilege, work product for his own
19· ·client.
20· · · · · · · · ·So if Mr. Barrett would like, I definitely
21· ·want the sanctions to be upheld, because it was because
22· ·of his behavior.··But let's go through all of discovery
23· ·that has been amended, so I can actually get documents.
24· · · · · · · · ·Your Honor, all we're asking for -- all we
25· ·asked for was bank records from January 1, phone
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·1· ·records -- I mean, I'm sorry, bank records to 2008,
·2· ·phone records from beginning of 2012, his tax returns --
·3· · · · · · · · ·THE COURT:··Right --
·4· · · · · · · · ·MR. BARRETT:··-- theft --
·5· · · · · · · · ·THE COURT:··Which he objected to, but --
·6· · · · · · · · ·MS. LEE:··And he said.
·7· · · · · · · · ·THE COURT:··-- he's part of litigation.
·8· ·Tax returns are relevant it's not a fishing expedition.
·9· ·In fact, this is the type of suit tax returns are
10· ·relevant, in my opinion.
11· · · · · · · · ·MS. LEE:··And when we inquired about
12· ·communication with Al Barcroft, they
13· ·asserted attorney-client privilege and --
14· · · · · · · · ·THE COURT:··How can that be?
15· · · · · · · · ·MS. LEE:··Pardon me?
16· · · · · · · · ·THE COURT:··Mr. Barcroft's not an attorney.
17· · · · · · · · ·MS. LEE:··Exactly.··But that is -- that's
18· ·when we got to the motion to quash, they keep asserting
19· ·-- look at here, your Honor, let me just show you some
20· ·things that I get to deal with.
21· · · · · · · · ·I ask, admit or deny, you alone were the
22· ·person who drafted your answer.··And he states, I object
23· ·as it violates work product and it's attorney-client
24· ·privilege.
25· · · · · · · · ·THE COURT:··But he didn't have an attorney.
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·1· · · · · · · · ·MS. LEE:··Exactly.··Admit or deny that
·2· ·Al Barcroft assisted you with drafting your answer to
·3· ·this lawsuit.··And he says, I object to this request as
·4· ·it violates work product and attorney-client privilege.
·5· · · · · · · · ·Okay.··So admit or deny --
·6· · · · · · · · ·THE COURT:··Well, that's being entirely
·7· ·disingenuous.
·8· · · · · · · · ·MR. BARRETT:··Your Honor --
·9· · · · · · · · ·MS. LEE:··Yes, it is.··And I let him just
10· ·take --
11· · · · · · · · ·MR. BARRETT:··May I for just a moment?
12· · · · · · · · ·THE COURT:··Yes, you may.··But that is
13· ·being totally disingenuous with this Court and with the
14· ·seriousness of this litigation.
15· · · · · · · · ·MR. BARRETT:··In the first place, if we're
16· ·going to discuss the objections, I have an objection to
17· ·going through all the objections to discovery that I
18· ·lodged after discovery was appropriate, when Counsel
19· ·finally amended her petition.
20· · · · · · · · ·But the objection to a request about who
21· ·prepared my client's answer was answered after the time
22· ·when I had prepared an answer and filed it on behalf of
23· ·my client --
24· · · · · · · · ·MS. LEE:··This is his answer, right here
25· ·-- this is your answer.··I'm reading from your amended
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·1· ·answer --
·2· · · · · · · · ·MR. BARRETT:··Exactly.
·3· · · · · · · · ·MS. LEE:··-- this is your document.
·4· · · · · · · · ·MR. BARRETT:··Exactly.··So, yes, when she
·5· ·wants to know who helped my client prepare his answer to
·6· ·this lawsuit, he had, at that point, filed two answers
·7· ·to the lawsuit, one of them he prepared as a pro se --
·8· · · · · · · · ·THE COURT:··Which is the one that we were
·9· ·discussing in October, was it not?
10· · · · · · · · ·MR. BARRETT:··No, your Honor, she's talking
11· ·about the objections that I lodged now.
12· · · · · · · · ·THE COURT:··I know, but telling us we'd
13· ·have to go through all those, I see her point.
14· · · · · · · · ·MS. LEE:··But, your Honor, I'm just trying
15· ·to show the point of -- let me just go back to -- the
16· ·documents that I have requested that he has amended, he
17· ·states -- so for bank statements, financial records from
18· ·January 1, 2008, he says it's privileged information.
19· ·What privilege?
20· · · · · · · · ·I asked him for a privilege law, and this
21· ·is -- this is not up for discussion today, I did a
22· ·motion overruling claims of privilege.··He asserts
23· ·privilege with Al Barcroft -- between Howard Kirk and
24· ·Albert Barcroft, attorney-client privilege.··When I ask
25· ·him for the privilege law, he says, none applied.
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·1· · · · · · · · ·So I'm going to be back here to deal with
·2· ·this.··So if he would like to go through, if he doesn't
·3· ·like -- and I'll tell you, your Honor, I completely
·4· ·don't agree with his reading of Rule 47.··It's a brand
·5· ·new rule.··There's very little case law on it.
·6· · · · · · · · ·But we did have the damages appropriately
·7· ·and in addition to that, Howard Kirk started discovery.
·8· ·So his client can start discovery and deliver discovery
·9· ·to me --
10· · · · · · · · ·THE COURT:··It wouldn't be fair for the
11· ·defendant to begin the discovery process and then later,
12· ·after the plaintiff has answered and then replied with
13· ·her discovery, to then bring up Rule 47 that you can't
14· ·do that.
15· · · · · · · · ·MR. BARRETT:··Your Honor, Rule 47 applies
16· ·only to the plaintiff.
17· · · · · · · · ·THE COURT:··I see that.
18· · · · · · · · ·MR. BARRETT:··There is no prohibition
19· ·against the defendant beginning discovery.··And whether
20· ·that's -- if it's somebody's idea of fundamental
21· ·fairness or not --
22· · · · · · · · ·THE COURT:··But as a judge, I've seen a lot
23· ·of different interpretations of a party that fails to
24· ·comply with (c) may not conduct discovery, I think
25· ·there's a big -- there's a "shall" -- that "it shall" be
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·1· ·in there, but very intentionally it looks like they put
·2· ·a "may" in this particular sentence --
·3· · · · · · · · ·MR. BARRETT:··Because discovery --
·4· · · · · · · · ·THE COURT:··-- discretion as to whether or
·5· ·not the Court feels like, not necessarily on the equity
·6· ·side of its docket, equity, in general, is this
·7· ·something the Court should do.··I just don't see --
·8· · · · · · · · ·MR. BARRETT:··I disagree, your Honor.··The
·9· ·only case we have interpreting Rule 47 also agrees.
10· · · · · · · · ·THE COURT:··Well, we'll find out then if
11· ·the appellate court says that even if the defendant
12· ·begins discovery and the plaintiff still cannot conduct
13· ·discovery until the plaintiff complies in toto with this
14· ·Rule 47, and the Court cannot interpret the word "may"
15· ·to authorize the sanctions to stand.
16· · · · · · · · ·MS. LEE:··And your Honor --
17· · · · · · · · ·MR. BARRETT:··So --
18· · · · · · · · ·THE COURT:··So I'm going to deny the
19· ·motion -- I'm going to deny the motion.··So we got that
20· ·done.
21· · · · · · · · ·MR. BARRETT:··Your Honor, may --
22· · · · · · · · ·THE COURT:··That's what we pay the people
23· ·down the street to do.
24· · · · · · · · ·MS. LEE:··I do have an order, your Honor.
25· ·Can I approach?
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·1· · · · · · · · ·THE COURT:··Please.··And the Supreme Court
·2· ·should have said it was mandatory and the court has no
·3· ·discretion.··They should have put "shall" and not "may."
·4· · · · · · · · ·MS. LEE:··And, your Honor --
·5· · · · · · · · ·THE COURT:··"May," generally, under my
·6· ·interpretation of law, when it says may not do
·7· ·something, it cannot be done on a regular basis.··It's
·8· ·not to be a pattern of conduct.··But they put "may"
·9· ·because the court, when it wants to, can find that
10· ·there's been circumstances -- extenuating circumstances
11· ·and not enforce the rule.
12· · · · · · · · ·MS. LEE:··Your Honor, there's a few blanks
13· ·here and the very first one is about when he needs to
14· ·provide me these documents.··Now keep in mind, the day
15· ·that -- one of -- at least one of the documents was due,
16· ·this is when the motion to reconsider was filed, so the
17· ·document should be available.
18· · · · · · · · ·And I -- we've been trying to fight for
19· ·these documents since June.··If we can get them in the
20· ·near future, that would be great.··I'd rather get them
21· ·sooner than later.
22· · · · · · · · ·MR. BARRETT:··Your Honor, with all due
23· ·respect, we intend to file a petition for writ of
24· ·mandamus on this order --
25· · · · · · · · ·THE COURT:··Good -- good --
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·1· · · · · · · · ·MR. BARRETT:··-- so we can get an answer to
·2· ·this question --
·3· · · · · · · · ·THE COURT:··I think you should.··I totally
·4· ·like that, because we'll know -- we'll know exactly
·5· ·where the trial court's power begins and ends.
