in Re Shelby Longoria

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    ACCEPTED 14-15-00917-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 10/28/2015 4:42:22 PM CHRISTOPHER PRINE CLERK NO. _________________ FILED IN IN THE _____ COURT OF APPEALS 14th COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 10/28/2015 4:42:22 PM __________________________________________________________________ CHRISTOPHER A. PRINE Clerk IN RE SHELBY LONGORIA Original Proceeding from the Probate Court Number One, Harris County, Texas, Cause No. 414270 __________________________________________________________________ PETITION FOR WRIT OF MANDAMUS – RECORD VOL 1, PART 2 __________________________________________________________________ Johnny W. Carter Robert S. MacIntyre Jr. State Bar No. 00796312 State Bar No. 12760700 jcarter@susmangodfrey.com macintyre@mmlawtexas.com Richard W. Hess MACINTYRE MCCULLOCH State Bar No. 24046070 STANFIELD YOUNG rhess@susmangodfrey.com 2900 Weslayan, Suite 150 Kristen Schlemmer Houston, Texas 77027 State Bar No. 24075029 Telephone: (713) 547-5400 kschlemmer@susmangodfrey.com 1000 Louisiana Street, Suite 5100 Houston, Texas 77002-5096 Telephone: (713) 651-9366 Fax: (713) 654-6666 Attorneys for Shelby Longoria NUMBER 414270 ESTATE OF IN PROBATE COURT NO ONE DOROTHY LOUISE LONGORIA DECEASED OF HARRIS COUNTY TEXAS INVENTORY APPRAISEMENT AND LIST OF CLAIMS TO THE HONORABLE JUDGE OF THIS COURT AND TO ALL INTERESTED PARTIES COMES NOW James Thomas Dorsey as Independent Executor of the Estate of Dorothy Louise Longoria Deceased and submits for filing this Inventory Appraisement and List of Claims in compliance with Section 250 of the Texas Probate Code Date of Death April 2012 Date of Qualification October 2012 The following is full true and complete Inventory and Appraisement of all personal property and all real property situated in the State of Texas together with list of claims due and owing to this Estate as of the date of death which have come into the possession or knowledge of the undersigned REAL PROPERTY To the knowledge of the Independent Executor the Decedent owned no real property on the date of her death The Decedent may have owned community property interest in real property owned by Eduardo Longoria on the date of his death An investigation is being conducted to determine whether Eduardo Longoria owned any real property on the date of his death INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00716 PERSONAL PROPERTY To the knowledge of the Independent Executor the Decedent owned the following personal property on the date of her death Cash and Bank Accounts Texas Community Bank Account Number 4988 Texas Community Bank Account Number 27538 Texas Community Bank Account Number 7680 Texas Community Bank Certificate Number 72918 Total Cash and Bank Accounts2 113124 Stocks Bonds and Other Securities Direct of or right to constructive trust imposed on undivided one-half interest in ownership 50 shares of Series stock in Vertice Empressarial S.A deC.V shares of Series stock in Vertice Empressarial S.A de C.V 8934 49000 shares of Series stock in Inmuebles Terrenos S.A de C.V and 4375350 shares of Series stock in Inmuebles Terrenos S.A de C.V 49011050 Total Stocks Bonds and Other Securities3 49011050 Other Personal Property Jewelry Choker gold necklace 400 The Decedent have owned accounts is believed may additional Shelby Longoria to be in possession of information regarding such accounts if any but to date he has refused to provide it The Decedent may have owned additional stocks bonds or other securities Shelby believed be such bonds and Longoria is to in possession of information regarding stocks other securities if any but to date he has refused to provide it INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00717 Small diamond necklace 1000 Silver and small diamond ring 500 Small hoop gold and diamond earrings 1500 Peridot earrings 250 Calsidney earrings 250 Coral and diamond earrings 1000 Coral ring 500 Elizabeth Showers earrings 600 Watch 2000 150 Gump Peridot necklace Diamond ring 1500 Pearl necklace 2000 Pearl and diamond earrings 1000 Short strand of black pearls 1000 Pearl and smoky topaz bracelet 350 Necklace from India with topaz peridot and amethyst beads 250 long string of pale beads and matching earrings 180 Thirty-inch green Two small gold chains 120 of silver diamond 100 Set loops and hanging blue stone Four silver rings 120 Gold chain with small diamond 120 INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00718 Five slides for loops 260 Small faux diamond necklace 250 Set of turquoise earrings with small diamond 2500 Gold chain with pink coral 200 aa Aqua ring and earring 350 bb Faux emerald earrings with briolette 250 cc Ring with cocktail diamonds 5000 dd Ring with faux diamonds 250 ee Six strands of pearls yellowed 300 ff Set of ioop earrings with hanging briolette 4000 gg Miscellaneous costume jewelry and accessories numerous pieces 500 Total Jewelry 28750 Electric Wheelchair 1500 Clothing 5000 Miscellaneous Personal Effects 1000 Total of Other Personal Property 36250 TOTAL PERSONAL PROPERTY KNOWN TO EXECUTOR 49160424 TOTAL ESTATE KNOWN TO EXECUTOR NOT INCLUDING CLAIMS LISTED BELOW 49.160424 The Decedent was predeceased by her husband and she never remarried so no one owned community-property interest in any property listed above INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00719 LIST OF CLAIMS To the knowledge of the Independent Executor the Decedent owned the following claims on the date of her death Claim against Adriana Longoria based on promissory note dated August 12011 in the principal amount of $70000 70478 Claim Sylvia Dorsey for amounts loaned to her 75000 against Claim against Shelby Longoria based on August 92011 agreement 200000 Claim against Shelby Longoria for breach of fiduciary duty 25000000 Claim against Shelby Longoria for exemplary damages 10000000 TOTAL CLAIMS4 35345478 RESERVATION OF RIGHT TO AMEND The Independent Executor expressly reserves the right to amend this Inventory Appraisement and List of Claims There may be additional claims against Shelby Longoria He has withheld information that has formally been requested in this proceeding Accordingly this inventory may be amended when such information is obtained INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00720 James Thomas Executor of the Estate of Dorothy Louise Dorsey Independent Longoria Deceased do solemnly swear that the above two pages shown as the Inventory and List of Claims are true correct full and complete statement of the Appraisement property and claims of the Estate that have come to my knowledge Respectfully submitted Si nature of Independent Executor Is fain es Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 FIsHER WELCH Professional Corporation 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Telecopier 214.661.9404 ATTORNEY FOR JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00721 STATE OF TEXAS COUNTY OF DALLAS Sworn to and subscribed before me on August 27 2013 by James Thomas Dorsey as Independent Executor of the Estate of Dorothy Louise Longoria Deceased otary Public in akdior the ate of Texas IYY\ Printed Name of Notary Public My Commission Expires 7-Y\4tl19 INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00722 CERTIFICATE OF SERVICE hereby certify that on August 27 2013 true and correct copy of this document was served on the Defendant through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schiemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 BY EMAIL TO jcartersusrnangodfrey.corn rhess@susmangodfrey.com and ksch1ernrnersusrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO macintyre@rnmlawtexas.com is/James Austin Fisher James Austin Fisher INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00723 CASE NUMBER4I427O IN THE ESTATE OF IN PROBATE ft6U1MUQNE DOROTHY LOUISE LONGORIA DECEASED r.lXAS ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL TO THE HONORABLE JUDGE OF THIS COURT COMES NOW James Thomas Dorsey in his capacity as Independent Executor of the Estate of Dorothy Louise Longoria Deceased as Counter-Plaintiff and pleads the following counterclaims in response to Shelby Longorias Amended Contest of 2010 Will stating the following causes of action against Shelby Longoria as Counter-Defendant Discovery Level Pursuant to TEX Civ 190 Counter-Plaintiff states that discovery in this case is intended to be conducted under Level of that Rule Overview These counterclaims are brought by citizen of Texas against another citizen of Texas Counter-Plaintiff is the personal representative of an estate pending in this Court and adjudication of these counterclaims is essential to administration of that estate The Decedent lived in Texas for the last 25 years of her life These counterclaims are based entirely on Texas law None of them is based on any law of the United Mexican States ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 00724 The Parties Counter-Plaintiff James Thomas Dorsey is an individual who is these bringing counterclaims in his capacity as the duly appointed Independent Executor of the Estate of Dorothy Louise Longoria Deceased Counter-Defendant Shelby Longoria is an individual who resides in Hidalgo County Texas Counter-Defendant commenced this action and has appeared through counsel in this action so this pleading may be served on him through his attorneys of record Jurisdiction Pursuant to Sections 4A 4B and 4F of the Texas Probate Code the Court has jurisdiction over the subject matter of this civil action The Estate of Dorothy Louise Longoria is pending in this Court and this Court is statutory probate court As explained more fully below this action is brought by personal representative on behalf of that estate and this action is related to that estate In addition the exercise of pendent or ancillary jurisdiction over this action is to and economy necessary promote judicial efficiency The Court has in personam jurisdiction over Counter-Defendant Shelby Longoria by virtue of his filing of Shelby Longorias Amended Contest of 2010 Will in response to which these counterclaims are pleaded In addition general personal jurisdiction exists because the Counter-Defendant has had continuous and systematic contacts with the State of Texas and specific personal jurisdiction exists because this action arises out of contacts by the Counter-Defendant with the State of Texas as explained below ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WELL Page 00725 Venue Pursuant to Section 6A of the Texas Probate Code the venue of this action is proper because the Estate of Dorothy Louise Longoria Deceased is pending in this Court and this action is related to that estate as explained more fully below Conditions Precedent All conditions precedent Counter-Plaintiffs plead and to prosecute to rights to these counterclaims and to recover the relief requested herein have occurred or been fulfilled Facts Applicable to All Causes of Action On July 1942 Eduardo Longoria Eduardo and Dorothy Louise Kowaiski Dorothy were married in the City of Laredo in Webb County Texas 10 When they were married Dorothy was citizen of the United States of America and Eduardo was citizen of the United Mexican States Mexico but he had been living in the United States and after the wedding the couple initially settled in McAlIen Texas 11 The marriage of Eduardo and Dorothy was subject to the laws of the State of Texas including the law of community property This petition does not recite fact on which the Counter-Plaintiffs claims every are based It is intended only to be short statement of the cause of action sufficient to give fair notice of the claim involved as required by TEx Ctv 47 ORiGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 00726 12 Eduardo and Dorothy had four children all of whom are living Their names are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo Longoria Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All of them reside in Texas 13 Eduardo and Dorothy amassed considerable wealth through variety of business activities and investments 14 Over time Shelby took control over the business and investments owned by Eduardo and Dorothy 15 Shelby managed property and accounts owned by Dorothy and represented to her that he was doing so for her benefit 16 in addition Shelby expressly agreed to hold in trust for the benefit of Dorothy property that Shelby obtained from Eduardo In letter to Dorothy dated August 1983 for example Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us as long as you live we will hold them as if they were yours and will make the fruits available to you for your direction as to their use These promises were made by Shelby while he was residing in Texas and they were set forth in letter that was sent to Dorothy from an address in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby by Eduardo by concealing from Dorothy material facts about that including nature extent value and profitability property its by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 00727 generated by the property by failing to disclose to Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use 17 Likewise in letter dated October 2007 which Shelby sent to Dorothy at her residence in Houston Texas Shelby made specific promises with respect to large sum of money that Eduardo wished for Dorothy to have upon his death Admitting that he held such funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate to her daughters Shelby promised that within thirty days after Dorothy died he would pay $100000 to Sylvia and $100000 to Adriana Upon Dorothys death Shelby repudiated and breached this promise to Dorothy While he did tender check for $100000 to Sylvia and check for $100000 to Adriana he printed on the checks language that if the checks were negotiated would have resulted in release of their rights in Dorothys estate and rights against Shelby self-serving conditions which Shelby had no right to impose The fact that Shelby arbitrarily demanded such releases for his benefit as conditions on his performance of an unconditional duty to pay $100000 to Sylvia and $100000 to Adriana proves that Shelby knew that Dorothy owned valuable claims against him Shelby knew that Dorothy intended to leave her entire estate to Sylvia and Adriana and Shelby knew that Sylvia and Adriana themselves had valuable claims against him all of which he now dishonestly denies 18 Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as trustee of an express trust for the benefit of Dorothy and in addition or in the alternative pursuant to an informal fiduciary relationship with Dorothy ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 00728 19 in contravention of his fiduciary duty to Dorothy under Texas law Shelby failed to advise Dorothy fully and fairly regarding the nature and extent of her property and his actions with respect to her property and the property he was holding in trust supposedly for her benefit 20 In fact Shelby managed for his own benefit Dorothys property as well as property he was holding in trust supposedly for her benefit He caused income from the property to be paid to him or to others for his benefit and failed to disclose to Dorothy that he had done so 21 Eduardo died on January 26 2005 at the age of 91 He was born on October 25 1913 22 When Eduardo died all of the property in his estate was community property of which one-half was owned by Dorothy under Texas law 23 Eduardo died in Webb County Texas where he and Dorothy had lived for many years 24 After the death of Eduardo Shelby continued to manage Dorothys property and continued to represent to her that he was managing her property for her benefit but he intentionally concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property 25 In fact Shelby managed the property for his own benefit and engaged in self- dealing transactions that he failed to disclose to Dorothy ORiGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 00729 26 Dorothy died in Harris County Texas on April 62012 at the age of 92 She was born on May 1919 27 By order dated October 92012 this Court admitted to probate Dorothys Last Will and Testament dated January 21 2010 and appointed James Thomas Dorsey Independent Executor of the Estate of Dorothy 28 Letters Testamentary were issued to James Thomas Dorsey on the same day and such Letters Testamentary are currently in full force and effect so he is fully authorized to bring this action 29 Whenever it is alleged herein that Shelby acted or communicated in any fashion then such allegation should be taken to mean That the Shelby himseiftook such action or made such communication or in the alternative That duly authorized agent of Shelby took such action or made such communication on behalf of Shelby and in the course and scope of the agency or in the alternative That such action or communication was by one having apparent authority to do so on behalf of Shelby or in the alternative That Shelby ratified and adopted such action or communication as its own and thereby became legally responsible for it ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 00730 First Cause of Action Demand for Accounting 30 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 31 Pursuant to Section 489B of the Texas Probate Code Section 113.151 of the Texas Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled to and hereby requests that Shelby provide full accounting of all of his activities as an agent for Dorothy all transactions done or caused by him involving property owned in whole or in part by Dorothy and all transactions involving property held by him in trust for Dorothy 32 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 00731 interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 33 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Section 113.151 of the Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Second Cause of Action Breaches of Fiduciary Duty 34 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 35 Under Texas law Shelby breached his fiduciary duty to Dorothy by failing to disclose to her fully and fairly all information that might affect her interests in property managed by him including both her community property and property held by Shelby in trust for her failing to act with utmost good faith and fair dealing in the management of her property and property held in trust for her and in his other activities affecting her interests failing to act with undivided loyalty to Dorothy in the management of her property and property held by him in trust for her and in his other activities affecting her interests and ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUiSE LONOORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 00732 engaging in self-dealing transactions that were detrimental to her and in addition or in the alternative improperly benefited him 36 The breaches of fiduciary duty by Shelby proximately caused compensable harm to Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law 37 The breaches of fiduciary duty by Shelby constituted fraud gross negligence and malice as those terms are defined in Chapter 41 of the Texas Civil Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose to Dorothy all facts that might affect her interests Shelby intentionally or in the alternative with reckless disregard for Dorothys rights concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property Under Texas law Counter- Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for exemplary damages in an amount to be determined by the trier of fact in accordance with Texas law 38 Shelby derived profits by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment decreeing that Shelby disgorge all profits received by him as result of the breaches of his fiduciary duty to Dorothy 39 Shelby acquired property by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff to and hereby requests entry of is entitled ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 10 00733 judgment imposing constructive trust on all property acquired by Shelby by means of the breaches of his fiduciary duty to Dorothy 40 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In Counter-Plaintiff under Texas law the discovery rule and fraudulent addition pleads concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property much money he had been from the years and how over the paid or otherwise derived property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 41 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Section 114.064 of the Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 11 00734 Third Cause of Action Breach of Promise To Hold Property for Dorothys Benefit 42 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 43 Shelby promised Dorothy that he would hold in trust for Dorothy all of the assets that Eduardo gave to Shelby and Wayo and that he would make the income from such property available to her for her direction as to their use These promises were made by Shelby while he was residing in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby and Wayo by Eduardo by concealing from Dorothy material facts about that property including its nature extent value and profitability by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income generated by the property by failing to disclose to Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use 44 These breaches by Shelby proximately caused compensable harm to Dorothy and her estate Based on the doctrines of breach-of-contract promissory estoppel and money-had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 12 00735 45 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of liii disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 46 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 13 00736 Fourth Cause of Action Breach of Promise To Pay $100009 to Adriana and $100000 to Sylvia 47 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 48 Shelby promised Dorothy that within thirty days of her death he would pay $100000 to Adriana and $100000 to Sylvia These promises were made by Shelby while he was residing in Texas and they were directed to Dorothy at her residence in Houston Texas Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia checks that they could not negotiate without waiving their rights in Dorothys estate and their rights against Shelby self-serving conditions which Shelby had no right to impose 49 Based on the doctrines of breach-of-contract promissory estoppel and money- had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for $200000 in accordance with Texas law 50 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duly of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 14 00737 property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The Dorothy and her are objectively verifiable because injuries to estate money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 51 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Prayer for Relief WHEREFORE PREMISES CONSIDERED Counter-Plaintiff James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased prays that upon due notice and trial by jury or upon hearing on motion for entry of default judgment or motion for summaryjudgment the Court renderjudgment for Counter-Plaintiff and against Counter-Defendant Shelby Longoria awarding the following relief under Texas law decree commanding Counter-Defendant Shelby Longoria to render an accounting of all property that was owned in whole or in part by Dorothy Louise Longoria ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2OO WILL Page 15 00738 and that was within his possession custody or control and all transactions affecting her property and an accounting of all actions taken by him as her agent or trustee an award of actual damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law but the maximum amount of actual damages currently sought by Counter-Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $25200000 an award of exemplary damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law but the maximum amount of exemplary damages currently sought by Counter-Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $10000000 an award of attorney fees including litigation expenses reasonably and necessarily incurred by Counter-Plaintiff in connection with each of his causes of actions under Texas law decree commanding Counter-Defendant Shelby Longoria to disgorge all profits received by him or by others for his benefit as result of breach by him of his fiduciary duty to Dorothy Louise Longoria decree imposing constructive trust on all property acquired by Counter- Defendant Shelby Longoria or by others for his benefit by means of breach of fiduciary duty owed to Dorothy Louise Longoria ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 16 00739 an award of prejudgment interest on all actual damages at the highest rate authorized by law to the date ofjudgment an award of all costs incurred by Counter-Plaintiff in the course of preparing and prosecuting this civil action an award of postjudgment interest on relief at the highest rate all monetary authorized by law from the date of judgment until paid 10 all writs and processes necessary to collect the judgment and 11 all other relief to which Counter-Plaintiff is entitled or which the Court may deem appropriate under the circumstances and the applicable law Any inconsistent allegations or prayers for relief are pleaded in the alternative as expressly authorized by TEX Civ P.47 and 48 Reservation of Rights To Amend and To Supplement This Pleading Because Counter-Plaintiff presently does not know all of Counter-Defendants acts and omissions that caused harm to Dorothy Louise Longoria or her estate or all of the relevant circumstances surrounding such acts and omissions Counter-Plaintiff anticipates that it may be necessary to plead additional causes of action after discovery is conducted Accordingly Counter-Plaintiff hereby reserves the rights to amend and to supplement this pleading ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 17 00740 DATED September 26 2013 Respectfi.illy submitted Is/James Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 Shannon L.K Welch State Bar of Texas Number 90001699 FIsHER WELCH Professional Corporation 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Telecopier 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 THE HOLMES LAW FIRM 10000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9267 ATTORNEYS FOR COUNTER-PLAINTIFF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 18 00741 CERTIFICATE OF SERVICE hereby certify that on September 26.2013 true and correct copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Texas law Joimny Carter Richard Hess and Kristen Schiemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 BY EMAIL To jcarter.susrnangodfrey corn rhesssusrnangodfrey corn and kschlemrnersusrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO macintyrernmlawtexas.corn Is James Austin Fisher James Austin Fisher ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS AMENDED CONTEST OF 2010 WILL Page 19 00742 CASE NUMBER 414270 IN THE ESTATE OF IN PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS TO THE HONORABLE JUDGE OF THIS COURT COME NOW Counter-Plaintiff James Thomas Dorsey in his capacity as Independent Executor of the Estate of Dorothy Louise Longoria Deceased the Executor and Third- Party Defendant Sylvia Dorsey and respectfully submit this response to Counter-Defendant Shelby Longorias Motion To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending Resolution of Will Contest and Mexican Litigation the Motion For the following reasons the Motion should be denied PARTIES RESIDING IN TEXAS PARTIES RESIDING IN MEXICO Shelby Longoria James Thomas Dorsey Executor NONE Sylvia Dorsey Adriana Longoria The Motion seeks dismissal of counterclaims involving four parties All of them including the Movant Shelby Longoria live in Texas yet his motion brief and affidavit all manage to avoid revealing the fact that he lives here an obviously crucial fact in aforum non conveniens inquiry This lack of candor permeates Movants argument RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 00743 Movant cites no case in which every party was an individual residing in the forum state but which nevertheless was dismissed for forum non conven lens The Motion is wholly unsupported by apposite precedent But the precedential poverty of the Motion is even more profound Movant seeks dismissal of claims pleaded in probate court by the executor of an estate in that pending court There is strong public interest in protecting the jurisdiction of probate courts over matters related to estates of deceased residents of the forum Movant cites no case in which probate court dismissed for forum non conveniens claim of the personal representative of an estate in that court The Motion is wholly unsupported in second essential respect But it gets worse still The Motion seeks dismissal of counterclaims and not counterclaims unrelated to the subject matter of the plaintiffs claim but counterclaims closely related to that subject matter the estate planning of the Decedent Dorothy Longoria and the disposition of her estate Shelby Longoria the Counter-Defendant who both lives in this state and invoked the jurisdiction of this Court to contest the Decedents will now insists that this forum is so oppressively inconvenient that the counterclaims him against must be dismissed But he cites no case in which court has ever applied forum non conveniens to dismiss counterclaims that are directly related to the plaintiffs claims The Motion is then wholly unsupported in third essential respect As it relates to Movants request for dismissal this response has two parts First we show that the Motion depends on grossly inaccurate statement of the law Second we show the the Motion depends on grossly inaccurate statement of the facts especially the RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 00744 nature and substance of the counterclaims pleaded by the Executor The counterclaims are based entirely on acts and omissions of Movant while he lived in Texas The counterclaims are based entirely on Texas law The gravamen of the counterclaims is that Movant breached his fiduciary duty to his mother Dorothy Longoria the Decedent in this probate proceeding The fiduciary duty arose both out of documented private-trust relationship and an informal fiduciary relationship Both causes of action are recognized in Texas but not in Mexico so Mexico is not an adequate alternative forum The Decedent lived in Texas for the last 25 years of her life and Movant has lived here longer than that so application of Texas law is no stretch it is plainly appropriate The Executor is not asking this Court to apply Mexican law or to set aside the judgment of Mexican court Movants argument mischaracterizes the Executors counterclaims can Movant make Only by doing so colorable argument for dismissal In the alternative Movant requests abatement of the Executors counterclaims until Movants will contest is concluded and certain proceedings in Mexico are concluded The request makes no sense The counterclaims will be pursued regardless of the outcome of the will contest even if the order admitting the will is set there will be aside personal representative who will be responsible to assert claims of the estate Likewise the Mexican case referenced by Movant cannot possibly obviate the litigation of the Executors counterclaims Abatement would accomplish nothing except delay and duplication of discovery as discovery needed for the counterclaims overlaps with discovery needed for the will contest Abatement of the counterclaims is bad idea RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 00745 RESPONSE TO MOTION TO DISMISS FOR FORUM NON CONVENIENS Movant Fails To Identify Let Alone Apply the Correct Legal Standard To Be Entitled To Dismissal Movant Must Bear Heavy Burden To Clearly Show Facts That Strongly Favor an Available and Adequate Alternative Forum While Giving Great Deference To This Forum Remarkably Movant cites neither the most recent case in which the Supreme Court of Texas made aforum non conveniens determination nor the most recent case in which the United States Supreme Court did so Though ignored by Movant both cases are instructive See Sinochem Intl Co Malaysia Intl Shipping Corp 549 U.S 422 2007 Quixtar Inc Signature Mngmt Team LLC 315 S.W.3d 28 Tex 2010 In both cases it was held that defendant seeking dismissal forforum non conveniens ordinarily bears heavy burden in opposing the plaintiffs chosen forum Quixtar 315 S.W.3d 28 31 Tex 2010 quoting Sinochem 549 U.S at 430 emphasis added.2 In Movants Brief however Movant never recognizes the heavy burden imposed on him by common law Instead Movant jumps ahead to address the adequacy and availability of Mexican forum and various fators of private and public interest By considering those See COUNTER-D EFENDANT SHELBY LONGORIA SB RIEF IN SUPPORT OF HIS MOTION COUNTERCLAIMS FOR FORUM NON C0NvENIENS OR ALTERNATIVELY TO ABATE TO DISMISS PENDING RESOLUTION OF WILL CONTEST AND MEXICAN LITIGATION Aug.7 2013 Movants Brief In making forum non conveniens determinations the Texas Court has Supreme the standards enunciated by the United Court routinely applied States Supreme Quixtar 315 S.W.3d at 32 we regularly consider United States Supreme Court precedent in both our common law and statutory forum non conveni ens cases Movant admits that Texas takes its common-law forum non conveniens doctrine from the equivalent federal doctrine Motion at 13 Yet Movant largely ignores the federal case law RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 00746 criteria without reference to the controlling legal standard Movants argument wanders aimlessly and never finds the truth In direct contradiction of Movants argument3 both the U.S Supreme Court and the Supreme Court of Texas in their most recent decisions declared that substantially greater deference must be paid to plaintiffs choice of forum whereas here the plaintiff lives within the forum Sinochem 549 U.S at 430 Quixtar 315 S.W.3d at 31 citing In rePirelli Tire L.L.C 247 S.W.3d 670 675 Tex.2007 plurality opinion This requirement of greater deference to the claimants choice of forum is deeply rooted in the common law of forum non conveniens dating at least to Koster American Lumbermens Mutual Casualty Co 330 U.S 518 1947 in which the Court wrote Where there are only two parties to dispute there is good reason why it should be tried in the plaintiffs home forum if that has been his choice He should not be of the presumed deprived advantages of his home jurisdiction except upon clear showing of facts which either establish such oppressiveness and vexation to defendant as to be out of all to proportion plaintiffs convenience which may be shown to be slight or nonexistent or make trial in the chosen forum inappropriate because of considerations affecting the courts own administrative and legal problems 330 U.S at 524 The Supreme Court has repeatedly confirmed the continuing validity of this standard Sinochem 549 U.S at 429 American Dredging Co Miller 510 U.S 443 447448 1994 PiperAircraft Co Reyno 454 U.S 235 241 1981 yet Movant never mentions it See Movants Brief at 13-14 RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 00747 Even where the plaintiff does not reside in the forum defendant seeking dismissal for forum non conveniens must make showing that the relevant public and private interests strongly favor specific adequate and available alternative forum DiFederico Marriot Intl Inc 714 F.3d 796 802 7th Cir 2013 quoting Jiali Tang Synutra Intl Inc 656 F.3d 242 246 4th Cir.2011 emphasis in original.4 But when the plaintiff chooses his home forum the plaintiffs choice of forum is entitled to even greater deference DiFederico 714 F.3d at 802-03 citing PiperAircraft 454 U.S at 255-56 The forum in which the plaintiff is citizen is presumptively convenient PiperAircraft 454 U.S at 256 and should be overridden only when the defendant establish such oppressiveness and vexation to defendant as to be out of all proportion to plaintiffs convenience which may be shown to be slight or nonexistent Koster 330 U.S at 524 As long as there is real showing of convenience by plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown Id Overwhelming authority stands for the proposition that courts must give substantially greater deference to the claimants choice of forum when the claimant is citizen of the forum DiFederico 714 F.3d at 803 citing Duha Agrium Inc 448 F.3d 867 873 6th Cir 2006 See also SME Racks Inc Sistemas Mecanicos Para Electronica S.A 382 F.3d 1097 1101 11th Cir 2004 explaining that the presumption in favor of the The Fourteenth District Court of Appeals in Houston agrees Unless the balance weighs heavily in favor of the defendant court should rarely disturb the choice plaintiffs of forum In re Old Rep Nat Title Ins Co.No 141001219CV 2011 WL 345676 at Tex App Houston Dist Feb 2011 orig proceeding citing In re ENSCO Offshore Intern Co 311 S.W.3d 921 92829 Tex 2010 RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLATMS Page 00748 plaintiffs initial forum choice .. is at its strongest when the plaintiffs are citizens residents or corporations of this country Guidi InterContinentalHotels Corp 224 F.3d 142 146 2d Cir 2000 reversing because the district court did not recognize that the plaintiff is entitled to greater deference when choosing her home forum ReidWalen Hansen 933 F.2d 1390 1395 8th Cir 1991 should rarely be denied access to courts of the United States Founding Church of Scientology of Washington D.C Verlag 536 F.2d 429 435 D.C Cir 1976 should require positive evidence of unusually extreme circumstances and should be thoroughly convinced that material injustice is manifest before exercising any such discretion to deny citizen access to the courts of this country In sum the Supreme Court has admonished that unless the balance is strongly in favor of the defendant the of forum plaintiffs choice should rarely be disturbed Guf Oil Corp Gilbert 330 U.S 501 508 1947 emphasis added and that jurisdiction is to be declined only in exceptional circumstances Id at 504 Forum non conveniens is an exceptional tool to be applied sparingly not doctrine that compels plaintiffs to choose the optimal forum for their claim Boston Telecommcns Group Inc Wood 588 F.3d 1201 1206 9th Cir 2009 quoting Dole Food Co Watts 303 F.3d 1104 1118 9thCir.2002 None of these black-letter principles are acknowledged or applied in the Motion yet they constitute the standard by which the private-interest factors and public-interest factors are to be judged Because Movant considers those factors without reference to the overarching standard Movants analysis is meaningless RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 00749 Movant Relies on Cases Decided Under an Inapplicable Statute Under the Common Law the Standard for Dismissal Is Much More Stringent The argument presented by Movant contains another material error it fails to distinguish cases governed by the common law from cases governed by the Texasforum non conveniens statute TEX CIV PRAC REM CODE ANN 71.051 West 2005 The statute is applicable only to actions for personal injury or wrongful death TEx CIV PRAC REM CODE ANN 71.051i West 2005 so it has no bearing here Forum non conveniens cases under the common law are clearly distinguishable from cases under the statute Liberty Mutual Ins Co Transit Mix Concrete and Materials Co.No 06-12-00 17-CV 2013 WL 3329026 at Tex App Texarkana June 28 2013 no pet h. Movant cites several cases that were governed by the statute not by the common law but Movant fails to mention the statute or advise the Court of this important distinction.5 Movant had powerful incentive to gloss over the distinction between and statutory common-lawforum non conveniens analysis as the Supreme Court of Texas has observed in cases decided under the common law the private-interest factors and public-interest factors must strongly favor the movant in order for dismissal to be warranted but under the statute mere tipping of the balance in favor of the movant is all that is required In re Ensco Offshore International Co 311 S.W.3d 921 928-29 Tex 2010 See Motion at 14 citing In re Ensco Offshore International Co 311 S.W.3d 921 927-28 Tex 2010 In re BPZ Resources Inc 359 S.W.3d 866 869-70 Tex App Houston Dist 2012 16 citing In rePirelli Tire L.L.C 247 S.W.3d 670 677-78 Tex 2007 Gomez de Hernandez Bridgestone/Firestone North American Tire L.L 204 S.W.3d 473 483 Tex App Corpus Christi 2006 pet denied RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 00750 II When the Correct Standard Is Applied to the Relevant Facts Dismissal Is Wholly Unwarranted The Motion Must Be Denied Because Mexico Is Not an Adequate and Available Forum for this Case In order to prevail on motion to dismiss for forum non conven lens the movant must first demonstrate that there is specific adequate and available alternative forum DiFederico 714 F.3d at 802 quoting Jiali Tang 656 F.3d at 246 Movant fails to identify the specific forum advocated by him he asserts only that the Executor should his pursue claims in Mexico But Mexico has federal system in which states enact and enforce their own laws and laws vary from one Mexican state to another Neither the Motion nor Movants Brief says where exactly Movant contends that the Executor should have asserted his claims Movants expert witness however refers to the laws of the Mexican State of Tamaulipas so we presume that Tamaulipas is the alternative forum proposed by Movant For three reasons Tamaulipas is not an available and adequate forum for litigation of the Executors claims first the courts of Tamaulipas would not have jurisdiction over the Executors claims against Movant or over Movants third-party claims against Sylvia Dorsey and Adriana Longoria second the legal theories underlying the Executors claims are not recognized in or anywhere simply Tamaulipas in Mexico so no remedy is available there third the Executors claims would be barred by one-year statute of limitations Each of these three points is by itself fatal to the Motion RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 00751 The Courts of Tamaulipas Would Not Have Jurisdiction over the Executors Claims Against Movant or His Third-Party Claims Exhibit to this response is the Declaration of han Rosenberg highly qualified expert in Mexican law Mr Rosenberg testifies unequivocally that if the Executor were to file in Tamaulipas the claims that he has pleaded as counterclaims here the court in Tamaulipas would almost certainly dismiss those claims sua sponte for lack ofjurisdiction Rosenberg Decl at 9-10 1JI 8-34 The Executor would face insurmountable problems of both subj ect-matter jurisdiction and personal jurisdiction whether or not Movant purports to submit to the jurisdiction of court in Tamaulipas Id at 10 1JJ 28-37 Consequently the alternative forum proposed by Movant is unavailable and the Motion must be denied should be noted same It also that the jurisdictional problems attend the third-party claims of Movant against Sylvia Dorsey and Adriana Longoria Neither of the Third-Party Defendants will voluntarily submit to the jurisdiction of the courts of Tamaulipas so there can be no argument that the third-party claims could be tried there to Movants Contrary assertions the amparo proceeding filed by Sylvia Dorsey and Adriana Longoria in federal court in Mexico does not subject them to the jurisdiction of any Mexican court in any other proceeding Rosenberg DecI at 12-14 IJIJ 43-52 Movants third-party claims against Sylvia and Adriana cannot be tried in Mexico The Supreme Court has held that the inability to implead potential third-party defendants has bearing on aforum non conveniens determination PiperAircraft 454 U.S at 259 In that case the putative third-party defendants were citizens of the alternative forum so their citizenship militated in favor of dismissal Id Here on the other hand RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 10 00752 Movant has pleaded third-party claims against two residents of Houston Texas.6 Neither of them is amenable to service of process in Tamaulipas or subject to the jurisdiction of the courts of that State Rosenberg Decl at 9-10 But it might be argued Movant third-party claims against his sisters may be pursued in Houston after litigation of the Executors claims is concluded in Tamaulipas Even if that is true the inconvenience associated with factor to be having multiple proceedings is weighed in the forum non conveniens analysis It is true of course that if defendants were found liable after trial in the United States they could institute an action for indemnity or contribution against these parties in Scotland It would be far more convenient however to resolve all claims in one trial Id see also Boston Telecommcns 588 F.3d at 1211 the inability to implead potential third-party defendants can be factor So the existence of Movants third-party claims cuts against his motion to dismiss Tamaulipas Is Not an Adequate Alternative Forum Because It Provides No Remedy for the Executors Causes of Action The Executors causes of action for breach of fiduciary duty do not exist in Mexican law generally or the law of Tamaulipas in particular Rosenberg Decl at 11 JJ 9-40 Unlike Texas Mexico does not recognize or enforce fiduciary duties based on informal fiduciary relationships or private trusts Id In fact Mexican law does not recognize the existence of private trusts at all Id Mexican law only recognizes trusts created through See Counter-Defendant Shelby Longorias Third-Party Petition Aug 30 2013 at 2-3 RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 11 00753 federally-licensed financial institutions subject to regulatory directive and oversight Id at 11 11 Mexico would provide no recourse or remedy so as matter of law no court in Mexico would be an adequate forum for litigation of the Executors counterclaims.7 Tamaulipas Is Not an Available Alternative Forum Because the Claims Would Be Barred by Limitations There The testimony of Ilan Rosenberg also establishes that if the counterclaims were pleaded in Tamaulipas they would be barred by one-year statute of limitations Rosenberg Decl at 11-12 JJ 41-42 This too dooms the Motion As matter of law no adequate alternative forum is available if the statute of limitations has expired in the proposed alternative forum See e.g Bank of Credit and Commerce Intl OVERSEAS Ltd State Bank ofPakistan 273 F.3d 241 246 2d Cir 2001 Mercier Sheraton Intl Inc 935 F.2d 419423-24 1St Cir 1991 Kontoulas A.H Robins Co Inc 745 F.2d 312316 4th Cir 1984 Vicknair PhelpsDodge Indus Inc 767 N.W.2d 171 177-78 N.D 2009 Delfosse C.A.C.I Inc.