·6· · · · · · · · ·MS. LEE:··But your Honor, he has to get a
·7· ·stay, so I still would like for us to put --
·8· · · · · · · · ·THE COURT:··Give me a date, please, a
·9· ·suggested date.
10· · · · · · · · ·MS. LEE:··Well, I'd like it before -- I
11· ·mean, next week we're supposed to have a deposition
12· ·against his client who's been fighting us.
13· · · · · · · · ·MR. BARRETT:··No way can I get them by next
14· ·week.
15· · · · · · · · ·MS. LEE:··But he should have had these
16· ·available.
17· · · · · · · · ·THE COURT:··You got into the case back in
18· ·October or November -- excuse me, right at the --
19· · · · · · · · ·MS. LEE:··It was October 16th.
20· · · · · · · · ·THE COURT:··I mean, I welcome you.··I was
21· ·very glad to see -- I always welcome appearance of
22· ·counsel, especially in serious litigation where we have
23· ·someone acting pro se.
24· · · · · · · · ·MS. LEE:··So I would like these documents
25· ·as soon as possible.··I'd like them the third of March,
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·1· ·so we can move forward with our March 4th deposition.
·2· · · · · · · · ·THE COURT:··Let me see your notice -- the
·3· ·deposition is for March -- is that part of our
·4· ·protective order or something --
·5· · · · · · · · ·MR. BARRETT:··Yes, that's come up --
·6· · · · · · · · ·MS. LEE:··That's what we're going to
·7· ·discuss.··I can't hold a deposition without these
·8· ·documents.··I need these documents.
·9· · · · · · · · ·THE COURT:··Well, why don't I put this on
10· ·hold for a moment.
11· · · · · · · · ·MS. LEE:··Okay.··And then one other
12· ·thing --
13· · · · · · · · ·THE COURT:··We'll come back to it.··I don't
14· ·know what I'm going to do about the other.
15· · · · · · · · ·MS. LEE:··Your Honor, can I just please
16· ·address one other thing in the order.··It cost almost
17· ·$1500 for me to prepare and come here.··And I would like
18· ·that, on top of the other sanctions that has been
19· ·approved.··And that's the very -- that's number 15.
20· · · · · · · · ·MR. BARRETT:··Your Honor -- number 15?
21· · · · · · · · ·MS. LEE:··I'm sorry, five.··Number five.
22· · · · · · · · ·THE COURT:··Number five.··You were awarded
23· ·$2,800 the last time for the motion to compel?
24· · · · · · · · ·MS. LEE:··Yes.··And it's an additional
25· ·1,500 for me to prepare today.
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·1· · · · · · · · ·THE COURT:··And what all has it taken for
·2· ·you to prepare for this?
·3· · · · · · · · ·MS. LEE:··Well, I had to draft two motions,
·4· ·I had to draft a motion for an objection, which I filed,
·5· ·your Honor, and then I also had to do a supplement to
·6· ·the response, because he filed a supplement, so I had to
·7· ·file that last week and I had to prepare for the hearing
·8· ·and be here.
·9· · · · · · · · ·It actually cost a little bit more than
10· ·1,500, but I just -- and I did look at my billing last
11· ·night to verify what the cost was.
12· · · · · · · · ·MR. BARRETT:··Your Honor, we brought forth
13· ·to this Court a good faith objection, a good faith
14· ·interpretation of the operation of the Rules of Civil
15· ·Procedure as it applies to this case.
16· · · · · · · · ·I mean, this -- the things that are going
17· ·on in this case and the number of times that Ms. Lee has
18· ·requested sanctions for any and everything are
19· ·absolutely astounding to me.
20· · · · · · · · ·I've been -- in 36 years of law practice, I
21· ·only need one hand to count the number of times I've
22· ·requested sanctions in a lawsuit, particularly over
23· ·the --
24· · · · · · · · ·THE COURT:··Well, happens all the time in
25· ·this court --
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·1· · · · · · · · ·MS. LEE:··Obviously, your Honor, you agree,
·2· ·because the sanctions have already been handed down an
·3· ·this was --
·4· · · · · · · · ·THE COURT:··I'm sorry, Mr. Barrett, you
·5· ·lost and I'm going to award the 1,500, which that
·6· ·doesn't sound like very much just for the paperwork
·7· ·involved.
·8· · · · · · · · ·MS. LEE:··Thank you.
·9· · · · · · · · ·THE COURT:··What would you like to take up
10· ·next, sir?
11· · · · · · · · ·MR. BARRETT:··The motion to quash, the
12· ·motion for protective order, your Honor.
13· · · · · · · · ·THE COURT:··Okay.··And let's see.··I
14· ·probably had this in order for me and I probably screwed
15· ·it up, so...
16· · · · · · · · ·All right.··The Court now has before it
17· ·plaintiffs' -- here it is.··The Court has before it,
18· ·filed February 2, 2015, motion to quash plaintiffs'
19· ·notice of intent to take oral deposition of Howard Kirk
20· ·Gibbs and motion for protective order, filed on behalf
21· ·of defendant, Howard Kirk Gibbs, by and through his
22· ·attorney of record, Daniel R. Barrett.
23· · · · · · · · ·So I have that in front of me and I have,
24· ·your response, plaintiffs' response, filed on
25· ·February 12th, and then I have the original copy, I
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·1· ·guess, of the notice, filed January 30, 2015,
·2· ·plaintiffs' notice of intent to take the oral deposition
·3· ·of Howard Kirk Gibbs.
·4· · · · · · · · ·So I believe I have every -- I have the
·5· ·necessary paperwork in front of me.
·6· · · · · · · · ·MS. LEE:··Your Honor, there was an amended
·7· ·notice of intent -- I did not file -- I only filed the
·8· ·one notice, because we were going to have it heard here,
·9· ·so I wanted the Court to be notified of it.
10· · · · · · · · ·THE COURT:··Okay.
11· · · · · · · · ·MS. LEE:··And I had talked to Tina about
12· ·it, but then I amended the notice , which -- it's the
13· ·same.
14· · · · · · · · ·MR. BARRETT:··It's the same notice.
15· · · · · · · · ·MS. LEE:··There are no issues with it?
16· · · · · · · · ·MR. BARRETT:··No, it just corrects a
17· ·technical defect in the original.
18· · · · · · · · ·THE COURT:··All right.
19· · · · · · · · ·MR. BARRETT:··Your Honor, the point of the
20· ·motion to quash is my office is not in downtown
21· ·Fort Worth.··I, obviously, am not privy to everything
22· ·that went on -- or anything, actually, other than as
23· ·reflected by the documents that went on in this case
24· ·before I appeared --
25· · · · · · · · ·THE COURT:··But you did agree to take the
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·1· ·case and therefore, you took it as is, so to speak.
·2· · · · · · · · ·MR. BARRETT:··Right.··I understand, your
·3· ·Honor.··But the point is that in order for my client to
·4· ·be presented for deposition anywhere other than my
·5· ·office, which is -- presenting a witness at the
·6· ·attorney's office is the standard practice in Tarrant
·7· ·County and has --
·8· · · · · · · · ·THE COURT:··True.··Absolutely.
·9· · · · · · · · ·MR. BARRETT:··And since I do not office in
10· ·downtown Fort Worth, it adds time for me to travel to
11· ·downtown Fort Worth in order to present my client for
12· ·deposition.
13· · · · · · · · ·When I received the notice, I understood
14· ·that -- that there had been some discussions with the
15· ·Court about having the depositions at the courthouse.
16· · · · · · · · ·THE COURT:··Absolutely.
17· · · · · · · · ·MR. BARRETT:··And I had seen --
18· · · · · · · · ·THE COURT:··Which is a custom in this
19· ·court, maybe not everywhere else.··But when people can't
20· ·get along during a deposition, we just have it down
21· ·here.
22· · · · · · · · ·MR. BARRETT:··Right.··And up until this
23· ·time, my understanding is there had only been one
24· ·deposition taken in this case and that was the
25· ·deposition of Beverly Miller.··I mean --
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·1· · · · · · · · ·MS. LEE:··That's right.
·2· · · · · · · · ·MR. BARRETT:··Is that correct?
·3· · · · · · · · ·MS. LEE:··Yes.
·4· · · · · · · · ·MR. BARRETT:··Okay.··I don't know what sort
·5· ·of history there was with my client in terms of his
·6· ·behavior inside the courtroom.··I don't know if he
·7· ·had -- if he had demonstrated some sort of contempt for
·8· ·or ignorance of or contempt because of ignorance of the
·9· ·rules, et cetera.
10· · · · · · · · ·I do know that, as an attorney, it's my
11· ·duty to make sure that my client, insofar as I possibly
12· ·can, obeys the Rules of Civil Procedure and responds
13· ·appropriately to deposition questions.··As an attorney,
14· ·it's my obligation to make sure that that happens.··And
15· ·I can do that at my office the same as I can do that
16· ·anywhere else.
17· · · · · · · · ·In order to have the deposition anywhere
18· ·else, other than my office, it will cost my client more
19· ·money, because of the travel time, attendant with
20· ·presenting him at a point geographically other than my
21· ·office.
22· · · · · · · · ·Now, the reason for the motion to quash is
23· ·because I believe that the discovery that has been
24· ·propounded in this case goes far, far, far afield of
25· ·those things that would be relevant to what actually has
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·1· ·been pled against my client in this case.
·2· · · · · · · · ·So the reason that the motion to quash and
·3· ·that the motion to protect -- motion for protective
·4· ·order were filed together was so that in connection with
·5· ·the protective order, the Court could give me guidance
·6· ·and plaintiffs' counsel guidance as to the parameters
·7· ·that the Court believes govern relevance in this case.
·8· · · · · · · · ·And then it would be my obligation to make
·9· ·sure that we respond within those parameters during the
10· ·deposition.··And the motion to quash is based upon, I
11· ·can do that in my office and it will be less expensive
12· ·for my client to do that in my office.
13· · · · · · · · ·Now, I have some documents -- that's just
14· ·an introductory statement.··I have some documents to
15· ·present to the Court, with the Court's permission, by
16· ·the way, the Court's taking of judicial notice of the
17· ·contents of its file applies to this hearing as well, am
18· ·I correct?
19· · · · · · · · ·THE COURT:··Certainly, certainly.··And
20· ·Mr. Barrett, the Court has the utmost respect for you
21· ·and your representation and efforts.
22· · · · · · · · ·MR. BARRETT:··Thank you.
23· · · · · · · · ·THE COURT:··It has nothing to do with you.
24· ·I still say, again, I welcomed seeing your name.
25· · · · · · · · ·MR. BARRETT:··Thank you, your Honor.
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·1· · · · · · · · ·THE COURT:··Ms. -- before we go any
·2· ·further, Ms. Lee, are we sort of punishing this man
·3· ·because of the conduct -- the deposition of
·4· ·Beverly Miller was just abysmal, I thought.
·5· · · · · · · · ·MS. LEE:··The conduct was awful.··And I
·6· ·would -- and I'm not --
·7· · · · · · · · ·THE COURT:··So are we punishing this
·8· ·defendant because of --
·9· · · · · · · · ·MS. LEE:··No -- no, not at all, your Honor.
10· ·I can show you ample evidence that he -- they have
11· ·asserted -- and he has already -- and I have already
12· ·shown to you in here -- I have shown you his behavior
13· ·during the deposition, but --
14· · · · · · · · ·THE COURT:··I interrupted his argument, but
15· ·I remember this was --
16· · · · · · · · ·MS. LEE:··No, this has --
17· · · · · · · · ·THE COURT:··-- it was something at that
18· ·moment in time I thought was very appropriate that we
19· ·have the deposition down here, so I can be in my office
20· ·and come in and make on-the-ground -- on-the-spot
21· ·rulings.
22· · · · · · · · ·But I want to hear what Mr. -- it was
23· ·something -- I may reconsider this, you may be right and
24· ·it would cost him more money and I'm not sure
25· ·that -- well, we'll just see.
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·1· · · · · · · · ·MR. BARRETT:··Your Honor, if I might.··What
·2· ·I've handed the Court is the pages of the deposition of
·3· ·Beverly Miller that Counsel has complained about my
·4· ·actions in connection with.
·5· · · · · · · · ·And she -- my understanding is that she
·6· ·puts forward this conduct as reflected on these pages as
·7· ·evidence of the fact that I cannot be depended upon
·8· ·to -- to be sure that my client abides by the Rules of
·9· ·Civil Procedure and responds appropriately in a
10· ·deposition.
11· · · · · · · · ·What I have presented is exactly the
12· ·transcript of exactly what happened during that
13· ·deposition.··And note, first of all, that it took place
14· ·184 pages into the testimony.··There was a question that
15· ·was propounded to Ms. Miller, the witness.
16· · · · · · · · ·The question was, So what type of
17· ·communication since November of 2013 have you had with
18· ·Howard Kirk Gibbs?
19· · · · · · · · ·My response at that point was, Wait a
20· ·minute.··Before you answer that question, I need to
21· ·speak with you, Earl.
22· · · · · · · · ·That is the last thing -- well, other than,
23· ·I don't care, we're going out of the room, that's the
24· ·last thing I said in this deposition until, I'll reserve
25· ·anything that I have --
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·1· · · · · · · · ·MS. LEE:··I'd like him to read this whole
·2· ·thing, your Honor, this is very important.
·3· · · · · · · · ·It says, Mr. Hargrave -- when I
·4· ·ask -- Mr. Hargrave says, wait a minute before you
·5· ·answer that question, I need to talk to you, Earl.
·6· · · · · · · · ·Mr. Hargrave says, okay.
·7· · · · · · · · ·Ms. Lee:··Want to go off the record?
·8· · · · · · · · ·Mr. Barrett states, yeah, I don't care,
·9· ·we're going out of the room.
10· · · · · · · · ·So there was a break for seven minutes.
11· · · · · · · · ·THE COURT:··Yeah, okay.
12· · · · · · · · ·MS. LEE:··Then Ms. Lee -- there's a
13· ·point -- Ms. Lee:··Can we go back on -- can we go back
14· ·and re-ask the question I asked previously, when you
15· ·took the break?
16· · · · · · · · ·The record was read.
17· · · · · · · · ·The witness states, No.
18· · · · · · · · ·Ms. Lee:··Have you had any conversations
19· ·with Howard Kirk concerning the transfer of
20· ·57.19 percent?
21· · · · · · · · ·Mr. Hargrave:··Objection, privilege.
22· · · · · · · · ·Ms. Lee:··Now, her talking to Howard Kirk
23· ·is not privileged.
24· · · · · · · · ·Mr. Hargrave:··Howard Kirk was pro se,
25· ·representing himself.··If you're talking about --
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·1· · · · · · · · ·And then Ms. Lee:··Judge Ferchill has
·2· ·already stated that he was not an attorney and that the
·3· ·privilege does not assert him during the last hearing.
·4· ·This is what the judge stated.
·5· · · · · · · · ·Please answer my questions.
·6· · · · · · · · ·And then Mr. Hargrave:··Okay.··Okay.
·7· · · · · · · · ·The witness:··No.
·8· · · · · · · · ·Mr. Hargrave:··I'm instructing my client
·9· ·not to answer.
10· · · · · · · · ·Ms. Lee:··So you have talked to Al Barcroft
11· ·concerning 57.19 percent transfer since you transferred
12· ·the money in 2013?
13· · · · · · · · ·Mr. Hargrave:··The same objection.
14· ·Al Barcroft is representing himself, I believe.
15· · · · · · · · ·Ms. Lee:··Your objection's not relevant.
16· ·Please answer the question.
17· · · · · · · · ·Mr. Hargrave:··I'll instruct my client not
18· ·to answer.··You can mark it and take it up with the
19· ·judge.
20· · · · · · · · ·Your Honor, I'm not stating that -- that
21· ·Dan Barrett went out and talked to Earl Hargrave and
22· ·said, I want you to go out and assert attorney-client
23· ·privilege -- I'm not saying he said that.··If he said he
24· ·didn't say that, I would believe him.
25· · · · · · · · ·What I'm saying, this is what I get to deal
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·1· ·with.··We had to file a motion to compel for 150 "I
·2· ·don't knows."··And I have already shown you in the
·3· ·motion overruling privilege that Mr. Barrett is still
·4· ·stating privilege with Al Barcroft.
·5· · · · · · · · ·I'm not going to get any answers and not
·6· ·only am I asking this Court to be available, I'm
·7· ·actually changing my request --
·8· · · · · · · · ·MR. BARRETT:··Can I get back to my argument
·9· ·at this point?
10· · · · · · · · ·MS. LEE:··I want to change my request and
11· ·ask for Judge Morrisett to be present during the entire
12· ·hearing.··You've seen the other attorneys in this case,
13· ·I will not get any answers.
14· · · · · · · · ·Ms. Miller stated, when I answered her a
15· ·question, Who are the current beneficiaries of the GWB
16· ·Trust when you were the trustee?··And her answer was, I
17· ·don't know.··150 times she said, I don't know.
18· · · · · · · · ·Then I have to file a motion to compel to
19· ·get her to answer these questions --
20· · · · · · · · ·THE COURT:··I think you already
21· ·demonstrated Ms. Miller is not much of a fiduciary.
22· · · · · · · · ·MS. LEE:··That is true, your Honor.
23· · · · · · · · ·But I'm saying, I'm going to get
24· ·attorney-client privilege.··Again, in that document, he
25· ·already states that Al Barcroft and Howard Kirk,
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·1· ·attorney-client privilege.··On almost every document,
·2· ·every question I ask, he asserts privilege.··I'm not
·3· ·going to get any answers.