-Federal 267 Cal Rptr 224 227-29 1990 SanwaBank Ltd Kato 734 So.2d 557 561 Fla Dist Ct App 1999 Jones Prince Georges County 378 Md 98 835 A.2d 632 646 2003 Kennecott Holdings Corp Liberty Mut Ins Co 578 N.W.2d 358 361-62 Minn 1998 Shewbrooks A.C andS Inc 529 So.2d 557 561-62 Miss 1988 Varo Owens-Illinois Inc 948 A.2d 673 680-8 N.J Super 2008 Marchman The expert testimony proffered by Movant on this point is unavailing Carlos Gabuardi testified to the general propositions that Mexico allows claims for money damages and Mexico allows party to seek contractual or extra-contractual damages Affidavit of Dr Carlos Gabuardi at JJ 29-30 He did not however state that Mexico recognizes cause of action for breach of fiduciary duty arising out of an informal fiduciary relationship or private trust His testimony is too general to be of consequence RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 12 00754 NCNB Texas Nat Bank 898 P.2d 709 724 N.M 1995 Binder Shepard Inc 133 P.3d 276 278-80 Okia 2006 Jessop ACE Indus LLC 859 A.2d 801 803 Pa.Super 2004 Kedy A.W Chesterton Co 946 A.2d 1171 1183-84 R.I 2008 Thus for three independent reasons Tamaulipas is not an available and adequate forum for litigation of the Executors claims against Movant The Motion Must Be Denied Because the Private-Interest Factors and Public-Interest Factors Do Not Favor Litigation of This Case in Mexico The Motion also must be denied because the relevant private-interest factors and public-interest factors do not clearly show facts which either establish such oppressiveness and vexation to defendant as to be out of all proportion to plaintiffs convenience which may be shown to be slight or nonexistent or make trial in the chosen forum inappropriate because of considerations affecting the courts own administrative and legal problems Koster 330 U.S at 524 In Quixtar the Supreme Court of Texas identified the relevant factors after noting that the central focus of the forum non conveniens inquiry is convenience 315 5.W.3d at 33 quoting Reyno 454 U.S at 249 The well-known Gulf Oil factors direct courts to consider both public and private interest considerations in forum non conveniens dismissals 315 S.W.3d at 33 citing Gulf Oil 330 U.s at 50809 Private considerations include the relative ease of access to sources of proof the availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses the possibility of view of premises if view would be appropriate to the action the RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 13 00755 enforceability ofajudgment once obtained and all otherpractical problems thatmake trial of case easy expeditious and inexpensive Id quoting Guif Oil 330 U.S at 508 Public considerations include difficulties for courts when litigation is piled up in congested centers instead of being handled at its origin the burden of jury duty. that ought not to be imposed upon the people of community which has no relation to the litigation local interest in having localized controversies decided at home and avoiding conflicts of law issues Quixtar 315 S.W.3d at 33-34 quoting Guf Oil 330 U.S at 50809 None of these factors militates in favor of the alternative forum proposed by Movant All of the Private-Interest Factors Point to This Forum or Are Neutral Access to Relevant Evidence Is Far Greater in This Forum The Executor lives in Houston Texas and derives his authority from an order of this Court Movant lives in McAllen Texas The Third-Party Defendants impleaded by Movant live in Houston Texas Thus three of the four parties to the litigation that is the subject of the Motion live in Houston Texas and all of them live in Texas.8 And many other key witnesses live in Texas as well These include Eduardo Longoria Jr also known as Wayo Longoria who is Dorothys other child the brother of Shelby Sylvia and Adriana and who lives in Austin Texas Adrian Hernandez who served as the personal accountant ofboth Dorothy and Movant and whose office is in Houston Texas In addition to Exhibits and attached hereto evidence supporting the facutal assertions in this response will be offered at the hearing on the Motion RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 14 00756 Pepe Treviflo lawyer who provided estate-planning services to Dorothy and her husband and whose office in Texas is Laredo Movants wife Tita Longoria who lives in McAllen Texas and who has knowledge of Dorothys relationship with Movant and transactions affecting the property of Dorothy Carolyn Beckett lawyer in Austin Texas who has represented Movant in various matters related to his parents estates including dispute with Adriana Longoria over Movants performance of the Private Agreement in 2010 Attorneys accountants and appraisers involved in 2007 transaction negotiated and consummated in Texas between Movant and his brother Wayo Longoria in which Wayo was paid about $24000000 for his forty percent interest in trust containing stock formerly held in the names of Dorothy and her husband Dorothys friends physicians and caregivers with whom she spoke about her property and about Movant and her other children during the last seven years of her life when she lived in Houston9 Against this array of witnesses Movant claims that the following witnesses live in Mexico the witnesses to execution of will by Eduardo Longoria Sr Dorothys husband the witnesses execution of to trust agreement by Eduardo Longoria Sr and Eduardo Longoria Sr.s legal advisors all of the Banca Afirme employees who managed the trust and all of the employees of the Mexican Trusts Mexican businesses Movants Brief at 20 The supposed need for the testimony of these witnesses is contrived The Executors counterclaims do not contest the will signed by Eduardo Sr Longoria so no testimony from those who witnessed the signing of that will is required Likewise These witnesses will be specifically identified at the hearing on the Motion 10 See ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONG0RIA DECEASED TO SHELBY RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 15 00757 the counterclaims do not dispute that Eduardo Longoria Sr signed the trust agreement referenced in Movants Brief so the testimony of the witnesses to that signing is unnecessary Movant does not explain why the testimony of unnamed legal advisors of Eduardo Longoria Sr or unnamed employees of Banco Afirme or unnamed employees of the Mexican Trusts Mexican businesses would be necessary Of course since Movant controls those Mexican businesses he easily can obtain from them whatever information might be needed Thus all of the witnesses who have been specifically identified to date and whose testimony will be relevant to the counterclaims pleaded by the Executor reside in Texas and most of them reside in the vicinity of Houston Texas To state the obvious the location of this Court is far more convenient for such witnesses than the location of any court in Nuevo Laredo Tamaulipas which is about 300 miles away But distance is not the only obstacle or even the most daunting obstacle to obtaining in Tamaulipas the testimony of witnesses residing in Texas The United States Department of State has issued Travel Warning about the security situation in Mexico It was issued on July 12 2013 and copy is attached as Exhibit It provides chilling view of travel in the border region which of course includes Tamaulipas Gun battles between rival TCOs Criminal Organizations or with Mexican authorities have taken place in towns and cities in many parts of Mexico especially in the border region Gun battles have occurred in broad daylight on streets and in other public venues such as restaurants and clubs LONGORIAS AMENDED CONTEST OF 2010 WILL Sept 26 2013 RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 16 00758 The number of kidnappings and disappearances throughout Mexico is of particular concern Both local and expatriate communities have been victimized In addition local police have been implicated in some of these incidents Carjacking and highway robbery are serious problems in many parts of the border region and U.S citizens have been murdered in such incidents Incidents have occurred during the day and at night and carjackers have used variety of techniques including bumping/moving vehicles to force them to stop and running vehicles off the road at high speeds Exhibit at 1-2 emphasis added The situation in Tamaulipas is so bad in fact that employees of the United States Government have been directed to defer non-essential travel to the state of Tamaulipas and are prohibited from personal travel on Tamaulipas highways outside of Matamoros and Nuevo Laredo due to the tenuous security situation Ex at When travel for official purposes is essential it is conducted with extensive security precautions Id at emphasis added While the general public is not forbidden from visiting places categories under defer non-essential travel USG personnel will not be able to respond quickly to an emergency situation in those areas due to security precautions that must be taken by USG personnel to travel to those areas Id Movant himself admits that violence street shoot-outs kidnapping and extortion have been persistent threats along the Mexican border to this very day Movants Brief at For Movant to claim that Tamaulipas is convenient venue in the face of these harsh realities betrays again his lack of candor toward the Court RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 17 00759 In light of the indisputable danger of travel in Tamaulipas it is established beyond peradventure that for the litigants themselves and for many other witnesses whose testimony is definitely needed Houston Texas is far more convenient forum than Tamaulipas Compulsory Process for Attendance of Unwilling Witnesses Is Available in This Forum But Not in Mexico and the Cost of Obtaining Attendance of Willing Witnesses Is Much Less Here All of the witnesses who live in Texas can be compelled by this Court to testify either in person or by deposition See TEX CIV 176 205 None of them can be compelled to give testimony in Mexican proceeding For those witnesses who despite the grave danger described above might be willing to travel voluntarily to Tamaulipas the expense of security precautions is prohibitive As Movant has identified no Mexican witnesses whose testimony is relevant to the Executors counterclaims this factor cuts dismissal against No View of Any Premises Will Be Needed There is no need for the trier of fact to view any premises as Movant admits Movants Brief at 24 Judgment of This Court Would Be Fully Enforceable as to All Parties Judgment of Mexican Court Would Not Movant ignores this factor and the reason is obvious it undercuts his argument Movant lives in Texas and he filed in this Court the will contest which commenced this case The Executor pleaded his counterclaims in response to Movants will contest Thus if the counterclaims are allowed to proceed in this Court the judgment of this Court will be fully enforceable against Movant and of course the Execitor RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 18 00760 In addition judgment entered by this Court on Movants third-party claims against Sylvia Dorsey and Adriana Longoria would be fully enforceable As both of them live in Houston the Court unquestionably may exercise personal jurisdiction over them If on the other hand the counterclaims are dismissed as requested by Movant he will not be able to pursue his third-party action as no court in Tamaulipas as jurisdiction over the Third-party Defendants Rosenberg Decl at 9-10 The litigation will then become fragmented Duplicative proceedings and multiple judgments will be required The Practical Problems and Expense of Proceeding in Mexico Are Far Greater Movant has not identified any specific problem that will arise from litigation of the Executors counterclaims in this Court but will not arise if the Executor pursues his claims in court in Tamaulipas We on the other hand have identified significant problems with litigation in Tamaulipas We have proven and Movant has admitted that Tamaulipas is an exceedingly dangerous place so anyone traveling there must incur unreasonable risk and incur substantial expense for security Ex at Movants Brief at This factor therefore points away from Tamaulipas Movant argues that this case should be dismissed because documentary evidence regarding the Mexican businesses in which Dorothy had owned interests is kept in Mexico Movants Brief at 19 similar situation was faced in Boston Telecommunications Group Inc Wood Although it was foreseeable that documents located in Mexico would have to be obtained the court noted that there are established legal processes such as the HAGUE CONVENTION ON TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERs 23 RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 19 00761 U.S.T 2555 1968 by which this can be done and need to invoke those processes does not compel dismissal for forum non conveniens Any court.. will necessarily face some difficulty in securing evidence from abroad but these complications do not necessarily justify dismissal 588 F.3d at 1288 quoting Tuazon R.J Reynolds Tobacco Co 433 F.3d 1163 1181 9th Cir 2006 More importantly Movants position is disingenuous because he controls the entities that own the documents and he lives in Texas Cf Boston Telecommc ns 588 F.3d at 1208 finding it was reasonable to assume that documents which the movant represented to belong to foreign entities were in the possession of the chief executive officer who resided in California and effectively managed the companies from there Movant has presented no facts on which the Court could base conclusion that production of the documents would be unduly inconvenient or expensive The concern about access to documentary evidence is red herring All of the Public-Interest Factors Point to This Forum The Dispute Originated Here and There Are No Greater Administrative Difficulties Here Than in Tamaulipas This dispute arose in Texas Movant has lived in Texas since the 1970s While living here his fiduciary duty to Dorothy arose under Texas law and the Executor contends Movant breached his duty under Texas law Dorothy Longoria lived in Texas for her last 25 years and lived in Houston for her last seven years The alleged acts and omissions of Movant therefore harmed longstanding citizen of this forum Dorothys will was admitted to probate in this Court and her estate is pending in this Court Movant himself commenced RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 20 00762 this legal proceeding by filing his will contest in this Court This litigation originated in Texas and must be decided under Texas law Movant has not asserted let alone proven that this Courts docket is more congested than that of the courts of Tamaulipas The Court has issued Docket Control Order already setting the case for trial on May 19 2014 In this Court the Executors counterclaims will be adjudicated promptly There is no evidence that Tamaulipas court would address the merits of the case more quickly than this Court or that litigation in Tamaulipas would be administratively easier Indeed there is every reason to believe that the opposite is true This Community Has the Strongest Relationship to the Litigation So the Burden of Jury Duty Belongs Here Both Movant the alleged wrongdoer and Dorothy the alleged victim resided in this forum for the last 25 years of Dorothys life so this forum has the strongest relationship to the litigation Dorothy died in Houston her will was probated here and her estate is being administered here all in accordance with Texas law Imposing the burden of jury duty here is justified Doing so in Mexico is not The Dispute Arose in Texas Between Texans so This Forum Has the Stronger Interest in Deciding the Controversy Because Dorothy lived and died in Texas her estate is being administered in Texas and her estate has claims based on fiduciary duty owed to Dorothy by another resident of Texas this State has an interest in the claims an interest deciding far greater than any that could be articulated for the State of Tamaulipas The Legislature of this State has enacted an array of statutes designed to ensure that courts exercise probate may jurisdiction over all RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 21 00763 matters related to estates pending in those courts See e.g TEx PROB CODE ANN 4A providing that courts exercising original probate jurisdiction also have over all jurisdiction matters related to probate proceedings 4B defining matter related to probate proceeding to include any claim by personal representative on behalf of an estate 4F conferring on statutory probate courts exclusive jurisdiction over all probate proceedings SB authorizing statutory probate courts to transfer to themselves actions pending in district or county courts if they are related to an estate pending in the probate court or if the personal representative of such an estate is party Underlying these statutes is strong public policy in favor of consolidation in the probate courts of all matters related to the estates administered in those courts The same public policy also stands in opposition to dismissal for forum non conveniens of an executors claims pleaded on behalf of an estate in the probate court in which the estate is pending Movant cites one case supposedly in the probate context Gallego Garcia No 07-CV-1185 2010 WL2354585 S.D Cal June9 2010 Motion at 17-18 While itis true that in Gal/ego the plaintiffs were personal representatives of an estate it is not true that they brought their claims in the probate court presiding over the estate Rather they brought their claims in federal district court with jurisdiction based solely on of diversity citizenship Moreover the facts in Gal/ego are easily distinguished the defendants were Mexican corporation and citizens of Mexico Gal/ego has no precedential value here RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLATMS Page 22 00764 Maintaining the Litigation Here Avoids an Issue of Conflicts of Law The Executors pleading states explicitly that it is founded entirely on Texas law Movant asserts that Mexican law might supply the rule of decision but in typical fashion Movant fails to explain why that is so We repeat the Executor is not in this proceeding contesting will signed by Eduardo Longoria Sr the Executor is not in this proceeding contesting trust agreement signed by Eduardo Longoria Sr the Executor is not in this proceeding asserting cause of action under Mexican law the Executor is not in this proceeding seeking relief from any individual residing in Mexico or any Mexican business entity There simply is no basis for Movants assertion that the Executors counterclaims are governed by Mexican law The counterclaims are based on fiduciary duty undertaken and breached byMovant while he was resident of Texas The counterclaims also are based in part but not entirely on the Decedents community-property rights under Texas law Dorothy and Eduardo Longoria were married in Texas which establishes that their marital estate was community estate They were living together in Texas when Eduardo died The marriage began and ended in Texas Under Texas law all of their property at the time of Eduardos death is presumed to have been community property If Shelby Longoria contends that it was not community property then it is his burden to prove so And if he thinks that he can carry his burden by offering contract supposedly made in Mexico then he is free to try But the issue remains one of Texas law RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 23 00765 But even if it may happen that Mexican law comes into play the need to apply foreign law is not in itself reason to apply the doctrine offorum non conveniens Schexnider McDermott Intl 817 F.2d 1159 116364 5th Cir rehg denied 824 F.2d 972 5th Cir 1987 cert.Juled Oct 13 1987 Accord Manu Intl Avon Prod 641 F.2d 62 68 2d Cir 1981 must guard against an excessive reluctance to undertake the task of deciding foreign law In sum no factor militates in favor of Movants position and every factor militates strongly against it with one exception and the exception is factor that points in neither direction Movant has failed miserably to carry his heavy burden to show that this is one of the exceptional cases in which forum non conveniens should be applied to deprive resident of this forum of his right to bring claims in this forum RESPONSE TO MOTION FOR ABATEMENT After 27 of fervent for dismissal of Executors pages argument outright the counterclaims Movant makes half-hearted request in the alternative for abatement of them Motion at 27-29 Movant asks the Court to abate the counterclaims until two things happen Movants will contest is fully adjudicated and certain proceeding in Mexico is fully adjudicated Neither the will contest nor the Mexican case provides any justification for abating the counterclaims According to Movant there are two reasons why the Court should allow his will contest to proceed to trial while the Executors counterclaims are abated First Movant claims that the Executor James Thomas Dorsey has conflict of interest which renders RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS 24 Page 00766 him incapable of performing his fiduciary duties Motion at 28 The supposed conflict of interest is based on Movants wholly unsupported assertions that Mr Dorseys wife Sylvia Dorsey misappropriated funds belonging to Dorothy during her lifetime and Movants wholly unsupported assertion that Mr Dorseys son Wayo Dorsey stole from Movant electronic files relating to Mexican businesses and Mexican trust Motion at 28 Sylvia and Wayo Dorsey categorically deny these accusations but even if one assumes for the sake of argument that they are true they provide no basis for abatement of the Executors counterclaims against Movant Movant is not beneficiary of the Estate of Dorothy Louise Longoria The Decedent left nothing to him in her will which this Court admitted to probate Movant therefore has no standing to complain about the Executors supposed failure to investigate alleged torts by Sylvia against her mother As for the alleged theft of computer files by Wayo Dorsey Movant offers no reason why the Executor would be responsible either to investigate that or to redress it And even if Mr Dorsey were removed as Executor based on these supposed conflicts of interest the Court certainly would appoint successor who would be equally responsible to pursue the estates counterclaims against Movant So there is no logical connection between the facts creating the supposed conflicts of interest and abating the counterclaims until the will contest is concluded Movants argument makes no sense The second reason why according to Movant the counterclaims should be abated until the conclusion of his will contest is that the will contest is successful Tommy may lose his capacity to pursue claim against Motion at 29 Once again the RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 25 00767 conclusion does not follow from the premises Even if the will contest is successful there will be personal representative of the Estate of Dorothy Louise Longoria and that personal representative will have the same duty and legal capacity to marshal the assets of the estate The most valuable assets are the claims against Movant Shelby Longoria The will contest cannot obviate the need to litigate any of counterclaims Movants Brief at While abatement would serve no salutary it would have undesirable purpose certainly consequences To state the obvious the requested abatement would cause lengthy delay in the disposition of the counterclaims Abatement also would cause an enormous waste of the resources of the Court and the litigants because discovery needed for the will contest overlaps with discovery needed for the counterclaims substantially as comparison of the pleadings demonstrates Both the will contest and the counterclaims require discovery of the estate planning of the Decedent the property owned by her at various times in her adult life her evolving relationships with her children representations made to her by Movant payments made to her by Movant information withheld from her by Movant her physical and mental condition at various times and many other topics If the counterclaims are abated many of the witnesses who are deposed in the will contest will have to be deposed again And of course second trial will have to be conducted Abatement would do no good and much harm Compare SHELBY LONGORIAs AMENDED CONTEST OF 2010 WILL Aug 302013 and ORIG1NAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY L0NG0RIA AMENDED CONTEST OF 2010 WILL Sept 26 2013 RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 26 00768 Movant cites Develo-Cepts Inc City of Galveston 668 S.W.2d 790793 Tex App Houston Dist 1984 no writ for the proposition that case may be abated pending determination of plaintiffs standing or capacity to sue Motion at 29 Here the Court has already made that determination By order dated October 2012 the Court admitted to probate the Decedents will dated January 21 2010 and appointed James Thomas Dorsey to serve as Independent Executor of the Decedents estate Both the and the standing capacity of the Executor to bring the counterclaims are judicially established.2 Finally Movant asserts that the counterclaims should be abated until proceeding in Mexico is concluded That proceeding involves the estate of Eduardo Longoria Sr who was the husband of Dorothy Louise Longoria and who died in 2005 The proceeding was initiated by petition for juicio de amaparo in federal court of Mexico The petition is based on the fact that Shelby Longoria failed to provide the legally notice of required proceeding in state court of Tamaulipas in which will of Eduardo Longoria Sr was probated Movant presents no intelligible argument why litigation of the Executors counterclaims in this Court should be deferred until the amparo proceeding is completed Movant asserts that the Mexican case is logically antecedent to this matter Movants Brief at 29 but offers no explanation whatsoever of why that is so Movants Brief does not even state what relief is requested in the amparo lawsuit Having failed to do so Movant fails to 12 Movant presents no colorable argument that the Executor lacks standing to pursue the counterclaims against Movant And Movant has failed to plead lack of capacity in the prescribed way which is verified plea in abatement See Develo-Cepts 668 S.W.2d at 793 RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 27 00769 show any reason why the Executors counterclaims in this Court should be abated in deference to the amparo case in Mexico The argument for abatement is meritless CONCLUSION Neither dismissal nor abatement is warranted The Motion should be denied in its entirety proposed order is attached to this response DATED September 30 2013 Respectfully submitted /s/James Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 Shannon L.K Welch State Bar of Texas Number 90001699 FISHER WELCH Professional Corporation 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Telecopier 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 THE HOLMES LAW FIRM 10000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9267 ATTORNEYS FOR COUNTER-PLAINTIFF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED AND THIRD-PARTY DEFENDANT SYLVIA DORSEY RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 28 00770 CERTIFICATE OF SERVICE hereby certify that on September 30 2013 true and correct copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schlemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 BY EMAIL TO jcarter@susmangodfrey.com rhess@susrnangodfrey.com and kschlernrn er@susrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO macintyre@rnrnlawtexas.com /s/James Austin Fisher James Austin Fisher RESPONSE TO MOTION TO DISMISS OR TO ABATE COUNTERCLAIMS Page 29 00771 AFFIDAVIT OF ILAN ROSENBERG han Rosenberg hereby declare arid state as follows PERSONAL BACKGROUND am over the age of 21 and competent to make this affidavit have drafted this and having reviewed affidavit based on my personal knowledge unless otherwise stated it can attest that it is true and colTect hold Bachelor of Laws J.D equivalent awarded by the Escuela Libre degree de Derecho in Mexico City Mexico as well as Master of Laws LL.M and Master of Comparative Laws LL.C.M degrees from the University of Pennsylvania Law School am an attorney licensed to practice law in every jurisdiction in Mexico as well as in the Commonwealth of Pennsylvania am also licensed to practice before the Supreme United States Courts of Appeals for the Third and Federal Court of the United States the as well as the United States District Courts for the Eastern and Middle Districts of Circuits Northern District of Illinois and the Eastern District of Wisconsin copy of my Pennsylvania Curriculum Vitae is attached as Exhibit to this affidavit in the United States of America have actively and In addition to my practice continuously practiced before Mexican state and federal courts for more than fifteen years am Partner of the law firm of Gordon Rees in Philadelphia Pennsylvania am also Lecturer at Law at the University of Pennsylvania Law School Thomas Executor of the have been retained by James Dorsey Independent affidavit Estate of Dorothy Louise Longoria Deceased the Estate and asked to prepare this as an expert in the field of Mexican law EX-llBlT 00772 QUESTIONS PRESENTED The Estate has asked me to opine on the following questions under Mexican law How does the Mexican state of Tamaulipas regulate service of process on individual defendants Would Tamaulipas court have jurisdiction over an action filed by the Estate against Shelby Longoria Does the law of Tamaulipas provide remedy for breach of fiduciary duty or recognize private trusts and informal fiduciary relationships Does the filing of an Amparo lawsuit result in general waiver of jurisdictional defenses in Mexico MATERIALS REVIEWED In formulating the opinions below have relied on my review of Shelby Longoria Amended Contest of 2010 Will the Counterclaims thereto asserted by the Estate Shelby Longoria Motion to Dismiss Counterclaims for Forum Non Conveniens and its supporting Brief the Affidavit of Dr Carlos Gabuardi an August 1983 letter signed by Kowalski de Longoria as well Eduardo Longoria Jr and Shelby Luis Longoria to Dorothy as and research of Mexican my professional knowledge experience and my independent statutory and case law OPINIONS on Mexican Determinations Pre1hnbary Statement Jurisdictional 10 Mexico like the United States is federal republic comprised of individual states state executive and judiciary that have autonomous governments including legislative branches 11 Thus Mexico has separate state and federal bodies of laws -2- 00773 12 Pursuant to Article 104 Section II of the Mexican Constitution Constitucion Politica de los Estados Unidos Mexicanos and Article 53 Section of the Mexican Federal Judiciary Organization Law Ley Organica del Poder Judicial de Ia Federacion in civil cases Mexican federal courts have subject matter jurisdiction oniy over claims that are governed by federal laws or international treaties to which Mexico is party These provisions state in pertinent part as follows Article 104.- The Federal Courts shall adjudicate II All civil or commercial controversies that arise concerning compliance with or application of federal laws or international treaties executed by Mexico The plaintiff may choose when the interests at issue only affect private parties that these disputes be heard by the judges and tribunals of the states Article 53.- Federal district court judges shall adjudicate Those civil controversies that arise concerning compliance with or application of federal laws or international treaties executed by Mexico When those controversies only affect of the private interests they may be heard at the option of the and the by the judges and tribunals states plaintiff Federal District concerns Article 13 of the 13 Insofar as it civil disputes among private parties Mexican Federal Civil Code Codigo Civil Federal or CC sets forth whether they are to be resolved under Mexican federal or state civil law and thus determines whether there is Mexican federal subject matter jurisdiction over particular dispute 14 Article 13 Section IV of the CC sets forth choice of law rules relating to the of legal rights Section IV provides that formalities for the creation Specifically the laws of the place where they are created formalities of legal acts will be governed by forth in Code when the act is to have may be this However they subject to the formalities set effects in the Federal District or throughout the Republic on federal matters .J -3- 00774 15 Furthermore Article 13 Section of the CC supplies the choice of law rules to determine the law that governs the legal effects of acts and contracts Section provides that to the provisions of the foregoing sections the legal effects of acts and contracts are to be governed by the laws of the place where they are to be performed unless the parties have validly designated the application of different laws 16 Pursuant to Mexican choice of law rules there is no Mexican federal interest at issue with respect to the disputes between the Estate and Shelby Longoria Thus this analysis is laws of the State of Tamaulipas where premised on the substantive and procedural Shelby Longoria argues certain relevant facts took place II Pursuant to the Laws of the Mexican State of Tamaulipas Service of Process Must Be Effected Personally Upon an Individual Defendant at His Home 17 The Mexican State of Tarnaulipas where Shelby Longoria claims to have business interests and contends is the more convenient venue for this action has its own Civil Code the Codigo Civil para el Estado de Tamaulipas or CCT as well as its own Code of Civil Procedure the Codigo de Procedimientos Civiles para el Estado de Tamaulipas or CPCT 18 Tamaulipas law charges the courts and not the litigants with the obligation to effect service of process Specifically Articles 29 and 30 of the CPCT provide that only court serve defendant with original process personnel may 19 Article 67 in Sections and III of the CPCT provides the rules for effecting service of process on individuals by the courts of Tamaulipas Those sections provide as original follows ARTICLE 67.- Original service of process must be effected in accordance with the following rules II If an individual service of process defendant is must be made directly to that person unless the individual lacks procedural capacity as then it must be effected upon his/her legal guardian Original service of process upon an agent is only -4- 00775 authorized when the agent resides within the seat of the court and the person intended to be served lives outside that place or is of unknown whereabouts or if the agent lives outside the jurisdiction but within the Republic and the person to be served lives abroad and has no known residence or the persons whereabouts are unknown In this case the agent is required to have general or special power of attorney with sufficient authority to answer the complaint and defend the action being served pursuant to the provisions of Article 52 with the need to appoint duly licensed attorneys The agent can only refuse to intervene if he/she that he/she did not accept or has renounced the proves power of attorney HI IV Original service of process must be effected in the place designated by the partyrequesting and must be precisely so the home of the party to be served with original process if an individual and if corporation in its corporate domicile its principal offices or principal commercial establishment except when dealing with branches with an individual agent authorized to appear in the action when dealing with business transacted by the branches or in which the branches have intervened The serving officer must verify that all of this information is contained the complaint and may be specially authorized to serve process on the individual defendant or agent at their place of regular may be found within the employment or wherever they jurisdiction but in this case may be effected only to the specific individual at issue and the server must note specifically the during the process the means used to identify the individual verification of authority of an agent power of attorney and set forth all relevant information Emphasis supplied 20 The Mexican Federal Courts of Appeal have ruled in binding precedent that in order for original service of process to be effective the court official must verify that the location where the defendant is served is in fact the defendants home Precedent No 162858 ORIGINAL SERVICE OF PROCESS UPON INDIVIDUALS IFTHE COURT OFFICIAL SETS FORTH ONLY THAT THE ADDRESS OF THE DEFENDANT IS CORRECT BASED ON THE NAME OF THE STREETS NUMBER NEIGHBORHOOD AND CITY HE FAILS TO SATISFY THE ESSENTIAL PROCEDURAL FORMALITIES WHICH VIOLATES THE RULES THAT GOVERN IT LEGISLATION OF THE STATE OF TAMAULIPAS -5- 00776 Articule 67 section III of the Code of Civil Procedure for the State orders that original service of process on individuals must be effected at the address by the party so requesting designated which must coincide with the place where the defendant lives therefore the official when effecting service of process must verify that these circumstances are all met and include steps taken to so verify in the respective certification Therefore if the official does not set forth in the certification that the location where the official appeared to serve original is the process defendants home and only states that he verified that the instead address was correct based on his observation of the correct street names number neighborhood and city such certification falls to satisfy the essential procedural formalities because that information does not provide certainty that the address is where the defendant lives Accordingly that irregularity is violation of the rules that govern the procedures for said action 9th Session Circuit Courts of Appeal Federal Judiciary Reporter and its Gazette Volume XXXIII February of 2011 2044 Emphasis added 21 Thus the laws of Tamaulipas specifically require that original service of process upon an individual be made directly upon the defendant and at the defendants home Otherwise original service of process will be ineffective 22 Article 97 of the CPCT also provides that when official court action is to take place outside of the Mexico the court will follow the procedures set forth in the international treaties to which Mexico is party In this respect Mexico is party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Inter-American Convention on Letters Rogatory Therefore in order to effect valid service of original process on an individual residing outside of Mexico in an action filed in Tamaulipas service must be effected directly upon the individual at their home following the set forth in the Hague or Inter-American Conventions procedures 23 Dr Carlos Gabuardi proffered by Shelby Longoria as an expert in Mexican law admits at 16 that the CPCT requires that original service of process be effected at the defendants home or the place where they live Dr Gabuardi opines however that the true and correct of the precedent in its original Spanish is attached as Exhibit copy -6- 00777 provisions of the CPCT are irrelevant based on Mexican Supreme Court opinion finding that service of process may be effected on defendant at his home his place of business or wherever he may be found without regard to any particular order What Dr Gabuardi fails to point out is that the Supreme Court opinion at issue does not deal with Tamaulipas procedure at all but rather with the provisions of the Codes of Civil Procedure of the Mexican states of Jalisco Puebla Chiapas as well as the Federal District Mexico City whose rules for service of original process are markedly different from those of Tamaulipas Jalisco Puebla Chiapas and the Federal District all provide that original service of process may be effected at defendants domicile which their respective civil codes define as including not only the home but also the place where defendant transacts business or where the defendant may be located The non binding Seventh Circuit precedent referenced by Dr Gabuardi at 18 focuses on the Code of Civil Procedure of Veracruz which also provides in Article 82 that original service of process must take place at the defendants domicile Tamaulipas in stark contrast to these other Mexican jurisdictions refers specifically to the place where the individual defendant has his or her home Therefore while the precedent referenced by Dr Gabuardi at 16-17 may be binding on all courts applying provisions similar to those in Jalisco Puebla Chiapas and the Federal District it is inapposite in the case of Tamaulipas Similarly the non-binding precedent from the Seventh Circuit at 18 is of no import as Veracruzs requirements for effecting original service of process track those of Jalisco Puebla Chiapas and the Federal District but not their sister state of Tamaulipas III Jurisdiction of Tamaulipas Courts 24 Pursuant to Article 172 of the CPCT complaint must be filed before competent judge.2 Under Mexican law competence is functionally synonymous with the United States of jurisdiction in Mexico jurisdiction is generally used to refer to the geographic area concept where governmental actors have authority Those terms are therefore used interchangeably herein ___________________________________________________________________________ 00778 25 Under Mexican law competence functional synonym of the United States concept ofjurisdiction is determined by statute In Tamaulipas the CPCT provides in Article the of the bourts of this code.3 20 Section III that jurisdiction is governed by the provisions 26 Article 173 of the CPCT specifically provides that competence or jurisdiction will be determined by the amount the subject matter the appellate level and by the territory.4 27 Notwithstanding Dr Gabuardis opinion at 13 that Shelby Longoria maintains sufficient contacts with .. Tamaulipas personal or territorial jurisdiction in Mexico is not determined by contacts but rather by specifically defined express statutory provisions Contacts with specific jurisdiction standing alone are of no import with respect to whether Mexican bourt has jurisdiction Indeed Dr Gabuardi himself has recognized as much in the article he references at 11 In that article Dr Gabuardi states that in Mexico the bases for asserting jurisdiction are limited to those established by law See Gabuardi Carlos Entre la el Forum Non Conveniens Boletin Mexicano de Derecho Jurisdiccin Ia Competencia Compcirado nueva serie aflo XLI nim 121 enero-abril de 2008 at 89 Thus Dr Gabuardi law on competence establishes detailed rules determine what of cases explains Mexican to types can be heard by particular court Id In Dr Gabuardis own words competence sets forth the rules which must be strictly observed from an operational standpoint to assign specific controversies as between the different courts of country Id Translation is ours According to Dr Gabuardis own analysis contacts are not basis for asserting jurisdiction in Mexico Id at 48 pointing out that the only bases to assert jurisdiction are those expressly listed in the operative Codes of Civil Procedure which do not include contacts Notably Article of the CPCT provides that the rules of procedure are of public order and cannot be waived by stipulation of private parties or is akin to personal jurisdiction in the United States Territorial jurisdiction competence -8- 00779 IV Tamaulipas Courts Do Not Have Original Jurisdiction Over Shelby Longoria Adriana Longoria or Sylvia Dorsey 28 The CPCT provides in Article 195 Section IV that the competent judge is the one located in the domicile of the defendant in actions involving movable property or in personain or civil status actions unless provided otherwise law.5 29 Pursuant to Article 24 of the CCT an individuals domicile is the place wher he or she lives If the individuals home address is unknown but only then the law will repute as domicile the place where the individual principally conducts his or her business and if this location is also unknown then an individuals domicile is wherever he or she can be found In other words the Civil Code of Tamaulipas reference to an individuals primary place of business or their actual location is intended to provide alternative domiciles only in physical those cases where an individuals actual of residence is unknown.6 place 30 As explained in the foregoing sections plaintiff filing suit in Tamaulipas must the home address of the defendant in order to achieve valid service of process identi original 31 According to Article 175 of the CPCT tribunal may refuse to entertain case unless it determines it lacks jurisdiction In such cases it must set forth in the order the legal bases supporting its conclusion Emphasis supplied As Dr Gabuardi the claims asserted by the Estate are in personam claims recognizes In addition to to provisions that do not apply in Tamaulipas the opinions cited referring Dr Gabuardi in 16-18 are of no import to the question of domicile for purposes of by asserting jurisdiction Indeed in the cases to which Dr Gabuardi refers the Mexican federal construction of the term courts including the Supreme Court explained that their liberal of service domicile was for purposes of service of process only because the primary purpose of process is to defendant on notice of an action The court opinions however made clear put of service of process of no implication substantive that the ruling on domicile for purposes is to associated with domicile including the of the courts to exercise considerations ability in Texas jurisdiction over particular case By way of analogy consider that original process Mexican domiciled in Mexico The only of action can be served on individual implication is that the foreign citizen is on notice of the action It does not mean the Texas court has service jurisdiction over that individual -9- 00780 32 Thus in Tamaulipas trial courts must review the complaint when filed and make sua sponte determination as to whether they have jurisdiction 33 There is no dispute that Shelby Longoria lives in Texas Indeed his Amended Contest of 2010 Will at avers that Shelby Longoria Shelby is an individual domiciled in Hidalgo County Texas 34 Therefore court lacks statutory jurisdiction over tort case against Tamaulipas defendant and will almost certainly dismiss any action filed against Shelby Longoria foreign him sua The same conclusion follows with respect to Adriana Longoria and Sylvia sponte.7 Dorsey as both of them live in Houston Texas 35 dismiss the complaint for lack of subject matter Moreover court may jurisdiction 36 court would have to recognize this Courts jurisdiction over the Tamaulipas Estates counterclaim particularly where the counterclaim would predate any Tamaulipas Article 189 of the CPCT provides that the court before which the principal action.8 Indeed has exclusive matter jurisdiction over related counterclaims cause of action is pending subject the 37 Pursuant to Article 177 of the CPCT court that expressly recognizes of another cannot assert jurisdiction jurisdiction Not Provide Breach Duties Tamaulipas Law Does Remedy for of Fiduciary 38 Article 1388 of the CCT provides as follows When an act causes damages and losses to person and the law the perpetrator of that act or on someone else the imposes upon damages and there is civil obligation to repair those losses liability do so even the plaintiff that the defendant has waived Tamaulipas court may if pleads challenge to the courts territorial jurisdiction understand Shelby Longoria does not challenge this Courts jurisdiction -10- 00781 39 Mexican law generally and Tamaulipas law specifically do not impose or recognize fiduciary duty9 on the part of an adult child to manage business affairs of or for the benefit of parent.1 40 Mexican law also does not recognize informal fiduciary relationships or specifically private trusts11 so the August 1983 letter signed by Eduardo Longoria Jr and to Kowalski de Longoria whereby they agree to hold maintain Shelby Luis Longoria Dorothy and certain assets for the Decedents benefit does not create fiduciary duty Rather manage the letter creates only moral obligation or duty which is unenforceable under Tamaulipas law CCT Articles 1028 and 1370 41 Even assuming for the sake of argument only that there were basis to recover statute any such claim in tort for breach of fiduciary duty is barred under Tamaulipas one-year of limitations pursuant to Article 1510 Section III of the CCT 42 Because more than has elapsed since the death of Dorothy Longoria any year claim sounding in tort under Tamaulipas law is barred as matter of law cause of action for breach of fiduciary duty regardless of its nature would be Indeed law which to impossible to plead and prove under Tamaulipas requires plaintiffs provide facts and attach or the items of evidence that support cause of detailed description of all list all action from the