·4· · · · · · · · ·MR. BARRETT:··Your Honor, please --
·5· · · · · · · · ·THE COURT:··Yes, let Mr. Barrett finish,
·6· ·please.··I'm still thinking about this.
·7· · · · · · · · ·MR. BARRETT:··Now -- all right.··Setting
·8· ·aside what actually happened in this deposition and none
·9· ·of this conduct was -- was mine.··Let's go to --
10· · · · · · · · ·THE COURT:··It was the atmosphere of
11· ·the entire -- it was the atmosphere of the deposition as
12· ·I read it, plus the atmosphere in the courtroom and your
13· ·client's behavior and just the whole -- just the general
14· ·temperature, if you will, of this case that inspired or
15· ·prompted the Court to say, okay, depositions will be in
16· ·the courtroom --
17· · · · · · · · ·MR. BARRETT:··Your Honor --
18· · · · · · · · ·THE COURT:··-- because it did seem like a
19· ·lot of foolishness and a lot of malingering and hiding
20· ·the ball and that's what I'm trying to avoid.
21· · · · · · · · ·MR. BARRETT:··And I cannot speak to that
22· ·because I wasn't --
23· · · · · · · · ·THE COURT:··I know, I know.··This is not
24· ·particularly egregious, let's put it that way.
25· · · · · · · · ·MR. BARRETT:··In any event, let's go
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·1· ·next --
·2· · · · · · · · ·THE COURT:··So you would like have it in
·3· ·your office, that's number one?
·4· · · · · · · · ·MR. BARRETT:··That's number one, Judge.
·5· · · · · · · · ·THE COURT:··Okay.
·6· · · · · · · · ·MR. BARRETT:··But let's look next at the
·7· ·amended petition in this case, that is the current live
·8· ·pleading for the plaintiffs.
·9· · · · · · · · ·I have handed the Court an excerpt of that
10· ·petition, the petition is some 28 pages long, I believe.
11· ·And the pages that I've handed to the Court are only
12· ·those pages that reference my client.··And I've
13· ·highlighted the places in which he's been referenced.
14· · · · · · · · ·And the facts -- there are some facts
15· ·alleged about Howard Kirk and Al Barcroft becoming
16· ·friends in 2004, something about Howard Kirk being found
17· ·guilty for simulating legal processes, whatever that is
18· ·and him being in jail for asserting the Fifth Amendment
19· ·and those types of things.
20· · · · · · · · ·I'm not sure why those have been alleged.
21· ·I filed special exceptions --
22· · · · · · · · ·THE COURT:··Well, it -- given his behavior
23· ·as it was demonstrated and recounted by Ms. Lee, it kind
24· ·of explains some of his behavior in court --
25· · · · · · · · ·MR. BARRETT:··Well, it may, Judge, but in
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·1· ·terms of this pleading, what has been pled against him
·2· ·his as a legally cognizable cause of action, is what I'm
·3· ·getting at here.
·4· · · · · · · · ·THE COURT:··All right.
·5· · · · · · · · ·MR. BARRETT:··Okay.··Talks about, again, on
·6· ·the next page, in 2004 or 2005 as background, I suppose,
·7· ·how Al Barcroft got involved with this and that
·8· ·Howard Kirk was somehow instrumental in that.
·9· · · · · · · · ·Then on page six, there's some recitations
10· ·about the trust itself.··I don't know why page nine is
11· ·there, except that I thought it was interesting, there
12· ·are no allegations in those paragraphs as to my client.
13· · · · · · · · ·We skip to paragraph -- I mean, page 11, on
14· ·paragraph 33, where it talks about the friendship
15· ·between Howard Kirk and Albert.
16· · · · · · · · ·THE COURT:··Okay.
17· · · · · · · · ·MR. BARRETT:··And then it says Howard Kirk
18· ·conspired with Albert to use GWB Trust bank accounts as
19· ·their own personal.
20· · · · · · · · ·THE COURT:··Well, I think civil conspiracy,
21· ·I think, is what she's, you know --
22· · · · · · · · ·MR. BARRETT:··Exactly.
23· · · · · · · · ·THE COURT: -- inching towards.
24· · · · · · · · ·MR. BARRETT:··The point here is that we are
25· ·talking about transactions and facts, and the cause of
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·1· ·action that she has pled is related only to the GWB
·2· ·Trust and this transfer of assets from the GWB Trust to
·3· ·the GBU Trust.
·4· · · · · · · · ·The vast majority of the facts that are
·5· ·pled are in connection with what Al did in that.··And
·6· ·she says that Howard conspired with Al, somehow.··There
·7· ·are no specific acts that are alleged.
·8· · · · · · · · ·THE COURT:··Well, I think that's what the
·9· ·deposition is for, is to question --
10· · · · · · · · ·MR. BARRETT:··Exactly, Judge.
11· · · · · · · · ·THE COURT:··-- had conversations, et cetera
12· ·--
13· · · · · · · · ·MR. BARRETT:··Judge, exactly.··And I'm not
14· ·trying to argue special exceptions here.
15· · · · · · · · ·THE COURT:··I know, but --
16· · · · · · · · ·MR. BARRETT:··I'm only trying to identify
17· ·and narrow what actually has been pled against my
18· ·client.
19· · · · · · · · ·The cause of action and the
20· ·transactions -- everything that has been pled against my
21· ·client in this lawsuit resolves around the transactions
22· ·involving the GWB Trust, the GBU Trust and there are
23· ·some allegations from some parties about the
24· ·applicability of this contract and the family settlement
25· ·agreement.··That's it.
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·1· · · · · · · · ·There's nothing that has been pled about
·2· ·any activities in connection with the estate.··Anything
·3· ·that happened ten or 15 years ago or five or ten -- how
·4· ·many years ago, with respect to the estate, the
·5· ·formation of these ancillary entities that have nothing
·6· ·to do with GWB or GBU or Pentex or any of those.
·7· ·There's no pleadings to support any of that.
·8· · · · · · · · ·The only thing that's been pled, true or
·9· ·not, and that's what discovery in the trial is for.··But
10· ·the only thing pled in this case is a cause of action --
11· ·if we look on page 20, the causes of action start.··The
12· ·fraud is pled in connection with a leading to conspiracy
13· ·with Beverly, Howard Kirk and Danny, with respect to the
14· ·GWB Trust assets.
15· · · · · · · · ·THE COURT:··Okay.
16· · · · · · · · ·MR. BARRETT:··Fraudulent -- Howard's not
17· ·included in that, even though it's not a cause of
18· ·action.
19· · · · · · · · ·64, civil conspiracy and intentional
20· ·infliction of emotional distress.··All in connection
21· ·with only the GWB Trust assets, okay?
22· · · · · · · · ·Conversion, theft, and unjust enrichment.
23· ·Again, she alleges that Howard is guilty of this because
24· ·his is a beneficiary of the GBU Trust.··A fact which she
25· ·has to prove and that's up for discussion, okay?··But
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·1· ·again, it's confined to GWB, GBU and the transactions
·2· ·involving those two entities.
·3· · · · · · · · ·Paragraph 79 on page 25 in her request for
·4· ·relief, again compelling -- she requests that
·5· ·Howard Kirk be compelled to return to GWB Trust any
·6· ·assets that he illegally received.
·7· · · · · · · · ·In 82 she requests that the Court terminate
·8· ·the GWB Trust, which is a request, frankly, we're going
·9· ·agree with at some point.
10· · · · · · · · ·And in damages there, she has actually pled
11· ·under Rule 47 what she needed to plead.··On paragraph
12· ·seven, rule -- paragraph Roman Numeral VII paragraph --
13· · · · · · · · ·THE COURT:··She's circumstantially cured --
14· · · · · · · · ·MR. BARRETT:··Right --
15· · · · · · · · ·THE COURT:··-- your alleged defect?
16· · · · · · · · ·MR. BARRETT:··-- she has cured it.··And we
17· ·admit she cured it on December 22nd.
18· · · · · · · · ·Her request for attorney's fees and request
19· ·for disclosure and that's it.
20· · · · · · · · ·There is nothing in this petition --
21· · · · · · · · ·THE COURT:··Just a minute, Ms. Lee.
22· · · · · · · · ·MR. BARRETT:··There's nothing in this
23· ·petition that involves the estate and Ms. Lee has said
24· ·many times during the course -- well, actually, she said
25· ·both things.··I've heard both things in this courtroom.
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·1· ·That this case doesn't involve anything other than the
·2· ·trust.··This is only a trust case, this is only a case
·3· ·about the trust and trust administration, removal of the
·4· ·trustee and breach of fiduciary duty.
·5· · · · · · · · ·And that's fine.··But that's the point of
·6· ·this.··If we move on -- just as a reminder, your Honor,
·7· ·under Rules of Civil Procedure 192.3, the scope of
·8· ·discovery is such that a party my obtain discovery of
·9· ·matters that are relevant to the subject matter of the
10· ·pending action --
11· · · · · · · · ·THE COURT:··Okay.
12· · · · · · · · ·MR. BARRETT:··-- and no other action.
13· · · · · · · · ·Now, one thing that is abundantly clear to
14· ·everyone -- it became very clear to me when I got
15· ·involved in this case, and I know it's been abundantly
16· ·clear to the Court, is that -- and I think there will be
17· ·no dispute among anyone, the parties in this case, the
18· ·siblings in the trust don't get along.
19· · · · · · · · ·THE COURT:··Oh, absolutely.
20· · · · · · · · ·MR. BARRETT:··And there are --
21· · · · · · · · ·THE COURT:··Unlike most of our siblings,
22· ·these people have money to fight with.
23· · · · · · · · ·MR. BARRETT:··Right.··But there may be
24· ·other controversies between these, too.··My
25· ·understanding is that there was another action filed in
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·1· ·connection with the estate against Mr. Gibbs, there's
·2· ·this Fannin County lawsuit, there may be all kinds of
·3· ·other things.
·4· · · · · · · · ·But what we are confined with, what we are
·5· ·constricted to by the Rules of Civil -- Rules of
·6· ·Procedure in determining the scope of discovery
·7· ·applicable to this case is the allegations in this case
·8· ·and none other.
·9· · · · · · · · ·THE COURT:··True.··But the documents and
10· ·the parameters in the Court's motion to -- the granting
11· ·of the motion to compel and sanctions, the dates for the
12· ·telephone records, the bank records and the income
13· ·taxes, aren't those the parameters, what she's -- what
14· ·I've ordered?··I mean, 2008 bank records, 2009 telephone
15· ·records, last couple of income taxes -- -
16· · · · · · · · ·MS. LEE:··Yes, your Honor --
17· · · · · · · · ·MR. BARRETT:··If --
18· · · · · · · · ·MS. LEE:··-- well --
19· · · · · · · · ·THE COURT:··Okay.··But I'm just saying,
20· ·have we sort of established some parameters?
21· · · · · · · · ·MR. BARRETT:··Well, I believe not, Judge.
22· · · · · · · · ·THE COURT:··Okay.··Why not?
23· · · · · · · · ·MR. BARRETT:··My attitude with respect to
24· ·that, if -- first of all, I don't think it's timely for
25· ·us to be discussing the objections to the written
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·1· ·discovery in the case --
·2· · · · · · · · ·THE COURT:··Okay.
·3· · · · · · · · ·MR. BARRETT:··-- because what we're talking
·4· ·about, right now, is the parameters for questions during
·5· ·the deposition, but --
·6· · · · · · · · ·THE COURT:··But usually -- usually in a
·7· ·deposition, you want to go back and get answers to
·8· ·questions that you didn't get -- that you did not get in
·9· ·your written discovery or -- and/or clarifications of
10· ·answers you did or didn't get in your written discovery.
11· · · · · · · · ·So it all -- it's building up -- it's
12· ·building a pyramid, so to speak.
13· · · · · · · · ·MR. BARRETT:··That certainly is part of it
14· ·Judge.
15· · · · · · · · ·THE COURT:··Okay.
16· · · · · · · · ·MR. BARRETT:··Our position with respect to
17· ·that is, in the first place, bank account from 2008 have
18· ·nothing to do or anything from 2008 has nothing to do
19· ·with the allegations in this lawsuit, which are limited
20· ·to activities that occurred in the latter part of 2013
21· ·to date.
22· · · · · · · · ·MS. LEE:··Your Honor, that's just
23· ·absolutely wrong.
24· · · · · · · · ·THE COURT:··Let him finish.··Let him
25· ·finish.··Because?
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·1· · · · · · · · ·MR. BARRETT:··Because what we're talking
·2· ·about in the -- the milieu in which this whole thing
·3· ·arose was the activities of the trustee being instructed
·4· ·by --
·5· · · · · · · · ·THE COURT:··When was she appointed trustee,
·6· ·Beverly Miller?
·7· · · · · · · · ·MR. BARRETT:··At some point in the past --
·8· · · · · · · · ·THE COURT:··I know.··But wouldn't that be a
·9· ·date -- how -- is part of your civil conspiracy the
10· ·placement of Beverly Miller in her position of trustee?
11· · · · · · · · ·MS. LEE:··Part of it, your Honor.··But it's
12· ·very extensive.··She started in March of 2011 --
13· · · · · · · · ·THE COURT:··That's what inferring that
14· ·somehow she was chosen -- I don't know how she was
15· ·chosen, but I inferred you felt she was a pawn or --
16· · · · · · · · ·MS. LEE:··It was Albert Barcroft that chose
17· ·her.
18· · · · · · · · ·THE COURT:··-- a straw man.
19· · · · · · · · ·MS. LEE:··Your Honor, I think I'm -- can I
20· ·please proceed.
21· · · · · · · · ·THE COURT:··No, let him finish.··It's his
22· ·motion.
23· · · · · · · · ·MS. LEE:··Okay.
24· · · · · · · · ·THE COURT:··I can keep more than one ball
25· ·in the air at one time.··I can remember what he said.
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·1· · · · · · · · ·MR. BARRETT:··Now, next, your Honor,
·2· ·simply, again as a reminder that Rule 192.6 of the Texas
·3· ·Rules of Civil Procedure is one of the -- not the sub
·4· ·rules, sister rules, I guess, of the whole discovery,
·5· ·scope of discovery question.··And it makes very clear
·6· ·that protective orders are available and require -- from
·7· ·the court, to protect the movant from undue harassment,
·8· ·annoyance -- excuse me -- or invasion of personal
·9· ·rights.··And the courts may make any order in the
10· ·interest of justice, among other things --
11· · · · · · · · ·THE COURT:··Okay.
12· · · · · · · · ·MR. BARRETT:··-- to limit the scope of
13· ·discovery.
14· · · · · · · · ·Under 192.5, work product, and there's been
15· ·a lot of talk in this case about attorney-client
16· ·privilege and the -- what's sometimes referred to as the
17· ·joint defense privilege that people sometimes assert
18· ·under Rules of Evidence 503.
19· · · · · · · · ·What I want to point out here is that in
20· ·our objections -- well, it's in our objections, but in
21· ·connection with the deposition, which is what we're
22· ·talking about --
23· · · · · · · · ·THE COURT:··Yes, sir.
24· · · · · · · · ·MR. BARRETT:··-- work product does not --
25· ·is not --
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·1· · · · · · · · ·THE COURT:··Not just with attorneys --
·2· · · · · · · · ·MR. BARRETT:··-- is not synonymous with
·3· ·attorneys --
·4· · · · · · · · ·THE COURT:··-- I'm with you.··Okay.··I got
·5· ·you.
·6· · · · · · · · ·MR. BARRETT:··Now, and according to the
·7· ·rule, work product is material prepared or mental
·8· ·impressions developed or communications made by or for a
·9· ·party in connection with the party's representatives,
10· ·which includes consultants and virtually anybody else
11· ·that the party communicates with, provided those
12· ·communications are made in anticipation of litigation or
13· ·for trial.
14· · · · · · · · ·The case law that has -- and there
15· ·is -- there is myriad case law construing this work
16· ·product exception to the scope of discovery.
17· · · · · · · · ·THE COURT:··But now, isn't this exactly the
18· ·reason why we'd have a deposition here in the courtroom,
19· ·in order for this Court to determine -- I see you have
20· ·consultants underlined, to determine whether or not
21· ·Mr. Barcroft actually was a co-conspirator or a
22· ·consultant?
23· · · · · · · · ·MR. BARRETT:··If the question is, what did
24· ·you talk to Al Barcroft about in connection with
25· ·preparation of your answer in this lawsuit, that's work
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·1· ·product.
·2· · · · · · · · ·THE COURT:··If, indeed, he fits the
·3· ·definition of a consultant.··He's certainly not a
·4· ·surety, indemnitor, not an employer, or agent, so I
·5· ·guess a lot is going to be on what is the legal
·6· ·definition of a consultant is.
·7· · · · · · · · ·MR. BARRETT:··And it's the purpose --
·8· ·according to case law, it's the purpose of the
·9· ·communication --
10· · · · · · · · ·THE COURT:··I'm wondering if it's not like
11· ·a jury consultant --
12· · · · · · · · ·MR. BARRETT:··No, your Honor --
13· · · · · · · · ·THE COURT:··-- which people use all the
14· ·time --
15· · · · · · · · ·MS. LEE:··Your Honor, I don't think it's a
16· ·codefendant in a lawsuit --
17· · · · · · · · ·THE COURT:··I don't think it's a
18· ·codefendant either.
19· · · · · · · · ·MR. BARRETT:··There is no exception for
20· ·co-parties in a lawsuit.··The point --
21· · · · · · · · ·MS. LEE:··No --
22· · · · · · · · ·MR. BARRETT:··May I?··The point -- the
23· ·point to this work product rule, as has been revealed by
24· ·the case law construing it, is that what's protected is
25· ·the strategic process of a party or whoever the party
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·1· ·communicates with in preparing for or antic -- preparing
·2· ·for trial or anticipating the litigation.