outset Articles 247 to 249 of the CPCT Amendments to pleadings are not allowed Moreover Article 330 of the CPCT precludes party from inspecting an opponents general accounting We note that the only duty flowing from children to their parents is statutory obligation Articles 277 and 282 of the CCT to provide support for food clothing housing and under medical care when necessary law only recognizes created through federally-licensed financial Mexican trusts institutions subject to regulatory directive and The Mexican Supreme Court oversight explained that United States-style trusts were adopted partially by the Mexican structured an institution our system even speaking it according to though strictly legislature than the trust and established it as an exclusive banking operation due to the wholly different solvency of banks and the governments oversight oyer them See Precedent No 246296 TRUSTS NATURE OF 7th Session Auxiliary Chamber Supreme Court Federal Judiciary 39 Reporter Volume 21 Seventh Section .11 00782 VI The Mexican Amparo Proceedings Do Not Imply Wholesale Submission to the Jurisdiction of Mexican Courts 43 The United States concepts of minimum contacts general jurisdiction or specific jurisdiction do not exist under Mexican law Mexican courts authority to hear particular case is determined on case-by-case basis as defined by statute i.e the codes of civil Therefore the fact that has invoked the jurisdiction of Mexican court procedure party in case does not mean that it will be subject to that saire Mexican cburts jurisdiction particular every future action in any and Mexico whether 44 Thus the pursuit of an Amparo action in is inconsequential to for that in Mexican court can assert jurisdiction over Amparo claimants or anyone else matter Mexicans courts to exercise will have to be assessed future civil actions ability jurisdiction after the filing of every complaint 45 More importantly the filing of an Amparo action in Mexico cannot be described of the adequacy and better as Dr Gabuardi does at pp 6-8 as an acknowledgement reliability for the of adjudicating the private convenience of the Mexican judicial system purposes party matters pending before this Court of an Amparo action none of what 46 In order to understand why the filing implies Dr Gabuardi suggests we must explain the nature of the Juicio de Amparo 47 An Amparo action which arises under Articles 103 and 107 of the Mexican or can challenge Constitution is proceeding by which any private person individual corporate of or federal government actor of whether the constitutionality of the actions state regardless member of the or judiciary branch In other words the only that actor is executive legislative possible defendants in Amparo actions are Mexican government actors in their official 12 capacities 12 Insofar as the Amparo actions referenced by Dr Gabuardi the only defendant is Tamaulipas court -12- 00783 48 The Mexican Court has interpreted the constitutional guarantee of due Supreme broadly to include the misapplication of any law whether state or federal within the process Court rulings are included in the definitiQn of official scope of Amparo protection courts governmental acts and therefore state any court judgment including judgments by state laws is reviewable by federal courts acting under their Amparo jurisdiction interpreting of of federal or state law is deemed to be violation because an erroneous application principle of Constitutional due process 49 When private person is aggrieved by the adjudication of his/her/its rights by Mexican court without due process of law Amparo proceedings provide the only means to seek redress for that constitutional violation 50 Ainparo proceedings are far more circumscribed than federal proceeding by the plaintiff seeks the protection of the federal justice system upon an argument that there which has been infringement of the strict application of the Mexican Constitution statutory law due process of law or other fundamental rights Gabuardi Affidavit at 26 Amparo proceedings for constitutional violations on the provide the only remedy available to private party plaintiffs of the Mexican government defendants including the Mexican courts Amparo proceedings part are not available to challenge actions on the part of private actors 51 The Mexican federal judiciary is the only court system with jurisdiction to hear of an official Mexican Amparo eases and ultimately adjudicate the Mexican constitutionality in governmental act The relief available through an Amparo proceeding cannot be pursued any other court.3 13 Notably in the Amparo the Mexican courts have made clear that they lack context of an action by much less invalidate the acts of tribunal jurisdiction to in any way compel foreign BY DECLINATION THE See Precedent No 166416 DECLiNATION OF JURISDICTION ORDER THAT DECLARES IT BY FINDING THAT FOREIGN COURT HAS JURISDICTION PUTS AN END TO THE ACTION AND THEREFORE MAY BE CHALLENGED IN DIRECT AMPARO LEGISLATION OF THE FEDEEAL DISTRICT -13- 00784 52 Consequently Dr Gabuardis opinion that the filing of an Amparo proceeding is an acknowledgement of the adequacy reliability and better convenience of the Mexican judicial system is incorrect RESERVATION OF RIGHT TO ISSUE SUPPLEMENTAL OPINIONS 53 understand this matter is in its early stages and additional facts may develop have been advised that the Estate may therefore require further opinions on Mexianlaw Accordingly reserve the right to amend and/or supplement the opinions expressed herein whether in writing or live testimony as called upon to do so pursuant to the laws of the Commonwealth declare under of perjury of penalty Pennsylvania that the foregoing statements are true and correct Executed in Philadelphia Pennsylvania this 30th day of Septem By IlaRoenberg Market Street WOO Philadelphia PA 19103 215 665-4621 SWORN and SUBSCRIBED before me in Philadelphia Pennsylvania on this 30th day of September 2013 Lorraine Costro Notary Public My commission expires COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL LORRAINE COSTRO Notary Pubic City of Philadetphia Phila County My Commission Expires April 22 2016 9th Session 1St Chamber Supreme Court Federal Judiciary Reporter and its Gazette Volume XXX September 2009 120 -14- 00785 ILAN ROSENBERG 1123 Coventry Avenue Cheltenham PA 19012 Phone 215-635-2005 Fax 215-701-2021 Email janeandilan@comcast.net PROFESSIONAL EXPERIENCE Gordon Rees Philadelphia PA June 2013-Present Partner Concentrating practice in complex insurance coverage and commercial litigation and international commercial matters and dispute resolution with an emphasis on matters relating to Mexico and Latin America outside legal advisor to the Mexican Ministry of Foreign Relations Cozen OConnor Philadelphia PA September 2002-June 2013 Member Concentrated practice in complex domestic and international insurance coverage commercial and civil matters Co-Chair of Latin American Subrogation Practice Group Chevez Ruiz Zamarripa Cia S.C Mexico City Mexico September 1999-June 2001 Associate Concentrated practice in tax planning and tax and civil rights litigation Handled trial and appellate matters before Mexican state and federal courts as well as the Mexican Federal Supreme Court Mexican Federal Ministry of Finance Mexico City Mexico January 1998-June 1999 Supervisor of the Legal Consulting Department Advised various branches of the Mexican government concerning public finance and tax law and developed federal tax rules and regulations EDUCATION University of Pennsylvania Law School Philadelphia PA Master of Comparative Law LL.C.M September 2009-May 2011 Master of Laws LL.M recipient of merit-based scholarship July 2001-May 2002 Escuela Libre de Derecho Mexico City Mexico August 1993-July 1998 Bachelor of Laws LD Equivalent LEADERSHIP POSITIONS America-Israel Chamber of Commerce Advisory Board Member BIAS and Council Migration Service of Philadelphia Board Vice President Chair Policy Committee HONORS/AWARDS Pennsylvania Super Lawyer Rising Star 2007 2008 and 2013 Recipient of the National Law Journal Pro Bono Award in 2008 BAR AD1\ITSSIONS Mexico all jurisdictions Pennsylvania United States District Courts Eastern and Middle Districts of Peimsylvania Eastern District of Wisconsin Northern District of Illinois United States Courts of Appeals Third and Federal Circuits United States Supreme Court EXHIBIT 00786 TEACHING/LECTURING EXPERIENCE University of Pennsylvania Law School Philadelphia PA October 2012-Present Lecturer in Law Comparative law course entitled Common Law Contracts for Civil Lawyers Escuela Libre de Derecho Law School Mexico City September 1999-August 2000 Adjunct Professor Tax Law and Administrative Procedure 00787 Page of2 Tesis Semanario Judicial de la Novena XIX lo 162 858 Federacin su Gaceta Epoca Tribunales Jurisprudencia Colegiados S.J.F su Gaceta PÆg 2044 Civil de Circuito Registro No 162 858 9a Epoca T.C.C SJ.F su Gaceta Tomo XXXIII Febrero de 2011 PÆg 2044 EMPLAZAMIENTO PERSONAS FiSICAS SI EN LA RAZON DEL ACTUARIO SOLO SEALA QUE EL DOMICILIO DEL DEMANDADO ES CORRECTO POR ADVERTIRLO DE LAS NOMIENCLATURAS DE LAS CALLES NUMERO COLONIA CIUIDAD ELLO NO COLMA LAS FORMALIDADES ESENCIALES DEL PROCEDIMIENTO LO QUE CONSTITUYE UNA VIOLACION LAS REGLAS QUE LO RIGEN LEGISLACION DEL ESTADO DE TAMAULIPAS El artIculo 67 fraccin ifi del Cdigo de Procedimientos Civiles para el Estado ordena que el emplazamiento las personas fisicas se realice en el domicilio seflalado por la parte que lo pide el cual debe corresponder con el lugar en donde habita el demandado por tanto el actuario al realizarlo debe cerciorarse de que queden satisfechas esas circunstancias asentarlo en el acta relativa En esas condiciones si en la razn del actuario no se seflala que en el domicilio en el que se constituy para practicar el emplazamiento habita el demandado en cambio solo refiere que se cerciorO de que era correcto por asI advertirlo de las nomenclaturas de las calles niimero colonia ciudad correspondientes con estas expresiones no se colman las formahdades esenciales del procedimiento dado que esa informacin no brinda la seguridad http//ius.scjn.gob.mx/paginas/Reportes/ReporteDE.aspxidius1 62858Tipo1 9/30/2013 00788 Page2of2 de que ese domicilio sea el lugar donde habita el demandado COnsecuentemente esa irregularidad constituye una violacin las reglas que rigen el procedimiento de dicha diligencia PRIMER TRIBUNAL COLEGIADO DEL DECIMO NOVENO CIRCUITO Amparo en revision 235/2008 15 de octubre de 2008 Unanimidad de votos Ponente Miguel Mendoza Montes Secretaria Piedad del Carmen HernÆndez Avila Amparo en revision 37/2010 Guadalupe Luis de Leon Zamora 25 de marzo de 2010 Unanimidad de votos Ponente Lucio Antonio Castillo Gonzalez Secretaria Gina Estela Cecopieri Gmez Amparo en revision 127/2010 JosØ Portilla Guerra 29 de abril de 2010 Unanimidad de votos Ponente Hector GÆlvez TÆnchez Secretaria Julia Soto Valdez Amparo en revision 192/2010 Pedro Hugo Salinas Bravo de julio de 2010 Unanimidad de votos Ponente Lucio Antonio Castillo Gonzalez Secretaria BelØn Alarcn CortØs Amparo en revision 281/2010 Juan Francisco JimØnez Chapa 28 de octubre de 2010 Unanimidad de votos Ponente Lucio Antonio Castillo Gonzalez Secretario Faustino GutiØrrez Perez http//ius.scjn.gob.mx/paginas/Reportes/ReporteDE.aspxidius1 6285 8Tipo1 9/30/2013 00789 Mexico Page of 10 Travel Warning U.S DEPARTMENT OF STATE Bureau of Consular Affairs Mexico July 12 2013 The Department of State has issued this Travel Warning to inform U.S citizens about the security situation in Mexico General information on the overall security situation is provided immediately below For information on security conditions in specific regions of Mexico which can vary travelers should reference the state-by-state assessments further below This Travel Warning supersedes the Travel Warning for Mexico dated November 20 2012 to consolidate and update information about the security situation and to advise the public of additional restrictions on the travel of U.S government USG personnel General Conditions Millions of U.S citizens safely visit Mexico each year for study tourism and business including more than 150000 who cross the border every day More than 20 million U.S citizens visited Mexico in 2012 The Mexican government makes considerable effort to protect U.S citizens and other visitors to major tourist destinations and there is no evidence that Transnational Criminal Organizations TCO5 have targeted U.S visitors and residents based on their nationality Resort areas and tourist destinations in Mexico generally do not see the levels of drug-related violence and crime that is reported in the border region and in areas along major trafficking routes Nevertheless U.S travelers should be aware that the Mexican government has been engaged in an extensive effort to counter TCOs which engage in narcotics trafficking and other unlawful activities throughout Mexico The TCOs themselves are engaged in violent struggle to control drug trafficking routes and other criminal activity Crime and violence are serious problems and can occur anywhere U.S citizens have fallen victim to criminal activity including homicide gun battles kidnapping carjacking and highway robbery While most of those killed in narcotics- related violence have been members of TCOs innocent persons have also been killed The number of U.S citizens reported to the Department of State as murdered in Mexico was 113 in 2011 and 71 in 2012 Gun battles between rival TCOs or with Mexican authorities have taken place in towns and cities in many parts of Mexico especially in the border region Gun battles have occurred in broad daylight on streets and in other public venues such as restaurants and clubs During some of these incidents U.S citizens have been trapped and temporarily prevented from leaving the area TCOs have used stolen cars buses and trucks to create roadblocks on major thoroughfares preventing the military and police from responding to criminal activity The location and timing of future hftp//fravel.state.gov/travel/cispa_tw/tw/tw_6033 .htnil 9/30/2013 00790 Mexico Page2oflO armed engagements is unpredictable We recommend that you defer travel to the areas indicated in this Travel Warning and exercise extreme caution when traveling throughout the northern border region The number of kidnappings and disappeaances throughout Mexico is of particular concern Both local and expatriate communities have been victimized In addition local police have been implicated in some of these incidents We strongly advise you to lower your profile and avoid displaying any evidence of wealth that might draw attention Carjacking and highway robbery are serious problems in many parts of the border region and U.S citizens have been murdered in such incidents Most victims who complied with carjackers at these checkpoints have reported that they were not physically harmed Carjackers have shot at vehicles that fail to stop at checkpoints Incidents have occurred during the day and at night and carjackers have used variety of techniques including bumping/moving vehicles to force them to stop and running vehicles off the road at high speeds There are some indications that criminals have targeted newer and dark-colored SUVs particularly larger vehicles especially However victims driving variety of vehicles from late model SUVs to old sedans have also been targeted While violent incidents have occurred at all hours of the day and night on both modern tell highways cuotas and on secondary roads they have occurred most frequently at night and on isolated roads To reduce risk if absolutely necessary to travel by road we strongly to urge you travel between cities throughout Mexico only during daylight hours to avoid isolated roads and to use toll roads whenever possible The Mexican government has deployed federal police and military personnel throughout the country as part of its efforts to combat the TCOs U.S citizens traveling on Mexican roads and highways may encounter government checkpoints which are often staffed by military personnel or law enforcement personnel TCOs have erected their own unauthorized checkpoints at times wearing police and military uniforms and killed or abducted motorists who have failed to stop at them You should cooperate at all checkpoints The U.S Mission in Mexico imposes restrictions on U.S government employees U.S citizens working at the Embassy and the nine consulates throughout Mexico travel that have been in place since July 15 2010 USG employees and their families are not permitted to drive for personal reasons from the U.S.-Mexico border to or from the interior of Mexico or Central America Personal travel by vehicle is permitted between Hermosillo and Nogales but is restricted to daylight hours and the Highway 15 toll road cuota USG personnel and their families are prohibited from personal travel to all areas to which it is advised todefer non-essential travel When travel for official essential purposes is it is conducted with extensive security precautions USG personnel and their families are allowed to travel for personal reasons to the areas where no advisory is in effect or where the advisory is to exercise caution While the general public is not forbidden from visiting places categorized under defer non-essential travel USG personnel will not be able to respond quickly to an emergency situation in those areas due to security precautions that must be taken by USG personnel to travel to those areas For more information on road safety and crime along Mexicos roadways see the Department of States Country Specific Information State-by-State Assessment hftp//travel.state.gov/ftavel/cispa_tw/tw/tw_603 .html 9/30/2013 00791 Mexico Page of 10 Below is state-by-state assessment of security conditions throughout Mexico The accompanying map will help in identifying individual locations Travelers should be mindful that even if no advisories are in effect for given state crime and violence can occur anywhere For general information about travel and other conditions in Mexico see our Country Specific Information Aguascalientes You should exercise caution when traveling to the areas of the state that border the state of Zacatecas as TCO activity in that region continues There is no advisory in effect for daytime travel to the areas of the state that do not border Zacatecas however intercity travel at night is not recommended Baja California north Tijuana nsenada and Mexicali are major cities/travel destinations in the state of Baja California see map to identify their exact locations You should exercise caution in the northern state of Baja California particularly at night There were 278 homicides in Tijuana from January to June 2013 Mexicalis murder rate has climbed from 14.3 per 100000 in 2011 to 15.8 per 100000 in 2012 In the majority of these cases the killings appeared to be targeted TCO assassinations Turf battles between criminal groups resulted in some assassinations in areas of Tijuana and Mexicali frequented by U.S citizens Shooting incidents in which innocent bystanders have been injured have occurred during daylight hours Baja California South Cabo San Lucas and La Paz are major cities/travel destinations in the state of Southern Baja California see map to identify its exact location No advisory is in effect Campeche No advisory is in effect Chiapas San Cristobal de las Casas is major city/travel destination in Chiapas see map to identify its exact location No advisory is in effect Chihuahua Ciudad Juarez Chihuahua City and Copper Canyon are major cities/travel destinations in Chihuahua see map to identify their exact locations You should defer non essential travel to the state of Chihuahu In Ciudad Juarez personal travel by USG employees outside the northeast portion of the city the area near the Consulate General is restricted Although homicides have decreased markedlyfrom high of 3100 homicides in 3010 to 749 in 2012Ciudad Juarez still has one of the highest homicide rates in Mexico Crime and violence remain serious problems throughout the state of Chihuahua particularly in the southern portion of the state and in the Sierra Mountains including Copper Canyon U.S citizens do not however appear to be targeted based on their nationality Coahuila You should defer non-essential travel to the state of Coahuila The State of Coahuila continues to experience high rates of violent crimes and narcotics-related murders TCOs continue to compete for territory and coveted border crossings to the United States The cities of Torren Saltillo Piedras Negras and Ciudad Acuha have seen an increase of violent crimes within the last six months including murder kidnapping and armed carjacking Of particular safety concern are casinos sportsbooks or other gambling establishments and adult entertainment establishments which USG personnel are not permitted to frequent Colima Manzanillo is major city/travel destination in Colima see map to identify its exact location You should defer non-essential travel to the areas of the state of Colima that hftp//travel.state.gov/fravellcispa_tw/tw/tw_603 .html 9/30/2013 00792 Mexico Page of 10 border the state of MichoacÆn including the city of Tecoman You should also exercise caution when travelling to other parts of the state including Colima City and Manzanhllo The security situation along the Michoacan border continues to be the most unstable in the state with gun battles occurring between rival criminal groups and with Mexican authorities Homicides throughout the state rose sharply from 113 in 2011 to 179 in 2012 according to official Mexican government sources Durango You should defer non-essential travel to the state of Durango except the city of Durango where you should exercise caution Cartel violence and highway lawlessness are continuing security concern Several areas in the state continue to experience high rates of violence and remain volatile and unpredictable The Mexican government deployed troops in March 2013 to quell TCO violence in the La Laguna area which is comprised of the cities of Gomez Palaclo and Lerdo in the state of Durango and the city of Torreon in the state of Coahuila Of particular safety concern are casinos sportsbooks or other gambling establishments and adult entertainment establishments which USG personnel are not permitted to frequent USG personnel not travel outside the of Durango and must abide by curfew of a.m to a.m within may city secured venue Estado de Mexico Toluca and Teotihuacan are major travel destinations in Estado de Mexico see map to identify exact locations You should defer non-essential travel to the municipalities of Coacalco Ecatepec Nezahualcoyotl La Paz Valle del Chalco Solidaridad Chalco and Ixtapaluca which are eastern portions of the greater Mexico City metropolitan area located just to the east of the Federal District of Mexico and Benito Juarez airport unless traveling directly through the areas on major thoroughfares These areas have seen high rates of crime and insecurity You should also defer non-essential travel on any roads between Santa Marta in the southeast portion of the state and Huitzilac in the state of Morelos including the Lagunas de Zempoala National Park and surrounding areas Guanajuato San Miguel de Allende and Leon are major cities/travel destinations in Guanajuato see map to identify their exact locations No advisory is in effect Guerrero Acapulco Ixtapa Taxco and Zihuatanejo are major cities/travel destinations in Guerrero see map to identify their exact locations You should defer non-essential travel to the northwestern and southern portions of the state the area west and south of the town of Arcelia on the border with Estado de Mexico in the north and the town of Tlapa near the border with Oaxaca except for the cities of Acapulco Zihuatanejo and Ixtapa In those cities you should exercise caution and stay within tourist areas You should also exercise caution and travel only during daylight hours on toll highway cuota 95D between Mexico City and Acapulco and highway 200 between Acapulco and Zihuatanejo/Ixtapa In Acapulco defer non-essential travel to areas further than blocks inland of the Costera Miguel Aleman Boulevard which parallels the popular beach areas Lodging for USG personnel is limited to the Hotel Zone of Acapulco beginning from the Hotel Avalon Excalibur Acapulco in the north and going south through Puerto Marquez including the Playa Diamante area Any activity outside the Hotel Zone for USG personnel is limited to the coastal area from La Quebrada to the beginning of the Hotel Zone and only during daylight hours In general the popular tourist area of Diamante just south of the city has been less affected by violence Flying into the coastal cities in southern Guerrero remains the preferred method of travel You should defer non-essential travel by land between Acapulco and .html 9/30/2013 h//trave1.state.gov/trave1Icispa_tw/tw/tw_603 00793 Mexico Page5oflo Zihuatanejo/Ixtapa travel to Zihuatanejo/Ixtapa only by air and exercise caution while in Zihuatanejo/Ixtapa If travelling by automobile between Mexico City and Acapulco you should exercise caution and travel only during daylight hours on toll highway cuota 95D staying on the toll road towards the Playa Diamante area and avoiding the highway running through the city of Acapulco You should also exercise caution in the northern region of Guerrero the area north of the town of Arcelia on the border with Estado de Mexico in the north and the town of Tlapa near the border with Oaxaca The state of Guerrero has seen an increase in violence among rival criminal organizations Acapulcos murder rates increased dramatically since 2009 in response in 2011 the Government of Mexico sent additional military and federal police to the state to assist State security forces in implementing ongoing operation Guerrero Seguro Secure Guerrero that focuses on combating organized crime and returning security to the environs of popular tourist areas Self-defense groups operate independently of the government in the Costa Chica region of eastern Guerrero Armed members of these groups frequently maintain roadblocks and although not considered hostile to foreigners or tourists are suspicious of outsiders and should be considered volatile and unpredictable Hidalgo No advisory is in effect Jalisco Guadalajara Puerto Vallarta and Lake Chapala are major cities/travel destinations in Jalisco see map to identify their exact locations You should defer non-essential travel to areas of the state that borders the state of Michoacn The security situation along the Michoacn and Zacatecas borders continues to be unstable and gun battles between criminal groups and authorities occur Concerns include roadblocks placed by individuals posing as police or military personnel and recent gun battles between rival TCOs involving automatic weapons You should exercise caution in rural areas and when using secondary highways particularly along the northern border of the state Except for the areas of the state that border Michoacan there is no advisory in effect for datime travel within major population centers or major highways in the state of Jalisco Intercity travel at night is not recommended There is no recommendation against travel to Guadalajara and Puerto Vallarta There is also no recommendation against travel on principal highways in Jalisco between Guadalajara including the portions that cross in to the southern portions of the state of Nayarit Mexico City also known as the Federal District No advisory is in effect See also the discussion in the section on Estado de Mexico for areas within the greater Mexico City metropolitan area MichoacÆn Morelia is major city/travel destination in MichoacÆn see map to identify exact locations You should defer non-essential travel to the state of MichoacÆn except the cities of Morelia and Uzaro Cardenas where you should exercise caution Flying into Morelia and LÆzaro Cardenas is the recommended method of travel Attacks on Mexican government officials law enforcement and military personnel and other incidents of TCO-related violence have occurred throughout Michoacn In the northwestern portion of the state self-defense groups operate independently of the government Armed members of the groups frequently maintain roadblocks and although not considered hostile to foreigners or tourists are suspicious of outsiders and should be considered volatile and unpredictable Groups in Michoacan are reputed to be linked to TCO5 h//trave1.state.gov/trave1Icispa_tw/tw/tw_603 .html 9/30/2013 00794 Mexico Page of 10 Morelos Cuernavaca is major city/travel destination in Morelos see attached map to identify their exact locations You should exercise caution in the state of Morelos due to the unpredictable nature of TCO violence You should also defer non-essential travel on any roads between Huitzilac in the northwest corner of the state and Santa Marta in the state of Mexico including the Lagunas de Zempoala National Park and surrounding areas On August 24 2012 two USG employees were injured after being fired upon by Federal Police officers on an isolated road north of Tres Marias Morelos Numerous incidents of narcotics-related violence have also occurred in the city of Cuernavaca Nayarit You should defer non-essential travel to areas of the state of Nayarit that border the states of Sinaloa or Durango as well as all rural areas and secondary highways You should exercise caution when traveling to the cities of Tepic Xalisco or San Bias There is nd recommendation against travel to the Vallarta-Nayarit area in the southern portion of the state also known as the Riviera Nayarit or to principal highways in the southern portion of the state used to travel from Guadalajara to Puerto Vallarta Nuevo Leon Monterrey is major city/travel destination in Nuevo Leon- see map to identify its exact location You should defer non-essential travel to the state of Nuevo Leon except the metropolitan area of Monterrey where you should exercise caution Although the level of lCD violence and general insecurity in Monterrey has decreased within the last 12 months sporadic gun battles continue to occur in the greater Monterrey area Adult entertainment establishments and casinos continue to be targets of TCO activity TCOs have kidnapped and in some cases murdered American citizens even when ransom demands are met TCOs have been known to attack local government facilities prisons and police stations and are engaged in public shootouts with the military and between themselves TCO5 have used vehicle-borne improvised explosive devices against military and law enforcement units as well as incendiary devices against several types of businesses Pedestrians and innocent bystanders have been killed in these incidents Local police and private patrols have limited capacity to deter criminal elements or respond effectively to security incidents As result of Department of State assessment of the overall security situation the Consulate General in Monterrey is partially unaccompanied post with no minor dependents of USG personnel permitted USG personnel serving at the U.S Consulate General in Monterrey may not frequent casinos sportsbooks or other gambling establishments USG personnel may not travel outside the San Pedro Garza Garcia municipal boundaries between am and a.m except for travel to the airport after a.rn Oaxaca Oaxaca Huatulco and Puerto Escondido are major cities/travel destinations in Oaxaca see map to identify their exact locations No advisory is in effect Puebla No advisory is in effect Queretaro No advisory is in effect Quintana Roo Cancun Cozumel Playa del Carmen Riviera Maya and Tulum are major cities/travel destinations in Quintana Roo see attached map to identify their exact locations No advisory is in effect San Luis Potosi You should defer non-essential travel to the state of San Luis Potosi except the of San Luis Potosi where you should exercise caution The entire stretch of highway 57D in city hpIItrave1.state.govItrave1/cispa_tw/tw/tw_6033 .htmi 9/30/2013 00795 Mexico Page7oflO San Luis Potosi and portions of the state east of highway 57D towards Tamaulipas are particularly dangerous USG employee was killed and another wounded when they were attacked in their U.S government vehicle on Highway 57 near Santa Maria del Rio in 2011 Cartel violence and highway lawlessness are continuing security concern USG personnel may not frequent casinos sportsbooks or other gambling establishments and adult entertainment establishments USG personnel may not travel outside the City of San Luis Potosi and must abide by curfew of a.m to am within secured venue Sinaloa Mazatlanis major city/travel destination in Sinaloa see map to identify its exact location You should defer non-essential travel to the state of Sinaloa except the city of Mazatlan where you should exercise caution particularly late at night and in the early morning One of Mexicos most powerful TCO5 is based in the state of Sinaloa With the exception of Ciudad Juarºz since 2006 more homicides have occurred in the states capital city of Culiacan than in any other city in Mexico Travel off the toll roads cuotas in remote areas of Sinaloa is especially dangerous and should be avoided We recommend that any travel in Mazatlan be limited to Zona Dorada and the historic town center as well as direct routes to/from these locations and the airport Sonora Nogales Puerto Peflasco Hermosillo and San Carlos are major cities/travel destinations in Sonora see map to identify their exact locations U.S citizens visiting Puerto Peæasco should exercise caution and use the Lukeville Arizona/Sonoyta Sonora border crossing in order to limit driving through Mexico You should defer non-essential travel between the city of Nogales and the cities of Sonoyta and Caborca which area also includes the smaller cities of Saric Tubutama and Altar defer non-essential travel to the eastern edge of the State of Sonora which borders the State of Chihuahua all points along that border east of the northern city of Agua Prieta and the southern town of Ala mos and defer non-essential travel within the city of Ciudad Obregon and southward with the exception of travel to Alamos traveling only during daylight hours and using only the Highway 15 toll road or cuota and Sonora State Road 162 Sonora is key region in the international drug and human trafficking trades and can be extremely dangerous for travelers The region west of Nogales east of Sonoyta and from Caborca north including the towns of Saric Tubutama and Altar and the eastern edge of Sonora bordering Chihuahua are known centers of illegal activity Travelers throughout Sonora are encouraged to limit travel to main roads during daylight hours Tabasco Villahermosa is major city/travel destination in Tabasco -see attached map to identify its exact location No advisory is in effect Tamaulipas Matamoros Nuevo Laredo Reynosa and Tampico are major cities/travel destinations in Tamaulipas see map to identify their exact locations You should defer non essential travel to the state of Tamaulipas All USG employees are prohibited from personal travel on Tamaulipas highways outside of Matamoros and Nuevo Laredo due to the tenuous security situation In Matamoros USG employees are subject to further movement restrictions between midnight and a.m USG employees may not frequent casinos and adult entertainment establishments Matamoros Reynosa Nuevo Laredo and Ciudad Victoria have experienced grenade attacks in the past year as well as numerous reported gun battles Nuevo Laredo has seen marked increase in the number of murders carjackings and robberies in the past year For example the numbers of murders are up 92.S% over last year These crimes occur in all parts of .html 9/30/2013 http//travel.state.gov/travellcispa_tw/tw/tw_603 00796 Mexico Page of 10 the city at all times of the day The kidnapping rate for Tamaulipas the highest for all states in Mexico more than doubled in the past year In February 2013 four masked and armed individuals attempted to kidnap USG employee in Matamoros during daylight hours All travelers should be aware of the risks posed by armed robbery and carjacking on state highways throughout Tamaulipas particularly on highways and roads outside of urban areas along the northern border Traveling outside of cities after dark is particularly dangerous While no highway routes through Tamaulipas are considered safe many of the crimes reported to the U.S Consulate General in Matamoros have taken place along the Matamoros-Tampico highway Tiaxcala No advisory is in effect Veracruz You should exercise caution when traveling in the state of Veracruz The state of Veracruz continues to experience violence among rival criminal organizations Mexican federal security forces continue to assist state and local security forces in providing security and combating organized crime Yucatan Merida and Chichen Itza are major cities/travel destinations in Yucatan -see map to identify its exact location No advisory is in effect Zacatecas You should defer nonessential travel within the state of Zacatecas to the area bordering the states of Aguascalientes Coahuila Durango and Jalisco and exercise caution in the interior of the state including the city of Zacatecas The regions of the state bordering Durango and Coahuila as well as the cities of Fresnillo and Fresnillo-Sombrete and surrounding area are particularly dangerous The northwestern portion of the state of Zacatecas has become notably dangerous and insecure Robberies and carjackings are occurring with increased frequency and both local authorities and residents have reported surge in observed TCO activity This area is remote and local authorities are unable to regularly patrol it or quickly respond to incidents that occur there Gun battles between criminal groups and authorities occur in the area of the state bordering the state of Jalisco There have also been reports of roadblocks and false checkpoints on highways between the states of Zacatecas and Jalisco The city of Fresnillo the area extending northwest from Fresnhllo along Highway 45 Fresnillo-Sombrete between Highways 44 and 49 and highway 49 northwards from Fresnillo through Durango and in to Chihuahua are considered dangerous Extreme caution should be taken when traveling in the remainder of the state Of particular safety concern are casinos sportsbooks or other gambling establishments and adult entertainment establishments which USG personnel may not frequent USG personnel may not travel outside the City of Zacatecas after dark and must abide by curfew of a.m to a.m within secured venue Further Information For more detailed information on staying safe in Mexico please see the State Departments Country Specific Information for Mexico For the latest security information U.S citizens traveling abroad should regularly monitor the State Departments internet web site where the current Worldwide Caution Travel Warnings and Travel Alerts can be found Follow us on Twitter and the Bureau of Consular Affairs page on Facebook as well Up-to-date information on security can also be obtained by calling 1-888-407- 4747 toll free in the United States and Canada or for callers outside the United States and http//travel.state.gov/travellcispa_tw/tw/tw6033 .html 9/30/2013 00797 Mexico Page of 10 Canada regular toll line at 001-202-501-4444 These numbers are available from 800 a.m to 800 p.m Eastern Time Monday through Friday except U.S federal holidays U.S citizens traveling or residing overseas are encouraged to enroll with the 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the state of Sonora Avenida Monterrey 141 telephone 01152662 289-3500 Matamoros the southern part of Tamaulipas with the exception of the city of Tampico Avenida Primera 2002 telephone 01 152868 812-4402 Merida Campeche Yucatan and Quintana Roo Calle 60 no 338-K 29 31 Col Alcala Martin Merida Yucatan Mexico 97050 telephone 01152999 942-5700 or 202-250-3711 U.S number Monterrey Nuevo Leon Durango Zacatecas San Luis Potosi and the southern part of Coahuila Avenida Constitucion 411 Poniente telephone 01 152818 047-3100 Nogales the northern part of Sonora Calle San Jose Nogales Sonora telephone 01152 631 311-8150 Nuevo Laredo the northern part of Coahuila and the northwestern part of Tamaulipas Calle Allende 3330 col Jardin telephone 01152867 714-0512 Tijuana Baja California Norte and Baja California Sur Paseo de Las Culturas s/n Mesa de Otay telephone 011 52 664 977-2000 All other Mexican states the Federal District of Mexico City and the city of Tampico Tamaulipas are part of the Embassys consular district Consular Agencies Acapulco Hotel Emporio Costera Miguel Aleman 121 Suite 14 telephone 01152744 481 -0100 or 01152744 484-0300 Cancn Blvd Kukulcan Km 13 ZH Torre La Europea Despacho 301 Cancun Quintana Roo Mexico C.P 77500 telephone 01152998 883-0272 Cozumel Plaza Villa Mar en el Centro Plaza Principal Parque JuÆrez between Melgar and 5th Ave 2nd floor locales and telephone 01152987 872-4574 or 202-459-4661 U.S number Ixtapa/Zihuatariejo Hotel Fontan Blvd Ixtapa telephone 01152755 553-2100 http//travel.state.gov/travellcispa_tw/tw/tw_603 .h1 9/30/2013 00798 Mexico PagelOoflO Los Cabos Las Tieridas de Palmilla Local B221 Carretera Transpeninsular Km 27.5 San JosØ del Cabo BCS Mexico 23406 Telephone 624 143-3566 Fax 624 143-6750 Mazatlthn Playa Gaviotas 202 Zona Dorada telephone 01152669 916-5889 Oaxaca Macedonlo Alcal no 407 interior 20 telephone 01152951 514-3054 011 52 951 516-2853 Piedras Negras Abasolo 211 Zona Centro Piedras Negras Coah Tel 01152878 782- 5586 Playa del Carmen The Palapa Calle Sur between Avenida 15 and Avenida 20 telephone 01152984 873-0303 or 202-370-6708a U.S number Puerto Vallarta Paradise Plaza Paseo de los Cocoteros Local Interior 17 Nuevo Vallarta Nayarit telephone 01152322 222-0069 San Luis PotosI Edificlo Las Terrazas Avenida Venustiano Carranza 2076-41 Col Polanco telephone 01 152444 811-7802/7803 San Miguel de Allende Centro Comercial La Luciernaga Libramiento Manuel Zavala Pepe KBZON telephone 01152415 152-2357 http//tiavel.state.gov/travellcispa_tw/tw/tw_6033 .html 9/30/2013 00799 CASENUMBER414.270 IN THE ESTATE OF IN PROBATE COURT NO ONE DOROTHY LOIJISE LONGORIA DECEASED HARRIS COUNTY TEXAS ORDER DENYING MOTION OF SHELBY LONGORIIA TO DISMISS OR TO ABATE COUNTERCLAIMS On October 2013 the Court heard Counter-Defendant Shelby Longorias Motion To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending Resolution of Will Contest and Mexican Litigation the Motion Having considered the Motion the brief filed in support of the Motion the response to the Motion the evidence admitted during the hearing on the Motion and the record of this case the Court has concluded that the Motion should be denied IT IS THEREFORE ORDERED that Counter-Defendant Shelby Longorias Motion To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending Resolution of Will Contest and Mexican Litigation be and hereby is DENIED SO ORDERED on this ______ day of_____________________ 2013 PRESIDING JUDGE PROBATE CouRT Nu1vIBER ONE HARRIs CouNTY TEXAS ORDER DENYING MOTION OF SHELBY LONGORIA TO DISMISS OR TO ABATE COUNTERCLAIMS Solo Page 00800 Case Number 414270 IN THE ESTATE OF IN THE PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS Shelby Longorias Reply in Further Support of Motion to Dismiss or Abate 2888738v1/013774 00801 Table of Contents The Court Should Dismiss Tommys Claim for Forum Non Conveniens Mexico Is an Available and Adequate Alternative Forum The Private Interest Factors Support Dismissal The Public Interest Factors Support Dismissal 10 II Alternatively the Court Should Abate Tommys Claim 11 2888738v1/013774 00802 Table of Authorities Aguinda Texaco Inc 142 Supp 2d 534 S.D.N.Y 2001 Del Istmo Assurance Corp Platon 2011 WL 5508641 S.D Fla Nov 92011 DTE LLC BBVA Bancomer S.A 508 F.3d 785 5th Cir 2007 Dunsby Transocean Inc 329 Supp 2d 890 S.D Tex 2004 Gallego Garcia 2010 WL2354585 S.D Cal.June92010 511 Gomez de Hernandez Bridgestone Firestone Am Tire 204 S.W.3d 473 Tex App Corpus Christi 2006 pet denied Ibarra Orica USA 493 Fed Appx 489 5th Cir 2012 In re Air Crash Over the Mid-Atlantic on June 2009 792F.Supp.2d1090N.D.Cal.2011 .. In re BPZ Resources Inc 359 S.W.3d 866 Tex App Houston Dist 2012 orig proceeding In re Ford Motor Co 591 F.3d 406 5th Cir 2009 In re Mantle Oil Gas LLC 2012 WL 5323584 Tex App Houston Dist 2012 no pet In re Pirelli Tire L.L.C 247 S.W.3d 670 Tex 2007 .67 In re Pittsburgh Corning Corp 2013 WL 2299620 Bankr W.D Pa May 24 2013 Israel Discount Bank Ltd Schn app 505 Supp 2d 651 C.D Cal 2007 2888738v1/013774 00803 ISTIL Group Inc Masood 2004 WL948376D.Or.Apr.302004 Liberty Mutual Ins Co Transit Mix Concrete Materials Co 2013 WL 3329026 Tex App Texarkana June 28 2013 pet filed Miralda Tidewater Inc 2012 WL 3637845 E.D La Aug 232012 Morales Ford Motor Co 313 Supp 2d 672 S.D Tex 2004 89 Navarrete de Pedrero Schwezer Aircraft Corp 635 Supp 2d 251 W.D.N.Y 2009 Paolicelli Ford Motor Co 289 Fed Appx 387 11th Cir Aug 20 2008 Paulownia Plantations de Panama Corp Rajamannan 793 N.W.2d 128 Minn 2009 Rustal Trading US Inc Makki 17 Fed Appx 331 6th Cir Aug 212001 Megga Telecommunications Ltd Lucent Technologies Inc 1997WL86413D.Del.Feb.141997 Sonat Exploration Co Cudd Pressure Control Inc 271 S.W.3d228 Tex 2008 10 Transunion Corp Pepsico Inc 811F.2d1272dCir.1987 United Bank for Africa PLC Coker 2003 WL22741575 S.D.N.Y.2003 Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 Tex App Houston Dist.J 2010 no pet 10 ill 2888738v1/013774 00804 This case is beginning to resemble the old-time carnival game Whack-a-Mole.1 quick timeline shows Tommy Dorseys repeated efforts right up to the week before the hearing to recast the estates purported claims in some way that will avoid forum non conveniens dismissal Tommy filed this case on May 2013 seeking to do three things invalidate Mexican judgment partitioning community property2 invalidate Mexican trust3 and invalidate orders of Mexican court Eduardo Longoria Sr.s will.4 probating Shelby answered the petition on June 17 2013 and asserted forum non conveniens as defense.5 On June 18 2013 Shelby filed petition contesting the will pursuant to which Tommy was appointed as independent executor of Dorothys estate On July 18 2013 after reviewing Shelbys answer asserting forum non conveniens defense Tommy nonsuited his claim and refiled it as counterclaim to the will contest procedural subterfuge designed to support the fictions in Tommys response brief that Shelby somehow initiated this litigation and that Tommys claims somehow are intrinsically related to Shelbys will contest.6 On September 26 2013 having reviewed Shelbys motion to dismiss Tommy filed another set of counterclaims which he completely rewrote to scrub the references to Mexico and accenthate the references to Texas.7 Tommy seeks to avoid forum non conveniens by completely rewriting his pleading right before the hearing and then claiming that Shelby is now attacking straw man Tommy asserts contrary to his original petition and his original counterclaim that he is not contesting the Mexican trust and not contesting the orders of the Mexican court probating Eduardo Sr.s will But the Inventory Appraisement and List of Claims that Tommy filed in this Court just five The term Whac-a-Mole or Whack-a-mole is used colloquially to denote repetitious and futile task each time an adversary is whacked only pops up it again somewhere else In re Pittsburgh Corning Corp 2013 WL 2299620 at Bankr W.D Pa May 24 2013 n.8 Plaintiffs Original Petition May 2013 at 11 31d 21-24 4id 27-29 Defendant Shelby Longorias Answer to Plaintiffs Original Petition June 17 2013 at See Non-Suit Without Prejudice July 18 2013 and Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased July 18 2013 Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased to Shelby Longorias Amended Contest of 2010 Will September 26 2013 2888738v1/013774 .1 00805 weeks ago tells different story He says that the estate has claim for 49011050 for shares of stock in two Mexican companies formerly held by