·3· · · · · · · · ·THE COURT:··Including a codefendant who may
·4· ·be a co-conspirator?
·5· · · · · · · · ·MR. BARRETT:··Anybody.··Anybody.
·6· · · · · · · · ·THE COURT:··So you'd never be able to
·7· ·pierce the veil of conspiracy under your theory.
·8· · · · · · · · ·MR. BARRETT:··That is -- that is not
·9· ·correct, your Honor.
10· · · · · · · · ·If the question -- if the subject matter of
11· ·the question involves conversations about the trust
12· ·before the lawsuit and not the lawsuit itself, then
13· ·there's nothing wrong with that. Those conversations are
14· ·free and clear and a proper -- proper subject of
15· ·discovery.
16· · · · · · · · ·But if it's a question that involved
17· ·strategy in connections with the defense of this lawsuit
18· ·-- it's a narrow exception, but it's well recognized,
19· ·it's enshrined in the rules and the case law is
20· ·abundant, that has interpreted it that way, that you
21· ·cannot inquire as to an opposing party's strategy in
22· ·connection with defending a lawsuit --
23· · · · · · · · ·THE COURT:··All right.
24· · · · · · · · ·MR BARRETT:··You can't do it.··Now --
25· · · · · · · · ·THE COURT:··You're not finished yet?
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·1· · · · · · · · ·MR. BARRETT:··I'm not finished, yet.
·2· · · · · · · · ·THE COURT:··All right.
·3· · · · · · · · ·MR. BARRETT:··I'm going to go ahead and
·4· ·give these to the Court, first.··What this is, your
·5· ·Honor, is simply copies of our responses to the requests
·6· ·for admissions from both Candy and Ken, that were made
·7· ·after December 22nd, when the plaintiff was entitled to
·8· ·them to -- to conduct discovery.
·9· · · · · · · · ·And there were -- first of all, there were
10· ·like 165 or so, 170, requests for admissions between the
11· ·two of them, which is, for a case that involves only
12· ·this trust and -- and the question of conspiracy
13· ·regarding this trust and the GBU Trust, kind of
14· ·astounding to me that there were that many.··But we
15· ·didn't request relief from the Court based on the number
16· ·of requests for admissions.
17· · · · · · · · ·But if you will look at the requests for
18· ·admission themselves, starting with Candy's, four talks
19· ·about, that you were the person that drafted your
20· ·answer.··That would be work product --
21· · · · · · · · ·MS. LEE:··Your Honor, I would like to -- I
22· ·would like the Court to note that these -- these were
23· ·given to Howard Kirk prior to Mr. Barcroft --
24· ·Mr. Barrett becoming his attorney.··And the answer -- it
25· ·doesn't ask for the answer, not the amended answer, so
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·1· ·there shouldn't be a work product.··And there's --
·2· · · · · · · · ·THE COURT:··Continue.··I'm listening.
·3· · · · · · · · ·MR. BARRETT:··In any event, it doesn't
·4· ·matter who drafted the answer, the point is the drafting
·5· ·of the answer is work product and it doesn't have to be
·6· ·by an attorney.
·7· · · · · · · · ·THE COURT:··I understand what the rule
·8· ·says.
·9· · · · · · · · ·MR. BARRETT:··I'm sorry --
10· · · · · · · · ·THE COURT:··I'm not sure if it fits.
11· · · · · · · · ·MR. BARRETT:··Let's go on to some others,
12· ·Judge.··Request number 11, admit or deny that you're
13· ·paying at least 2,000 a month for the home in which
14· ·you're now living.
15· · · · · · · · ·What does that have to do with the alleged
16· ·conspiracy?
17· · · · · · · · ·That your current residence is considerably
18· ·larger than the last home you were living in; that you
19· ·and your wife are always short on money; that you've
20· ·had -- that you have jobs outside that earn insufficient
21· ·money that enable you and your family to move into this
22· ·big home.
23· · · · · · · · ·Things about the estate.··Request
24· ·number 21, that you drove outside of the state of Texas
25· ·in August of 2004 to collect a check over $500,000 drawn
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·1· ·from an account owned by KCH Investments, LLC.··Your
·2· ·Honor, that doesn't have a thing to do -- it's not even
·3· ·conceivably within any of the issues in this lawsuit.
·4· · · · · · · · ·THE COURT:··Okay.··We'll hear about that.
·5· · · · · · · · ·MR. BARRETT:··I'm sorry?
·6· · · · · · · · ·THE COURT:··I said we'll hear about that in
·7· ·a minute.··Okay.
·8· · · · · · · · ·MR. BARRETT:··That you did an out of state
·9· ·withdrawal of $508,000 in cashier's checks from this KHC
10· ·Investments, that you didn't tell Ken or Candy about.
11· · · · · · · · ·Admit or deny that you spent the 508 for
12· ·your own benefit.··What -- none of those things have
13· ·anything to do with this lawsuit.
14· · · · · · · · ·In February and March of 2005, after your
15· ·father had already passed away, you received over a
16· ·hundred thousand dollars more from his estate and
17· ·expended -- those are estate matters, which again, are
18· ·not involved in the allegations that are made in this
19· ·lawsuit.
20· · · · · · · · ·I mean, there are -- there's more about
21· ·this 508,000, about KCH Investments, about people who
22· ·have not been identified or in these KHC Investments.
23· ·All of this, by my count, out of the 170 -- let's see
24· ·175 requests for admissions, well over 80 of them deal
25· ·with things that are either protected by the party work
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·1· ·product rule or the vast majority of them are about
·2· ·things that may or may not have occurred in 2004, in
·3· ·2005 and involve entities that are in no way connected
·4· ·with this pending litigation.
·5· · · · · · · · ·So the point of the motion for protective
·6· ·order is if we can establish, from the Court, guidelines
·7· ·that these other ancillary matters are not relevant to
·8· ·this lawsuit and not a proper subject for deposition
·9· ·questions, we can get through the deposition pretty
10· ·quickly.
11· · · · · · · · ·And I will know what to instruct my client
12· ·to answer, and if she strays beyond what the parameters
13· ·that the Court has set, then I'll be entitled to tell
14· ·him not to.··That's the point of all this.
15· · · · · · · · ·Now, the --
16· · · · · · · · ·THE COURT:··But now we've got -- we've got
17· ·a more fundamental problem here and -- and if -- that's
18· ·whether or not the Court and Ms. Lee are supposed to
19· ·just automatically accept Mr. Barcroft's any alleged
20· ·conversations with him or anybody else who's not an
21· ·attorney, but is a defendant, on how to answer this
22· ·lawsuit and strategize, I'm not sure -- I don't think
23· ·I'm going to buy that, because we -- I'm still concerned
24· ·about co-conspirators being able to put up a shield of
25· ·saying, we're a consultant.··I don't think that's what
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·1· ·that word means.
·2· · · · · · · · ·MR. BARRETT:··Well, your Honor --
·3· · · · · · · · ·THE COURT:··I really don't.··So somehow or
·4· ·another, we've got to get a ruling on whether or not
·5· ·people who allegedly talked to your client about how he
·6· ·was going to answer and how to strategize their, quote,
·7· ·his defense or their defense, how to categorize them as,
·8· ·quote/unquote, consultant.··That -- to me, that's a
·9· ·seminal sort --
10· · · · · · · · ·MR. BARRETT:··The bright line that the
11· ·cases in the rule draws, whether or not it's in
12· ·anticipation -- it's in anticipation of litigation --
13· · · · · · · · ·THE COURT:··But wouldn't -- but wouldn't
14· ·co-conspirators, before they've already gotten halfway
15· ·to the courthouse, figure out that -- that, you know,
16· ·there's trouble ahead and therefore, it would be
17· ·planning their joint --
18· · · · · · · · ·MR. BARRETT:··Joint what?··Joint defense to
19· ·a civil lawsuit?
20· · · · · · · · ·THE COURT:··Well, possibly.··I don't know.
21· ·I don't even know what they talked about, but I don't
22· ·see why she shouldn't be able to ask these questions
23· ·about conversations that occurred with non-attorneys.··I
24· ·don't see why she shouldn't.
25· · · · · · · · ·MR. BARRETT:··Okay.
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·1· · · · · · · · ·THE COURT:··I mean, what's -- other than
·2· ·you -- you're just saying, quote, well, he's a
·3· ·consultant; I consulted with somebody.
·4· · · · · · · · ·MR. BARRETT:··Well, your Honor, if the
·5· ·conversation took place in the calendar year 2013, it
·6· ·obviously, didn't have anything to do with the
·7· ·litigation, and it would have to do with transactions
·8· ·that are the basis of this lawsuit.
·9· · · · · · · · ·If it took place --
10· · · · · · · · ·THE COURT:··That could be true.··And
11· ·again, we're getting back to co-conspirators --
12· ·alleged -- alleged.
13· · · · · · · · ·MR. BARRETT:··Well, in which case, those
14· ·conversations are fair game.··They couldn't possibly
15· ·have been in anticipation of this litigation.
16· · · · · · · · ·THE COURT:··I don't know about that part.
17· ·That's why I still get back to the point that it seems
18· ·like that the deposition should be here in the
19· ·courtroom, so that I can decide what your client should
20· ·or shouldn't answer, but be that as it may, I will give
21· ·you another chance to finish.
22· · · · · · · · ·Let me hear -- you've been about to jump
23· ·out of your shoes.
24· · · · · · · · ·MS. LEE:··I'm going to -- I'm going to do
25· ·it backwards.··I'm going to start from where he ended.
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·1· · · · · · · · ·Your Honor, I'm allowed -- or any attorney
·2· ·is allowed to ask a witness any information that goes to
·3· ·the credibility of the witness, and that is what these
·4· ·questions are about.
·5· · · · · · · · ·In addition, in his answer, Al Barcroft
·6· ·talks extensively about the contract for sale.··So he's
·7· ·alleging I can't even bring that up?··That was signed in
·8· ·2005.
·9· · · · · · · · ·Your Honor, this is what they're stating,
10· ·that the trust document doesn't exist and that's it's
11· ·the contract for sale that's the relevant document --
12· · · · · · · · ·THE COURT:··But -- but -- but -- but I'm
13· ·having trouble understanding why the family settlement
14· ·agreement didn't just render the whole contract for sale
15· ·irrelevant --
16· · · · · · · · ·MS. LEE:··It did, your Honor, and that's
17· ·why --
18· · · · · · · · ·THE COURT:··-- I mean, why do I care what
19· ·happened back then?··Because it's been all be superceded
20· ·by the family settlement agreement, for better or worse.
21· · · · · · · · ·MS. LEE:··Exactly, your Honor, and it has
22· ·and that is one of our arguments.
23· · · · · · · · ·Al Barcroft and Howard Kirk started -- they
24· ·met each other in 2004.··That is when they became
25· ·friends.··They have been fast friends.··They are
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·1· ·both -- there are certain questions that go back to
·2· ·2004.··I'm not going to ask him things about medical or
·3· ·-- I'm going ask him things that are very pertinent to
·4· ·this case.
·5· · · · · · · · ·In addition, I think if you look at all the
·6· ·things he highlighted, he acts like I don't ask about
·7· ·anything.··And I do talk about 2004 and '5.··That's how
·8· ·my clients met Al Barcroft.··Al Barcroft knew
·9· ·Howard Kirk.··Howard Kirk brought him along.
10· · · · · · · · ·That's when the family settlement -- I'm
11· ·sorry, that's when the contract for sale was signed, and
12· ·then they became friends and they continued to work
13· ·together.··And then the family settlement agreement was
14· ·signed in 2008.
15· · · · · · · · ·THE COURT:··So for back story or history?
16· · · · · · · · ·MS. LEE:··Yes, there is information that I
17· ·need to know to about.··And the KCH Investments has to
18· ·do with his credibility as a witness and his --
19· · · · · · · · ·THE COURT:··Is that that --what's Tate,
20· ·LLC?··What's that got to do with anything?
21· · · · · · · · ·MS. LEE:··These are businesses.··He creates
22· ·businesses and then doesn't work them.··If you do a
23· ·search on him, he has business after business after
24· ·business.··It shows his inability, his financial issues,
25· ·that's why he borrowed money from Al Barcroft, that's
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·1· ·why he conspired with Al Barcroft in order to steal
·2· ·57.19 percent of interest out of this trust.
·3· · · · · · · · ·We have proof from e-mails from Al Barcroft
·4· ·that when he stated, I'll give you back all the money
·5· ·and then everybody will be made whole, well it -- it's
·6· ·not just -- I mean, he wants to stop this January 1,
·7· ·2013, and only talk about GWB or GBU.
·8· · · · · · · · ·We have the family settlement agreement.
·9· ·What about Pentex Royalty Trust, what about Pentex
10· ·Foundation, where he's borrowed money from, and the --
11· ·are you okay?
12· · · · · · · · ·MR. BARRETT:··Yeah.··I'm sorry --
13· · · · · · · · ·MS. LEE:··Okay.··And Pentex Foundation, he
14· ·doesn't want me to even discuss that, at all.
15· · · · · · · · ·And, your Honor, discovery is sought -- the
16· ·discovery that I am seeking is well within the scope of
17· ·allowable and discoverable information.··And I'm allowed
18· ·to ask anything that's going to be calculated to lead to
19· ·relevant evidence.
20· · · · · · · · ·And not only that, but we go into, I have
21· ·him arguing -- this is what I'm going to have to deal
22· ·with on the day of the deposition, is him arguing work
23· ·product between an opposing party.··The questions that I
24· ·have asked, which he objects to all kinds of substantial
25· ·questions, privilege between these two individuals or
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·1· ·work product or some other privilege and I'm not going
·2· ·to get any answers.
·3· · · · · · · · ·And not only that, your Honor, his
·4· ·statement about him coming here is, frankly, laughable.
·5· ·I mean, he's a litigator.··He comes to the Tarrant
·6· ·County courthouse.··Your Honor, my main office is in
·7· ·Alaska and I haven't asked anybody to pay for my commute
·8· ·from Alaska to here.··I mean, that --
·9· · · · · · · · ·THE COURT:··Really?
10· · · · · · · · ·MS. LEE:··Yes, my main office is in Alaska,
11· ·your Honor.
12· · · · · · · · ·THE COURT:··I had no idea.
13· · · · · · · · ·MS. LEE:··Yes, I have two offices.··So I
14· ·have to fly down here.··I haven't asked my clients, I
15· ·haven't asked opposing parties to reimburse me for any
16· ·costs.··He's a litigator in Tarrant County.
17· · · · · · · · ·And as I stated earlier, I actually would
18· ·request that Judge Morrisett sit in on the entire
19· ·deposition, only for the purposes -- because I believe
20· ·we will be getting up a lot in coming in here and
21· ·talking to you, to get you to come in there so that we
22· ·can have a ruling on getting an answer --
23· · · · · · · · ·THE COURT:··Judge Morrisett probably has
24· ·more to do.··If I'm here, I would be the one in charge
25· ·any way.
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·1· · · · · · · · ·MS. LEE:··Okay.··Your Honor, I just was
·2· ·offering that up --
·3· · · · · · · · ·THE COURT:··I do like to use him for
·4· ·discovery matters, but ultimately, this is going to
·5· ·be -- needs to be done by me.
·6· · · · · · · · ·MS. LEE:··As he went on and on and on about
·7· ·these things are not -- these are all things that has
·8· ·led up to what Howard Kirk and Al Barcroft and
·9· ·Beverly Miller and Danny Unger, what they did in order
10· ·to steal these assets from my clients.
11· · · · · · · · ·And he wants me to just tailor it from
12· ·January 1, he's been borrowing money from 2008, from
13· ·Pentex and Al Barcroft --
14· · · · · · · · ·THE COURT:··Well, I guess, the thing about
15· ·the house is, one thing people try to do is show a
16· ·difference in lifestyle when they're trying to prove
17· ·there may be some conversion of a trust.··That's not
18· ·unusual --
19· · · · · · · · ·MS. LEE:··That's why there's --
20· · · · · · · · ·THE COURT:··-- a big change in lifestyle.
21· · · · · · · · ·MS. LEE:··That's the questions --
22· · · · · · · · ·THE COURT:··It may or may not have anything
23· ·to do with your allegations, but I think it would be
24· ·fair game.
25· · · · · · · · ·MS. LEE:··Yeah, that's the reason that I'm
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·1· ·asking those questions, to look at his lifestyle.··He's
·2· ·sustained a lifestyle that he cannot sustain on the
·3· ·money that's coming into him with no employment.··Those
·4· ·are all relevant questions for me to ask.
·5· · · · · · · · ·But he wants to bar me from doing that and
·6· ·have it at his office and guess what's going to happen
·7· ·if we have at his office?··What do you think?··We're
·8· ·going to be right back here with another motion, because
·9· ·I didn't get any of the answers that I wanted.
10· · · · · · · · ·THE COURT:··Sometimes that's part of
11· ·litigation, but okay.
12· · · · · · · · ·MR. BARRETT:··Your Honor, one other
13· ·thing --
14· · · · · · · · ·THE COURT:··Last word it's your motion.
15· · · · · · · · ·MR. BARRETT:··One thing I need to point
16· ·out --
17· · · · · · · · ·THE COURT:··Okay.
18· · · · · · · · ·MS. BARRETT:··Were you done?
19· · · · · · · · ·MS. LEE:··I did have one more thing, your
20· ·Honor -- I'm sorry.
21· · · · · · · · ·MR. BARRETT:··That's all right.
22· · · · · · · · ·MS. LEE:··It's just one quick thing about
23· ·him -- there is no case law -- because we looked, there
24· ·is no case law that provides that the deposition for the
25· ·defendant -- the deposition of anybody has to be in
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·1· ·their attorney's office.