the Mexican trust.8 This filing can be squared only with claim that seeks to recover for the estate half of the assets that were held by the Mexican trust In order to prevail on such claim Tommy at minimum would somehow have to persuade court to invalidate the Mexican trust and to invalidate the orders of the Mexican court probating the will of Eduardo Sr which provided for his property to be passed to Shelby and Eduardo Jr through the Mexican trust This Court must decide whether Texas court indeed Harris County jury or Mexican court is better forum for resolving these attacks on Mexican legal documents and court orders Tommys response also tacitly admits that he somehow will have to overcome the agreed 1983 order of Mexican court partitioning the property of Eduardo Sr and Dorothy.9 Tommys pleadings and his briefs have all avoided expressly mentioning the Mexican court order of partition but it will not go away just because Tommy pretends that it does not exist It does exist and its existence is an insurmountable barrier to the estate recovering based on theory that it is entitled to community property interest Presumably Tommy has some undisclosed theory about why and how the estate can attack 30-year-old Mexican court order This court must decide whether Texas court or Mexican court is better forum for resolving an attack on this Mexican court order In an effort to create the appearance that this case is not primarily about Mexican property trusts and court orders Tommy added allegations to his new amended counterclaim about two letters sent to Dorothy in Texas The merit of Shelbys motion is illustrated by the Exhibit hereto at to Motion to Dismiss or Abate Counterclaims at 23 2888738v1/013774 00806 weakness of the new allegations which Tommy chose to highlight in an apparent attempt to demonstrate Texas connection First Tommy alleges Shelby promised Dorothy in 2007 that he would pay $100000 each to Sylvia and Adriana upon Dorothys death Tommy admits that Shelby tendered this money to Sylvia and Adriana but complains that Shelby requested them to release any claims against him in return for receiving this substantial gift It is mystery how these facts are supposed to support claim by the estate against Shelby Second Tommy points to letter that Eduardo Jr sent to Dorothy more than thirty years ago on August 1983 over his and Shelbys signature.1 The handwritten letter which Tommy grandiosely characterizes as establishing private trust states in full Dearest Mom Shelby and are writing you this letter with great deal of love and respect We want you to know that the assets that Dad has willed to us as long as you live we will hold them as if they were yours We will make the fruits available to you for your direction as to their use This letter has value to only you because of our commitment to your well-being and happiness More importantly than the worldly goods is our promise to always care for you and to provide for spiritual your needs We hereby pledge to you our unending devotion Your Sons Eduardo Longoria Shelby Luis Longoria2 Make no mistake Shelby always supported his mother to the end of her life He always cared for her and provided for her needs But the Court is not required to overlook the clear facts It is absurd for Tommy to maintain that he is seeking to recover for the estate based on an obviously unenforceable 30-year-old pledge of devotion while implausibly asserting that his case has nothing to do with the subsequent Mexican and Mexican court orders that agreements 10 Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased to Shelby Longorias Amended Contest of 2010 Will September 26 2013 at 17 11d 16 2Exhjbit hereto 2888738v1/013774 00807 actually governed the arrangements for disposition of the Mexican property that made up the bulk of the assets separately owned by Eduardo Sr and Dorothy In his inventory of claims Tommy told the Court what he is seeking in this lawsuit recovery of half of the value of the businesses formerly held by the Mexican trust Tommys new far-fetched allegations are just temporary fix to get him past the motion to dismiss hearing If the Court were to deny Shelbys motion Tommy would almost certainly pop back up His extensive original discovery relating to the Mexican trust court orders and property would surface The Court should end this game now and send the case to Mexico where it belongs The Court Should Dismiss Tommys Claim for Forum Non Conveniens Recognizing that his case is in hole Tommy relies on artful repleading to argue against forum non conveniens dismissal For example after having first sued Shelby Tommy non-suited his claim once Shelby subsequently filed will contest Tommy then refiled the same claims with which he initiated this litigation as counterclaims to the will contest and now tries to argue that it was Shelby who first invoked the jurisdiction of this Court Regardless Tommy is flat-out wrong when he argues that the Court cannot dismiss Tommys counterclaim while maintaining jurisdiction over Shelbys claim See Israel Discount Bank Ltd Schnapp 505 Supp 2d 651 662 C.D Cal 2007 dismissing counterclaim for forum non conveniens in favor of an Israeli forum while remanding the plaintiffs claim to California state court affd 321 Fed Appx 700 9th Cir 2009 ISTIL Group Inc Masood 2004 WL 948376 at 6..7 Or Apr 30 2004 dismissing only the counterclaim because Channel Islands were superior forum United Bank for Africa PLC Coker 2003 WL 22741575 46 S.D.N.Y 2003 dismissing employees employment related counterclaims on grounds of forum non conveniens or deference judicial while permitting employer to pursue RICO and other claims related to defendants former 2888738v1/013774 00808 employment Megga Telecommunications Ltd Lucent Technologies Inc 1997 WL 86413 Del Feb 14 1997 dismissing for forum non conveniens counterclaims which would unnecessarily burden the trial of plaintiffs claims Similarly Tommy tries to avoid the issues by devoting whole section of his brief to the irrelevant distinction between statutory and common law forum non conveniens But the very case on which he relies Liberty Mutual Ins Co Transit Mix Concrete Materials Co 2013 WL 3329026 at Tex App Texarkana June 28 2013 pet filed acknowledges that there is substantial overlap between statutory forum non conveniens caselaw and common law forum non conveniens case law that the statute has deep roots in the common law and that courts rely on the same precedent in applying the forum non conveniens doctrine in both statutory and common-law cases Finally Tommy seems intent on wrongly casting aspersions on Shelby Lets clear this out of the way Shelby told the Court that he has the burden of proof on the issue of forum non conveniens13 that he maintains his home in Texas4 and that some court opinions state that more deference should be paid to the venue choices of in-state plaintiffs5 Tommy suggests otherwise only to distract from the real issues As Shelby demonstrated on page 14 of his brief courts have applied forum non conveniens to dismiss cases brought by Texas plaintiffs and brought against Texas defendants And forum non conveniens dismissal was warranted for claims asserted by an estate of resident of the forum state Gallego Garcia 2010 WL 2354585 S.D Cal June 2010 The 13 Counter-Defendant Shelby Longorias Brief in Support of His Motion to Dismiss Counterclaims for Forum Non Conveniens or Alternatively to Abate Pending Resolution of Will Contest and Mexican Litigation Aug 2013 at 13 14 Shelby Longorias Amended Contest of 2010 Will Aug 30 2013 at Shelby Longoria Shelby is an individual domiciled in Hidalgo County Texas. 15 Counter-Defendant Shelby Longorias Brief in Support of His Motion to Dismiss Counterclaims for Forum Non Conveniens or Alternatively to Abate Pending Resolution of Will Contest and Mexican Litigation Aug 2013 at 13 2888738v1/0l3774 00809 dispositive question is not the residency of the parties but the availability and adequacy of Mexican forum and the balance of the private and public interest factors Shelby has demonstrated that the test for forum non conveniens dismissal is met in this case Mexico Is an Available and Adequate Alternative Forum There is nearly airtight presumption that Mexico is an available forum In re Ford Motor Co 591 F.3d 406 413 5th Cir 2009 Numerous Texas and federal cases have found Mexico to be an adequate and available forum DTEX LLC BBVA Bancomer S.A 508 F.3d 785 796 5th Cir 2007 Ibarra Orica USA 493 Fed Appx 489 493 5th Cir 2012 In re Ford Motor Co 591 F.3d 406 412 5th Cir 2009 In re Pirelli Tire L.L.C 247 S.W.3d 670 677-78 Tex 2007 Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 675 Tex App Houston Dist 2010 no pet Gomez de Hernandez Bridgestone /Firestone Am Tire L.L.C 204 S.W.3d 473 483 Tex App Corpus Christi 2006 pet denied Tommy does not cite single case finding that Mexico is not an available and adequate forum And he offers no meaningful basis for this Court to be the first court to buck the nearly airtight presumption that Mexico is available and adequate Tommy argues that Shelby would not be subject to personal jurisdiction in Mexican courts But Shelby has already subjected himself to personal jurisdiction in Tamaulipas and the court there has acknowledged his submission and his appearance.6 This is sufficient to accepted make Mexico an available forum In re Ford Motor Co 591 F.3d 406 413 5th Cir 2009 Tommy argues that third-party defendants Adriana and Sylvia will not submit to the jurisdiction of the courts of Tamaulipas But they already have submitted to the jurisdiction of those courts by filing lawsuits in those courts against Shelby Moreover both have to agreed 16 Exhibit hereto Shelby will submit certified translation of Exhibit the Courts request upon 2888738v1/013774 00810 submit any disputes concerning the Mexican trust to resolution by Tamaulipan courts Shelby is willing to assume the very minimal risk that Sylvia aiid Adriana would somehow be able to evade the jurisdiction of Tamaulipan courts over Shelbys claims against them But regardless Sylvia and Adriana who are in league with and share counsel with Tommy cannot defeat forum non conveniens by engaging in practices deliberately designed to defeat jurisdiction in the foreign forum In re Air Crash Over the Mid-Atlantic on June 2009 792 Supp 2d 1090 1097 N.D Cal 2011 Tommy argues that there is not cause of action in Mexico for breach of informal fiduciary relationships or private trusts This is of no moment because as shown in Dr Gabuardis affidavit Mexican law permits actions in damages to redress purported injuries such as the one claimed by Tommy The law is clear that Mexico is not an unavailable forum just because it does not recognize all causes of action that may be available in the United States In re Pirelli Tire L.L.C 247 S.W.3d 670 678 Tex 2007 Tommy has run on his claims in Mexico To Mexico argues that limitations that extent is not distinguishable from the United States But in any event if the Court believes that it is necessary it can condition forum non conveniens dismissal on Shelbys agreement not to assert limitation defenses in Mexico In re Mantle Oil Gas LLC 2012 WL 5323584 Tex App Houston Dist 2012 no pet Dunsby Transocean Inc 329 Supp 2d 890 895-96 S.D Tex 2004 Finally Tommy claims that Tamaulipan courts would not have subject-matter jurisdiction over his claims His experts affidavit makes clear that the only basis for this argument is purported Tamaulipan statute which the expert contends would divest Tamaulipan courts of jurisdiction due to the prior filing in the United States However the 2888738v1/013774 00811 concept of preemptive jurisdiction under Mexican law does not prevent Mexican court from asserting subject-matter jurisdiction over case dismissed from court in the United States Navarrete de Pedrero Schweizer Aircraft Corp 635 Supp 2d 251 261 W.D.N.Y 2009 And courts both state and federal have refused to recognize foreign laws that purport to make the home forum unavailable because of prior U.S filing Del Istmo Assurance Corp Platon 2011 WL 5508641 S.D Fla Nov 2011 see Morales Ford Motor Co 313 Supp 2d 672 676 S.D Tex 2004 Aguinda Texaco Inc 142 Supp 2d 534 546 S.D.N.Y 2001 Paulownia Plantations de Panama Corp Rajamannan 793 N.W.2d 128 134-35 Minn 2009 The Private Interest Factors Support Dismissal In order to argue position on the private-interest factors Tommy relies heavily on his attempted refashioning of his claims It simply is not credible for Tommy to argue that even though he seeks to recover half the value of the Mexican trust he is not actually contesting Eduardo Sr.s will or the trust agreement Tommy correctly notes that there are some witnesses in the United States but he does not controvert Shelbys showing that witnesses are in many key Mexico Tommy concedes that the relevant documents are in Mexico but he argues that Shelby controls the documents Shelby does not control all of the Mexican witnesses and entities at issue To the extent that he has control over relevant documents in Mexico that does not any tip the scales in favor of venue in the United States In of the cases discussed on pages 20-22 many of Shelbys brief court dismissed in part because documents controlled by defendant were located in foreign forum Tommys principal private interest argument is that Tamaulipas is dangerous But as matter of law dangerous or violent conditions in foreign forum do not weigh against dismissal 2888738v1/013774 00812 in favor of that forum unless those conditions have adversely impacted the judicial system See In re BPZ Resources Inc 359 S.W.3d 866 879 Tex App Houston Dist 2012 orig proceeding Allegations of political unrest have generally been unsuccessfUl in courts determinations that foreign forum is inconvenient Transunion Corp Pepsico Inc 811 F.2d 127 129 2d Cir 1987 no showing was made that political unrest in the Philippines has had an adverse effect upon the judicial system there Paolicelli Ford Motor Co 289 Fed Appx 387 391 11th Cir Aug 20 2008 plaintiff Bonilla alleges that the political instability in Colombia poses safety risks for the parties but absent evidence the political unrest has affected the Colombian judicial system or would affect litigation of this case this fact is not sufficient to outweigh the other factors that weigh in favor of dismissal Rustal Trading US Inc Makki 17 Fed Appx 331 337 6th Cir Aug 212001 forum non conveniens dismissal was warranted despite State Department travel advisory concerning hazards of travel in Sierra Leone in the absence of some credible evidence indicating that the conditions in Sierra Leone would prevent the parties from accessing the courts in Freetown Miralda Tidewater Inc 2012 WL 3637845 at E.D La Aug 23 2012 several federal appellate courts have uniformly concluded that the political unrest of the alternative forum does not per se render this forum inadequate in the forum non conveniens context absent some that this unrest showing negatively affects the judicial system of the country or the litigation at issue Morales Ford Motor Co 313 Supp 2d 672 682 S.D Tex 2004 convincing argument against forum non conveniens dismissal premised on delay due to unrest and the like should political involve exact evidence for the length of the delay and delay of many years Such evidence is lacking in this case. 2888738v1/013774 00813 Tommy cites oniy State Department travel advisory which does not even hint that the judicial relief has been foreclosed due to conditions in Tamaulipas Sylvia Adriana and Tommy all have been able to hire attorneys and file claims against Shelby in Tamaulipas in the last few months They do not explain why their attorneys in Tamaulipas carmot continue to handle claims against Shelby in Tamaulipan courts The Public Interest Factors Support Dismissal Tommy has not distinguished the many cases discussed in Shelbys brief which strongly the of choice-of-law emphasize importance to the analysis of the public interest factors Tommy addresses choice of law principally by arguing that he has not pled cause of action under Mexican law But choice of law is not pleadings issue instead choosing the applicable law is obviously question of law Sonat Exploration Co Cudd Pressure Control Inc 271 S.W.3d 228 231 Tex 2008 The Court does not have to definitively resolve the choice of law in order to conclude that the public interest factors weigh in favor of Mexican forum since even the possibility that foreign law applies to dispute is sufficient to warrant dismissal on forum non conveniens grounds Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 679 Tex App Houston Dist 2010 no pet. Here that possibility is very likely indeed Tommy has not even attempted to make cogent argument that Texas law somehow could apply to challenge to the order of the Mexican court partitioning community property the Mexican trust agreement and to orders of the Mexican court probating Eduardo Sr.s will he law would govern Instead argues that Texas the question of whether there was fiduciary duty relating to property and trusts located within Mexico and that Texas law would govern whether the marital estate was community property despite an agreed order of Mexican court 2888738v1/013774 10 00814 that it was separate property He does not and cannot cite single case in support of these arguments much less refute the possibility that foreign law applies to the dispute Tommys principal argument is that Dorothy lived in Houston But he cannot distinguish Gallego Garcia 2010 WL 2354585 S.D Cal June 2010 case almost directly on point in which the court dismissed for forum non conveniens an action brought by representatives of an estate appointed by United States court to recover for fraud involving Mexican businesses which was directed at decedent who resided in the United States Tommys only argument against application of Gallego is that it was case brought in federal district court not in probate court But both sides liberally cite and discuss cases that were not brought in probate court and there is no non-frivolous argument that an action in probate court is not subject to the same forum non conveniens rules as actions in other courts II Alternatively the Court Should Abate Tommys Claim Tommys arguments against abatement are likewise misguided Tommy is highly unlikely to be able to continue as executor of this estate On June 29 2012 Tommys wife Sylvia filed an application to probate Dorothys 2010 will and to appoint Tommy as executor She represented to the Court that the 2010 will was Dorothys last will and testament and that it had never been revoked.7 This representation was false In 2011 Dorothy executed new will and appointed new executor.18 Sylvia knew about this new will but chose not to mention it in her filing with this Court.9 Tommy maintained the subterfuge when he filed this action against Shelby and himself represented that the 2010 will was Dorothys last will and testament.2 Tommy admits that the 2010 will purports to cut out Shelby as beneficiary of Dorothys estate and he does not deny that Shelby was 17 Application for Probate of Will and Issuance of Letters Testamentary June 28 2012 at Exhibit hereto 19 Exhibit hereto 20plaintifrs Original Petition and Demand for Trial by Jury May 2013 at 33 2888738v1/013774 11 00815 beneficiary and named executor in the wills which will govern Dorothys estate in the event that the Court invalidates the wills that Dorothy purportedly executed in the last stages of her life Tommy therefore cannot deny that Shelby has standing to his will contest and removal of pursue Tommy as executor Tommy cannot effectively ftilfill his role as executor because he will not investigate and pursue his own wifes theft of Dorothys assets Tommy of course denies his wifes malfeasance but he provides no basis to conclude that he could continue as executor in the event that these allegations have merit which they do In an amended will contest filed more than month ago Shelby noted that Tommys recent actions as executor had laid bare his conflicts of interest Prior to and after Dorothy passed away Sylvia appropriated for her own use items which were owned by Dorothy For example Dorothy owned very valuable painting by the renowned Mexican artist Leonora Carrington This painting likely was the most valuable asset in Dorothys estate Yet Tommy Dorsey omitted it from the Inventory Appraisement and List of Claims filed with the Court on August 27 2013 in order to cover up his wifes malfeasance The Leonora Carrington painting is not the only valuable item which Tommy left out of the inventory Dorothy owned Steinway grand piano tens of thousands of dollars worth of and other valuable items which Tommy did not include in jewelry many the inventory.21 Tommy does not even address these issues in his response to Shelbys motion Tommy admitted in the inventory that his wife Sylvia and his co conspirator Adriana owe substantial amounts of money to the estate for loans which were made by Dorothy in her weakened condition late in life As noted by the amended will contest Tommy cannot act in the interest of the estate to invalidate these loans because the loans are invalid for the same reasons that the 2010 will is invalid.22 Tommy does not address this issue in his response to Shelbys motion It does disservice to the estate and lays bare his true motivations that Tommy would for the parties to proceed all the way through discovery and possibly even trial of this argue matter when the whole proceeding may be invalidated by removal of the executor It would be 2f Shelby Longorias Amended Contest of 2010 Will Aug 30 2013 at 11 45-46 221d 47-49 2888738v1/013774 12 00816 extraordinarily inefficient to allow Tommy to pursue his claim in the capacity as executor when his position is under such cloud Tommys principal argument is that any successor executor would pursue the same claim against Shelby There is no evidence of this Tommys say-so is no evidence that there actually is claim for the This is one reason Court should appoint estate to pursue against Shelby why the an independent executor The estate needs someone who is not tamed by conflict to assess whether it makes sense for the estate to assert these claims If new independent executor does choose to maintain these same claims the estate will be much better off than if Tommy were pursuing them as the executor As Shelby pointed out in his brief and Tommy did not dispute in his response Tommys claims as executor will be subject to an unclean hands defense which Shelby would not have against truly independent executor Finally Tommy cannot explain why this Court should not also await the results of the lawsuits filed in Mexico by Sylvia and Adriana As discussed above the estates claims are entirely dependent on invalidation of the orders of the Mexican court probating Eduardo Sr.s will That issue must be resolved by the Mexican courts not this Court Tommy does not explain how the estate can seek to recover for the purported conversion of Dorothys community property into separate property held by her husband so long as there is valid judgment of the Mexican court uncontested by Dorothy repeatedly acknowledged by her and entered during her lifetime approving the very distribution of her husbands assets which she now seeks to challenge 2888738v1/013774 13 00817 Respectfully submitted SUSMAN GODFREY L.L.P By /7 Johnny Carter Bar No007963 12 Richard Hess State Bar No 24046070 Kristen Schiemmer State Bar No 24075029 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713 654-6666 Robert Maclntyre Jr State Bar No 12760700 MAcINTYRE McCuLL0cH STANFIELD YouNG 3900 Essex Lane Suite 220 Houston Texas 77027 Telephone 713 547-5400 Attorneys for Shelby Longoria CERTIFICATE OF SERVICE This is to certify that on this the day of October 2013 true and correct of the above copy and foregoing instrument was properly forwarded to the following counsel of record in accordance with Rule 21 of the Texas Rules of Civil Procedure as indicated below James Austin Fisher Via Electronic Mail FIsHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Email jfisher@fisherwelch.com 2888738v1/013774 14 00818 Wesley Holmes Via Electronic Mail THE HOLMES LAW FIRM 1000 North Central Expressway Suite 400 Dallas Texas 75231 Email wes@wesholmes.com Attorneys for James Thomas Dorsey Sylvia Dorsey and Adriana Longoria John3yW Car 2888738v1/013774 15 00819 Case Number 414270 IN THE ESTATE OF THE PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARPJS COUNTY TEXAS Affidavit of Johnny Carter in Support of Shelby Longorias Reply in Further Support of Motion to Dismiss or Abate C- .4 Johnny Carter declare as follows My name is Johnny Carter am over the age of twenty-one yes am competent to testify to the matters stated have of the herein personal knowledge facts and statements in this declaration and each of the facts and statements is and true correct am an attorney in the law firm of Susman Godfrey L.L.P am licensed to law in the of Texas and before Court practice state this am counsel of record for Shelby Longoria in the above-referenced litigation Attached as Exhibit is true and correct of an copy Inventory Appraisement and List of Claims filed by James Thomas Dorsey on August 27 2013 Attached as Exhibit is true and correct of document produced copy by James Thomas Dorsey bates-labelled DORSEY 003596 consisting of letter dated August 1983 Attached as Exhibit is true and correct of Mexico copy filing in court in and Mexican court order relating to personal jurisdiction over Shelby Longoria Attached as Exhibit is true and correct of document copy produced by Adriana Longoria bates-labelled ADRIANA 00104-109 and document produced by James 2889810v1/013774 00820 Thomas Dorsey bates-labelled DORSEY 005147-52 consisting of will purportedly executed by Dorothy Longoria in 2011 Attached as Exhibit is true and correct copy of document bates-labelled DORSEY 003906 consisting of emails dated July 31 2011 concerning Dorothy Longorias purported 2011 will FURTHER AFFIANT SAITH NOT Johnny // SUBSCRIBED AND SWORN TO BEFORE Notary Public by Johnny Carter on this 2nd day of October 2013 to certify which witness my official hand and seal of office L44 Notary Public in and for the State5 NotatyPuStateoflta Corn slonExphs 11-10.2014 My Commission Expires____________________ 2889810v11013774 00821 EXHIBIT 00822 NUMBER 414270 ESTATE OF IN PROBATE COURT NO ONE DOROTHY LOUISE LONGORIA DECEASED OF HARRIS COUNTY TEXAS INVENTORY APPRAISEMENT AND LIST OF CLAIMS TO THE HONORABLE JUDGE OF THIS COURT AND TO ALL INTERESTED PARTIES COMES NOW James Thomas Dorsey as Independent Executor of the Estate of Dorothy Louise Longoria Deceased and submits for filing this Inventory Appraisement and List of Claims in compliance with Section 250 of the Texas Probate Code Date of Death April 2012 Date of Qualification October 2012 The following is true and complete Inventory and Appraisement of all personal property and all real property situated in the State of Texas together with list of claims due and owing to this Estate as of the date of death which have come into the possession or knowledge of the undersigned REAL PROPERTY To the knowledge of the Independent Executor the Decedent owned no real property on the date of her death The Decedent may have owned community property interest in real property owned by Eduardo Longoria on the date of his death An investigation is being conducted to determine whether Eduardo Longoria owned any real property on the date of his death INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00823 PERSONAL PROPERTY To the knowledge of the Independent Executor the Decedent owned the following personal property on the date of her death Cash and Bank Accounts Texas Community Bank Account Number 4988 Texas Community Bank Account Number 27538 Texas Community Bank Account Number 7680 Texas Community Bank Certificate Number 72918 Total Cash and Bank Accounts2 113124 Stocks Bonds and Other Securities Directownership of orrigbtto constructive trustimposed on undivided one-halfinterestin 50 shares of Series stock in Vertice Empressarial S.A de CV 8934 shares of Series stock in Vertice Empressarial S.A de C.V 49000 shares of Series stock in Inmuebles Terrenos S.A deC.V and 4375350 shares of Series stock in Inmuebles Terrenos S.A de C.V 49.011050 Total Stocks Bonds and Other Securities3 49011050 Other Personal Property Jewelry Choker gold necklace 400 The Decedent may have owned additional accounts Shelby Longoria is believed to be in possession of information regarding such accounts if any but to date he has refused to provide it The Decedent may have owned additional stocks bonds or other securities Shelby Longoria is believed to be in possession of information regarding such stocks bonds and other securities if any but to date he has refused to provide it INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00824 Small diamond necklace 1000 Silver and small diamond ring 500 Small hoop gold and diamond earrings 1500 Peridot earrings 250 Calsidney earrings 250 Coral and diamond earrings 1000 Coral ring 500 Elizabeth Showers earrings 600 Watch 2000 Gump Peridot necklace 150 Diamond ring 1500 Pearl necklace 2000 Pearl and diamond earrings 1000 Short strand of black pearls 1000 Pearl and smoky topaz bracelet 350 Necklace from India with topaz peridot and amethyst beads 250 Thirty-inch long string of pale green beads and matching earrings 180 Two small gold chains 120 Set of silver diamond loops and hanging blue stone 100 Four silver rings 120 Gold chain with small diamond 120 INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00825 Five slides for loops 260 Small faux diamond necklace 250 Set of turquoise earrings with small diamond 2500 Gold chain with pink coral 200 aa Aqua ring and earring 350 bb Faux emerald earrings with briolette 250 cc Ring with cocktail diamonds 5000 dd Ring with faux diamonds 250 ee Six strands of pearls yellowed 300 ff Set of loop earrings with hanging briolette 4000 gg Miscellaneous costume jewelry and accessories numerous pieces 500 Total Jewelry 28750 Electric Wheelchair 1500 Clothing 5000 Miscellaneous Personal Effects 1000 Total of Other Personal Property 36250 TOTAL PERSONAL PROPERTY KNOWN TO EXECUTOR 49160424 TOTAL ESTATE KNOWN TO EXECUTOR NOT INCLUDING CLAIMS LISTED BELOW 4916Q424 The Decedent was predeceased by her husband and she never remarried so no one owned community-property interest in any property listed above INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00826 LIST OF CLAIMS To the knowledge of the Independent Executor the Decedent owned the following claims on the date of her death Claim against Adriana Longoria based on promissory note dated August 12011 in the principal amount of $70000 70478 Claim against Sylvia Dorsey for amounts loaned to her 75000 Claim against Shelby Longoria based on August 2011 agreement 200000 Claim against Shelby Longoria for breach of fiduciary duty 25000000 Claim against Shelby Longoria for exemplary damages jQQ00000 TOTAL CLAIMS4 35345478 RESERVATION OF RIGHT TO AMEND The Independent Executor expressly reserves the right to amend this Inventory Appraisement and List of Claims There may be additional claims against Shelby Longoria He has withheld information that has formally been requested in this proceeding this inventory Accordingly may be amended when such information is obtained INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00827 James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased do solemnly swear that the above two pages shown as the Inventory Appraisement and List of Claims are true correct full and complete statement of the property and claims of the Estate that have come to my knowledge Respectfully submitted Si nature of Independent Executor /s/James Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 FISHER WELCH Professional Corporation 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Telecopier 214.661.9404 ATTORNEY FOR JAMES THOMAS DORSEY 1DEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00828 STATE OF TEXAS COUNTYOFDALLAS Sworn to and subscribed before me on August 27 2013 by James Thomas Dorsey as Independent Executor of the Estate of Dorothy Louise Longoria Deceased in atee of Texa v1Y\t Printed Name of Notary Public My Commission Expires aeciT.sc INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00829 CERTIFICATE OF SERVICE hereby certify that on August 27 2013 true and correct copy of this document was served on the Defendant through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schiemmer Susman Godfrey LL.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 BY EMAIL TO jcartersusmangodfrey.corn rhesssusmangodfrey.corn and kschlernrner@susrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO macinyremrnlawtexas.corn Is/James Austin Fisher James Austin Fisher INVENTORY APPRAISEMENT AND LIST OF CLAIMS Page 00830 EXHIBIT 00831 EDUARDO LOWOORIA BOX 1318 Apdo PO8il 100 Laredo Tecae 78040 Laredo Tampe MØzico t44 tq/j LiJ zzJ c/La WL %zi6L jaJ v__ 24j dl -zJdL oLr c27ZQciiL 47O_ DORSEY 003596 00832 EXHIBIT 00833 oHtSK1 FO1R. VIS 01 tRFS4 00 Sllh OGJRi4 K0U1LSK1 D.EcMfON00 IJE DISTRITO EN EL iSTWO DEL R% ii de LOYGOFUA KC4ISX4 bjo prOtcta 5HELB LUIS cprsriQ casak dc 61 aos con mcxkano dvrdad nanflcto rmq 2/0C1 Cohra San Mgud Jr1a tonkrrey RcyWa in1 Usd1 rsporamWtQ CoJigo Pos SS7/1 Ciudd flt.ca Thrmxthpth f.iXrW Jaa pfler trarnno ir nido conocimicztc cci llt qic ic GarnrUa prcwwvdo eap1aar crnO CcrO JiteLlO ci t1t4 Jucio Ieriiais Afrianay SiIi Lotgor KowaLski pir ki qie pido por aFnflW not kado me hoga rega d/cj thdrnthd pr coizdci iis aurad as ikImJti4Iw de ometO Ia Jrwiydkc1s Coma corscwtcIa si Sioria conw Tcm Isad scikztwro dithi Coweicional para ir riwtbir wI J1cx kim dtmicit/o makadocoi niLiro 313 de Ia Ca/Ic lficr nfre ec1Ie ordo Ia Juirc C1o PrtI 8803 1e cidw2 Io CC LFCENCIdDUS EN DERECllCft MdRlO 4iYjJWWZ1k1 LFOvSO GavZiLt a.4suR7o ELISEOL ALFOVSO IRAAfS dd c1frJ facdtdndth on uxki prerrogaiMi 14 PIEZ thogadas rc el art/c.iito 12 de Niawa Ley de AiiipaPv profe.cion1w qie cirnIrw dbhInre iegisirado Thibu1 For am kxd pido qis 5r me cxpda dcl prestnfe escrls.o docuwiirw wiinto del acuerdo quc /c rccaa 00834 P4 i1tr1 rnieiU HifrJ 1I /UhlUlfltH1rJ UPflU tffl 4JV4 irda j.v tflkZ1 td I1 ihI1PlIt iItU4 Pk.%liiU isriI ito /I siibdot ddprcscnle 14I f4iV r1/IiiJ iX Ic Ia hi iiegi FiVu i1 Jt mix 11IU/OS S1Gt1NIO iriijr xrinwtieuck Ia jursdkcfn 1e sz TRI IO htu ku ok doicos dcl /i1 1xer- 1- RI Lp4d1t his opw .i ti/k ada quc rnencan en PRO rLSTO 10 CJS4 RIO CL RIiWS 7fMAULIPAS i2 E1lI%fiJRE DEL 2013 MllIJ UIS ONGORIA.XOWALSKF 00835 El Veinti Is de septImbre de do mil trece Ia Secretarla da cuenta al ez con el escrito registrado con ci n.rnero de orden 3126 Conste Nuvo Laredo Taniaullpas veIMsØls e septiembre de dos mu trece Shelby Luls trente juido de presente de csIado las es/zgado de articuk 12 Gonzjez Gil cØdiila Perez cØdua nothlcackines el ublcdo en Cal More1o avend JuÆrercdIgo postal 8800in esta rIudd Por otra parte se ticren ofreddi prieas docurentacj RuU Lcnn.ajrct rrrrr 119 de Ia Ley de Arnparo Sc Uenen per orrecidas sin perjuidc de que se haga reacl6n de e1la en Ia aucilenda tengan come recbidas en ese acta alJnqiie no eXLta jetk5n expresa de parte lnterda dese vista las parts 00836 artkuio 278 del el Por tittmo con apoyc en como soncita 13 de aPlicadt sup Vetoila Cdlga Federal de Procedinientos Oviles su costa de acuerdo su numer8l exv 4aseIe Ley Amparo de esCrtO de en su copla certt1cada de as nstancas qu reflere recbo se deje Cuenta PrevIa kdentlflCaci6ti razn firma que por su redblrkS las personas ue en autos se tienen autoæzados para firma ue ara debida razn de recibo eiiala prevta identificaciri constancia obre en autos NotIf1quet licenciado 3u90 CØsar Asi Ia provey firma ci MÆr1UeZ Roldªri uez Cuarto de Distrito en ci Estado dc1amuh7 4ari irnrna actua con ir Go1JP0fJi Secretaria que ita fe cp4RfMEGG/dPT IcncLi Mth Enirna GOflfit4 ConMer Crtr dscrt Jijrdo Cui1o de Crstr en sthdo de Trrum Ntev 1areo hce ontr CRTIFXcA Que las pnt cpa fotostics cnr uia cnn qu obrr en Juicia ariprn 170/2013 prornoido pnr drfa owaIkI Adiaflrie Loui L.Qnjcrl ii AIan La.uI frriorli i2ni iØ Lo-tcjcnia Iawad Sytvi Rene Lngja lns qtw centicjn pnrin cr utred ii ur1adO del ercm KQWci 10 peJuj tugs Lnncia que 1ll tILIQ3V Ltrid Tanirjlipa 00837 EXHIBIT 00838 LAST WILL AND TESTAMENT OF DOROTHY LOUISE LONGORIA DOROTHY LOUISE LONGORTA being of sound and disposing mind and memory and over the age of eighteen years and not being actuated by any fraud duress mistake or undue influence hereby make declare and publish this my Last Will menace and Testament expressly revoking all Wills and Codicils heretofore made by me be limited to graveside Upon my death request that my funeral services service and that be buried in the Longoria Family Plot in Nuevo Laredo Mexico be my Executrix soon as further direct that all my funeral expenses paid by practical after my death IL appoint my daughter ADRIANA LONGORIA as the Sole Independent Executrix of this my Will to serve without bond If she is unwilling or unable to act in that capacity then direct and appoint SYLVIA DORSEY to serve as the Sole Independent Executrix No other action shall be haLl in any court in relation to the settlement of my estate other than the and recording of this Will and return of an Inventory probating Appraisement and List of Claims of my Estate My Independent Executrix whether substitute or successor is referred to as my Executrix original alternate shall not be entitled to compensation for her services direct that my Executrix and in addition to inherent implied or and not of any By way of illustration limitation Page of6 ADRIANA 00104 00839 executrix my Executrix is authorized statutory powers granted to generally specifically and empowered with respect to any property real or personal at any time held under any and income borrow provision of my Will to allot allocate between principal assign contract continue business of mine buy care for collect compromise claims any invest convey convert deal with dispose of exchange bold improve incorporate any business of mine invest lease manage mortgage take possession of receive release sell sue for and in general to exercise all powers in the management and repair settlement of my estate upon such terms and conditions as my Executrix deems best and to execute and deliver and all instruments and to do all acts which my Executrix may any deem the of this Will without limited to proper or necessary to carry out purpose being power made and without the of the necessity of any court or in any way by specific grants orders or court supervision III of or mixed property which have It is my intention to dispose all real personal the right to dispose of by any Will Iv and well as direct that all my just debts secured unsecured as all estate death or similar taxes together with interest and/or penalties Inheritance succession any death and to thereon payable as result of my imposed with respect any property be paid as soon by this my Last Will and Testament shall as whether or not disposed of the distribution of that of my estate practical after my death but prior to portion and if not sufficient before distribution of any other part of responsible for such payment my estate Page2of6 ADRIANA 00105 00840 of InterContinental Bank of MeAllen Stock and GIVE and BEQUEATH all my Bank of MoAllen Stock which should inherit from my husband all InterContinental Eduardo Longoria and other Savings and Personal Accounts both foreign deceased all from husband Eduardo and domestic owned by me or which should inherit my Longoria deceased to my daughter ADRIANA LONOORIA In the event she should predecease me then GIVE AN BEQUEATH such stock to the children of such child of mine who survives her in equal shares VI All cash which should inherit from my husband Eduardo Longoria deceased GIVE and BEQUEATH to my daughter ADRIANA LONGORIA In the event she should predecease me then GIVE AND BEQUEATH such share to the children of such mine who survives her child of in equal shares VII further GIVE and BEQUEATH unto my daughters ADRIANA LONGORIA and and the homes found at and SYLVIA DORSEY all of my right title interest in to 11011 Uptown Bank Blvd Apt 152 Texas 77054 and all of the contents therein In the event ADRIANA Houston DORSEY me then GIVE AND LONGORIA and SYLVIA should predecease of such child of mine who survives them in BEQUEATH such property to the children shares However direct that my son EDUARDO LONGORIA JR can continue equal from the date of my death at the home at 110 to reside for period of seven years he the taxes maintenance Court in Lakeway Texas rent free provided that pay Paragon of the home during this period of time and upkeep Page3of6 ADRIANA 00106 00841 VIII All of the rest and residue of the property which may own at the time of ny and of whatsoever natare and death real personal mixed tangible intangible which acquire or become entitled to wheresoever situated including all property may after the exeeution of this Will and not devised hereunder including all lapsed legacies and devises give devise and bequeath to my daughter ADRIANA LONGORiA the share of such child of mine be Should she predecease me give devise and bequeath distributed in shares to her then living children equal Ix or not related in way be blood to me shall either If any person whether any or to or set aside the probate of this Will or to impair or directly indirectly attempt oppose hereof and such shall establish to any of invalidate the provisions person right any part the sum of One and No/lOOths of my estate GIVE and BEQUEATH to such person and no in my estate Dollars $1.00 only further interest and IN TESTIMONY WHEREOF have hereunto subscribed signed these Texas of the witnesses whose names presents in Laredo Webb County in the presence and in the of said witnesses have declared and are affixed hereto as witnesses presence Testament on this the day of published the foregoing as my Last Will and _______ 2009 DOROTHY LOUISE LONGORIA Testatrix Page4of6 ADRIANA 00107 00842 The foregoing instrument consisting of this and four preceding pages was signed published and declared by DOROTHY LOUISE LONGORIA Testator to be her her presence and Last Will and Testament in our presence and we at her request and in in the presence ofh other have hereunto subscribed our names as witnesses this the day 20P WI ncss Witness ____ Strft Address Street Address and Zip Code City State and Zip Code Page5 of6 ADRIANA 00108 00843 STATE OF TEXAS COUNTY OF BEFORE ME the undersigned authority on this day personally appeared DOROTHY LOUISE ONGORJA ________________ and ____________ known to me to be the lestator and witnesses subscribed the foregoing instrument in their respectively whose names are to respective and all of said being by me duly sworn the said DOROTHY capacities persons LOUISE LONGORIA Testator declared to me and to the said witnesses in my presence said instrument is her Last Will and Testament and that she had willingly made and that therein and that the said executed it as her free act and deed for the purposes expressed witnesses each on his/her oath stated to me in the presence and hearing of the said DOROTHY LOUISE LONGORIA that the said DOROTHY LOUISE LONGORIA had declared to them that said instrument is her Last Will and Testament and Testator she executed same as such and wanted each of them to sign it as witness and upon their each witness stated further that he/she did sign the same as witness in the oaths presence of the said DOROTHY LOUISE LONGORIA1 and at her request that she was time nineteen and was of sound mind and that each of said at that years of age or over witnesses was then at least fourteen years of age -.2 L.- LOROTFIY LOUJSE LONGORIA Testator Witness Witness SUBSCRIBED AND ACKNOWLEDGED BEFORE ME by the said DOROTHY LOUISE LONGORIA Testator and SUBSCRIBED AND SWORN to before me by the said and __________________________ ________ the day of 2009 Witnesses this _______ ________________ Notary Public State of Texas of Pege ADRIANA 00108 00844 LAST WILL AND TESTAMENT OF DOROTHY LOUISE LONGORIA DOROTHY LOUISE LONGORIA being of sound and disposing mind and and the ot eighteen years and not being actiated by any fraud duress memory over age make declare and publish this my Inst Will menace mistake or undue inluence hereby and Testament expressly revoking all Wills and Codicils heretofore made by me ny funeral leliwted to grÆvesld Upon my jeath request that services .a srv1ee and that be burled ii the Longori FamIly Plot in Nuevo Laredo Mexico furthet direct that all my funeral expenses be paid by my Executrix soon as practioal after my death II pjoittt my danghter ADRIANA LONOORTA as the Sole Independent Executrix of Will to without bond If she IS unwillin .or nable to act iii this my serve that capacity then dircet and appoint SYLVIA DORSEY tr serve as the 5$le Independent Executrix No other action shall be had in cOurt in relation to the settlement of my estate any of this Will and ietrn of other than the probating and recording aix TnventOiy and List of Claims of my Eatate My Independent Executrix hether Appraisemeot original alternate substitute or successor Is referred to as my Executrix direct that my Executrix shall not be entitled to compensation for her services By way of Illustration and not of 1lnitatioh and in addition to any inherent irnplicd or Pane of6 DORSEY 005147 00845 to executrix generally my Execntth is speficaLly authorized statutoty powers granted and empowered with respect to any property3 real or Versnal at any time held tinder any of between and income assit borrow provision my Will to allot allocate principal compromise claims contract continue business Qf mine buy care for collect any invest convert deal with dispose of exchange hold improVe iharpora1e any convey business of mine Invest lease manage niortgage take possession of receive release repair sell sue far nd lii general to exercise all powers in the managemexit and settlement of my cthte upon such terns an conditions as my Excutrix deems best and to execute and delher any an4 all instrumenta and to do all acts which my Executrix tiy deem ptoper or neceasary to carry out the purpose .of this Will without being limited to of or in any way by the specific grants of power made and wIthout the necesSity any ourt orders or court supervision Ill of or mined property whieh have it is my intention to dispose all teal persojial the right to dispose of by any WilL Iv diret that all my just debts seciirad and imsecured as ell as all estate death or similar taxes together with any interest and/o penalties inheritance succession thereon as result of my death and impsed with respect to any pToperty payable Last Will and Testament shall be as soon as whether or not disposed of by this my paid practical after my death but prior to th dIstribution of that portion of th estate such and if not sttfflcint before dittibution if any other part of responibie thr payment my estate Page of DORSEY 005148 00846 GIVE and BEQUEATH all of my tnterContinentel Dank oMeAllen Stock and all InterContinental Bank of MeAllen Stock which should inherit from my husband Eduardo Longoria deceased and all other Savings arid Personal Accounts both foreign and domestic oied by the or which should inherit front my husbnnd Eduardo Longoria deceased to my daughter ADRIANA LONGORJA in the event he shcmld predecease me then GIVE AND BEQUEATI1 such stock to the uhildren of such child of mine who sirvlves her in equal shares VI All gash which should inherit from my husband Eduarcto Longorl deceased GIVE and BEQUEATh to my daughter ADR1ANA LONOOUA In the event she should predecease me then CIIV AND BEQUEATH such share to the children of auth child of mine who tirvives .he in eqUal shares VII further GIVE and BEQUEATH unto my daughters ADRIANA LONOORJA and SYLVIA DCRSEY all of my right title and lAtereat in and to the hontes found at tO Paragon CoUrt Lalteway Texas 78734 and 1011 Uptown Bank Blvd Apt 152 Boustoh Tecas 77054 and all of the eontent therein In the event AXRIANA LONGORIA and SYLVIA DORSEY should predecease me then GIVE ANI BEQUEATh such property to the children of such child of mine who survives them in equal shares However direct that thy sons EDUARDO LONGORM JR can continue front the of my dath at the home 110 to reside for period of seven years date at Paragon Court in Lakeway Texas rent free provided that he pay the taxes maintenance and upkeep of the home during this period of time Pago3of6 DORSEY 005149 00847 VIIL All of the rest and residue of the propcrt which may wn at the time of my mixed tangible and intangible of whatsoever nature and death real1 personal wheresoever situated including all whinh may acquire or become ntLtIed to property after the execution of this Will and nut devised hereunder including all lapsed legacies and devises give devise and bequeath to my daughter AJR.IM4A LONGOR.IA the of such of mine be Should she predecease me gIve dovise and bequeath share child distributd ip epial shares to her then living children Ix If any person whether or not related in any way be blood to mc shall either or in4ictiy or set aside the probate of this Will or to impair or directly attempt oppose invalidate any of the provisions hereof and such person shaft establish right to any part GIVE and EEQUEATFI to sueh person the suinof One and NIlO0ths my estate Dollars $1.00 only and no Thrther interest in my estate IN TESTIMNY WHEREOF have hereunte subscribed and signed these Webb eounty Thxas in th presence of the witnesses whose names presents in Lnredo are affixed hereto as witnessee and in the pisenoe of said witnesses have declared and published the oregqixig as ny Last Wilt and Testament on this the ______ day of .2009 1441 1a __42s.ea- DORO LONGORIA It IYLOWj Testatrix Page of6 DORSEY 005150 00848 The foregoing nstrunient consisting of this and four preceding pages was signed pubbahed and deo1wd by DOROTHY LOUISE LONGORIA3 Tostator to be her Last Will and Testament rn our pre ne and we at her request alid in het presence and in the of esch other have hereunto subscribed our names as witnesses this the preserue __day of 2OQ9 root Address Strett Address tyStatandZipCode Ci tatetmdZipCode Page of6 DORSEY 005151 00849 .STATE OF TEXAS COUNTY OF____ BEFORE ME the unlcrslgned authority on his day personally nppeared DOROTHY LOUISE LONGO1UA____________ known to Ic lx the leqtator and wnnciscs ___________ whose nmics am subscribed their respectively to the foregoing instrument so tespeotzve and all of said being by me duly sworn the said DOROTHY capacities persons LOUISE LONOORIA Testator 4eclured to tue and tth ai4 witnesses in my presence that instrument her Last WiJI and Tetantent afld that she had willingly made and said executed it as her free act and deed for the purposes thrern expressed aud that the ad in the and of the said witneSses each on hii/her oath stated to ins presence hearing DOROTHY LOUISE LONGORIA that the stud DOROTHY WJJSE LQNOORIA had declared to them that said msthinicnt Is bet Last Will and Testament and estator she executed same as such and wanted each of them to sign as witness and upon their each witness stated iutber that hefshe did sign the same as witness iii the oaths of the stud DOROTHY LOUISE LONGORIA and at her re4utst that ie was presence at that time 1rtie years of age ci ovet and Was of sound mmd and That each of said witnesses was thert at least fourteen years of age DOROTHY LJ3E LONCORIA ctutO Witncss Witness SUBSCR15Dt AND ACKNOWLEDGED BEFORE ME by the said DOROTHY LOUISE LONUORIA Testator7 and SuSCRED SWOIU4 ND to before me by the and said ____ _____ ________________ Witnesses this the day of 2009 _______ ______________ Notary Pttblio State of Texas Pagoof DORSEY 005152 00850 EXHIBIT 00851 Fwd Dorothy Longorlas Will Revlsedjuly28 2011 8/1/11 828AM From SyMa Dorsey sidorsayoolaol.com To sldorseyoOlaoLcom Subject Fwd Dorothy Longorlas Wit Revised .July 28 2011 Date Sun Jul31 2011 924 pm Attachments Nona_WlJuiy_28_20l 1.pdf 3119K Original Message From Raymond Hart ravmondravmondhart.com To Sylvia Dorsey sk1orv001 @aoLcorn Sent Sun Jul 31 2011 816 pm Subject FW Dorothy Longorias WUl Reiised July 28 2011 From Rymoad Hart ravmond@ravmondhqrt.com Date Sun 31 Jul 2011 193704 -0500 To Sylvia Dorsey Sylvia@longoriacotlection.coxn Cc Adriana Longoria g1ougoril943@ gmailcom Tommy Dorsey Tommv@dorseyhomes.net Snbect Dorothy Longorias Will Revised July 282011 Sylvia As per our conversation please find attached Nonas wilt which she newly executed last week am troubled by your frustration as mistrust seems to be running ramped In the family which is the last thing we need between you and my mother during this crisis It Is Important to note that the changes that were just made were suggested many months ago and it just so happens that since we were going to Nonas to get the note signed we decided to also get the corrections to the Will signed as well Again It is important to point out that the purpose of the Initial changes were to give my mother the benefit of leave else any and and to all judgements in her behalF as It relates to her legal matter with Shelby everything the same From my understanding of the current Wili specifically section VII the house and all the contents are split 50/50 between you and my mother which believe the last Will failed to capture and which was the point of contention As mentioned on the phone we are transparent and as George Shipley mentioned It you and Tommy decided Nonos we have faIr and agreement to participate in helping us remedy the misallocation of estate would legal outlining the arrangement before moving forwarci If you take Issue with the Will In Its current form we are more then willing to sit down and come up mutually agreeable one am truly sorry for any misunderstandings and lack of communication Page of hUp//mallaoI.com/33996_311/aol_1enus/maIl/Pr1ntMesagespC DORSEY 003906 00852 811111 828 AM rwd Dorothy LqngorI Wilt RevIsed July 28 2011 this detail Please let me know if you would like to discuss in greater Monte other be the center of attention Nona everyone against each to PS You and Mom need to realize likes to play seeds of doubt know this but iVs haiti to ignore her as her words can plant know that you both tom Adæana Banks kIthtmail Date Sun 31 2011 191411 4400 ymn@rond Jul To Raymond Hart NonaYs Will July 282011 Subject Adriana Banks Email banks.adrlana@gmali.COm Cell 713 898-6557 Vuma Companies 1177 West Loop South Sulte1 825 Houston IX 77027 Phone 713 968-7089 Tulane University 6823 St Charles Ave New Orleans LA 70118 Phone 504865-5000 lag or DORSEY 003907 00853 TRIAL COURT CAUSE NUMBER 414270 IN THE ESTATE OF IN THE PROBATE COURT OF DOROTHY LOUISE LONGORIA HARRIS COUNTY DECEASED COURT NUMBER ONE PRELIMINARY STATEMENTS BY COUNSEL AND THE COURT IN MOTION TO 10 DISMISS COUNTERCLAIMS AND MOTION TO COMPEL AND FOR SANCTIONS 11 AND RESPONSE AND OBJECTION TO MOTION TO QUASH HEARING 12 13 Came to be heard on this the 3rd day of October statements counsel of record and the Court 14 2013 preliminary by 15 the Motion to Dismiss Counterclaims and Motion to Compel and on 16 for Sanctions and Response and Objection to Motion to Quash 17 in the above-entitled and numbered cause and all Hearing 18 in and/or being represented by Counsel parties appeared person 19 of Record before the Honorable Loyd Wright Judge Presiding 20 21 VOLUME OF 22 23 24 ORIGINAL 25 00854 APPEARANCES Attorney for Plaintiff Shelby Longoria Johnny Carter State Bar No 00796312 1000 Louisiana Suite 5100 Houston TX 77002-5100 Telephone 713.651.9366 10 11 Attorney for Defendant Counter-Plaintiff James Thomas 12 Dorsey Independent Executor of the Estate of Dorothy 13 Louise Longoria Deceased 14 15 James Austin Fisher 16 State Bar No 07051650 17 2800 Lincoln Plaza 18 500 North Akard Street 19 Dallas Texas 75201 20 Telephone 214.661.9400 21 22 23 24 25 00855 THE COURT Do yall want to argue from there Whatever is most comfortable MR CARTER This is fine Your Honor My name is Johnny Carter Im one of the counsel for Shelby Longoria along with Rick Hess and Cameron McCulloch THE COURT Okay MR CARTER think we need to start by telling you we may have resolved two of the motions THE COURT All right 10 MR CARTER We are working on Rule 11 11 to resolve the issues surrounding the deposition of Agreement 12 Adriana and the Motion to Quash and Motion to Compel Longoria 13 relating to the subpoena of Dr Mitchell Young Therefore we that the Court those pending motions Keep them 14 suggest pass will have Rule 11 Agreement to submit to 15 live but think we 16 you THE COURT That was the easiest one If thats 17 18 good news Im glad you are working through it but yeah you think are to have Rule 19 are just saying hold it you you going 20 11 that resolves both of those deposition issues Is Agreement 21 that what it was fIR McCULLOCH Keep it on the corner of the 22 clerks office to disappear into 23 desk and dont send it to the 24 never-ever land THE COURT Are saying that because they 25 you 00856 couldnt find one of the documents MR McCULLOCH Im not taking shot at her THE COURT Okay MR CARTER And the second guess procedural issue about how we are going to proceed today Your Honor is these sorts of motions forum non conveniens motions are typically ruled on on the papers There is no particular requirements about and the civility or the form of the evidence is submitted in and as Im sure youre aware we have 10 submitted fairly substantial briefs and documents and 11 affidavits related to it So you know we are prepared to 12 just argue the motions you know maybe present 15 minutes each 13 of argument on that motion however counsel for the Estate has 14 subpoenaed Shelby Longoria and he is here to testify today 15 So if its -- and believe that they also want to present 16 three other witnesses so if this is to be hearing with 17 witnesses in live court think we would have testifying 18 couple of witnesses Mr Longoria an expert they would have 19 three we would have rebuttal so it would be much more 20 Our suggestion is to just rule on the lengthy proceeding with some legal argument but understand that 21 papers maybe 22 counsel for the Estate disagrees with that 23 fIR FISHER Your Honor Im James Fisher 24 the Executor James Thomas Dorsey also represent represent 25 third defendant who is Sylvia Dorsey This is my party 00857 Wes Holmes We believe that Motion to Dismiss for colleague conveniens is an evidentiary hearing and that we are forum non entitled to call witnesses It wont take long time but think we will have approximately one hour of live testimony ask There is also no rule that says that says an would just is admissible in this kind of hearing Affidavits affidavit Here is case we have cited on point that says are hearsay and not admissible in this kind of affidavits are hearsay hearing THE COURT Well you know you can certainly 10 and evidence Is there anything you are 11 have your hearing your what arguing in 12 going to present that is different from youre 13 your response FISHER Well would not say different 14 fIR you 15 but augments it with more detail And point is that 16 THE COURT Okay guess my read it all and without 17 Im going to you know obviously its face as 18 really objecting you know Im going to take it on each side is each 19 that whats being presented to me and by view to this particular issue but you 20 sides point of as because have an 11 oclock 21 know an hour is problematic 22 docket MR CARTER Your Honor might add if they 23 and we have two witnesses actually they 24 have three witnesses one or two 25 have at least three they told me they may call 00858 other folks doesnt sound like an hour to me THE COURT Why dont we get started and we will see where it goes and you know may have to work in 11 oclock docket matters you know as we come to that point in time but its your motion right MR CARTER Right THE COURT have got that straight Actually Ive been over this So you want to take the lead and call your witnesses first and then they can be the respondents 10 MR FISHER Right Very good 11 THE COURT Frankly you can argue your motion 12 and then call your witnesses You can summarize your point of 13 view etcetera and then 14 fIR McCULLOCH Give an opening for lack of 15 better way to describe it 16 MR CARTER That would be fine Your Honor 17 THE COURT mean have pretty good 18 of what the issues are but you know dont understanding to frame the the 19 want to short circuit yalls ability argument 20 way you want to 21 MR CARTER Well and it may streamline what we witnesses if we kind of put the issues out in front of 22 do with that If it please the Court will 23 the Court prior to 24 and little argument and then we will call Shelby present and then we will call Professor Carlos Gabaurdi 25 Longoria 00859 THE COURT All right MR CARTER So the first think question for the Court is what is this case really about and think that the Court can and should in deciding the motion get to the heart of the case what is this case really about and absolutely Your Honor there is Texas connection in this case All right The Decedent was Mexican citizen living in Texas at the time of her death But the question opposed by the forum non conveniens doctrine is not whether there is any 10 connection in Texas the question is on balance whether this 11 case should be tried in Mexico or should it be tried in Texas 12 And the fact that this case belongs in Mexico is illustrated by 13 the long history of the marriage between Eduardo Longoria Sr 14 and Dorothy Longoria Eduardo and Dorothy were married in both 15 Texas and Mexico There is marriage certificates from the 16 early 1940s on either side of the border Eduardo Sr 17 into the marriage and continued to manage and profit brought 18 from the course of th.e marriage businesses in throughout 19 Mexico Going back as far as the 1960s there were series 20 of Wills of both Eduardo and Dorothy dealing largely with 21 property in Mexico 22 In 1983 Dorothy and Eduardo Sr entered into 23 an agreement to partition their community property They 24 entered into that agreement in Mexico They sought an agreed 25 of court in Mexico that would partition their judgment 00860 property The Court in Mexico granted the Request for Partition of the Property As result of that partitioning Dorothy owned considerable real estate in Mexico and shared in Mexican companies She subsequently confirmed in Wills and other legal documents that her marriage was subject to separate regime Later in life in 2002 Eduardo Sr transferred all of his of his property into Trust managed by Mexican bank Banca Afirme The Trust Agreement and Will 10 that he executed at the same time provided for the Trust to 11 continue managing the property for the benefit of their two 12 sons Shelby and Eduardo Jr upon the passing of Eduardo Sr 13 There are also two daughters Sylvia and Adriana and the 14 Agreements and the Wills of which there are many over period 15 of many decades made clear that the understanding and the 16 intent of the parents was that the businesses would go to the 17 sons and the cash would go to the daughters and that the cash 18 would be paid to the daughters during the lifetime of the 19 For many -- for large portions of this period of time parents 20 that cash consideration was actually more valuable than the 21 interests and businesses that was going to pass to Shelby and 22 Eduardo Jr 23 All of the children were aware of the Trust 24 arrangements in 2002 and Dorothy was too At the same time 25 that the Trust was established Eduardo Sr entered into what 00861 were called Private Agreements One with Sylvia his daughter Sylvia and one with his daughter Adriana And those agreements say that you will be continued to be paid sum certain in cash for period of years and that if there are any disputes that you the daughters have concerning the Trust and all of these arrangements those disputes will be governed by Mexican law and you will file suit in the courts of the State of Tamaulipas in the City of Reynosa which is across the border from McAllen 10 When Eduardo Sr died in 2005 Shelby 11 Longoria who was named as the Executor of Eduardo Sr 12 Estate probated his Will in Mexico in Nuevo Laredo across 13 from Laredo which is also in the State of Tamaulipas in 14 Mexico There were subsequently multiple orders of the courts 15 of Nuevo Laredo probating Eduardo Sr Will 16 After Eduardo Sr passed away Dorothy moved 17 to Houston and was supported for all of the remaining years of 18 her life Shelby He arranged for about quarter of by 19 million dollars to be transferred from the businesses in year the Mexican Trust to Dorothy here in 20 Mexico managed by 21 Houston so that she could continue to live in the manner she 22 desired The Executors efforts to deep six the fact that 23 is all about Mexico are too little too late There 24 this case Amended Counterclaim filed by the Estate last Friday 25 was an 00862 10 which attempted to essentially go through their previous counterclaim and delete references to Mexico and add in references to Texas But lets look at the procedural history here all right Mr Dorsey as Executor filed his complaint in early May He initiated this litigation in this court He said that he was seeking to recover on behalf of the Estate community property interest that Dorothy Longoria had lost somewhere along the way He alleged that there was something fraudulent about the transaction creating the Mexican Trust and 10 the execution He alleged there was something fraudulent about 11 the execution at the same time in Mexico of Eduardo Sr 12 Will All of this in 2002 13 Mr Dorsey the Executor alleged that there was 14 something fraudulent about the manner in which Shelby probated 15 Will in Nuevo Laredo Mexico Mr Dorsey the Executor for 16 challenged the 1983 Agreement to partition the implicitly 17 of Eduardo and Dorothy because he alleged that there property 18 should have been community property that passed to was -- and that that was somehow lost along the way So in 19 Dorothy that have to somehow invalidate 20 order to prevail in you would the to the property and to make the 21 agreement partition 22 marriage into separate property regime After Mr Dorsey the Executor filed that case 23 Adriana and Sylvia and just for 24 in this court he as well as this in but Dorsey one of 25 -- you may have seen papers Sylvia 00863 11 the daughters of Eduardo and Dorothy is the wife of Tommy Dorsey the Executor of Dorothys Estate All right And Adriana is her sister So Mr Dorsey as the Executor of the estate Adriana and Sylvia they filed lawsuits After they filed this lawsuit they filed lawsuits in Nuevo Laredo in Mexico And those lawsuits sought to set aside the probate of Eduardo Sr Will which is essentially the same sort of allegation that had been made in the lawsuit that had been filed in this court At least one of those proceedings the 10 one that was filed by the sisters Sylvia and Adriana and is Longoria has voluntarily appeared in 11 still pending Shelby that He has absolutely stipulated that he will 12 proceeding 13 consent to in Mexico and lay his personal jurisdiction 14 limitations defenses in Mexico with respect to that proceeding 15 other in Mexico if this case were to be or in proceedings 16 dismissed from this court After or around the time that he filed the 17 the time that the lawsuits were filed in Nuevo 18 lawsuits around in this 19 Laredo Mr Dorsey the Executor initiated discovery served set of 194 20 case And the way he did it was he 21 Requests for Production on Shelby Longoria requesting to dozens of Mexican companies and not 22 documents relating He then just five weeks ago filed 23 single American company that said that the main claim of 24 Inventory and List of Claims he valued it at $49 million was for shares in 25 the Estate and 00864 12 two Mexican companies formally held by the Mexican Trust Those companies are Vertice Empresarial and one called Imuebles Interainios SA which the parties call ETSA ET and SA The only way the Estate recovers some share of those companies is if at minimum it proves that the Mexican Partition Agreement isnt valid Mexican Trust is invalid and Eduardo Srs Mexican Will is invalid And any such claim would of course be governed by Mexican law It wasnt until they amended the petition last Friday that Mr Dorsey did search 10 and replace to get out the allegations relating to Mexico But 11 since the whole locus of this marriage was in Mexico the 12 property was in Mexico the agreements were in Mexico dont 13 know what the Estate is after here in the United States and my 14 belief is that are not after anything in the United States they 15 because there is nothing here They are just looking to get 16 the and then we will be right back attacking the past hearing 17 Mexican Court Orders and Agreement which they would have to 18 defeat anyway in order to prevail on their claims and they 19 will be discovery regarding the Mexican property as seeking 20 indicated in the Inventory they are seeking to recover some of the value of the Mexican property So per forum 21 portion the standards are set out in the briefs we have to show 22 non Mexico isnt available in adequate forum and then the 23 that interest and the public interest in 24 court balances the private to assess where this case is most appropriately venued 25 order 00865 13 First off available in adequate forum Thats not an issue that needs to detain the Court for very long The Fl fth Circuit has said that there is nearly ai rti ght presumption that Mexico is available in adequate forum And there are multiple Fifth Circuit cases that follow that There are multiple state court cases that follow that and the Estate has not pointed to single case which has gone the other way Longoria has consented to personal jurisdiction and to Shelby no application of the statute of limitations in Mexico if this 10 case is dismissed That as matter of law means that Mexico 11 is available in adequate forum And for that purpose you can 12 look at Texas Supreme Court case cited in our brief called In 13 Re Pirelli Tire which was in fact case involving 14 Plaintiffs from Tamaulipas and the court said that the consent 15 to no limitations and to waiver of personal jurisdiction having 16 issues in Tamaulipas rendered Mexico available in adequate 17 forum 18 With respect to the private interest factors think the issue is that the documents are 19 mean maybe biggest And depending on how far we get 20 overwhelmingly in Spanish the facts with these witnesses you may see some of that 21 into having to do with this couples 22 today Virtually everything and Eduardo Sr is in Spanish because the 23 properties Dorothy the Trust was in Mexico the Partition 24 property was in Mexico 25 Agreement was in Mexico 00866 14 There is an expense issue in translating the documents but there is also an issue of time and effort in trying to impart Spanish language concepts to the jury and to the Court With respect to the witnesses if the case is in Mexico the parties will all have the opportunity to testify there -- testify here for the case in Mexico just just as or as if the case were here or if another party wanted to it could be the Mexican court could compel them to do testify The involved in 10 so The real issue is the non-parties people the execution of the to partition the property or who 11 agreement 12 know about that the people who managed the Trust the 13 who had drafted the Trust documents and Eduardo attorneys Srs Wills the attorney who drafted Dorothy 14 Longoria these folks are all in Mexico and out of reach 15 Longorias Will of but within the reach of the 16 of American service process 17 Mexican courts The same with the documents You have 18 thing files the files of the 19 Mexican court files Mexican attorney 20 Mexican businesses they are Mexico and they are in Spanish lot of cases in our brief This is well-trodden 21 We discuss cant defeat forum non conveniens by 22 grounds plaintiff here are few things about this dispute 23 coming in and saying States The court has to look at 24 that relates to the United to determine where trial would be 25 the entirety of the case 00867 15 most expeditious The case thats cited in our brief First Court of Appeals case Denmar Finance where the court found that forum non conveniens was warranted because the defense witnesses and the defense documents were in Mexico and were written in Spanish So thats the private interest factors Public interest factors think the most important issue is choice of law And there are lot of cases that say in fact that where there is choice of law issue that is the most important issue to look at with respect to 10 public interest factors 11 The Agreement Partition of Marital Property 12 that is governed by Mexican law dont see where there could 13 be that the validity of that agreement which was any argument 14 entered as an Order of the Court in Mexico could be governed 15 by any laws other than Mexicos The Trust Agreement expressly Mexican law and in fact Adriana 16 says that it is governed by 17 and to the application of Mexican law with Sylvia agreed 18 to claims that they would have relating to the respect any 19 Trust 20 The challenges to the court proceedings those Mexican court the proceedings around the 21 are all proceedings 22 the proceedings around the probate separate property agreement 23 of Eduardo Srs Will The current proceedings now going on that is Mexican law and it is 24 Nuevo Laredo all of governed by will see here today the parties have here 25 huge issue as you 00868 16 in the courtroom today experts in Mexican law to testify about Mexican law and Mexican procedure And if this case goes forward in this court there are probably going to be regular hearings for it whereas you would not have to do that if this case were in Mexico you would not have to have lawyer come in and testify as to Mexican law in court in Mexico The Plaintiffs primary argument is that Tamaulipas is dangerous you know there is drug gangs there is lot of murders in Tamaulipas and Nuevo Laredo and Reynosa 10 but the law is clear this would weigh against dismissal only 11 if violence in the alternative forum has greatly limited access 12 to justice And there is no evidence of that Nuevo Laredo 13 Reynosa other places in Tamaulipas have fully functioning 14 court systems In the cases we cite in our reply brief that we 15 filed there is dismissals in favor of Columbia in yesterday 16 favor of Venezuela in favor of Sierra Leon There is Texas 17 Court case just from few years ago the Pirelli Tire Supreme 18 case that mentioned that dismisses the case in favor of 19 forum in Tamaulipas Mexico It is likely that Mr Dorsey if 20 he does not want to will even have to go to Mexico if he files 21 this case in Mexico because in Mexico most things are done on 22 the You have to basically compile your evidence and papers 23 documents and file it along with the brief to the court and the 24 court makes its decision The party can if asked by another 25 can into court and testify Nonparties can go into party go 00869 17 court and testify based on previously submitted written questions But that would be one time only thing At the conclusion of all of that the court would review what was submitted to it to make decision and there wouldnt be such thing as multiple week trial in Mexico where everybody would have to be living in Nuevo Laredo for an extended period of time So all of that is to say that it makes no sense for this case to be here in Houston and despite the efforts to replead the case at the last minute this case is really is about 10 Mexico 11 The second part of our motion relates to 12 abatement for this case This is an alternative argument 13 Abatement pending resolution of the Will contest that Shelby 14 filed Remember the first party to file something in Longoria 15 this matter was the Executor Mr Dorsey He filed the lawsuit 16 against Shelby Longoria Subsequently Mr Longoria filed 17 Will contest and said that Dorothy lacked capacity and there undue influence when she executed Will 2010 at the end of 18 was 19 her life when she was very sick and on lot of psychotropic 20 medications in which she appointed Mr Dorsey as Executor We 21 have since found out by the way there were three Wills one 2010 one in 2011 It is little bit 22 executed in 2009 in the where pick sides in baseball 23 like Your Honor game you the kids would one hand on top of the other Adriana 24 where put and have her sign 25 would go to Dorothy and say here sign this 00870 18 over all of her Estate to her But then Sylvia would find out about it and she would go to Dorothy and have her sign something And then the last Will was one that apparently Adriana got her mother to sign in the last months of her life just few months after the 2010 Will that was admitted to probate And so that 2011 Will in which Adriana is named as Executor is in fact the last document that is apparently signed by Dorothy Longoria that purports to be Will The whole of events reeks of undue influence and lack of sequence 10 capacity But will also say by the way just the prior Will had -- were from the late 11 parenthetically named Executor and he was an 12 1980s Shelby Longoria was as 13 heir So the obvious intent of the 2009 2010 and 2011 Wills 14 was to Longoria to sign something which had the get Dorothy 15 affect of cutting Shelby out of the Will when clearly she 16 didnt know what she was doing and signing what was put in 17 front of her 18 There is an additional issue too which is that 19 for reasons independent of that Mr Dorsey is completely executor for this estate mean first of all 20 inappropriate and we will show in this case misappropriation of 21 there was from in the last years of her life by 22 money Dorothy Longoria The the children arranged the affairs was 23 Sylvia Longoria way 24 was here in Houston Sylvia Dorsey was helping Dorothy Longoria 25 her affairs but it was entirely funded by to manage day-to-day 00871 19 from the Mexican businesses Shelby lives in McAllen Shelby but he substantial amount of his time in Reynosa spends businesses that are across the border and he would managing have those businesses extend about quarter of million that she could continue to maintain her life dollars year so time So there is misappropriation by the executors wife includes checks that are written to Tommy The misappropriation There are loans to Sylvia and Dorsey the Executor improper Adriana from around the same time as all these Wills dating Executor wont or cant attempt to try to claw back 10 And the loans because it would undercut his argument 11 those improper the of the Will There was very valuable 12 about validity the Estate which Tommy Dorsey omitted from 13 property taken from 14 the and Claims in the property Inventory There is the whole issue Your Honor that 15 and have represented to this Court on multiple 16 Sylvia Tommy 2010 Will was Dorothys Last Will and 17 occasions that the had in their files and knew that there was 18 Testament when they Will The 2010 Will was the basis of the appointment 19 2011 20 for Tommy but it wasnt the Will that was executed the Estate does not have claim against 21 Now if it did think it does great 22 Shelby Your Honor but to the Estate to have this Executor pursue it So 23 disservice want to to the end of this case 24 the question is whether we get the work involved on the claim asserted by 25 go through all of 00872 20 Tommy Dorsey against Shelby Longoria only to conclude that the Executor should be appointed think it would be extremely inefficient and pose an undue burden on the parties In an exercise to manage its own docket the Court can deal with that problem by abating the Executors claim against Shelby and trying the Will contest first Thank you THE COURT Okay Just question Are you saying since this is forum non conveniens the argument 10 isnt that what could take place in his court might not have an 11 affect on Mexican property is it mean the jurisdiction is 12 okay in this Court in other words 13 MR CARTER We are not challenging 14 jurisdiction Your Honor 15 THE COURT And youre talking about all sorts 16 of instruments that are really Mexican instruments in nature 17 and the is in Mexico Is there concern that property 18 whatever happens in this court would not be recognized or 19 accepted by the Mexican authorities or is -- 20 MR CARTER You know think that could be concern For example know if the parties have to try 21 you 22 issues involving the agreement to partition the property 23 and there is decision in this court that kind of right 24 relates to or bears upon the validity of that dont know 25 allow the Mexican courts would view that mean you would 00873 21 have conflict between the court systems of two different nations at that point THE COURT Okay All right and how long would your opening statement be so to speak MR FISHER We can hold it down to less than ten minutes Your Honor THE COURT Okay What Im going to do is you go forward with your response and then we are going to take break and Im going to try to address my 11 oclock docket 10 matters and then we will come back and keep going 11 MR FISHER Okay 12 THE COURT If you want to take that time to get 13 something to eat or anything else thats fine dont want 14 to just tell yall to come back at two because want to keep 15 going Ive got to leave by four today so want to make sure 16 address all of issues and evidentiary matters before your 17 that So thats what we will do just you will be allowed 18 and we will take break and come back and your response 19 would say we will start up again at noon unless my probably 20 II ocock throws me few curve balls which has happened 21 before so go ahead 22 FIR FISHER With all due respect Your Honor 23 the only that the Movant can make colorable argument way 24 under the US Court case law is by miscasting our case Supreme it we are not 25 misconstruing Let me say with perfect clarity 00874 22 of judgment of any Mexican court contesting the validity any to review or overturn any Mexican We are not asking you will that was signed in proceeding We are not contesting any the miscasting of our case is Mexico And perhaps biggest between Longoria and his describing it as fight Shelby case by an Executor who has duty sisters This is brought of the Estate and those assets include to marshal the assets Longoria There are claims valuable claims against Shelby very that the locus of under Texas law Mr Carter erroneously said true moved to 10 the marriage was in Mexico Thats not They lived in the United States for the United States in 1987 and 11 2005 so he 12 the rest of their lives Mr Longoria died in Longoria died in 2012 She 13 lived here for 17 years Dorothy that period of lived here for almost 25 years Throughout 14 had fiduciary duty to her And if you 15 time Shelby Longoria to what Mr Carter said he admitted it 16 listen carefully to Dorothy from the Mexican 17 Shelby Longoria oversaw payments the of for her benefit And under Texas law theory 18 businesses is well-settled it exists informal fiduciary relationship 19 it does not exist under Mexican law and so 20 But will note that Mexico is an Mr Carters statement that it is watertight 21 those cases involve informal fiduciary forum none of 22 adequate And one of the things that our expert 23 relationship claims there is no 24 witness will testify in compelling way in Mexico There is no of fiduciary duty claims 25 recognition 00875 23 remedy There is no recourse much their argument is devoted to the Now of that our case is lousy and going to lose If proposition to move the case out of thats true why are they so desperate of rendering of this court Your Honor is fully capable where case is weak But the truth is it is Summary Judgment weak Shelby Longoria acted in fiduciary capacity not towards his mother for decades and its documented There was reference to these private agreements choice of law provisions These agreements 10 which contained was party and 11 were not agreements to which Dorothy Longoria the Executor of her Estate She 12 so are no way binding on they she did not even mention in 13 didnt sign it Those agreements whatsoever over her estate Thats 14 them They have no bearing 15 red herring there are two steps to the legal analysis 16 Now to undertake The first is whether 17 that the Court is required and available forum for 18 Mexico is an adequate forum adequate The second is even if there 19 the claims that we have pleaded forum has the movant carried its 20 is an adequate and available showing that the factors burden to make strong 21 quote heavy and all of those words are heavily in favor of Mexico 22 weigh Court authority The common 23 used in the United States Supreme the US Court forum non convenienS is law that Supreme 24 law of in on and the Texas Supreme Court has relied on so 25 has weighed 0876 24 its entirely appropriate and indeed mandatory that we consider US Supreme Court authority That Court has imposed very heavy burden but as the Court has read our brief wont burden you by going over all of those cases again Let me address the first part of the analysis Is Mexico an available forum Our expert witness will say that the Courts of Tamaulipas do not have subject matter jurisdiction over this case and even if they did they would no because there is no cause of action for provide remedy 10 breach of fiduciary duty recognized there Not only does that 11 Mexican state not recognize informal fiduciary duties it does 12 not even recognize private trusts So if private individual 13 is settler and signs trust agreement which is common in 14 the United States thats not enforceable in Mexico Its 15 clear there is no remedy and thats why they want to send us 16 there we cant win in Mexico 17 Now lets turn to the convenience factors The Mexico are the who 18 witnesses that they say are in people 19 witnessed of Wills signing of Trust Agreements who signing 20 advised Eduardo in connection with those transactions We are those transactions We are not saying those 21 not challenging invalid in this case so the witnesses to those Wills 22 Wills are 23 will not be testifying in this proceeding Their testimony other hand there are 24 wont be relevant to anything On the 25 numerous witnesses in Texas including Dorothys accountant 00877 25 Lawyers who advised Shelby in proceedings involving Dorothys transactions involving Dorothys property Some property and of them are named in our response And with to the documents relating to the regard Mr Longoria has access to those and Mexico businesses Shelby lives in Texas He runs those businesses from here He he The best to see the flaw in their rarely goes to Mexico way imagine trustee in analysis is to think of simple example administering trust for beneficiary who is in Texas Texas trust for resident of 10 so Chase Bank for example managing of the trust is bank account in 11 Houston but the conference that that Trustee with malice 12 Switzerland and supposedly off out of that Swiss bank account 13 forethought siphoned money and breaches the fiduciary duty to the Beneficiary 14 flagrantly have to sue the Trustee in Switzerland 15 Does the Beneficiary the assets are in another nation 16 Of course not Just because is not at cause of action in Texas 17 does not mean that this Texas law And thats crystal clear Thats all 18 Court under here Mr Carter chided us for 19 that we are talking about but Im sorry the law allows that 20 amending our pleading to make it crystal 21 The law allows it We amended our pleading claims under Texas law and claims 22 clear we are asserting only Texas With regard to the community property 23 that arose in our case but not all of it It is 24 issue that affects part of and Eduardo Longoria were married 25 beyond dispute that Dorothy 00878 26 in Texas They subsequently went through marriage ritual in Mexico but that is legal nullity The marriage -- they became married in Texas and once youre married you cant get married again unless the marriage is annulled or terminated in some way They had community property estate under Texas law We have carried our burden to prove community property estate by proving they were married in Texas So the burden shifts to Shelby Longoria to show that that community property estate was terminated If he is relying on something that happened in 10 Mexico so be it He is entitled to try to prove that But it 11 is his burden on his affirmative defense His affirmative 12 defense cant yank the whole case into Mexico 13 My final point is the most important There are 14 four parties to this case that they are trying to terminate 15 There is the Executor who filed counterclaims against Shelby 16 Longoria and then he as counter-defendant filed third 17 party claims against his sisters Sylvia and Adriana Of those 18 four parties how many live in Mexico Zero How many live in 19 Texas All of them They cite not one case anywhere in the 20 country where all of the parties were in the forum and the case 21 was still transferred for forum non conveniens It is unheard 22 of unprecedented 23 If the Court granted this motion it would be 24 turning one case into three because Will contest would stay 25 here we would have proceeding in Mexico which they say is 00879 27 an adequate and available remedy for us that there is case down there that we can pursue arid then if we prevailed there would be the third party litigation back here because no Mexican court has jurisdiction over Sylvia and Adriana who live here in Houston One case would be turned into three That doesnt sound very convenient or judicial efficient Its case based on Texas law arising in Texas between Texas citizens The motion should be denied Very quickly on abatement They say the case 10 should be abated because they might win their Will contest and 11 Tommy might be removed as Executor Well at this point they 12 have offered no evidence to the Court that any of that is true 13 There is no evidence of misappropriation of assets by Sylvia 14 and she categorically denies that and there is no evidence of 15 subsequent Will They havent offered subsequent Will 16 The 2011 document he mentioned is you facially unenforceable 17 not valid Will at all It was notarized and one of the 18 people that signed it was an interested person legatee named 19 in the Will Thats why we didnt offer you that one This 20 Will that we offered to probate and that was admitted to 21 probate was written by lawyer who met multiple times with 22 Dorothy Longoria It was witnessed by two other lawyers 23 Three officers of the Court will testify they saw her sign the 24 Will and questioned her about it The alleged undue 25 influencers werent even in the room Werent even in the 00880 28 building Dorothy Longoria the Testatrix wrote the check to pay the lawyer to prepare the Will She was as sharp as can be She wrote lot of checks Her handwriting was clear and clean She used computer And small army of doctors and caregivers are going to testify she was perfectly competent in January of 2010 So with all due respect we do not agree that this will contest has any realistic chance of success It was just retaliatory move on the part Mr Longoria With regard to the alleged misappropriation 10 Shelby Longoria has no standing to complain about that because 11 he is not beneficiary under the Will that was admitted to 12 probate So thats red herring respectfully request that 13 both motions be denied 14 THE COURT All right thank you And so we are 15 going to take break as said Lets say we start up at 16 1215 And one question noticed there are obviously there 17 are affidavits attached to the response and the motion Are 18 the witnesses different from the people who have done the 19 affidavits 20 MR CARTER Your Honor our witnesses are the 21 same which is Shelby Longoria and Carlos Gabaurdi We also 22 have the affidavit of the lawyer proving up some additional 23 documents but obviously you wouldnt visit that 24 THE COURT And you have objected to the 25 affidavits in some respects 00881 29 MR FISHER In some respects have withdrawn my objection to their experts affidavit and have agreed that certain exhibits can be admitted THE COURT Okay All right and on your response are you -- you have attached affidavits or an affidavit MR FISHER One affidavit of our expert And he is here would like to present at least few minutes of his testimony Your Honor 10 THE COURT Sure will see yall at 1215 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00882 30 CERT FICATE COUNTY OF HARRIS STATE OF TEXAS Donald Pylant Official Court Reporter in and for Probate Court No of Harris County State of Texas do hereby certify that the above and foregoing contains true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporters Record in the above-styled and numbered cause all of which occured in open court or in chambers and were reported by me further certify that this Reporters Record truly and correctly reflects the exhibits if any admitted tendered in an offer of proof or offered into evidence by the respective parties 10 preparation pal by of this further Reporters certify that Record the is$i gO total cost and for will the be Given under my hand and seal of office this the _____ day 12 of 2014 15 .nadS.R Official Court Reporter 16 in and the for County of Harris and the State of 17 TEXAS 18 Certification No 668 Exp Date 12-31-2014 Probate Court No One 201 Caroline Street 6th fi 19 Houston Texas 77002 713 368-6692 20 21 22 23 24 25 00883 TRIAL COURT CAUSE NUMBER 414270 IN THE ESTATE OF IN THE PROBATE COURT OF DOROTHY LOUISE LONGORIA HARRIS COUNTY DECEASED COURT NUMBER ONE MOTION TO DISMISS COUNTERCLAIMS AND MOTION TO COMPEL AND FOR 10 SANCTIONS AND RESPONSE AND OBJECTION TO MOTION TO QUASH HEARING 11 12 Came to be heard on this the 3rd day of October 2013 13 Moti on to Di smi ss Counterclaims and Motion to Compel and for 14 Sanctions and Response and Objection to Motion to Quash 15 Hearing in the above-entitled and numbered cause and all 16 parties appeared in person and/or being represented by Counsel 17 of Record before the Honorable Loyd Wright Judge Presiding 18 19 VOLUME OF 20 21 22 ORIGINAL 23 24 25 00884 APPEARANCES Attorney for Plaintiff Shelby Longoria Richard Hess State Bar No 24046070 1000 Louisiana Suite 5100 Houston TX 77002-5100 Telephone 713.651.9366 Attorney for Defendant Counter-Plaintiff James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased James Austin Fisher State Bar No 07051650 2800 Li ncol P1 aza 500 North Akard Street 10 Dallas Texas 75201 Telephone 214.661 .9400 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00885 CHRONOLOGICAL INDEX Page Court calls case Plaintiff to call witnesses Resolved objections No objections to exhibits Exception to admission of exhibits 10 Shelby Longoria Direct Examination 13 P-i offered into evidence 23 10 P-i admitted into evidence 24 11 Shelby Longoria cross examination 38 12 D-3 offered into evidence 39 13 D-3 admitted into evidence 39 14 D-4 offered into evidence 46 15 D-4 admitted into evidence 46 16 D-5 offered into evidence 47 17 D-5 admitted into evidence 47 18 D-6 offered into evidence 51 19 D-6 admitted into evidence 51 20 Mr Hess offers Gabaurdi Affidavit 52 21 Court admits Gabaurdi affidavit 53 22 Carlos Gabuardi Direct Examination 53 23 Carlos Gabuardi Cross Examination 68 24 D-2 offered into evidence 72 25 D-2 admitted into evidence 72 00886 CHRONOLOGICAL INDEX Continued Page Carlos Gabuardi Redirect Examination 75 Carlos Gabaurdi Questions by Court 76 Movant rests 79 Fernando Calles Direct Examination 79 Fernando Calles Cross Examination 84 han Rosenberg Direct Examination 86 Mr Fisher requests judicial notice 108 10 Mr Hess requests judicial notice 109 11 The Court takes judicial notice 110 12 Mr Fisher will not voluntarily submit 13 Sylvia Longoria to jurisdiction 14 of Mexican court 110 15 Mr Fisher rests 110 16 17 18 19 20 21 22 23 24 25 00887 WITNESS INDEX Page Shelby Longoria Direct Examination by Mr Hess 13 Cross Examination by Mr Fisher 38 CARLOS GABAURDI Direct Examination by Mr Hess 53 Cross Examination by Mr Fisher 