·2· · · · · · · · ·Now, that is common practice, but if you
·3· ·look at Texas Rule of Civil Procedure 199.2, the
·4· ·appropriate places for depositions are in the place of
·5· ·residence, that's in Tarrant County, that's where he
·6· ·lives, and the county where the suit's filed, that's
·7· ·Tarrant County.··So it's all fair game in Tarrant
·8· ·County.
·9· · · · · · · · ·And this is a neutral place, it's
10· ·tot -- I'm not asking for it to be in my office.··And
11· ·it's a neutral location.··Thank you.
12· · · · · · · · ·MR. BARRETT:··Judge, I want to point out,
13· ·in connection with her argument that these specific acts
14· ·of Howard in the past, with respect to KCH Investments
15· ·and borrowing or -- or the $508,000 withdrawal and all
16· ·these things that took place somewhat long ago she says
17· ·are relevant to assess the credibility of the witness
18· ·and all that.
19· · · · · · · · ·I need to point out that Rule 608
20· ·specifically says -- Rule 608 of the Texas Rules of
21· ·Evidence says that specific instances of conduct of a
22· ·witness for the purpose of attacking or supporting the
23· ·witness's credibility, other than conviction of a crime
24· ·as provided in Rule 609, which itself has a ten-year --
25· · · · · · · · ·THE COURT:··Ten year, I understand.
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·1· · · · · · · · ·MR. BARRETT:··Yeah, may not be inquired
·2· ·into on cross-examination of the witness, nor proved by
·3· ·extrensic -- extrinsic evidence.
·4· · · · · · · · ·So even if these things were relevant to
·5· ·Howard's credibility, that he had a failed business in
·6· ·the past and he -- whatever it is with this KHC
·7· ·Investments or people that he knows or involved in that,
·8· ·none of those things have anything to do with this
·9· ·lawsuit and can't be used for impeachment as she claims.
10· · · · · · · · ·So again, I mean, I --
11· · · · · · · · ·THE COURT:··Well, I don't know if they can
12· ·be used for impeachment, but I think if the -- if
13· ·the nucleus of this began in 2004, then I think, like I
14· ·said, for back story purposes and for getting
15· ·information, I think he should be -- answer those in
16· ·deposition.··Whether or not they are appropriate to be
17· ·used for impeachment at a trial is a whole other matter.
18· · · · · · · · ·MR. BARRETT:··Well, if they might lead to
19· ·admissible evidence, but Judge, all of the allegations
20· ·in the lawsuit are confined to this trust and
21· ·Beverly Miller's actions as the trustee.
22· · · · · · · · ·THE COURT:··Exactly.··And this whole
23· ·saga -- this is not a -- this is not a window in time
24· ·with bright light -- with a bright line, so to speak,
25· ·this is a -- she's alleged this sort of saga, it's the
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·1· ·only word I can think about it.
·2· · · · · · · · ·How much of it would go -- would be too old
·3· ·to be admissible actually?··At a trial, I don't know.
·4· ·That's why I still think we ought to have a deposition
·5· ·here, because this -- obviously, I can tell right now,
·6· ·you've made a very good case that we're going -- there's
·7· ·a lot of questions come up in that deposition.
·8· · · · · · · · ·And I don't know if there's a bunch of
·9· ·failed business.··I don't know if he had one or a
10· ·hundred failed businesses, I don't know if that has
11· ·anything to do with anything.
12· · · · · · · · ·MR. BARRETT:··Then without withdrawing --
13· · · · · · · · ·THE COURT:··But if somehow she was able to
14· ·allege there was some kind of fraud or pulling out of
15· ·assets that made those businesses fail that were a
16· ·pattern, then that might say something --
17· · · · · · · · ·MR. BARRETT:··About this trust?
18· · · · · · · · ·THE COURT:··Well, about his behavior.··And
19· ·how -- her whole -- her whole thing is that there's
20· ·fraud and conspiracy abound.··And I don't know if she's,
21· ·you know, if they're paranoid or they're onto something.
22· ·That's what this is all about.
23· · · · · · · · ·MR. BARRETT:··Can we -- I understand the
24· ·Court's ruling.··Can we stop without me withdrawing my
25· ·technical objection and -- because, frankly --
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·1· · · · · · · · ·THE COURT:··We'll be off the record for a
·2· ·moment.
·3· · · · · · · · ·(Off the record)
·4· · · · · · · · ·THE COURT:··We're going to go back on the
·5· ·record.··And the Court finds from the arguments and from
·6· ·taking judicial notice of its file and its previous
·7· ·hearings, that it is in the interest of justice, the
·8· ·administration of justice, to have the deposition occur
·9· ·in this courtroom.
10· · · · · · · · ·And the Court will be available to make
11· ·contemporaneous rulings on the admissibility of evidence
12· ·or the objections -- sustain objections.··And the
13· ·Court's going to, at this point, deny a protective
14· ·order.
15· · · · · · · · ·Now, if you-all want to come to me with
16· ·some agreed -- y'all can work out some kind of agreed
17· ·parameters to make this thing go faster, the Court would
18· ·welcome it, but I don't see that I'm in a position to
19· ·order or direct any particular parameters at this time.
20· ·I'm afraid we're going to have to get our feet wet and
21· ·get into the deposition to find that out.
22· · · · · · · · ·MS. LEE:··Can we address both of the
23· ·orders, then, your Honor, because the other one we have
24· ·it scheduled for March 4th, but --
25· · · · · · · · ·THE COURT:··My courtroom is scheduled for
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·1· ·March 4th --
·2· · · · · · · · ·MR. LEE:··Yes, your Honor, it's already
·3· ·scheduled, but I don't have any documents and so I
·4· ·requested --
·5· · · · · · · · ·THE COURT:··Well, he needs to get them to
·6· ·you before March 4th.
·7· · · · · · · · ·MS. LEE:··Okay.··So -- and then --
·8· · · · · · · · ·THE COURT:··So --
·9· · · · · · · · ·MS. LEE:··So do you want to do this motion
10· ·first, the motion to quash?··So the schedule -- do you
11· ·want to keep it March 4th?
12· · · · · · · · ·THE COURT:··Yes, I overrule the motion to
13· ·quash and the deposition remains March 4th in this
14· ·courtroom.··At what did I say 9:00, 9:30?··Did we set up
15· ·a time?
16· · · · · · · · ·MR. BARRETT:··I think it's 9:00 --
17· · · · · · · · ·THE COURT:··9:30 is fine.··We can start at
18· ·10:00 if you want, if you need at little more time to
19· ·prepare in the morning. There's a lot to be done.··I
20· ·don't mind 10 o'clock.··I always have things to do when
21· ·I get here.
22· · · · · · · · ·MS. LEE:··Okay.··Let's do 10:00.
23· · · · · · · · ·THE COURT:··Ten will be good, because
24· ·there's a myriad of things I have to deal with when I
25· ·walk in every morning.
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·1· · · · · · · · ·MS. LEE:··And, your Honor, and also for
·2· ·this motion, and I know that it upsets him, but we are
·3· ·asking for sanctions again, because we're here, yet
·4· ·again, to deal with this, when, your Honor, there were
·5· ·some things you haven't -- this is the fourth time that
·6· ·this deposition had been scheduled.
·7· · · · · · · · ·THE COURT:··Well, this is the first time
·8· ·Mr. Barrett has made any requests --
·9· · · · · · · · ·MS. LEE:··Okay.
10· · · · · · · · ·THE COURT:··-- and I'll deny any sanctions.
11· ·I'll give you attorney fees on the reconsider.
12· · · · · · · · ·MS. LEE:··Thank you, you Honor.··And then
13· ·the motion to reconsider, the number two would be no
14· ·later than -- if the deposition's the fourth, I really
15· ·would like to have them the third --
16· · · · · · · · ·THE COURT:··Oh, of course the third. I was
17· ·thinking --
18· · · · · · · · ·MS. LEE:··And then he can sign on that
19· ·date -- on the third, also, the form 4506, which is for
20· ·me to have access to tax returns to verify that what he
21· ·provides me is accurate.
22· · · · · · · · ·THE COURT:··Yes.
23· · · · · · · · ·MS. LEE:··And then number five on the
24· ·sanctions, can we please put a date on when he needs to
25· ·pay my clients those sanctions?
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1 THE STATE OF TEXAS)
2 COUNTY OF TARRANT)
3 I, Ashlee Wells, Official Court Reporter in and for
4 the Probate Court No. 2 of Tarrant County, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record, in the
10 above-styled and -numbered cause, all of which occurred
11 in open court or in chambers and were reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14 exhibits, if any, admitted by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $ and
17 was paid/will be paid by Mr. Dan Barrett .
18 WITNESS MY OFFICIAL HAND this the 10th day of
19 March, 2015.
20
21 ASHLEE WELLS, Texas CSR 8684
Expiration Date: 12/31/15
22 Official Court Reporter,
Probate Court No. 2
23 Tarrant County, Texas
24
25
in Re Howard Kirk Gibbs
Combined Opinion