68 10 Redirect Examination by Mr Hess 75 11 Examination by the Court 76 12 13 FERNANDO CALLES 14 Direct Examination by Mr Fisher 79 15 Cross Examination by Mr Hess 84 16 17 18 19 20 21 22 23 24 25 00888 EXHIBIT INDEX Page Exhibit Will of Dorothy Longoria dated 1-9-60 Exhibit Will of Dorothy Longoria dated 4-6-88 Exhibit Will of Dorothy Longoria dated 4-27-89 Exhibit 10 Wish Letter of Eduardo Longoria Sr 11 Exhibit 12 Trust dated 10-15-02 13 Exhibit 14 Will of Eduardo Longoria Theriot dated 10-15-02 15 Exhibit 16 Private Agreement of Sylvia dated 12-17-02 17 Exhibit 18 Private Agreement of Adriana dated 12-17-02 19 Exhibit 20 Page of Release Agreement dated 12-29-06 21 Offered by Agreement 22 Agreed by Mr Fisher 10 23 24 25 00889 EXHIBIT INDEX continued Page Plaintiffs Exhibit No Letter from Eduardo Shelby to Dorothy Offered 23 Admitted 24 Affidavit of Dr Carlos Gabaurdi Offered 92 10 Addmitted 92 11 12 Defendants Exhibit No 13 Affidavit of han Rosenberg 14 Offered 91 15 Admitted 91 16 17 Defendants Exhibit No 18 Travel Warning 19 Offered 72 20 Admitted 72 21 22 Defendants Exhibit No 23 Shelby Longorias Response to Request for Disclosure 24 Offered 39 25 Admitted 39 00890 EXHIBIT INDEX continued Page Defendants Exhibit No Certificate of Marriage Offered 46 Admitted 46 Defendants Exhibit No 10 Letter to Dorothy Longoria dated 10-9-07 11 Offered 47 12 Admitted 47 13 14 Defendants Exhibit No 15 Letter of Intent dated 3-29-07 16 Offered 51 17 Admitted 51 18 19 20 21 22 23 24 25 00891 THE COURT This is your motion right MR FISHER Yes sir THE COURT And the only way there is little confusion is early on you were thinking that you werent going to put on witnesses but now we know that witnesses are going to testify and since it is your motion Im going to let you take the lead in terms of calling witnesses unless want to defer you to them first and just have an agreement that they will on put their witnesses and then you put on your witnesses 10 MR FISHER We will call witnesses Your Honor 11 THE COURT Okay 12 MR FISHER We will call Shelby Longoria 13 MR HESS Before Mr Longoria takes the stand 14 Im pleased to report that we have met with counsel for the 15 Executor and resolved some objections as to the particular 16 documents attached to Mr Longorias affidavit so in the 17 interest of streamlining Mr Longorias testimony We will 18 still hear from him but would like to go ahead and read for 19 the record the exhibits to his affidavit which has already been 20 filed to which there was no longer an objection 21 THE COURT Okay 22 MR HESS We have -- these are the attachments 23 to the Shelby Longoria affidavit filed with the Court on August 24 9th of this year My understanding from speaking with counsel 25 for the Executor there is no objection to Exhibits and 00892 10 all of which are previous Wills executed by Dorothy Longoria and Eduardo Longoria There is no objection to Exhibit to Mr Longorias affidavit which is the 2002 Trust There is no objection to the private agreements entered by Adriana Longoria and Sylvia Dorsey Thats Exhibit and There is no objection to the letter as Exhibit and there is no objection to portion of an Exhibit as in Mary which is settlement agreement There is an objection to the portion that lists at the end of the agreement particular dollar figures but 10 dont think thats going to be an issue Im not going to 11 speak to that portion and just to confirm with counsel thats 12 their understanding as well 13 MR FISHER Your Honor that is correct with 14 the clarification that this stipulation is solely for the 15 purpose of this hearing We reserve all rights to object to 16 admission of those items in any future proceeding But for the 17 limited purpose of this hearing and the Motion to Dismiss to 18 form and convenience we stipulate to the admission of Exhibits 19 and the first two pages of Exhibit 20 Thank you 21 THE COURT And that was the as in Dog 22 MR FISHER Yes sir Sorry Im losing my 23 voice 24 THE COURT No thats all right just wanted 25 to make sure heard it correctly 00893 11 MR HESS There may be no objection to one additional exhibit attached to Mr Longorias affidavit based on the argument from Mr Fisher early today and that is Exhibit as in Boy That is the 1983 Separate Property Agreement thats been entered as judgment in court in Mexico understand from the argument earlier today that the Executor is not challenging the validity of the Separate Property Agreement Exhibit and so assume based on that there is no objection to its admissibility as an exhibit just 10 for the purposes of this hearing 11 MR FISHER That was incorrect We do object 12 to admission of Exhibit Your Honor 13 THE COURT Okay 14 fIR FISHER Its not because we have claim 15 that that judgment should be set aside but dont think that 16 this is properly proven up dont believe the translation is 17 properly verified and don1t believe the testimony about it 18 is accurate It is described as an agreement and it is not an 19 agreement at all Its not signed by Dorothy Longoria 20 THE COURT Okay 21 MR HESS Your Honor if may simply to 22 streamline the process this is translation that is certified 23 by the translator There is signed statement at the end of 24 the translation by the translator who is certified by the 25 Supreme Court for the courts in Mexico to provide these 00894 12 translations And if there an objection to translation Texas Rule of Evidence 1009 provides procedure of resolving that It requires the objector to provide specific -- you have to point out the specific inaccuracy or offer competing translation That hasnt happened here and we are simply asking the Court to permit the admi ssi bill ty of thi particular document just for the purpose of this hearing MR FISHER Your Honor that is true only if the translation has been properly certified and unfortunately 10 this one was not 11 THE COURT Well yall have an agreement as to 12 certain of the objections Im assuming this is these are 13 your amended objections correct 14 MR FISHER Yes Your Honor 15 THE COURT And they contain all the oblections 16 that you had to the attachments correct 17 MR FISHER Actually this is an addition and 18 would say it is subsumed in the hearsay objection 19 THE COURT Okay But my point is that yall 20 have certain agreement as to part of the documents 21 attached 22 MR FISHER Yes 23 THE COURT And Im still going to be in 24 position when review all of this to through go your 25 objections that are still there to see if they are valid 00895 13 MR FISHER Yes Your Honor THE COURT Thats the process will go through And taking that into account will also determine the outcome of the motion itself and taking into account your response MR HESS Thank you THE COURT So Im glad yall agree to some of it But it is still my task to consider the objections and their validity as go through the whole process of this 10 MR FISHER Thank you 11 MR HESS Thank you Well if there is nothing 12 further we will call to the stand Mr Shelby Longoria 13 THE COURT Okay 14 SHELBY LONGORIA 15 called as witness after first having been duly sworn 16 testified as follows 17 DIRECT EXAMINATION 18 Questions By Mr Hess 19 Mr Longoria could you please give us your full name 20 for the benefit of the record and the court reporter 21 Shelby Longoria 22 How old are you Mr Longoria 23 Sixty-one 24 Where were you born 25 In Laredo Texas 00896 14 What is your nationality have dual citizenship in Mexico and the US Why are you dual citizen was born of Mexican parents and grew in Mexico up but was born in the US so that allowed me to have dual citizenship Are you married Yes sir How long have you been married 10 Thirty-four years 11 Is your spouse in the courtroom today 12 Yes she is 13 Who is your spouse 14 Tita Longoria 15 Do you have any children 16 Yes do 17 Who are they 18 Adrian is oldest daughter 33 old my years Sarah my 19 middle daughter she is 26 mean 30 years old and my son 20 Shelby is 27 21 Where do you and Tita live 22 We live in McAllen Texas 23 Why do you and Tita live in McAllen 24 Tita is originally from Brownsville Im from Nuevo 25 Laredo and when we got married didnt want to live in Nuevo 00897 15 Laredo and we lust decided halfway it was good place to live and it was also geographically in good place as far as the business was concerned but our original idea was to live in Reynosa Mexico but we couldnt find place to live in Reynosa Where did you grow up In Nuevo Laredo Did you go to school in Nuevo Laredo Yes did 10 Did you continue your education in the United States 11 Yes went to high school in Austin Texas 12 know you have siblings Can you tell us who they 13 are and how old they are 14 My oldest sibling is Deanna believe she is 15 seventy My next in line is my brother Wayo believe he is 16 67 or 68 Then Sylvia believe she is 66 Somewhere around 17 there 18 And did you attend college 19 Yes did 20 And where did you go 21 Trinity University in San Antonio 22 And did you get degree 23 Yes did 24 What was your degree 25 business degree 00898 16 What did you do upon your graduation from Trinity University went to back to Nuevo Laredo to help out with my dad in the business Lets talk little bit about the business that you worked in with your father Can you tell the Court little bit about the family business and what it was like back in 1975 What kind of businesses were you involved in My father was involved with his four other brothers 10 so there were five brothers and they would split their up 11 tasks They were involved in different businesses so my dad 12 was involved with Chevrolet dealerships and think of couple 13 ranches 14 Did the business back in 1975 have other of types 15 businesses it was involved in 16 Yes the brothers were involved in -- their main 17 business was the cotton business and the banking business 18 How did the business change over time 19 Well in 1976 was very bad year for Mexico There 20 was big devaluation There hadnt been devaluation in 21 Mexico for approximately 20 years So when we get the exchange 22 rate goes from twelve-fifty to double so its one hundred 23 percent devaluation that creates economic chaos in Mexico so 24 it was very difficult time And that happened subsequently 25 every new president every six years so for 25 Mexico years 00899 17 had difficult economic time so the businesses suffered You were working in Mexico for or with your father did your brother work with you as well Yes When my brother got out of school he went to work for the family in the cotton business in Baja California and dont remember how long he was there Two or three four years And then after that he came back to Nuevo Laredo to help my dad What were your sisters doing at this time 10 believe they were both married and they either 11 lived in -- think Sylvia lived in Houston when she got 12 married and my sister Adriana lived in Laredo for while and 13 then later moved to Houston 14 Did your si sters have rol he ping with the 15 family business 16 No they did not 17 And what is your sense as why your sisters were not 18 involved in running the business 19 dont think they had any interest in being involved 20 in the business and don1t think they had interest in any 21 living on the border 22 Where did they work 23 Well dont believe my sister Adriana has ever 24 worked and think Sylvia when she moved to Houston she 25 opened up the store 00900 18 Was there point in time where you took on most of the responsibility of running the Mexico businesses Yes did When my brother decided to move to Austin And believe that was around 1978 or 1979 When you took over most of the responsibilities what was your father doing Re was mostly retired What did he do in his retirement My dad loved the ranch and he loved to play golf 10 Where was your fathers ranch located 11 It was in -- there is town called Columbia which is 12 in Mexico maybe about 30 miles northwest of Nuevo Laredo on 13 the Mexico side 14 Now lets just to close and complete the picture 15 tell me about the Mexico businesses today What businesses are 16 you in involved in today compared to 1975 17 Well guess if you could take picture of 1975 18 with picture today there is absolutely no The similarity 19 businesses have been able to grow and prosper Mexico as 20 country has done better So the businesses that were involved 21 in then they have grown to other areas For instance the 22 restaurant business and the finance business 23 And where are al of these Mexican businesses located 24 today 25 In various states in Mexico 00901 19 And who owns the Mexican businesses The Mexican Trust What Mexican Trust Its called the Afirme Trust When was that Trust executed In 2002 Were these Mexican businesses always successful over the last 40 years No 10 But today how are the businesses doing 11 Business is better 12 How often are you in Mexico today for your work 13 Im in Mexico quite bit travel throughout the 14 area where the business is located and its just -- depends on 15 what trips and what activities have going on and when Im in 16 McAllen frequently go to my office in Reynosa 17 And when you say quite bit is that couple of 18 times year or couple of times month 19 No much more than that Like when Im in McAllen 20 go two three four times week to Reynosa and to other areas 21 It was suggested earlier today that to you rarely go 22 Mexico and that you operate your business from Texas Is that 23 true 24 Thats not true 25 What parts of Mexico do you travel to 00902 20 On the border travel to Reynosa travel to Matomoros to Reo Bravo travel to Miguel Aleman Nuevo Laredo Piedras Negras Thats mostly on the border And when travel into the interior travel to Mexico City Monterrey Tampico various cities in Vera Cruz Porto de la Cruz travel to Costa Rica de la Cruz travel to Casa Qualcos travel to Carretica Puebla to Dia maso Tabasco Campeche duce la Guitierrez and in Chiapas travel to many areas 1-lave you now named all the cities in Mexico 10 No not quite 11 When you travel to Mexico how do get there you 12 On the border drive And once in the interior 13 usually fly 14 Do you travel with security guards when to you go 15 cities in Mexico 16 No dont 17 Isnt it dangerous for you to be driving around 18 Mexican border towns 19 Well Ive been doing it all my life and guess just 20 like any situation you use common sense and just like in any 21 city at particular times maybe in the US could be dangerous 22 so just use common sense and be careful 23 And have you ever hired private security for your 24 travels in Mexico 25 No have not 00903 21 And want to turn your focus to the subject that brings you here today the lawsuit At some point somebody filed lawsuit Did you initiate lawsuit here in Houston Probate Court No did not Who did Tommy Dorsey on behalf of my moms estate When did you first learn that you were going to get sued 10 received call from my brother Wayo maybe few 11 before this happened and he informed me that he had spoken to 12 my nephew Raymond Hart that they had made the decision to 13 file the lawsuit and he was very sorry that that was going to 14 happen 15 And when did you actually get the lawsuit 16 dont remember specifically but it must have been 17 few days after his phone call got served at my house 18 And your house today is where 19 In McAllen Texas 20 What was your reaction when your brother Wayo let 21 you know that you were going to be sued 22 Well was devastated was very hurt by what they 23 were mean didnt know exactly how it was going to happen 24 and exactly who was going to file the lawsuit so it was just 25 very very -- was very disappointed 00904 22 What did it mean to you that were being sued you by your mothers estate MR FISHER Objection irrelevant to the issue before the Court which is Motion to Dismiss for forum non conveniens THE COURT Sustained By Mr Hess Were you ever estranged from your mother Never 10 Did you know that the original lawsuit filed against 11 you got dismissed by the person who filed it 12 Yes 13 Did you know that the Executor then filed new 14 Counterclaims in response to your Will Contest 15 Yes 16 MR HESS Your Honor may approach 17 THE COURT You may 18 MR HESS Im handing the Original 19 Counterclaims of Shelby Longorias Will Contest to opposing 20 counsel May approach the witness 21 THE COURT You may 22 By Mr Hess Now do you have before you the 23 Original Counterclaims to Shelby Longorias Will Contest 24 Yes 25 Would you look at paragraph 16 please 00905 23 Okay You see paragraph 16 referencing letter dated August 1983 Yes do MR HESS have document marked Dorsey 3595 Im showing to opposing counsel would like to mark this for identification At which time the court reporter marked said instrument for identification purposes only as Plaintiffs Exhibit 10 By Mr Hess Mr Longoria Im handing you 11 Plaintiffs Exhibit Do you recognize Exhibit Plaintiffs 12 Yes 13 What is Exhibit Plaintiffs 14 It is letter written to my mom and written by my 15 brother Wayo dated August 5th 1983 16 Do you recognize the handwriting on Plaintiffs 17 Yes do 18 Whose is it 19 My brother Wayo 20 How are you familiar with your brothers handwriting 21 have seen his handwriting over the years 22 MR HESS Move the admission of exhibit 23 Plaintiffs 24 THE COURT Any objection 25 MR FISHER No objection 00906 24 THE COURT Plaintiffs Exhibit is admitted By Mr Hess Mr Longoria is Plaintiffs Exhibit the August 1983 letter that to be referred to in the appears counter-claims of the Amended Will Contest in paragraph 16 Yes it is MR HESS Your Honor may approach THE COURT Yes By Mr Hess This appears to be letter addressed to Dorothy Longoria correct 10 Yes it does 11 Did you sign this letter along with your brother 12 Wayo 13 Yes 14 Where did your mother live in 1983 at the time that 15 this letter was written 16 Nuevo Laredo Mexico 17 While this letter is addressed to box in 18 Laredo Texas right 19 Yes thats common practice for people who live on 20 the border in Mexican town they usually have box on 21 the US side if they are getting correspondence from the United 22 States Its going to get there lot quicker than finding its 23 way through the mail system in Mexico 24 If you look at the second of Plaintiffs it page 25 appears to be on letterhead for someone 00907 25 Yes And who is that Thats my dads And the address underneath his name Yes And whats his address Box 1316 Laredo Texas and his Box in Mexico pdo Postal 100 Laredo Tamps Mexico And you can see that the address underneath his name 10 in Laredo Texas is the same as the address on the envelope 11 That is correct 12 This letter is not too long Lets take look at it 13 each sentence 14 Okay 15 In fact why dont you read it 16 To Dorothy Kowalski de Longoria Dear Mom Shelby and 17 are writing you this letter with great deal of love and 18 respect 19 So this document is written by whom 20 Its written by my brother 21 All right keep going 22 We want you to know that the assets that Dad has 23 willed to us as long as you live we will hold them as if they 24 were yours 25 Have you seen portion of that sentence quoted in 00908 26 the Executors Amended Counter-Claims Yes Was it accurate in the Amended Counter-Claims Well no it says the assets that Daddy never called my father Daddy Read the next sentence please We will make the fruits available to you for your direction as to their use Did you honor your mothers wishes whenever she 10 wanted money 11 Yes 12 The sentence right before that one the one thats 13 quoted incorrectly in the counter-claim were and you Wayo 14 telling your mother in this letter that are her the you giving 15 assets that Dad willed to you 16 Absolutely not 17 What are you telling her 18 Well we can read it again together think its 19 very clear We want you to know that the assets that Dad has 20 willed to us as long as you live we will hold them as if they 21 were yours dont know what other clarification may be 22 able to provide 23 Will you read the next sentence after the next one 24 We will make the fruits able to you for your 25 direction as to their use 00909 27 And the next one This letter has value to only you Was this letter intended to give some rights to your sisters Absolutely not And the next sentence please Mr Longoria Because of our commitment to your well-being and happiness more importantly than the worldly goods is our promise to always care for your you and to provide for your 10 spiritual needs 11 And the final sentence 12 We hereby pledge to you our unending devotion Your 13 sons 14 Did you mean that when you signed the letter stating 15 that to your mother 16 Well dont remember this letter and hadnt seen 17 it up until recently but yes love my mom 18 Flow long ago was this letter written 19 Over 30 years ago 20 Do you remember seeing exhibit Plaintiffs at any 21 time in the last 30 years before last week 22 No 23 What can you tell the Court about why this letter was 24 sent to your mother 25 Well reading it now obviously we loved our mother 00910 28 very much and we obviously wanted to provide comfort to her To your knowledge did your parents have attorneys and advisers to assist them with their estate planning Yes Is this August 5th 1983 letter document by which it intended to establish some kind of trust to your mother 30 years ago Absolutely not Have you ever heard anyone before last week ever 10 claim that this 30-year-old letter created private trust 11 expressed trust or any kind of trust 12 Never heard that 13 Were you in fact committed to mothers your 14 well-being and happiness 15 Yes was 16 And did you promise mother to care for your always 17 her and to provide for her spiritual needs 18 Yes did 19 Did you did you keep those promises her entire 20 lifetime 21 Yes sir did 22 want to step back now and ask you few questions 23 about your parents estate planning What is your 24 understanding as to your parents basic wishes as it relates to 25 yours and your siblings inheritance 00911 29 Its really very simple their idea was for the boys to have the business and the girls to have cash The boys to take all the risk take all the business risks and he did not and my mom they didnt want the girls to take the business risk and he wanted them to have cash What is your understanding of why your parents wanted to divide the assets that way Well dont think my sisters had shown any interest to participate in Mexico in Mexican businesses and it was my 10 parents wish that we would be the ones to carry that torch and 11 to work on the Mexican businesses 12 Did your parents inform and siblings about you your 13 how they intended to divide their assets 14 It was talked about many times 15 Did your sisters know just as well as you knew what 16 your parents plans for them was 17 Absolutely 18 And how do you know that 19 We talked about it and it was common discussion 20 Did your parents document these wishes in various 21 written instruments over the years 22 Yes they did 23 And why would your sisters be receiving their 24 inheritances while your parents were still alive 25 MR FISHER Objection calls for speculation 00912 30 THE COURT Overruled By Mr Hess Why would your parents pardon me why would your sisters receive their inheritances while your parents were still alive Very simple they were always asking for money and they were always needing money You mentioned Trust earlier in that your testimony owned the Mexican businesses when was this trust created In 2002 10 And who were the Beneficiaries of the Trust 11 My father was the first Beneficiary and my brother 12 and were second Beneficiaries 13 Did your sisters know that your father had created 14 the Trust 15 Absolutely 16 How do you know that 17 They signed the private agreement which spelled out 18 the arrangement with the Trust and the arrangement with them as 19 far as their inheritance derived from the wish letter And if 20 may add that agreement also specified that for jurisdiction 21 purposes it would be in Reynosa Mexico which they agreed to 22 Are you aware of separate property agreement 23 executed by your parents 24 Yes am 25 What can you tefl the Court about that agreement 00913 31 Its -- the agreement was done in 1983 by my parents long-term attorney Mario Gonzalez in Nuevo Laredo Mexico Its very comprehensive agreement It was -- there were appraisers involved to make sure that there was an equitable distribution and it was ratified by the Mexican court or there was Judgment ratified by the Mexican court What did this agreement specify as to mothers your potential community property MR FISHER Objection violates the best 10 evidence rule The agreement has to speak for itself 11 THE COURT Overruled 12 Can you ask me again 13 By Mr Hess Sure What did this separate property 14 agreement from 1983 specify about your mothers community 15 property interest if any 16 It was going to be separated and from thereon they 17 were subject to the separate property regime 18 To the best of your knowledge Mr Longoria did your 19 mother have any community property after 1983 20 To the best of my knowledge no 21 How do you know that your parents executed an 22 agreement partitioning their community property and subjecting 23 their marriage to separate property regime 24 Because have seen the agreement and have spoken 25 to the attorney that drew it 00914 32 Have you seen that separate property agreement in the last few months saw it about two months ago maybe Is true and correct copy of it attached to your affidavit Yes Have you seen references to the separate property agreement in other agreements executed by mother your Yes have 10 want to talk little bit about your parents 11 connections to Mexico Where did your parents live for most of 12 their marriage 13 In Mexico 14 What part 15 In Nuevo Laredo 16 But at some point didnt they move to the United 17 States 18 Yes 19 When was that 20 It was 1987 maybe 88 21 And to where did they move 22 They moved to Laredo Texas 23 Where in Laredo 24 At the Laredo Country Club 25 Why did they move to the Laredo Country Club 00915 33 It was lust being built and it had golf course and he wanted to be by the golf course Was your dad much of golfer He was golfer yes Did your parents retain their Mexican citizenship when they moved to the United States Yes they did How close was your parents house in Laredo to Mexico 10 Very close mean three miles maybe four miles 11 How often did your father return to Mexico when he 12 was livi ng in Laredo 13 When they first moved over there often He very 14 would go to the ranch on regular basis 15 Where was the ranch again 16 It was maybe thirty minutes crossing the border on 17 the Columbia Bridge on the Mexico side And he would always go 18 to his office He retained an office in Nuevo Laredo 19 And when your parents moved to Laredo did your 20 father change his legal domicile 21 No 22 Where did he remain domiciled 23 In Mexico 24 Why 25 Well his intent was always to be in Mexico His 00916 34 business relationships were in Mexico and guess most importantly it allowed him to distribute gifts to his daughters tax free What year did your father away pass 2005 Did he have any instructions about where he wanted to be buried Yes he did Where 10 In Nuevo Laredo He had already purchased the 11 cemetery plot the family cemetery plot 12 Were you there in Nuevo Laredo when he was buried 13 Yes was there 14 After your father died did older sisters your 15 continue to receive payments of their inheritance under private 16 agreements 17 Yes they did 18 Im sorry 19 Please reask the question Im sorry 20 Did your older sisters continue to receive payments 21 under their agreements after your father died 22 Yes they did 23 How did they receive the payments 24 It was deposited in their Mexican account 25 Who was responsible for making sure that that 00917 35 happened People at the office At some point did one of your sisters ask if she could receive the rest of her inheritance faster than called for in her agreement Yes What was that Well Sylvia had requested that she wanted to get paid as quickly as possible and thats the way she made the 10 request 11 What did you do when you became aware of Sylvias 12 request 13 Well spoke to people at the office and the 14 attorney that set up the Trust and to see first of all if the 15 business could do it if they had sufficient cash flow to do 16 what Sylvia wanted and the other thing is wanted to call my 17 other sister Adriana because we definitely couldnt do both 18 sisters so called Adriana to see if it was okay with her and 19 she told me that it was okay with her 20 How much cash or properties did the sisters receive 21 under their private agreements 22 It specified $3 million each but that doesnt count 23 the money that they had received prior to that from my parents 24 money and properties 25 After your father passed way did your mom move from 00918 36 Laredo Yes Where did she go To Houston What did you do to take care of your mother after your dad passed way Well continued to do my part in supporting her How would you support her The company would send the money that was required 10 for her to live in the style that she was accustomed and to 11 provide anything that she wanted 12 How would you learn how much mother money your 13 required to live in the way she was accustomed 14 My sister Sylvia would let us know and she had 15 contact with people at the office or would let me know 16 How much money on average did you send to your 17 mothers account every month 18 think if there was an average around two hundred 19 to two hundred and fifty thousand dollars year 20 Where would that money get deposited 21 It would eventually get deposited into my Moms 22 account in her bank in Houston 23 Did you have the rights to or signatory on that 24 account 25 No did not 00919 37 Who did My mom and Sylvia Did you learn at some point this summer that your sisters and an attorney on your mothers behalf or on behalf of her Estate had sued you in Mexico Yes Have you submitted to the jurisdiction of the Mexican courts Yes have 10 If this Court were to condition dismissal of the 11 counterclaims against you on your willingness to waive the 12 statute of limitations defense in Mexico would you do it 13 Yes would 14 If this Court were to condition dismissal of the 15 counterclaims on your willingness to submit to the 16 jurisdictions of both federal and state courts in Mexico would 17 you do it 18 Yes would 19 Thank you for your time 20 MR HESS pass the witness 21 THE COURT All right 22 MR FISHER May approach the witness Your 23 Honor 24 THE COURT You may 25 MR FISHER Your Honor have marked some of 00920 38 these just as Exhibit without Defendant or Respondent designation Would the Court prefer different way THE COURT Say that again MR FISHER My exhibit stickers just say Exhibit they dont say Respondents Exhibit or Defendants Exhibit THE COURT You can just put or an just to sort of differentiate it CROSS-EXAMINATION 10 Questions By Mr Fisher 11 Mr Longoria Im handing you document thats been 12 marked Exhibit D-3 Its entitled Shelby Longorias Response 13 to Request for Disclosure In the course of this lawsuit have 14 you helped gather information that needed to be provided 15 have tried to be as helpful as can 16 And is one of the things that did is names you gather 17 and addresses of people that might know something about the 18 case 19 Yes 20 And would you please turn to -- do this you recognize 21 document as your response to request that was submitted in 22 the course of this case 23 have seen lot of documents but want to say 24 yes probably have 25 And please turn to page if you would please look 00921 39 at the bottom request for disclose asks for the name address and telephone number of persons having knowledge of relevant facts and brief statement of each identified persons connection with the case and the first person you list is your sister Sylvia right Uh-huh yes And you list her husband Tommy Dorsey right Right You list your brother Wayo right 10 Correct 11 And you list your sister Adriana right 12 Correct 13 You list several more people 14 Right 15 How many of the people you list live in Mexico 16 Well Im looking at the list Well the ones that 17 are here live in the US 18 All of them 19 It appears to be 20 MR FISHER Your Honor move for the 21 admission of D-3 22 THE COURT Any objection 23 MR HESS No 24 THE COURT Exhibit 36789 is admitted 25 will represent to the Court and can testify that this 00922 40 disclosure has never been supplemented by the movant Now you testified that you live in McAllen When did you first move to McAllen In 1979 Okay and you lived there ever since Yes You testified that in the mid 70s you began helping your dads with the family business Correct 10 And how old were you at that time 11 was born in 1952 12 Okay so you were in your mid 20s 13 Yes sir 14 And how long was it before were running the you 15 companies 16 Well again when my brother left to live in Austin 17 was around 1978 or 1979 18 So you were 26 or 27 years old when that happened 19 However that works out 20 Okay 21 As far as the age is concerned 22 Has Wayo lived in Austin ever since then 23 Yes 24 And just so the record is clear by Wayo mean 25 Eduardo Longoria Jr is that what you meant 00923 41 Yes correct All right you gave testimony about Mexican Trust and what was conveyed into that Trust was stock in two holding companies is that correct Yes And those companies were Inmuebles Terranos and Vertice Empresarial Correct And your father conveyed his stock in those companies 10 into the Trust 11 Yes 12 In 2002 13 Yes 14 And how long had he owned that stock 15 Im not sure dont know 16 Can you tell us approximately how long he had owned 17 it 18 If knew that would tell you but really dont 19 know 20 Have you ever owned it 21 dont think have owned Vertice and probably did 22 own Inmuebles Terranos at some period of time Thats my 23 recollection 24 So that stock was conveyed to you at some point and 25 then conveyed to your father is that right 00924 42 MR HESS Object to form THE COURT Overruled dont know the logistics of how the stock moved from By Mr Fisher Okay Do you hold title or position in those companies management position would describe my role more as an advisory role to the management team Are you on the management team 10 Again its mostly advisory and technically dont 11 know There is several companies and havent looked to see 12 if Im named as manager or management 13 Im asking about the holding company now 14 Right 15 The two that we have named 16 Correct 17 And are you the president chief executive officer 18 or in some other management position 19 dont know could be the chairman 20 At least one of those companies Inmuebles -- 21 Right 22 -- made payments to your mother Dorothy didnt it 23 Yes 24 And it did so at your direction didnt it 25 Well it was again didnt own the companies they 00925 43 were owned by the Trust So is it your testimony that there is someone else at Inmuebles that directed that company to pay your mother money No we had accountants and we have management team and we have attorneys that helped us set the Trust so up would always confer with them to make sure everything was being done properly Okay Well this is not charitable company is it No sir 10 Its in business for profit 11 Yes sir 12 And she was receiving because she was money your 13 mother right 14 Well was trying to do my part in being good son 15 yes 16 Right It wasnt that she had rendered services and 17 was being compensated for her services these were payments 18 that you were making because you were her son and were taking 19 care of her 20 Again it was -- was trying to do my part to be 21 good son so she could live her life 22 Okay Now Im just following along the direct 23 examination so if jump around little bit apologize 24 Okay 25 You testified that you dont travel with security 00926 44 guards in Mexico Have you ever told anyone that the reason is because security guards can be bought and could give information to the bad guys It sounds like something that might have said So it wasnt because you dont feel the need for security its because you cant even trust the security guards right Well not necessarily That sounds like comment that could have made But there is people in Mexico many 10 that have security guards and they trust them so it was just 11 comment 12 And it was your judgment call that were better you 13 off not having them 14 No it was comment 15 Did you mean it when you said it 16 just made comment that sometimes that could 17 happen 18 Okay 19 Its within the realm of possibilities 20 Okay Now you were asked about Plaintiffs Exhibit 21 which is the 1983 letter 22 Yes sir 23 And just want to confirm that when this letter was 24 sent to your mother you lived in the state of Texas correct 25 In 1983 yes 00927 45 And your brother Eduardo Longoria Jr also lived in the state of Texas Yes sir You testified about an agreement that parents your made that you say separated their marital estate from community property into separate property Yes And correct me if heard you wrong did you say you saw that about two months ago 10 Thats -- think saw it about two months ago yes 11 And is that the first time that you had ever seen it 12 Yes 13 All right and you testified about private agreements 14 with one with Sylvia and one with Adriana and payments were 15 made to them under those agreements as testified you 16 Correct 17 But question is this was your mother my Dorothy 18 party to those agreements 19 dont believe she was 20 She didnt sign them did she 21 No 22 And they dont even mention her do they 23 No 24 Mr Longoria Im showing you certified copy of 25 marriage certificate reflecting marriage of Eduardo Longoria 00928 46 and Dorothy Louise Kowaiski Yes On July 3rd 1942 in the State of Texas Do you see that sir Idoseeit And is it your understanding that were your parents married in the State of Texas in 1942 Yes MR FISHER Your Honor we offer Exhibit D-4 10 THE COURT Any objection 11 MR HESS No objection 12 THE COURT D-4 is admitted 13 MR FISHER Your Honor to save time may 14 have continuing permission to take exhibits to the witness 15 THE COURT Yes 16 MR FISHER promise not to hover over him 17 will return to my spot here 18 THE COURT Yes And just to comment want to 19 make sure we just stay on track Im deciding whether this 20 counterclaim is supposed to be here or in Mexico 21 MR FISHER Yes sir 22 THE COURT And dont want to try the case 23 MR FISHER Understood 24 THE COURT Im not really looking for at least 25 yet mean who is good guy or bad guy or who did what or 00929 47 who didnt do what want it connected to the issue of whether this is the appropriate forum or should defer to the counterclaims to Mexico in some fashion MR FISHER Yes sir hear you loud and clear THE COURT Thats to both sides MR HESS Yes sir By Mr Fisher Mr Longoria would you please look at Exhibit D-5 10 Yes sir 11 Is this copy of letter that you sent to your 12 mother on or about October 9th 2007 13 Yes 14 Did she sign it 15 Yes 16 fIR FISHER Your Honor we offer Exhibit D-5 17 MR HESS No objection 18 THE COURT Admitted 19 By Mr Fisher Again when you sent this you lived 20 in McAllen Texas 21 Yes 22 And you sent it to your mother at her home address in 23 Houston Texas 24 Yes 25 And wont dwell on this but in this letter you 00930 48 make reference to your fathers wishes for your mother to receive sum of $450000 upon his passing Do see that you see it Okay And whats interesting about that is that wish was never provided for in any Will that brought you forward was it Can you ask me that again Yes that was clumsy question and apologize You haven brought forward to this Court Will in which any your 10 father said your mother was to get this $450000 11 Not that know of 12 And so there were testamentary wishes that your 13 parents had that werent always put in the Wills right 14 Well can expain it if you would like me to 15 explain it 16 Well just answer my question first if you would 17 please Sometimes your parents intended things to happen with 18 their property and they didnt get it put down in Wills and 19 this is an example of that 20 No thats not an example of that 21 Okay Third paragraph says and quote Since 22 Dads wishes were for you to receive $450000 upon his passing 23 and your wishes are that Adriana and Sylvia receive this money 24 from you we have agreed that will subtract -- blah blah 25 blah 00931 49 Right But you refer to your fathers wishes -- Im just going to explain it All right go ahead Well its just that my mom was insisting that my father hadnt left her anything and that she was despondent about that and she had said that my dad did want her to have some money and really again this is similar to the other letter you showed me in 1983 was really wanting to make her 10 feel good that my dad did really want her to have some money 11 Thats the best way can explain it 12 Okay appreciate that explanation 13 All right 14 Thats helpful And you acknowledged in this letter 15 that your mother wanted the money to go to her daughters 16 Sylvia and Adriana in equal shares 17 Yes 18 Would you please look at Exhibit D-6 which am 19 handing you now Is this copy of letter of intent that you 20 entered into with your brother Wayo Longoria First Amendment 21 to that Letter of Intent and Second Amendment to that Letter 22 of Intent all of which you signed 23 Is there question Fm sorry 24 Is this copy of Letter of Intent that you and 25 your brother Wayo Longoria signed 00932 50 Yes see my signature And this is First Amendment and Second Amendment to it Do you want me to check it Yes sir see the First Amendment here And see Second Amendment Okay And the agreement embodies in these letters of intent was culminated and fulfilled later in 2007 correct 10 dont recall exactly unless you want me to look at 11 this and -- 12 Well let me ask you this you have identified this 13 Yes see it here the 29th day of March 2007 14 Okay Later in 2007 was there transaction in 15 which your brother Wayo was paid about $24 million in return he 16 gave up his interest in the Trust that your father created in 17 2002 18 Whats the question Im sorry 19 Later in 2007 was there transaction in which your 20 brother Wayo was paid about $24 million and in return he gave 21 up his 40 percent interest in the Trust that your father 22 created back in 2002 23 Well the way understand it the Trust split into 24 two trusts and one Trust paid the other Trust 25 Okay 00933 51 Thats my general understanding All right And one Trust ended with about $24 up million in it and Wayo got that Trust really dont remember specific figures would have to Okay MR FISHER offer Exhibit D-6 Your Honor MR HESS No objection THE COURT Exhibit D-6 is admitted 10 By Mr Fisher This Letter of Intent was negotiated 11 between you and Wayo in the United States wasnt it 12 dont remember Mr Fisher where we were 13 You had the assistance of American counsel in this 14 transaction 15 Yes did And also Mexican counsel 16 Was Carolyn Becket lawyer that helped with you 17 this 18 Yes sir she is one of the attorneys 19 She is in Austin Texas 20 Yes 21 And in connection with that transaction was an 22 appraisal done of the stock in the two holding companies that 23 you named earlier 24 dont recall 25 Do you recall an appraisal of that stock at being $98 00934 52 million and change No do not After your mother died in April of 2012 did ever you offer for probate through any Mexican court Will that she signed Did offer Can you ask it again please After your mother passed away in April of 2012 did you ever go to Mexican court either you or your lawyer to offer Wills to probate 10 No 11 MR FISHER No further questions 12 THE COURT All right 13 MR HESS Nothing from us Your Honor 14 THE COURT You may step down 15 MR LONGORIA Thank you Your Honor 16 THE COURT Thank you 17 MR HESS Our next witness is Professor Carlos 18 Gabuardi 19 THE COURT Okay 20 MR HESS We submitted his affidavit with 21 briefing understand the objections have been withdrawn to 22 that affidavit so request that it be admitted and considered 23 for this proceeding 24 MR FISHER No objection 25 THE COURT Okay And what is the witnesss 00935 53 name MR HESS Its Gabuardi G-A-B-U-A-R-D-I THE COURT Affidavit of Dr Gabuardi is admitted And its attached to your motion MR HESS Right THE COURT To Counter-Defendant Shelby Longorias Motion to Dismiss Counterclaim etcetera MR HESS Right CARLOS ALBERTO ENRIQUE JOSE LORENZO GABUARDI ARREOLA PhD 10 called as witness after first having been duly sworn 11 testified as follows 12 DIRECT EXAMINATION 13 Questions By Mr Hess 14 Good afternoon Professor 15 Good afternoon 16 Could you introduce yourself to Judge Wright 17 Sure My name is Dr Carlos Alberto Enrique Jose 18 Lorenzo Gabaurdi Arreola was born in Monterrey Mexico in 19 1957 studied the law in Monterrey the University of 20 Monterrey have been practicing lawyer since was law 21 student because under Mexico law you can do it to the extent 22 you do it under the supervision of an attorney have worked 23 both as corporate counsel as litigator and as academician 24 Most of my life with an exception of time in which lived 25 in the United States have done both academic and 00936 54 professional work also was lawyer in the World Bank in Washington DC had been -- am member of the National System of Legal Researchers in Mexico which is government nsti tuti on that provides funds for academicians in order to retain Mexican talent to continue living in Mexico And now am ascribed as an honorary legal researcher to the Facultad Libre Lecho which is an independent law school in Monterrey When did you become lawyer finished law school in December 79 and wrote my 10 dissertation and finally got my degree in 81 But forgot to 11 say that studied master of law in Tulane which received 12 with distinction and also PhD from Tulane University Law 13 School 14 And you currently live in Monterrey 15 Yes 16 And you currently practice law in Monterrey and other 17 locations in Mexico 18 Yes my office is in Monterrey But when my clients 19 have needs or have the need of legal advice or legal counseling 20 in other parts of Mexico go there 21 And what state of Mexico is Monterrey 22 Nuevo Leon 23 And where is Nuevo Leon in comparison to Tamaulipas 24 Okay Nuevo Leon is to the west of the state of 25 Tamaulipas and has small -- piece of border very small 00937 55 in Columbia which was mentioned before by Mr Longoria And they are bordering -- they are states that border each other Yes contiguous border And have you practiced law at times in Tamaulipas Yes was lawyer for Texas Bank in its affairs -- legal affairs in Mexico which most of them were related to Tamaulipas and spent almost five years of my life practicing law there 10 When you practice law in Mexico do have to you bring 11 bodyguard around with you wherever you go 12 No 13 Why not 14 Because dont need it feel safe and comfortable 15 wherever go in Mexico 16 Do other lawyers have bodyguards and private security 17 people who go with them to the courthouse 18 At least not that am aware of 19 The state of Tamaulipas adjoining the state of Nuevo 20 Leon does it have functioning judiciary 21 Yes 22 Have problems with crime in Tamaulipas caused the 23 court system to shut down 24 No never 25 Are you aware in fact of lawsuits filed in court in 00938 56 Tamaulipas involving some of the parties to this case If am aware yes And believe that there was what reference earlier today to an amparo proceeding A-M-P-A-R-0 Yes The lawsuits that you are familiar with are those amparo lawsuits amparo proceedings In this case yes am aware of other matters which of course can not disclose but have seen two amparo 10 petitions concerning this matter filed one by the Estate of 11 Dorothy Kowalski Longoria and another petition for amparo 12 filed on behalf of Mr Longorias two sisters Adriana and 13 Sylvia Longoria Kowalski 14 When you say other matters you cant disclose 15 you are talking about involving people who are not parties in 16 this case other lawsuits that are totally unrelated to this 17 Yes totally unrelated to them but that am familiar 18 with 19 In other words your testimony -- you described the 20 matters in Tamaulipas that you are familiar with involving the 21 parties to this case 22 Yes am only making reference to the judicial 23 matters of amparo related to this case 24 Can you tell me what an amparo proceeding is What 25 sort of litigation matter is that 00939 57 Sure The juicio the amparo which is the official name of the institution its legal proceeding by means of which private individual or an entity may prepare proceeding by means of which you ask the federal judiciary provide protection to you against an infringement or violation that any governmental authority either executive or the judiciary or eventually the legislature is committing against your fundamental human or constitutional rights And what is the alleged infringement that is at issue 10 in the two amparo proceedings one which was filed by the 11 Executor here and the one which was filed by Adriana and 12 Sylvia 13 Sure Basically they are claiming that their 14 Constitutional right to due process of law was infringed to 15 them because in the probate proceedings related to the 16 testament of Mr Eduardo Longoria Theriot which is Mr 17 Longorias father they were -- they will that were argue they 18 not called to meeting which is set forth or provided by the 19 Code the Tamaulipas Code by means of which the has to judge 20 hold meeting with the named heirs either or testamentary 21 not and any other relatives which are ascendant or descendant 22 So if Im understanding this correctly are they 23 going to the federal court in Tamaulipas in Nuevo Laredo and 24 asking it to direct that the state court do something 25 Yes they are asking the federal judiciary the 00940 58 federal court in Nuevo Laredo to review what the state court the state family court did to resti tute them of their infringed rights therefore to call this meeting of heirs and relatives and consequently to vacate or live without anything that happened before that meeting after that meeting am sorry Have you heard of mandamus petitions or writs of habeas corpus in the United States have heard of several names and several writs which are used in the United States and am familiar with some 10 original common law writs like the writs of and so on trespass 11 and so forth but do not know them in detail and am -- 12 dont know their particularities on how to action them or 13 something 14 In the proceeding like the amparo proceeding what is 15 the role of someone like Sylvia Longoria who is impacted by the 16 relief that is being sought in the amparo 17 Sure The parties to the amparo procedure are 18 basically conceptually three One is the complainant the 19 person who actions the petition who files complaint which 20 in Spanish is call queoso Okay then this counter-party to 21 that is the authority who allegedly committed the violation of 22 fundamental rights And in ludicial proceedings there is 23 another party which is called the third interested party to 24 set up empresarlo sic which has the right to appear before 25 the court and submit arguments supporting his own rights and 00941 59 supporting the role of the authority in order to avoid -- in order to demonstrate that no infringement was committed so it is three-party litigation So the amparo is the third interested party Yes Like real party in interest The third interested party is real party in interest And that has been acknowledged by both well it has been acknowledged by statutory law by case law and scholarly 10 writings 11 Does it appear that Adriana and Sylvia and the Estate 12 were able to find lawyers to assert this claim on their behalf 13 in Court in Nuevo Laredo 14 Yes 15 Would Adriana Sylvia or representative of the 16 Estate have been required to travel to Nuevo Laredo to assert 17 this claim 18 As far as understand from what read the 19 petitions of amparo were filed by lawyers that received power 20 of attorney from the Estate of Mrs Dorothy Kowalski Longoria 21 and the sisters Sylvia and Adriana Longoria Kowalski and this 22 attorney signed and filed the petitions of amparo on behalf of 23 them assume that the lawyers were physically there in the 24 office the clerical office of the Court to submit the 25 petitions themselves 00942 60 MR FISHER object to the testimony about what he assumed Thats not proper and we respectfully move to strike it THE COURT Overruled By Mr Hess Based on your review of the documents and your knowledge of Mexican law would there have been any legal requirement for Adriana Longoria Sylvia Dorsey or representative of the Estate to have gone to Nuevo Laredo to file this other than through their lawyers In other words 10 for example if Im going to -- if my client is Shelby 11 Longoria if file petition here in the state courthouse on 12 his behalf as his attorney right Shelby Longoria doesnt have 13 to come down to the courthouse with me and so Im asking you 14 whether if thats the case under Mexican law as well If you 15 have an attorney do you have to go yourself 16 If you have an attorney who has been vested with the 17 power of attorney and therefore is your empowered agent it is 18 not necessary for the grantor of the power of attorney to be 19 there 20 By filing an amparo proceeding have the Estate of 21 Dorothy Longoria has Sylvia Dorsey or Adriana Longoria 22 submitted themselves to the jurisdiction of the federal courts 23 in Tamaulipas Mexico 24 Yes 25 By filing an amparo proceeding have the Estate and 00943 61 Sylvia and Adriana submitted themselves to the jurisdiction of the state courts in Tamaulipas Mexico By filing that petition they have shown that they are complaining from an infringement of the state court and that they want restitution of their violated rights and therefore they will enjoy the benefit of the final decision if it is favorable to them Would it be unusual for someone to file an but amparo then take the position that the state court that is to be 10 directed by the federal court does not have jurisdiction over 11 them 12 Well have never heard of case -- situation of 13 that nature and it would be contrary in its sense 14 And has Shelby Longoria submitted himself to the 15 jurisdiction of the courts in Tamaulipas Mexico in connection 16 with the amparo proceeding 17 Thats what understand from the documents that have 18 been shown to me 19 In fact he made written submission with respect to 20 submitting himself to the jurisdiction of those courts right 21 Yes 22 And did the court acknowledge that written 23 submission 24 was shown court order having him appearing before 25 the court and by means of which he submitted some additional 00944 62 documents that were recorded by the court to be heard when the appropriate hearing comes and by means of which the court or provides that all documentation is -- all documentation concerning service of process be at the disposable of Mr Longoria in the offices of the court so that he can and have go them for whatever purposes that might be necessary under the law There is lot of back and forth in your affidavit and the affidavit of the estate expert Ilan Rosenberg 10 concerning personal jurisdiction Regardless of the rules 11 concerning of process and where the defendant lives or works in 12 Mexican state can federal and state courts in Tamaulipas and 13 also in Mexico assume jurisdiction over matter in which the 14 defendant has consented to personal jurisdiction 15 Yes 16 Similarly can defendant in an action in Mexico 17 such as Shelby Longoria if he is sued there by the Estate 18 waive or just not assert statute of limitations defense 19 These require clarification have never heard of 20 situation like you are saying waiving before the court 21 Usually when you do not want to exercise the statute of 22 limitations defense you just do not file it But the court 23 more appropriately cannot assert any defense on behalf of the 24 parties because the litigation private litigation is only or 25 litigation of this nature is party-driven as opposed to 00945 63 court-driven So if the party that has the defense chooses not to assert it then the defense is not part of the case right Yes Lets suppose that the claim that is asserted in this lawsuit in Harris County by the Estate is dismissed by the court here in Harris County so that it is no longer pending here in Harris County All right could the Estate then file lawsuit asserting the same claims in Tamaulipas Mexico and 10 have the court there assert subject matter jurisdiction over 11 those claims 12 Yes 13 What sort of causes of action might be available to 14 an Estate which alleges that the Decedents son somehow stole 15 money from or defrauded the Decedent 16 State elections 17 Yes 18 Okay it is an academic question but it might be 19 actions for negligence mismanagement fraud or whatever is 20 thought to be illegal or inappropriate and you have the right 21 to recover 22 So there are such causes of action in Mexico 23 Yes 24 And if the Estate were to prove its claims in Mexico 25 could Mexican court award damages to the Estate 00946 64 Yes And could Mexican court in enforce its damages Yes Now in case in the United States plaintiff will file petition there will often be discovery motion practice the plaintiff might change the nature of its claims but eventually if the case is not dismissed or summary judgment is not granted the case will be tried in the courtroom to court or the jury over period of days or weeks 10 or God forbid for period of time So thats how things 11 work in the United States Can you describe for the Court the 12 natural progression of how case proceeds in court in 13 Mexico 14 Sure May write notes so that can explain 15 THE COURT Sure Any objection to him writing 16 notes as he goes through to clarify his 17 MR FISHER No Your Honor 18 THE WITNESS Well it is not notes graphic 19 THE COURT Any objection to his explanation as 20 to how it would transpire 21 MR FISHER No 22 THE COURT To his explanation of how it would 23 transpire But you are explaining it out there to them Im 24 listening but you dont have to look back at me you can look 25 out there 00947 65 Okay Basically the procedure as understand it in the United States begins with petition thats submitted by the plaintiff and an answer submitted by the defendant As far as understand the petition of the plaintiff is brought and an answer from the defendant is also brought usually general denial In other words allegations tend to be often times fairly general in nature Yes The point is that it is my understanding its 10 how interpret this is basically the parties come before 11 court and they agree that they have an actionable cause or 12 claim thats an actionable cause of action Then there is 13 period that understand its called discovery in which 14 really the parties are dancing strategically to find out what 15 they really want in terms of what will be -- what are there 16 the issues in questions and what was the evidence they can 17 obtain to support their case Its called collaborative 18 process as opposed to an antagonist process And then when 19 they finally think there is enough discovery they agree on 20 what are the issues in question here and at this point they 21 lock the issues under litigation and then they have the hearing 22 or the trial the trial which is to try the evidence and their 23 arguments Well this is -- and finally after trial there is 24 adjudication This is not what happens in Mexico First the 25 main trial is not infrequently mistranslated What we have in 00948 66 Mexico is something that we call juiclo and it is basically judicial proceeding As it happens in the United States everything begins with petition and an answer from the defendants But as opposed to what happens in the United States the petition has lot of formalities which require this detailed narration of all the facts citation of all the authorities upon which you are basing your claim and the type of action that you are submitting to the court both in statutory authorities and case law authorities and have you 10 make detailed list of all the evidence that you want the 11 court to hear And in addition to that you have to say what 12 do you want to prove with the evidence that are you offering 13 And this is all at the beginning 14 Yes And the answer is as detailed It has to 15 address all the facts all the authorities all the evidence 16 everything Once the petition is filed and the answer is 17 filed the issues in question are locked So at this moment 18 the issues in and questions are locked as opposed to what 19 happens in the American version in which the issues are locked 20 here So during this period here pointing to graphic 21 basically the court will what you will say try all these 22 issues and questions hearing evidence and everything the 23 lawyers will argue whatever they think is appropriate to 24 support their cause of action or their exceptions and defenses 25 and finally the court will adjudicate In opinion the most my 00949 67 important differences are that we lack of discovery and the time in which the issues under litigation are locked In court in Mexico if you have lawyer can you go through that process by having your lawyer to court without go necessarily having to appear yourself Well in almost all of the cases it is the lawyer that does the court appearing and all that stuff The owners of the litigation your cThents seldom to court unless go you call them for purpose 10 Now sometimes is there testimony in court in Mexico 11 Well in almost all cases testimony either of the 12 parties or other parties is one of the evidence submitted 13 unless you are relying totally on documentary evidence 14 When there is live testimony in court in Mexico is 15 that typically one-time occurrence or does it sometimes 16 happen that witness has to go back to court over and over 17 again to testify 18 Usually when someone submits his or her is testimony 19 one shot deal They dont call you again and again It is 20 one way -- one shot deal even if it takes long hours 21 And is there procedure in Mexico -- is there 22 procedure for Mexican court to obtain evidence from witnesses 23 who are in the United States 24 Yes Actually yes 25 And can you describe that 00950 68 Well there is the Hague Convention on getting evidence abroad which dont know but assume that the United States is party but the Codes themselves for provides procedure And interestingly the practice is that American courts are very open to receive orders from countries and they always honor them And in the event if you are trying to get the testimony of party to the case you can ask the court and the court has exercised personal jurisdiction over the party you 10 do not have to go through that right 11 Can you rephrase 12 If there party to the case and the court has -- in 13 Mexico and the court has exercised personal jurisdiction you 14 can also obtain testimony in that way right 15 Yes 16 MR HESS Pass the witness 17 CROSS EXAMINATION 18 Questions By Mr Fisher 19 Sir you testified that in Mexico actions for 20 mismanagement fraud and negligence are available right 21 Yes 22 But let me ask you what that means What are the 23 elements of an action for mismanagement And let me ask you 24 specifically about the state of Tamaulipas Do you know 25 dont know the entire Code by heart If you bring 00951 69 me the law the statute and you ask me the specific questions you want me to answer will gladly give you an opinion here for what you are asking me Okay So you are not testifying today that Thomas Dorsey as Executor of the Estate of Dorothy Longoria would have cause of action against Shelby Longoria for negligence under the laws of the State of Tamaulipas You are not prepared to give that opinion are you No 10 And similarly with regard to fraud you are not 11 prepared to testify that that would be available to the 12 Executor in the State of Tamaulipas 13 Can ask you exactly what you are asking me Are 14 you asking me if fraud action can be filed against Mr 15 Dorsey 16 Let me try to be more specific 17 Yes please 18 Can you tell us What are the elements of an action 19 for fraud in Tamaulipas 20 As told you before need to see the Code 21 dont know the Code by heart Whenever in my practice we have 22 to assess or submit an action we look to the Code scholarly 23 interpretation of the Code and we review case law so that we 24 can be fully sure diligently sure that our cause of action 25 will prosper because as mentioned and that have all the 00952 70 elements because as mentioned to you filing lawsuit is one shot deal If you do it wrong you are risking the whole case All right appreciate the candor about that As general proposition would you agree that to bring any kind of tort case in Mexico there has to be duty owed Well first let me tell that tort is common law concept and Mexico is civil law country tort is procedural concept that does not exist in Mexico If your 10 question is if there might be causes of action for illegal 11 acts or negligence acts the answer is yes 12 Okay But you are not testifying to this court that 13 the allegations of Thomas Dorsey fulfill all of the elements of 14 any of those kinds of causes of action 15 am quite confused about what is the nature of the 16 allegations of the Estate because from all the documents have 17 reviewed my impression is that at some point the estate argues 18 one thing and the other thing dont know do not have 19 clear idea or picture in my mind of what kind of thing is that 20 is being actionable suppose that this is because of the 21 nature of the Anglo-American common law style of the legal 22 proceedings dont know 23 Have you read case law in the State of Texas on the 24 tort of breaching an informal fiduciary relationship 25 Not that remember 00953 71 Okay so thats not claim you are familiar with is it If you are asking me if have general of knowledge the English language in what you are saying assume but have not read case law in that sense that recollect Okay And its true isnt it that in Mexico private trust relationships are not recognized Well have been comparative law lawyer most of my life both -- 10 Please answer my question sir Are private trust 11 relationships recognized in Mexico 12 Thats leading question Its inappropriate you 13 are making the question in manner that can not respond in 14 the manner in which you are making the question 15 All right well let me try again If two private 16 citizens neither of which is registered trust company agree 17 between themselves to have trust relationship -- 18 Trust meaning what 19 One party is holding property for the benefit of 20 another 21 There can be the functional equivalent to trust 22 yes in the manner that your describing it 23 And its your testimony that there are cases 24 enforcing those relationship Not contract 25 am not aware of case law for that specific 00954 72 question dont know Now you have said you feel safe when you travel in Tamaulipas Are you aware that the United States Department of State has issued travel advisory It is my understanding that there was in the past travel advisory Well in fact there wasnt one in the past there is one in fact right now did you not know that No 10 MR FISHER May approach the witness 11 THE COURT You may 12 By Mr Fisher Would you please look at Exhibit D-2 13 Sure 14 MR FISHER Your Honor since this is 15 governmental publication Im going to offer it into evidence 16 MR HESS No oblection 17 THE COURT Admitted 18 Should read it 19 By Mr Fisher will point you to certain parts 20 Turn to page if you would please At the bottom of that 21 page there is section specifically related to Tamaulipas 22 Uh-huh 23 And it says among other things and quote You 24 should defer non-essential travel to the State of Tamaulipas 25 All USC employees and will represent to you thats United 00955 73 States Government Okay employees are prohibited from personal travel on Tamaulipas highways outside of Matomoros and Nuevo Laredo due to the tenuous security situation Were you aware of that No was not aware of that And so employees of the United States government are forbidden to travel on those highways Thats what you are showing me 10 And if you will turn back to page in the next to 11 last paragraph this government publication says United 12 States government personnel and their families are prohibited 13 from personal travel to all areas to which it is advised to 14 defer non-essential travel When travel for official purposes 15 is essential it is conducted with extensive security 16 precautions United States government personnel and their 17 families are allowed to travel for personal reasons to the 18 areas where no advisory is in effect or the advisory is to 19 exercise caution And with regard to the genera public it 20 says and quote While the general public it says and 21 quote While the general public is not forbidden from visiting 22 places categorized under defer non-essential travel United 23 States government personnel will not be able to respond quickly 24 to an emergency situation in those areas due to security 25 precautions that must be taken by United States government 00956 74 personnel to travel in those areas Does that sound like safe place to go to you Should respond candidly Yes Okay Please do My clients lot of the work that do is represent American clients doing business in Mexico and they frequently travel between Monterrey and Laredo and also between Monterrey 10 and Reynosa for the purpose of doing business and because they 11 want to buy American goods or something and they are seldom in 12 agreement with this kind of circular and travel have they 13 -- none of my clients have ever paid too much attention In my 14 opinion you are trying to magnify problem that we have in 15 Mexico 16 When you say you you mean the government of the 17 United States 18 No mean you 19 Well only read what this says sir 20 But you are asking my opinion You asked for my 21 opinion and requested to your permission speak candidly and 22 am giving my opinion about what you are saying 23 Okay And its understandable that people trying to 24 do business in this region would resent publication like this 25 because it would hurt their business wouldnt it 00957 75 Well you can go to the public records of the amount of trucks that cross every day between the two Laredos between Reynosa and McAllen and you would be impressed and assume that if those trucks cross the border its because they didnt have an incident MR FISHER No further questions Your Honor THE COURT Okay MR HESS Just few Your Honor REDIRECT EXAMINATION 10 Questions By Mr Hess 11 If person goes and files lawsuit in Nuevo Laredo 12 when asked the question hypothetical question if person 13 in Houston files lawsuit in Nuevo Laredo in court in 14 Mexican Court right and lets say they even want to go and 15 attend in court themselves for the proceedings in that lawsuit 16 right could they get there by flying to the Laredo 17 International Airport in the American side and how far would 18 they have to drive to the courthouse in Nuevo Laredo 19 For the federal court 20 Federal court right 21 Its few blocks from the old bridge 22 So few blocks into Mexico 23 Yes And the state court you will have to drive 24 through one of the main roads to something which is called 25 Palaclo de lusticia is where all the state courts are 00958 76 Would that require the person coming from Houston who actually decides to go to court even if they dont have to in Nuevo Laredo to travel on these highways between Laredo and Monterrey No because courts are within city limits And the city is right next to the United States Right Actually they touch the river Right Nuevo Laredo goes right up to the river right 10 And Reynosa too 11 In Reynosa too And in fact Sylvia Dorsey and the 12 Estate have in fact already filed lawsuit in federal court 13 in Nuevo Laredo Tamaulipas right 14 That is shown by the documents have reviewed 15 Thank you 16 MR HESS Your Honor have nothing further 17 THE COURT All right Let me clarify one 18 thing The lawsuits that are currently pending in Mexico do 19 they relate to Eduardo Longorias Estate 20 THE WITNESS They challenge the Eduardo 21 something is at the court in Eduardo Longorias probate Estate 22 THE COURT Okay To your knowledge is there 23 anything pending there that relates Dorothy Longorias Estate 24 THE WITNESS No 25 THE COURT Okay Thank you Anything further 00959 77 THE WITNESS am sorry am sorry can clarify THE COURT Sure asked you yeah you can clarify opened that door THE WITNESS The petitions were made by the Estate of Dorothy Longoria in that sense One of the petitions was filed by the Estate of Dorothy Longoria challenging the probate procedure of her husband The other petition was filed by the sisters Sylvia and Adriana Longoria Kowaiski 10 challenging the probate procedures of his father Eduardo 11 Longoria Sr 12 THE COURT Okay 13 THE WITNESS They say in the petitions that 14 they claim for the protection of the federal judiciary because 15 thats the only remedy they have to obtain restoration of their 16 rights 17 THE COURT Okay and in your affidavit do you 18 fee like you have made that clear as to the different 19 litigation that is ongoing in Mexico scanned your 20 affidavit but the points you are making to me now are in they 21 your affidavit as to the nature of proceedings going on in 22 Mexico 23 THE WITNESS Yes made reference to the 24 amparo proceeding highlight this kind of protection they 25 are asking for highlighted that they affirmed that that is 00960 78 the only remedy they have and thats why they are going to the Court But didnt make this explanation or explain the nature of the juicio or amparo THE COURT All right thank you You may step down THE WITNESS Thank you MR FISHER Professor Gabaurdi was our second and final witness for our side THE COURT Thank you guess at some point 10 have to be definitive mean Im going to -- whatever is 11 going on think 330 is the latest want to hear things 12 further Im not trying to short circuit it or guess am 13 trying to short circuit it but have got all sorts of 14 paperwork in front of me have heard the gist of the 15 different aspects of the argument for which forum the 16 counterclaims should be in and there is three or four key 17 things that have to think through to be presented but with 18 that being said you can present your evidence and just like 19 to shoot for 330 conclusion to all this 20 MR FISHER Yes sir 21 THE COURT Given that you told me that this was 22 going to take an hour 23 MR FISHER That was our case 24 THE COURT always double or triple what 25 attorneys tell me My feeble attempt at humor 00961 79 MR FISHER If you can give us five minute break that may streamline things THE COURT Okay five minutes At which time the Court took short recess THE COURT All right you are going to call your witness now MR FISHER Yes Your Honor Its my understanding that the Movant has rested just want to clarify that 10 MR HESS Yes 11 MR FISHER Your Honor we call Mr Fernando 12 Elias-Calles 13 FERNANDO ELIAS-CALLES ROIlO 14 called as witness after first having been duly sworn 15 testified as follows 16 DIRECT EXAMINATION 17 Questions By Mr Fisher 18 Would you please state your name sir 19 Fernando Elias-Calles Romo 20 Where do you live sir 21 live in Mexico City 22 What do you do for living 23 Fm petitioner lawyer 24 How long have you practiced law 25 Since graduated law school in 98 00962 80 Where did you go to law school In Mexico went to law school at Escuela Libre de Derecho and then obtained masters degree at the University of Chicago Law School And in what areas do you practice do civil and commercial litigation and also corporate work Let me get the right to the point of your testimony Do you know Sylvia Dorsey and Adriana Longoria 10 Yes do 11 And are they clients of yours 12 Yes 13 In what matter or matters do you represent them 14 am representing them in an amparo proceeding in 15 Nuevo Laredo 16 Have you ever represented James Thomas Dorsey as the 17 Executor of the Estate of Dorothy Longoria 18 Yes have 19 In what sort of proceeding 20 We filed amparo proceeding but that amparo 21 proceeding is not pending anymore because we decided to 22 concentrate our efforts in the Sylvia and Adriana personal 23 amparo proceeding 24 Okay So there is one amparo proceeding pending at 25 this time 00963 81 Yes sir this is And what relief is being sought in that case The only relief is we have requested the constitutional judge to grant us protection and relief and order the state court to respect the due process of rights so the only effect would be to order the judge to give notice due notice to Sylvia and Adriana as descendents of Eduardo Longoria Theriot and give them access to that probate matter So this is the case involving the probate of Eduardo 10 Longorias Will 11 Yes 12 It does not involve probating any Will of Dorothy 13 Longoria is that right 14 Yes 15 Now who is the defendant in that case 16 The defendant is the court the family court from 17 Nuevo Laredo 18 So this petition you filed on behalf of Sylvia and 19 Adriana was it filed in state court or federal court 20 Federal court 21 So it is not in state court of Tamaulipas 22 No it is not 23 But it relates to case in state court 24 Yes 25 And that case involved the probating of Eduardos 00964 82 Will Yes Now in connection with the petition you filed was it necessary to have notice served on Shelby Longoria When we filed the complaint which is named the per amparo statute which is named at that moment the defendant as we would he adequate the authority and once the court of Nuevo Laredo informed and gave us access to the probate file we identified as third parties or third interest parties Mr 10 Shelby Longoria and Mr Eduardo Longoria Jr and we then 11 named them as the third interested parties 12 Okay And under the procedures applicable to this 13 kind of case who effects service of process Is it the 14 lawyer or the court or someone else 15 An official from the court 16 And tell this court what happened when the Mexican 17 court the Mexican federal court attempted to serve Mr 18 Longoria 19 Well the Mexican official of the court first tried 20 to serve Mr Shelby and Mr Eduardo Longoria Jr at an 21 address in Ciudad Reynosa Tamaulipas And that address was 22 obtained because in the probate court file of Eduardo Longoria 23 Theriot when Mr Shelby Longoria appeared he named or 24 designated his address with an ID stating that his address was 25 in Ciudad Victoria When the official from the court went to 00965 83 that address it appeared to be commercial building that was unoccupied and there was sign for lease All this in the court file After that the Court ordered that Mr Shelby Longoria and Mr Eduardo Longoria Jr be served at the procedural address that they had designated in the probate proceeding of Eduardo Longoria Theriot Then the official from the court proceeded to go to that address and its notary publics office think if recall correctly Notary Public No 97 in Nuevo Laredo And they did not accept service on 10 behalf of Shelby Longoria and Eduardo Longoria Jr stating 11 that even though that they had handled some business for them 12 that they had concluded that and that they thought that they 13 resided in the United States After that we requested the 14 court per the Mexican statutes that Mr Shelby Longoria and Mr 15 Eduardo Longoria Jr be served through rogatory letters which 16 is the way Mexican court can request the aid of foreign 17 authority to do the service of process and we had designated 18 their home addresses so they can be served and the due process 19 right is duly respected on their behalf And those letters 20 rogatory are in process of being delivered 21 When did you file this petition to start the amparo 22 case 23 We filed it at the beginning of June think on the 24 6th of June 2013 25 So June July August and September and passed you 00966 84 werent able to get Shelby Longoria served No And to this day has he appeared in the case He has filed an appearance think this happened lust last week But thats the only thing that has happened Do you anticipate that it will be for necessary Sylvia Dorsey and Adriana Longoria or either of them to travel to Tamaulipas in order for you to proceed with the case that you filed there 10 No 11 MR FISHER Nothing further Your Honor 12 THE COURT All right 13 CROSS-EXAMINATION 14 Questions By Mr Hess 15 Mr Calle 16 Yes 17 So Mr Longoria has appeared in the case 18 He has filed an appearance 19 Right He has submitted to the personal jurisdiction 20 of the court 21 To the jurisdiction dont know whether or not the 22 term personal jurisdiction we dont use it but to the 23 jurisdiction of the constitutional court yes he has 24 And he filed the case because believe that that you 25 court could exercise jurisdiction over Shelby in this Longoria 00967 85 cause of action right No Can clarify Sure In Mexico we filed that amparo proceeding to question the acts of an authority If would the as you equate procedure Mr Gabaurdi has already stated The defendants in that case or the plaintiffs in the case would be Adriana and Sylvia Longoria and the defendant is the court as an authority So thats why we filed there So Mexican law the jurisdiction in 10 that case isnt in Nuevo Laredo because thats what the amparo 11 statute states and we are basically could you say that we are 12 suing judge and we are requesting constitutional protection 13 You are suing judge because youre challenging 14 actions of court in Tamaulipas 15 Yes 16 Right And it is your belief that the courts of 17 Tamaulipas should have jurisdiction to address challenges to 18 actions -- try again Its your opinion that the federal 19 courts of Tamaulipas should have jurisdiction to address such 20 challenge to an action of the state court of Tamaulipas 21 MR FISHER Objection vague Federal courts 22 of Tamaulipas is contradiction of terms 23 MR HESS Federal courts in Tamaulipas 24 By Mr Hess Its your belief that the federal 25 courts in Tamaulipas have jurisdiction to entertain or to hear 00968 86 challenge to the actions of state court of the state of Tamaulipas would say yes with clarification Federal courts in Mexico have two kinds or they address two wishes One is federal matters and others are lust constitutional matters In this case we are just speaking as to the constitutionality process of amparo so would say yes just in this case just in the amparo proceeding And for that purpose you felt it was to necessary 10 service Sylvia Longoria right 11 Uh-huh 12 And you have heard been here all day right 13 Yes 14 And you heard this morning that he consented to 15 personal jurisdiction in Mexico 16 heard yes 17 And you are aware that in fact he has filed paper 18 appearing in the amparo proceeding in Nuevo Laredo 19 Yes 20 Thank you 21 MR HESS Nothing further 22 fIR FISHER Nothing further from here 23 THE COURT Thank you You may step down 24 MR FISHER We call Mr Ilan Rosenberg 25 ILAN ROSENBERG 00969 87 called as witness after first having been duly sworn testified as follows DIRECT EXAMINATION Questions By Mr Fisher What is your full name Ilan Rosenberg How old you are you sir am 39 years old Where do you live 10 live in Philadelphia Pennsylvania 11 What do you do for living 12 am an attorney 13 How long 14 Practiced law for about fifteen years 15 When did you become licensed to law first practice 16 originally became licensed to practice law in 17 Mexico and then became licensed to practice law in the 18 Commonwealth of Pennsylvania 19 Where did you go to law school 20 went to law school at the Escuela Libre de Derecho 21 in Mexico City 22 And what degree did you obtain 23 The degree is formerly called A-B-0-G-A-D-0 Abogado 24 Its bachelors of law 25 Is it comparable to juris doctorate degree in the 00970 88 United States Correct And have you earned any other degrees have have earned Master of Laws from the University of Pennsylvania Law School and Master of Comparative Laws from the University of Pennsylvania Law School Are you licensed to practice law in all courts in the nation of Mexico 10 Correct 11 In what courts of the United States are you licensed 12 to practice law 13 am licensed to practice law in the Commonwealth -- 14 all courts of the Commonwealth of Pennsylvania as we as the 15 Eastern Middle Districts of Pennsylvania the Eastern District 16 of Wisconsin the Northern District of Illinois the Third 17 Circuit Court of Appeals the Third Circuit US Court of 18 Appeals the Federal Court of Appeals and the United States 19 Supreme Court 20 For how much of your professional career have you 21 been involved in litigation in the United Mexican states 22 Ive been engaged in litigation in Mexico since 23 graduated law school uninterrupted 24 For the entire fifteen years or so 25 Correct 00971 89 And have you ever handled litigation in the state of Tamaulipas About dozen times Were any of those cases tort cases Every single one of them And have you handled cases in the United States which involved the law of Tamaulipas Yes And were any of those tort cases 10 About seventy 11 Seventy 12 Seven zero 13 Okay Are you fluent in Spanish 14 Yes am 15 Have you ever been recognized and accepted as an 16 expert in Mexican law by any court in the United States 17 have Ive been accepted as an expert in Mexican 18 law by the 190 District Court of Harris County believe 19 thats the proper name And Ive been accepted as an expert in 20 Mexican law by the Northern District of Texas Dallas Division 21 and Ive been accepted as an expert in Mexican law by the 22 Central District of California US District Courts of the 23 Central District of California 24 Were you engaged by me as counsel for James Thomas 25 Dorsey Independent Executor of the Estate of Dorothy Longoria 00972 90 to opine on some issues of Mexican law Iwas And have you formed some opinions relating to this case have Did you write an affidavit setting forth your opinions did MR FISHER May approach the witness Your 10 Honor 11 THE COURT You may 12 By Mr Fisher Is Exhibit D-1 copy of your 13 affidavit 14 believe its actually the original but no 15 exhibits 16 No exhibit 17 Correct 18 MR FISHER Your Honor may substitute copy 19 with the exhibits attached 20 THE COURT Any objection 21 MR HESS No Your Honor 22 MR FISHER Thank you 23 By Mr Fisher Please identify Exhibit D-1 24 Thats the affidavit executed believe on 25 September 30th of this year 00973 91 Did you write this affidavit did The affidavit has two exhibits Can you identify those please Certainly The first of the exhibits is my CV The second of the exhibits is the Spanish language version of court opinion that transcribed or translated into English in the body of the affidavit Now Exhibit your curriculum vitae does it 10 accurately set forth the facts therein Is it true and 11 correct 12 believe that its correct yes 13 And is this affidavit true and correct in so far as 14 it relates facts 15 To the best of my knowledge yes 16 Okay 17 MR FISHER And Your Honor we offer Exhibit 18 D-1 19 MR HESS No objections 20 THE COURT Exhibit D-1 is admitted 21 By Mr Fisher Lets talk about claims for breach of 22 fiduciary duty 23 Certainly 24 If Mr Dorsey as an Executor of the Estate of 25 Dorothy Longoria were to try to bring his claims in court in 00974 92 Tamaulipas would those claims be recognized Are we talking substantively Yes There is no cause of action for breach of fiduciary duty under the laws of Tamaulipas So if he were to file there the claims that he has filed in this Court would remedy be afforded any None Is an informal fiduciary relationship recognized 10 under the laws of State of Tamaulipas 11 Neither formal or informal are recognized 12 Were you present when Dr Gabaurdi testified 13 was 14 And did you agree with what he said about private 15 trusts being enforced in Mexico 16 Well private trusts the Mexican Supreme Court has 17 expressly said that Mexico does not recognize private trusts 18 It recognizes statutory trusts statutorily based relationships 19 where the trustee is also financial institution which are 20 the Supreme Court has explained is viable in Mexico due to 21 regulatory and legislative oversight of banking activities 22 Is there any tort thats recognized in Tamaulipas 23 that could apply to the claims that the Executor has asserted 24 in this Court 25 The only thing that would remotely be actionable is 00975 93 perhaps an unjust enrichment claim Would that claim be available to the Executor in this case Not in this case no Why not Because that action is time barred By statute of limitations And by statute of repose What was the difference 10 The statute of limitations is waivable its simply 11 the amount of time -- under Mexican law its not called the 12 statute of limitations its called prescription and its the 13 loss of right by the mere passage of time 14 And what is the statute of repose 15 The statute of repose which is actually in Spanish 16 called Caducidad C-A-D-U-C-I-D-A-D is essentially the -- 17 provision of the law that is created as matter of public 18 policy that will bar any future actions 19 Can that be waived 20 It can not 21 And how long is the period of the statute of repose 22 The statute of repose is five years and the statute 23 of limitations is one year 24 Just so Im clear it is your testimony that the 25 statute of repose is non-waivable 00976 94 Thats correct In addition to the simple fact that the cause of action isnt recognized in Mexican law would the law of Tamaulipas recognize any obstacle to anyone trying to bring claim of breach of fiduciary duty Well there is certainly lot of procedural obstacles more than anything else as Dr Gabaurdi explained earlier perhaps the biggest problem is that complaint as we know that in Mexico is functionally judgment motion summary 10 You have to have all of the information that could be available 11 to you on the day you file complaint because you are not 12 really allowed to amend pleadings or introduce evidence that 13 has not been identified at the outside So guess maybe 14 adding to that is the fact that there is no discovery and there 15 is no ability to inspect accounts so no it could not be 16 brought in Mexico 17 will represent to you that under Texas law if 18 fiduciary duty is owed the fiduciary has an affirmative duty 19 of disclosure and claims can be brought for failure to 20 disclose Is there anything like that recognized in Mexican 21 law 22 No 23 Would court in the state of Tamaulipas have 24 jurisdiction or Shelby Longoria if the Executor of the Estate 25 of Dorothy Longoria were to sue him on the theories presented 00977 95 here The Court in Mexico would not have original jurisdiction because the guess Mr Longoria Shelby is admittedly resident of the United States and causes of action in personam are -- the jurisdiction of Mexican courts and the courts of Tamaulipas specifically in some actions is per dependent upon the residence of the defendant So if the defendant does not reside within wont call it jurisdiction but within the territorial ci rcumscri pti on of the Court then 10 no there is no original jurisdiction 11 You have heard it -- have you been present throughout 12 the hearing today 13 have 14 All right You have heard it said that Shelby 15 Longoria is voluntarily submitting to the jurisdiction of the 16 courts in Tamaulipas 17 In federal court the amparo court 18 All 19 Im sorry just want to clarify 20 All 21 All 22 fIR HESS want to make it clear all courts 23 in Tamaulipas either federal or state 24 Understood 25 By Mr Fisher Is it your testimony that court in 00978 96 Tamaulipas would dismiss case against Shelby even if he vol untari purported to submit to its jun sdi cti on There is two aspects to the jurisdictional argument one is the personal jurisdiction There is distinct very likelihood would say almost certainly court that receives complaint that sees complaint thats filed with the court has duty to ascertain ab initio to whether it has jurisdiction Thats the first thing the Court must do If the court sees that the defendant is not resident of Mexico 10 the common practice among Mexican courts is that those cases 11 get dismissed So the defendant is never given notice and the 12 action is never admitted to process by the court 13 Sua sponte dismissal correct 14 That is sua sponte dismissal correct There is 15 separate issue as well with respect to what would call 16 subject matter jurisdiction and that there is claim pending 17 in the United States and the action which purportedly be might 18 brought in Mexico is cross-claim to that action Now 19 understand based on the representations that were made today 20 that there is no challenge to this courts jurisdiction over 21 the Estate or over the claims that Shelby Longoria has 22 asserted The problem is that the claims that Shelby Longoria 23 has asserted are essentially standing claims If an action 24 were filed in Mexico there is no question that the Court could 25 not even ascertain whether the plaintiff has standing to file 00979 97 that suit So it could not entertain the substance of the dispute if it cant even entertain the predicate of the fundamentals which are does the party have standing to bring the suit You are talking about the standing of James Thomas Dorsey as Executor Correct My understanding is that Mr Longoria is challenging Mr Dorseys appointment as the representative of the Estate Executor of the Estate excuse me 10 Now with regard to the third party claims that 11 Shelby Longoria has filed against Sylvia Dorsey and Adriana 12 Longoria 13 Yes 14 If Shelby were sued in Mexico and lets just assume 15 hypothetically in spite of everything that have the you said 16 court took the case exercised jurisdiction over it and 17 proceeded could the Court proceed to adjudicate those third 18 party claims 19 My understanding is that Adriana and Sylvia Longoria 20 have not stipulated to the jurisdiction of Mexican courts for 21 those purposes because they are foreign residents there is no 22 way that the court could adjudicate those claims that 23 Mexican court in Tamaulipas could adjudicate those claims 24 You understand that Sylvia Dorsey and Adriana 25 Longoria have filed an amparo action in federal court 00980 98 do What is an amparo action An amparo action is an action that seeks constitutional redress from the Mexican federal judiciary acting as constitutional court as against the acts of authorities or individuals certain very limited categories of individuals acting under color of state law Dr Gabaurdi testified in his affidavit that the filing of the amparo action was an acknowledgement of the 10 adequacies reliability and better convenience than the Mexican 11 judicial system Is that true 12 Well let me put it this way what it is an amparo 13 action is the only remedy that exists as far as know in the 14 world to obtain Mexican constitutional redress against 15 Mexican governmental entity so cant really speak to the 16 convenience dont know that its question of convenience 17 its question of it being the exclusive court that can 18 adjudicate the constitutional violations by Mexican government 19 authorities 20 So an amparo case could not have been brought in any 21 other courts 22 No 23 And is the filing of an amparo case some sort of 24 agreement to submit to the jurisdiction of the Mexican courts 25 Well its an agreement to submit to that court for 00981 99 the purposes of that proceeding But nothing more than that Nothing more than that or at large correct Does the concept of minimum contacts exist in Mexican law -- No -- as to personal jurisdiction Im sorry for not letting you finish No it does not 10 What about the concepts of specific jurisdiction and 11 general jurisdiction 12 The concepts themselves dont exist but what the way 13 would articulate it is and will use the terms jurisdiction 14 and competence which is the term of art in Mexico 15 interchangably just because they are functioning synonyms 16 forgot where was The -- can you restate the question Mr 17 Fisher 18 Specific and general jurisdiction 19 Yes The most akin way to explain it if were 20 talking about US law is that Mexico recognizes essentially 21 something similar to specific jurisdiction So jurisdiction is 22 assessed on case by case basis There is no general 23 jurisdiction of particular court It must be assessed on 24 case by case basis 25 Now have you read Dr Gabaurdis affidavit 00982 100 have And do you recall he makes reference to Supreme Court decision regarding service of process Ido Do you agree or disagree with his opinion concerning the significance of that case agree with the significance of that case except it has no application in Tamaulipas Why not 10 Well let me distinguish Insofar as it to pertains 11 the exercise of jurisdiction dont agree that that case 12 speaks to jurisdiction It does not It speaks to service of 13 process To the extent that it speaks to service of process 14 agree that the case says what it says but it deals with 15 provisions that are very different from those that exist in 16 Tamaulipas vis-a-vis service of process original service of 17 process 18 And whats the significance of that difference as it 19 relates to this case 20 Insofar as it pertains to this case in that the 21 plaintiff if plaintiff were to file an action against Mr 22 Longoria in Mexico in Tamaulipas specifically they would have 23 to identify his home address as the place where he lives and 24 the place where he must be served with process That requires 25 obviously that the court will immediately see what the court 00983 101 will immediately see is that the defendant is foreign defendant and as mentioned earlier more likely than not highly more likely than not will dismiss it sua sponte Finally in his opening statement Mr Carter said that Mexican court might not recognize judgment of this court Do you agree or disagreewith that assertion Thats -- pardon me thats wholeheartedly wrong Mexican courts regularly enforce foreign judgments particularly US judgments Mexico is the USs their largest 10 trading partner the US is Mexicos first largest trading 11 partner or largest trading partner as they are also known If 12 there were no way for their reciprocal judgments to be enforced 13 between nations that simply wouldnt be the case 14 Is there any or opinion concerning Dr Gabaurdi 15 affidavit that you were prepared to express that didnt ask 16 you about 17 Not that can remember 18 fIR FISHER Nothing further Your Honor 19 THE COURT All right 20 CROSS-EXAMINATION 21 Questions By Mr Hess 22 Mr Rosenberg you are not admitted to practice law in 23 Texas right 24 That is correct 25 You are not an expert in Texas law right 00984 102 Nor do hold myself out to be Right You are not purporting to offer any greater knowledge or expertise in Texas law than the court or Texas lawyers in this room right No You are not offering any opinions about whether the allegations that have been made in this case by the Executor of the Estate meet any of the elements of any cause of action under Texas either are you 10 Thats correct 11 You are not offering any opinions about the legal 12 significance on forum non conveniens consideration by Texas 13 court of the unavailability of particular cause of action in 14 Mexico right 15 Only to the extent that Texas adopts federal 16 standards for forum non conveniens which am familiar very 17 with am licensed to practice in federal court too 18 Right And have handled lot of forum non 19 conveniens cases at the courthouse as well You are not 20 offering yourself as an expert with greater knowledge and 21 opinions that are being offered to this court on American legal 22 standards on forum non conveniens 23 No believe thats the job of the Court 24 Right And so you are not offering any opinions on 25 the legal significance in forum non conveniens -- in making 00985 103 forum non conveniens ruling in Texas or federal court of the unavailability of cause of action in Mexico No What was asked to offer an opinion on is whether there is any cause of action under Mexican law under the laws of Tamaulipas for the claims asserted or for the facts as relayed in the counterclaim in this case And thats the scope of my opinion that there is none And you are offering no opinions in the legal significance in the United States or specifically in Texas with 10 respect to forum non conveniens inquiry of the expiration of 11 statute of limitation or statutes of repose right 12 Im sorry that is little long 13 Right that was little long You are not offering 14 any legal opinions about the Court in applying American forum 15 non conveniens law the significance of expiration of statutes 16 of limitation and statutes of repose right 17 Once again Im not offering single opinion on US 18 law or Texas law That my understanding is the role of the 19 court 20 And you are offering an opinion that the statute of 21 repose has expired in Mexico 22 Correct 23 And statute of repose for these claims would be five 24 years right 25 Correct 00986 104 And so these claims accrued more than five years ago right Thats my understanding My understanding is that Mr Longoria Sr Eduardo Longoria Sr passed way more than five years ago And my understanding is that the affairs at issue and that the claims at issue which my understanding is and again dont purport to offer any opinion on US law but the argument is arose at least as of 1983 claims that any arosethereon are barred by the statute of repose yes under 10 Mexican law 11 Because they accrued more than five years ago right 12 Well any unjust enrichment that accrued more than 13 five years ago regardless of whether it was discovered 14 yesterday or discovered three and half years ago no Im not 15 purporting to offer any further opinion on that 16 Right And were you aware that the statute of 17 limitations in Texas for breach of four fiduciary is years 18 No As said Im not Texas lawyer nor am 19 licensed to practice in Texas or familiar with statute of 20 limitations or breach of fiduciary duty in Texas 21 Okay Now you testified that in Mexican court the 22 standing of the Executor would have to be resolved first 23 Well its threshold issue in every case 24 So its your testimony that court would want to 25 know whether the executor is the proper executor before it 00987 105 reaches the substantive issues in the case No What am saying is that unless Mr Longoria were to concede that Tommy Dorsey is the legitimate representative of the Estate then the court would not enter would not begin to study the case in Mexico at all would it not entertain the case at all Right The Court would not entertain the allegations being made by Mr Dorsey if Shelby Longoria challenged Mr Dorsey as Executor The court would wait for that challenge to 10 be resolved first 11 No they would dismiss the case There is no stay of 12 actions in Mexico The case would be dismissed in its 13 entirety There is no cause of action in Mexico is essentially 14 where Im trying to get overall because the court could never 15 assert subject matter jurisdiction 16 And you are not offering -- youre aware know any 17 you are not offering opinions in the US law but are aware you 18 that there are cases that address in the US the legal 19 significance of foreign courts For example in some 20 countries there are statutes that say we will reject subject 21 matter jurisdiction if the case was first filed in the United 22 States Are you aware of that 23 Yes am aware of that 24 And you are not offering any opinions of the legal 25 significance of that rejection of subject matter jurisdiction 00988 06 in the foreign forum No And Im not talking about the statutory basis Im talking about court action Im assuming you are talking about the assertion of jurisdiction right Right By second Mexican court in this case Right Right No thats not what Im saying at all And Im not offering opinion on that Im just saying the court 10 can assess the standing of the parties then it certainly 11 cannot entertain the substance of dispute 12 In any event if the Will Contest and the challenge 13 to the Executor were to proceed in this court and to the get 14 end of that proceeding and it was found that the Executor is 15 the proper Executor there is no more challenge to it that 16 issue would go away in Mexico 17 Well certainly and there would still be no claims 18 to be asserted in Mexico 19 The Mexican Supreme Court interpreting the provisions 20 of both the Mexican federal and states Code of Civil 21 Procedure 22 What state Im sorry 23 Federal and many states Codes of Civil Procedure 24 Which ones sir 25 Okay The Mexican Supreme Court the interpreting 00989 07 provisions of Mexican federal civil procedure has long held the position that parties may agree or stipulate to submitting their disputes to specific court even when that court can not ordinarily exercise territorial un sdi cti on Yes the Mexican Supreme Court has also explained that in those provisions its speaking to choice of forum clauses in contracts Individuals and entities are fully empowered to relinquish the benefit of their home forum and submit to the 10 jurisdiction of particular Mexican court right 11 Correct provided they are afforded the process and 12 the action is allowed to proceed 13 In order to do so the parties must execute written 14 agreement which meets the two basic requirements described by 15 the codes in the Supreme Court of Mexico right which are -- 16 Well the Mexican Supreme Court has actually -- 17 -- which are unquestionable as you might be able to 18 tell Im reading from an affidavit 19 know exactly what you are talking about 20 Unquestionable relinquishment of the domestic form 21 and precise designation of the selected court 22 Thats correct 23 In other words the parties can execute document or 24 what have you where they agree to jurisdiction in Mexico 25 Yes And after issuing those opinions the Mexican 00990 108 Supreme Court explained that when it was speaking in those terms it was talking about choice of forum clause The parties could enter into choice of forum As far as understand and leave it at that this is not contract issue They are talking about choice of forum provisions in contracts so they are -- are pre they preselected choice of forum clauses that the Supreme Court has been talking about And do have to clarify that because the Supreme Court thereafter -- after prepared that affidavit 10 explained that it is talking about choice of forum clauses in 11 commercial and civil contracts 12 Mexican courts recognize the ability of private 13 parties to determine the courts jurisdiction by mutual 14 consent for instance by including choice of judicial forum 15 clause in an agreement or by otherwise contractually submitting 16 dispute to the dispute to the jurisdiction of the court or 17 arbitrable tribunal 18 Correct 19 MR HESS Thank you no further questions 20 MR FISHER Nothing further Your Honor 21 THE COURT Thank you 22 THE WITNESS Thank you very much Your Honor 23 MR FISHER Your Honor my last evidence is 24 just to request judicial notice of the timing and contents of 25 the pleadings in the case can quickly run through what they 00991 109 are THE COURT All right MR FISHER It is Shelby Longorias Contest of 2010 Will filed on believe on June 18th 2013 the Original Counterclaims of James Thomas Dorsey as Independent Executor filed on July 18th 2013 Shelby Longorias Amended Will Contest of 2010 Will they amended their pleading too on August 30th 2013 Shelby Longorias Third Party Petition filed on August 30th 2013 and James Thomas Dorsey Independent 10 Executors Original Counterclaims to Shelby Longorias Amended 11 Contest of 2010 Will and those Counterclaims were filed on 12 September 26th 2013 13 THE COURT All right 14 MR HESS Your Honor would add one which is 15 the fi rst thing filed in thi case whi ch P1 ai nti ff 16 Original Petition and Demand for Trial by Jury the Plaintiff 17 there being Mr Dorsey as Executor on May 3rd 2013 18 MR FISHER dont object to the Court taking 19 notice of it but that was not this case That was separate 20 -- docketed as separate case and not part of this case 21 THE COURT But in this court 22 MR FISHER In this court yes sir And 23 dont object to you taking judicial notice of his contest 24 THE COURT So no objection as to between the 25 parties as to all these documents or all these pleadings that 00992 110 were just stated by both attorneys FIR HESS Correct THE COURT The Court takes judicial notice of those pleadings and their documents filed of record MR FISHER Your Honor we want to declare on the record that our client Sylvia Longoria will not voluntarily submit to the jurisdiction of the Mexican courts as general proposition and we are resting We just renew our request that the Court sustain the Objections the Amended 10 Objections that were filed last Thursday September 26th 2013 11 Those were objections to the affidavit of Shelby Longoria and 12 to the affidavit of Kristen Schlemmer And with that request 13 we rest Your Honor 14 THE COURT All right 15 MR FISHER Thank you 16 MR HESS Your Honor lot of the objections 17 listed in the Executors written objections from last week have 18 now been withdrawn and we would like the to file opportunity 19 response to the ones pending 20 THE COURT All right will allow that 21 hate to open the door for flurry of responses and sir 22 responses and sir replies and stuff like that 23 MR FISHER Your Honor they filed long reply 24 brief yesterday dont understand why they couldnt address 25 00993 ill THE COURT will give you until Friday at five to supplement or further object to something and then will give you until Tuesday to respond if necessary My point is Im going to rule by the end of next week on this want to give it its due consideration given all the work thats been done and all the testimony that has been heard want to think it through one last time But think yall have covered it Let me put it that way Now let me -- as to now objections to affidavits etcetera thats all Im really opening the door 10 to is to clarify that to clarify whats still being objected 11 to have the notes as to what is not objected to anymore 12 So as go through your Amended Objections will take that 13 into account And then suppose you want to have one last 14 shot at responding to those objections 15 MR FISHER Yes Your Honor think that 16 lot of them relate to the affidavit of the attorney in our 17 office who that kind of you know sent them through as summary 18 judgment motions and attached bunch of documents and we are 19 little concerned about not about the affidavit itself but the 20 admissibility of the documents 21 THE COURT Correct 22 MR HESS And for what its worth some of 23 these documents were offered by the Executor today 24 THE COURT Okay 25 MR FISHER We might be able to submit 00994 112 something thats not brief but that actually just clarifies and tells ultimately what we believe to be the lay of the land THE COURT Thats fine will read it mean the bottom line is as you know on this one Im the decision maker so will be reading things Ill be taking into account whats been objected to and what might not be admissible obviously but get the big picture of what have got to decide and what to take into consideration so thank yall Anything further 10 MR FISHER No Your Honor 11 MR HESS No Judge 12 THE COURT Thank yall very much 13 14 15 16 17 18 19 20 21 22 23 24 25 00995 113 CERTI Fl CATE COUNTY OF HARRIS STATE OF TEXAS Donald Pylant Official Court Reporter in and for Probate Court No of Harris County State of Texas do hereby certify that the above and foregoing contains true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporters Record in the above-styled and numbered cause all of which occurred in open court or in chambers and were reported by me further certify that this Reporters Record truly and correctly reflects the exhibits if any admitted tendered in an offer of proof or offered into evidence by the respective parties further certify that the total cost for the 10 preparation of this Reporters Record is __________ and will be paid by ___________________ 11 Given under my hand and seal of office this the day _____ 12 of _____________ 2013 13 14 15 Donald Pylant C.S.R Official Court Reporter 16 in and for the County of Harris and the State of 17 TEXAS 18 Certification No 668 Exp Date 12-31-2014 Probate Court No One 201 Caroline Street 6th fi 19 Houston Texas 77002 713 368-6692 20 21 22 23 24 25 00996 CkSE NIJIvER 14.270 IN TI-rE ESTATE OF IN PROBATE COURT NO ONE DOROTHY LOUISE LONGO.RIA DECEASED HARRIS COUNTY TEXAS ORDER DENYThG MOTION OF SHELBY LONGORJA TO DISMISS OR TO ABATE COTJNTEkCLAIMS On October 2013 the Court-heard Counter-Defendant Shelby Longorias Motion To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending Resolution of Will Contest and Mexican Litigation the cMouons Having considered the Motion the brief filed in support of the Motion the response to the Motion the evidence admitted during the hearing on the Motion and the record of this case the Court has concluded that the Motion should be denied IT IS THEREFORE ORDERED that Counter-Defendant Shelby Longorias Motion To Dismiss Counterclaims for Porum Non Conveniens or Alternatively To Abate Pending Resolution of Will Contest and Mexican Litigation be and herthy Is DENIED SOOBDEREID onthis/11A_day of OcSsoher 2013 PRESIDING fIJI PRoBATE COURT Nwan ONE His Cotmrry Thns ORDER DENYING MOTION OP SHELBY LONGOflA TO DISMISS OR TO ABATE COUNTERCLAIMS Solo Page 00997 JUDGE LOVO WRIGHT Harris County Probat Court No 201 Carolino 8th Floor Houston Texas 7700 Phone 7133.68-67DO Fax 7136873oo FIOM Judge Loyd Wright Kimberly Hightower Susie owky Ruth Ann Stiles Hilda Riiey Cres Machicek Betty -Iazlewood Puige Compton Don Pylant Anthi Pavlicek Pam Speer To Date RE Comments PAGE OP CO1ENTLfly COIBNT1AL US OFTh NOTICE ThR INFORMATION DOCuME WFIfCH IS LEOAIJX ACCO AN PROViLflQ THISTILECOp TRANSMiSSION CONTAj RC1Irpttp NAMED INFQMATJoN 15 INTENDED flit N4O ABOVE NOrIpy IF YOU J-IAVB REIv mS TELECOy IN ERROR ONLY FOi ARJJ FOR DORPRQ ay TELEpHoNE TQ NOTij Ti1A ANY OisCQ$J RETijJj OFTHE OttO FLCAS IMMEDIATRLY COPYINQ THR TO US AND YU ARE TAKj1Q OF ANY ACFION IS STicrLy IN EELLNcg ON THE 00998 ACCEPTED 234EFJ01 7816390 FOURTEENTH COURT OF APPEALS HOUSTON TEXAS 141 3_OO99t_rV l3Novemberl2A927 Christopher Prine CLERK NO ___ FILED IN iN IRE OUR OI APPFAJ I4thCOURTOFAPPEALS HOUSTON TEXAS HOUSTON TEXAS 11/12/2013 92706 AM CHRlSTOEPRNE Clerk IN RE SHELBY LONGORIA Original Proceeding from the Probate Court Number One Harris County Texas Cause No 414270 PETITION FOR WRIT OF MANDAMUS Johnny Carter State Bar No 00796312 cartersusrnangodfrey.corn Richard Hess State Bar No 24046070 rhesssusrnangodfrey.com Kristen Schiemmer State Bar No 24075029 kschIemrnersusrnangodfrey corn 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713 654-6666 Robert MacIntyre Jr State Bar No 12760700 macintyre@rnrnlawtexas.com MAcINrYRE McCuLL0CH STANFIELD YOUNG 3900 Essex Lane Suite 220 Houston Texas 77027 Telephone 713 547-5400 Attorneys for Shelby Longoria 2927935v1101 3774 00999 IDENTITY OF PARTIES AND COUNSEL Relator Shelby Longoria Represented by Johnny Carter State Bar No 00796312 cartersusmangodfrey.com Richard Hess State Bar No 24046070 rhesssusmangodftey.com Kristen Schiemmer State Bar No 24075029 kch1emmersusmangodfrey corn SUSMAN GODFREY L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002 Telephone 713 651-9366 Facsimile 713 654-6666 Robert Maclntyre Jr State Bar No 12760700 macintyre@mmlawtexas corn MACINTYRE MCCULLOCH STANFIELD YOUNG 3900 Essex Lane Suite 220 Houston Texas 77002 Telephone 713 547-5400 Respondent Hon Loyd Wright Probate Court No Harris County Texas Real Party in Interest James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased 01000 Represented by James Austin Fisher State Bar of Texas Number 07051650 jfisher@fisherwelch.com Shannon L.K Welch State Bar of Texas Number 90001699 swelch@fisherwelch corn FISHER WELCH Professional Corporation 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Telecopier 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 wes@weshoirnes.com THE HOLMES LAW FIRM 1000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9267 Third-Party Defendants Sylvia Longoria Dorsey Adriana Longoria Represented by James Austin Fisher State Bar of Texas Number 07051650 jfisherfisherwelch.com Shannon L.K Welch State Bar of Texas Number 90001699 swelch@fisherwelch.com 11 01001 FISHER WELCH Professional Corporation 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Telecopier 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 wes@wesholmes.com THE HOLMES LAW FIRM 1000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9267 ill 01002 TABLE OF CONTENTS STATEMENT OF THE CASE ix STATEMENT OF JURISDICTION ................. ISSUES xi STATEMENT OF FACTS Dorothy and Eduardo Sr Plan Their Estates and Partition Their Property II Shelby Manages the Mexican Businesses and Sylvia and Adriana Receive Money III Eduardo Sr Puts His Assets in Trust and Enters into Private Agreements with Sylvia and Adriana IV Shelby Supports His Mother and Sisters Sylvia and Adriana Procure New Wills from Dorothy VI Tommy Brings This Suit to Recover Money for His Wife from Shelby VII Tommy Sylvia and Adriana Sue Shelby in Mexico VIII Tommy Repeatedly Repleads in Order to Avoid Dismissal ARGUMENT The Trial Court Abused Its Discretion by Denying Dismissal Tommys Case Is About Mexican Property Agreements and CourtOrders 10 Tommy Relies on Procedural Smoke and Mirrors 13 Mexico is an Available and Adequate Alternative Forum 14 Mexico is an Available Forum 15 iv 01003 The Mexico Private is Interest an Adequate Foru Factors Weigh in Favor of Mexico 17 21 Access to Evidence is Much Greater in Mexico 22 The Availability of Compulsory Process Supports Trial in Mexico 23 Costs Will be Less in Mexico 24 There Is No Need for View of Any Premises 25 Trial Will Be More Expeditious and Inexpensive in Mexico 25 Tommys Arguments Are Meritless 25 The Public Interest Factors Weigh in Favor of Mexico 28 II The Trial Court Abused Its Discretion by Denying Abatement ...... 32 PRAYER 34 CERTIFICATE OF SERVICE 35 CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3j 36 CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.41 37 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 4e6 38 01004 INDEX OF AUTHORITIES Cases Aguinda Texaco Inc 20 Benz Group Barreto 404 S.W.3d 92 Tex App Houston Dist 2013 no pet 22 25 26 Del Jstmo Assurance Corp Platon 2011 WL 5508641 S.D Fla Nov 2011 20 Develo-Cepts Inc City of Galveston 668 S.W.2d 790 Tex App Houston Dist 1984 no writ 33 DTEX LLC BBVA Bancomer S.A 508 F.3d 785 5th Cir 2007 15 19 2223 25 32 Dunsby Transocean Inc 329 Supp 2d 890 S.D Tex 2004 20 Gallego Garcia 2010 WL2354585 S.D Cal.June92010 18223031 Givens Ward 272 S.W.3d 63 Tex App Waco 2008 no pet 33 Gomez de Hernandez Bridgestone /Firestone Am Tire L.L 204 S.W.3d 473 Tex App Corpus Christi 2006 pet denied 15 Ibarra OricaUSA 493 Fed Appx 489 5th Cir 2012 1526 In re Air Crash Over the Mid-Atlantic on June 2009 792F Supp 2d 1090 N.D Cal 2011 1617 In re BPZ Resources Inc 359 S.W.3d 866 Tex App Houston Dist 2012 orig proceeding 1523242629 vi 01005 In re Ensco Offshore Intl Co 311 S.W.3d 921 Tex 2010 9172326 In re Ford Motor Co 591 F.3d406 5th Cir 2009 1516 In re General Elec Co 271S.W.3d681Tex.2008 24 In re Mantle Oil Gas LLC 2012 WL 5323584 Tex App Houston Dist 2012 no pet ......... 20 In re Pirelli Tire L.L 247 S.W.3d 670 Tex 2007 15 16 18 1923 In re Prudential Ins Co ofAmerica 148 S.W.3d 124Tex 2004 .9 In re SXP Analytics LLC 2012 WL 1357696 Tex App Houston Dist Apr 13 2002 orig proceeding ...... 222931 Israel Discount Bank Ltd Schnapp 505 Supp 2d 651 C.D Cal 2007 14 ISTIL Group Inc Masood 2004 WL948376D Or 2004 14 Koster Am Lumbermen Mut Cas Co 330U.S.5181947 Miralda Tidewater Inc 2012 WL 3637845 E.D La Aug 23 2012 27 Morales Ford Motor Co 313 Supp 2d 672 S.D Tex 2004 2027 Navarrete de Pedrero Schweizer Aircraft Corp 635 Supp 2d 251 W.D.N.Y 2009 20 Paolicelli Ford Motor Co 289Fed.Appx387llthCir.Aug.202008 27 vii 01006 Paulownia Plantations de Panama Corp Rajamannari 793 N.W.2d 128 Minn 2009 20 Perry Del Rio 66S.W.3d239Tex.2001 33 Rustal Trading US Inc Makki 17 Fed Appx 331 6th Cir Aug 21 2001 27 Megga Telecommunications Ltd Lucent Technologies Inc 1997 WL 86413 Del 1997 14 Seguros Comercial America S.A de American President Lines Ltd 966 S.W.2d 652 Tex App.San Antonio 1998 no pet.. ... 23 SES Prods Inc Aroma Classicjue LLC 2013 WL 2456797 Tex App Houston Dist June 62013 no pet 26 Sonat Exploration Co Cudd Pressure Control Inc 271 S.W.3d 228 Tex 2008 30 Transunion Corp Pepsico Inc 811 F.2d 1272d Cir 1987 ......... 26 United Bank for Africa PLC Coker 2003 WL22741575 S.D.N.Y 2003 14 Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 Tex App Houston lstDist 2010 no pet.... 10 15 18 22 23 24 25 26 28 29 30 Wasson Interests Ltd Adams 405 S.W.3d 971 Tex App Tyler 2013 no pet 21 Yoroshii Invs Mauritius Pte Ltd BP Intl Ltd 179 S.W.3d 639 Tex App El Paso 2005 pet denied 29 Statutes Texas Govt Code 22.221b Texas Probate Code 149C 33 viii 01007 STATEMENT OF THE CASE James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria filed an action against Shelby Longoria in Harris County Probate Court Number One Hon Loyd Wright presiding The executor alleged breach of fiduciary duty and sought an accounting Shelby Longoria then filed will contest in the same court alleging that the executors wife Sylvia Longoria Dorsey together with her sister Adriana Longoria exercised undue influence in order to procure Dorothy Longorias will and that Dorothy Longoria lacked capacity to execute the will Shelby Longoria also sought removal of James Thomas Dorsey as executor The executor then nonsuited his claim and refiled it as counterclaim to Shelby Longorias will contest On August 2013 Shelby Longoria filed motion seeking either to dismiss the counterclaim for forum non conveniens or to abate the counterclaim pending resolution of the will contest On October 2013 the trial court held an evidentiary hearing on the motion On October 11 2013 the trial court denied the motion without explanation ix 01008 STATEMENT OF JURISDICTION This Court has jurisdiction over this Petition for Writ of Mandamus under Section 22.22 1b of the Texas Government Code 01009 ISSUES PRESENTED Did the probate court abuse its discretion by refusing to dismiss in favor of Mexican forum lawsuit brought by the estate of Mexican citizen which seeks to recover half the value of Mexican businesses by challenging the validity of trust holding those businesses as well as the validity of Mexican probate proceedings and Mexican separate property agreement which was entered as judgment of Mexican court Did the probate court abuse its discretion by refusing to abate the estates claims pending resolution of whether the executor could properly assert those claims xi 01010 STATEMENT OF FACTS This case concerns the long marriage of the decedent Dorothy Longoria Dorothy to her husband Eduardo Longoria Sr Eduardo Sr and the attempt by Dorothys and Eduardo Sr.s daughters Adriana Longoria Adriana and Sylvia Dorsey Sylvia to use Dorothys estate to recover money from their brother Shelby Longoria Shelby Dorothy and Eduardo Sr Plan Their Estates and Partition Their Prop In the early 1940s Eduardo Longoria Sr married Dorothy Kowaiski they obtained marriage certificates in both Texas and Mexico.1 Eduardo Sr came from prominent family in northern Mexico that had considerable success in business Dorothy was from Ft Worth but she later became Mexican citizen.2 Over the course of their 62-year marriage Dorothy and Eduardo Sr lived in Nuevo Laredo Mexico and later in Laredo Texas.3 In 1983 Eduardo Sr and Dorothy decided to partition their community property and have Mexicos separate-property regime govern their marital property.4 Dorothy and Eduardo Sr formalized this Spanish-language agreement by applying to court in Tamaulipas Mexico for entry of judgment partitioning Record 00313 00315 00317 01160 Record 00320-24 00854 Record 00894 at 5-6 10 00853-54 Record 00094 at 01011 their property.5 The Mexican court entered the requested judgment and the couples marriage certificate was amended to reflect their election of the separate- property regime.6 Less than two years later Dorothy executed Spanish-language Mexican will in which she expressly declared that she is married under Separate Property Regime.7 Dorothy repeatedly acknowledged the couples agreement to maintain separate property in various documents she executed over the next decades.8 IL Shelby Manages the Mexican Businesses and Sylvia and Adriana Receive Money Of Eduardo Sr and Dorothys four children only one Shelby the youngest expressed any real continuing interest in living and working along the Mexican border to help his father manage the businesses there on day-to-day basis.9 After graduating from college in 1975 Shelby moved to Nuevo Laredo to assist his father It was hard work The companies struggled through devaluations of the Mexican peso in 1976 1982 1988 and 1994 Record 00103-48 Record 00103-48 Record 00335 Record 00094 at Record 00150-56 Record 0083 8-39 10 Record 00094 at 00861 Record 00837-38 01012 Eduardo Sr consistently made clear that his Sons Shelby and Eduardo Jr would inherit interests in the nearly-insolvent Mexican businesses.12 In contrast his daughters Sylvia and Adriana would receive money during his lifetime.13 In 1992 Eduardo Sr signed Spanish-language Carta de Voluntad Wish Letter which granted each daughter $3000000 in cash and properties to be distributed over time.4 Despite the Wish Letter Sylvia and Adriana continued to ask for even more money Dorothy and Eduardo Sr pleaded with them to become self-sufficient to no avail.5 III Eduardo Sr Puts His Assets in Trust and Enters into Private Agreements jylvia and Ad In October 2002 Eduardo Sr transferred the shares of his two Mexican holding companies to trust administered by Mexican bank pursuant to Mexican law.16 He designated Shelby and Eduardo Jr to be beneficiaries upon his death.7 Eduardo Sr also executed new Spanish-language Mexican will in October 2002 The will affirmed the Spanish-language trust agreement and appointed Shelby as executor of Eduardo Sr.s estate.9 12 Record 00094 at 00096 at 17 00849-50 Record 00851 Record 00095 at 12 00178-83 Record 00185-88 16 Record 00095 at 14 00 190-252 Record 00851 01010-11 18 Record 00095-96 atlI 15 00254-68 Record 01039-53 01013 Two months later Eduardo Sr entered into Spanish-language Acuerdos Privados Private Agreements with Sylvia and Adriana.2 The Private Agreements stated that payments of $150000 year would be made to Sylvia and Adriana from the Mexican companies held in the Mexican trust until the full $3 million was paid.21 Both Sylvia and Adriana acknowledged the validity of the Mexican Trust agreed to application of Mexican law and subjected themselves to venue in the courts of the city of Reynosa Tamaulipas Mexico.22 IV Shtlby Supports His Mother and Srstcis Eduardo Sr died in 2005.23 Dorothy then moved to Houston and Sylvia took over managing her financial affairs Sylvia obtained signatory rights to Dorothys American bank accounts which were funded by transfers arranged by Shelby from the Mexican businesses through Dorothys accounts in Mexico.24 Following Eduardo Sr.s death the Mexican companies held by the trust continued to pay Sylvia and Adriana.25 Around 2006 Sylvia asked for the acceleration of her payments.26 Shelby arranged for all remaining amounts to be 20 Record 00096 at 16 00272-87 21 Record 00277 at 00285 22 Record 00277 at 278 at 00285-86 23 Record 00096 at 17 00370 24 Record 00097 at 11 20-21 00857-58 25 Record 00096-97 at 18 00855 26 Record 00097 at 19 856 01014 paid to Sylvia ahead of schedule.27 In return Sylvia acknowledged signed an agreement releasing all claims against Shelby or Eduardos estate.28 Sylvia and Adriana Procure New Wills from Dorothy Meanwhile Shelby was reviving the Mexican businesses and making them profitable.29 At the same time Adriana and Sylvia had run through their money and wanted more Mexican court had probated Eduardo Sr.s will found it to be valid appointed Shelby as executor and entered final judgment.3 Therefore Sylvia and Adriana focused on their mothers estate Dorothy had two wills 1989 will for her Mexican property and 1988 will for her U.S property Shelby was beneficiary under both wills The Spanish-language Mexican will designated Shelby as executor and the U.S will designated Shelby and Eduardo Jr as co-executors.31 In December 2009 when Dorothy was ninety years old Adriana had Dorothy sign will which left all of Dorothys remaining estate to Adriana.32 When Sylvia found out she had Dorothy execute new will in January 2010 that divided Dorothys estate equally between Adriana and Sylvia.33 The January 2010 27 Record 00097 at 19 28 Record 00289 at 29 Record 00096 at 17 00839 30 Record 00095 at 11 00164-76 00373-99 00954-66 Record 00095 at 11 00157-62 00947-52 32 Record 00401-06 Record 00409 01015 will named Sylvias husband Tommy as executor and thus opened the door for Tommy to sue Shelby after Dorothys death.34 Tommy now purports to act as executor pursuant to the January 2010 will which both he and Sylvia represented to the probate court as Dorothys last will and testament.35 But Dorothy executed her last will in July 2011 This will left most of her estate to Adriana and designated Adriana to be executor.36 VI Tommy Bi ings his Suil to Recovei Money for His Wife from Shelby Dorothy passed away on April 26 2012 Two months later Sylvia applied to probate the January 2010 will.37 On October 2012 the trial court admitted the 2010 will to probate and granted letters testamentary to Tommy as its executor.38 On May 2013 Tommy filed lawsuit against Shelby.39 He alleged that Dorothy was somehow deprived of community property interest over the course of her marriage to Eduardo Sr.4 Tommy alleged that this resulted from the influence supposedly exercised on Eduardo Sr by Shelby.4 Tommy challenged the validity of the 1983 separate property agreement which was entered as an order of Record 00409 Record 00002 at 00010 at 33 36 Record 00777-88 Record 00001 38 Record 1208-09 Record 00004 40 Record 00008 at 21 Record 00007 at 20 00008 at 21 01016 the Mexican court the validity of the Mexican trust and the validity of the Se Mexican probate proceedings relating to Eduardo Sr.s estate.42 VII Tommy Sylvia and .Adriana Sue in Mexico Tommy Sylvia and Adriana also sued Shelby in Mexican federal court.43 In June 2013 they filed amparo proceedings alleging that they had been denied their rights because they said they had not received notice of the probate of Eduardo Sr.s will in state court in Tamaulipas.44 Tommy has not pursued his amparo but Sylvias and Adrianas amparo is still pending in Mexican court.45 Shelby has appeared and consented to personal jurisdiction in that proceeding.46 VIII Tommy Repeatedly Repleads in Order to Avoid Dismissal Shelby answered Tommys probate court petition on June 17 2013 and asserted forum non conveniens as defense.47 On June 18 2013 Shelby filed petition contesting the will pursuant to which Tommy was appointed as independent executor of Dorothys estate.48 42 Record 00006 at 11 00008 at JJ 22-23 00009 at 24 28-29 Record 00310 00416-75 00477-8 Record 00877-80 00902 Record 00901-02 46 Record 00858 00905 00907 Record 01211 48 Record 00020 01017 On July 18 2013 after reviewing Shelbys answer asserting forum non conveniens defense Tommy nonsuited his claims and refiled them as counterclaims to the will contest.49 On August 30 2013 Shelby filed third-party petition seeking contribution from Sylvia and Adriana.50 On September 26 2013 one week before the forum non conveniens hearing Tommy filed another set of counterclaims which were rewritten to minimize the references to Mexico and accentuate the references to Texas.5 The probate court conducted an evidentiary hearing on Shelbys motion on October 2013 and denied the motion on October 11 2013 Record 00033 00036 Record 00649-54 Record 00655-73 01018 ARGUMENT The trial court abused its discretion in denying dismissal and in denying abatement The Trial Court Abused Its Discretion by Denying Dismissal An appeal is not adequate when motion to dismiss on forum non conveniens grounds is erroneously denied so mandamus relief is available if it is otherwise warranted In re Ensco Offshore Intl Co 311 S.W.3d 921 923 Tex 2010 There is very well-developed body of case law concerning the standards for forum non conveniens dismissal especially in cases brought in Texas concerning Mexican transactions Tommys arguments against dismissal are squarely contrary to that law trial court has no discretion in determining what the law is or applying the law to the facts In re Prudential Ins Co of America 148 S.W.3d 124 135 Tex 2004 Texas takes its common-law forum non conveniens doctrine from the equivalent federal doctrine Benz Group Barreto 404 S.W.3d 92 96 Tex App Houston Dist 2013 no pet. First the court must determine whether there exists an alternative forum Pzper Aircraft 454 U.S at 255 n.22 102 Ct at 265 The court considers the amenability of the defendant to service of process and availability of an adequate remedy in the alternative forum Second the court must determine which forum is best suited to the 01019 litigation In performing this second step court must consider whether certain private and public interest factors weigh in favor of dismissal Vininar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 672 Tex App Houston Dist 2010 no pet. Tommys Case Is About Mexican Property Agreements and Court Orders Tommy alleges breaches of fiduciary duty against Shelby and seeks an accounting of business dealings which took place in Mexico Until the eve of the motion to dismiss hearing Tommy expressly made three broad allegations Tommy challenged Eduardo Sr and Dorothys 1983 Agreement to Partition Community Property alleging that Eduardo and Dorothy did not enter into any legally valid agreement that modified Dorothys community-property rights under Texas law.52 Tommy alleged that Shelby induced Eduardo Sr to enter into the 2002 Mexican trust agreement and execute his 2002 will to divest Dorothy of her community-property interests and divert the marital estate to Shelby to Wayo Jr and to one or more trusts for their benefit.53 Tommy alleged that Shelby initiated and pursued the probate of his fathers will in Mexico in order somehow to cheat his mother out of community property interest.54 Tommy sought to avoid dismissal by completely rewriting his pleadings right before the hearing Tommy asserted contrary to his original petition and his 52 Record 00006 at 11 Record 00008 at 21-23 00009 at 24 Record 00009 at IJ 26-29 l0 01020 original counterclaim that he was not contesting Eduardo Sr.s Mexican will or the fact that Eduardo Sr signed the Mexican trust agreement.55 But Tommys counsel at the motion to disthiss hearing made clear that Tommy was not abandoning his effort to invalidate the Mexican trust agreement When he cross-examined Shelby many of his questions related to the trust and its Mexican businesses.56 Just five weeks before the hearing Tommy filed an Inventory Appraisement and List of Claims asserting that the estate has claim for $49011050 for shares of stock in the two Mexican companies which Eduardo Sr conveyed to the Mexican trust.57 The inventoiy is the only live pleading which clearly describes what the estate is after in this case Tommys amended counterclaim is not substantive change at all Re is still attacking Mexican agreements and Mexican court orders but now he is trying to do it sub silentio In order to prevail Tommy still will have to persuade court to invalidate the trust holding the Mexican businesses and to invalidate the orders of the Mexican court probating the will of Eduardo Sr which provided for his property to be passed to Shelby and Eduardo Jr through the trust Tommy also will have to overcome the agreed 1983 order of Mexican court partitioning the property of Eduardo Sr and Dorothy Tommy attacked this Record 00688-89 56 Record 00862-64 00870-73 Record 00626 01021 foreign judgment at the hearing and in post-hearing filing in which he argued that it was somehow invalid because it purportedly was not signed by the parties.5 In an effort to create the appearance that this case is not primarily about Mexican property trusts and court orders Tommy added allegations to his new amended counterclaim about two letters sent to Dorothy in Texas The merit of Shelbys motion is illustrated by the weakness of Tommys new allegations First Tommy alleged Shelby promised Dorothy in 2007 that he would pay $100000 each to Sylvia and Adriana upon Dorothys death.59 Tommy admits that Shelby tendered this money to Sylvia and Adriana but complains that Shelby requested them to release any claims against him in return for receiving this substantial gift.6 It is mystery how these facts are supposed to support claim by the estate against Shelby Second Tommy pointed to letter that Eduardo Jr sent to Dorothy more than thirty years ago on August 1983 over his and Shelbys signature.6 The handwritten letter which Tommy grandiosely characterizes as establishing private trust states in full Dearest Mom Shelby and are writing you this letter with great deal of love and respect We want you to know that the assets that Dad has willed to 58 Record 00696 00832-33 01203 Record 00659 at 17 01162 60 Record 00659 at 17 61 Record 00658 at 16 12 01022 us as long as you live we will hold them as if they were yours We will make the fruits available to you for your direction as to their use This letter has value to only you because of our commitment to your well-being and happiness More importantly than the worldly goods is our promise to always care for you and to provide for your spiritual needs We hereby pledge to you our unending devotion Your sons Eduardo Longoria Shelby Luis Longoria62 It is absurd for Tommy to maintain that he is seeking to recover for the estate based on an obviously unenforceable 30-year-old pledge of devotion while implausibly asserting that his case has nothing to do with the Mexican subsequent agreements and Mexican court orders that actually governed the arrangements for of the Mexican property that made bulk of the disposition up the assets separately owned by Eduardo Sr and Dorothy In his inventory of claims Tommy told the trial court what he is seeking recovery of half of the value of the businesses transferred to the Mexican trust Tommys new allegations did not change the substance of his claims and were transparently designed just to get him past the motion to dismiss Tommy Relies on Procedural Smoke and Mirrors Tommy also relied on artful repleading by nonsuiting his claim and repositioning it as counterclaim Tommy made this centerpiece of his argument against dismissal He asserted without support that the court could not dismiss his 62 Record 00770 13 01023 counterclaim while maintaining jurisdiction over Shelbys claim.63 This argument was wrong as matter of law See Israel Discount Bank Ltd Schnapp 505 Supp 2d 651 662 C.D Cal 2007 dismissing counterclaim for forum non conveniens in favor of an Israeli forum while remanding the plaintiffs claim to California state court affd 321 Fed Appx 700 9th Cir 2009 ISTIL Group Inc Masood 2004 WL 948376 at 67 Or 2004 dismissing only the counterclaim because Channel Islands were superior forum report and recommendation adopted 2004 WL 1173134 Or May 26 2004 United Bank for Africa PLC Coker 2003 WL 22741575 at 4_6 S.D.N.Y 2003 dismissing employees employment related counterclaims on grounds of forum non conveniens or judicial deference while permitting employer to pursue RICO and other claims related to defendants former employment Megga Telecommunications Ltd Lucent Technologies Inc 1997 WL 86413 Del 1997 dismissing for forum non conveniens counterclaims which would unnecessarily burden the trial of plaintiffs claims Mexico is an Available and Adequate Alternative Forum Tommy Sylvia and Adriana have already conceded the availability and adequacy of Mexico as an alternative forum by suing Shelby there on some of the same factual issues they raise in this case Nevertheless Tommy apparently 63 Record 00675 01024 convinced the trial court to deny dismissal based upon arguments which have uniformly been rejected in the case law Mexico is an Available Forum There is nearly airtight presumption that Mexico is an available forum In re Ford Motor Co 591 F.3d 406 413 5th Cir 2009 Numerous Texas and federal cases have found Mexico to be an adequate and available forum DTEX LLC BBVA Bancomer S.A 508 F.3d 785 796 5th Cir 2007 Ibarra Orica USA 493 Fed Appx 489 493 5th Cir 2012 In re Ford Motor Co 591 F.3d 406 412 5th Cir 2009 In re Pirelli Tire L.L.C 247 S.W.3d 670 677-78 Tex 2007 Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 675 Tex App Houston Dist 2010 no pet Gomez de Hernandez Bridgestone Firestone Am Tire L.L.C 204 S.W.3d 473 483 Tex App Corpus Christi 2006 pet denied Tommy argued that Shelby would not be subject to personal jurisdiction in Mexican courts But Shelby has agreed to submit himself to personal jurisdiction in Mexico in connection with this matter.64 If defendant submits to jurisdiction there is presumption of forum availability In re Ford Motor Co 591 F.3d 406 413 5th Cir 2009 see also In re BPZ Resources Inc 359 S.W.3d 866 873 Tex App Houston Dist 2012 orig proceeding We conclude that Peru is an Record 00097 at 23 00804 00858 15 01025 alternate forum in which this action may be tried based relators agreement to upon submit to personal jurisdiction in Peru. Shelby has already himself to personal jurisdiction in the subjected amparo proceeding The Tarnaulipas court has acknowledged Shelbys submission and accepted his appearance.65 For this reason too Mexico is an available forum as matter of law In re Ford Motor Co 591 F.3d 406 413 5th Cir 2009 Tommys Mexican law expert han Rosenberg opined that Mexican court might dismiss sua sponte for lack of personal jurisdiction upon seeing Shelbys U.S address in Tommys Mexican court filings.66 But he had to agree on cross- examination that Mexican courts recognize the ability of private parties to determine the courts jurisdiction by mutual consent.67 The probate court should have conditioned dismissal on Shelby giving that consent Tommy could not then defeat forum non conveniens dismissal in the United States by engineering sua sponte dismissal in Mexico as suggested by his expert In re Air Crash Over the Mid-Atlantic on June 2009 792 Supp 2d 1090 1097 N.D Cal 2011 plaintiff cannot avoid forum non conveniens by engaging in practices deliberately designed to defeat jurisdiction in the foreign forum see In re Pirelli Tire L.L 247 S.W.3d 670 677 Tex 2007 the contingency that Mexican court might 65 Record 00772-75 00858 00882-83 66 Record 00920-21 67 Record 00929 Jo 01026 not accept Pirellis waiver does not overcome the important public and private interests supporting dismissal. Finally Tommy argued that Mexico was unavailable because his wife and sister-in-law who are third-party defendants purportedly will refuse to submit to the jurisdiction of the courts of Tamaulipas But they already have submitted to the jurisdiction of those courts by filing lawsuits against Shelby there.68 Moreover both have agreed to submit any disputes concerning the Mexican trust to resolution courts.69 told the court that he assume by Tamaulipan Shelby trial is willing to the very minimal risk that Sylvia and Adriana would somehow be able to evade the jurisdiction of Tamaulipan courts over his third-party claims.70 But regardless Sylvia and Adriana who are in league with and share counsel with Tommy cannot defeat forum non conveniens by engaging in practices deliberately designed to defeat jurisdiction in the foreign forum in re Air Crash Over the Mid-Atlantic on June 2009 792 Supp 2d 1090 1097 N.D Cal 2011 Mexico is an Adequate Forum forum is inadequate if the remedies it offers are so unsatisfactory they really comprise no remedy at all In re Ensco Offshore Intl Co 311 S.W.3d 921 924 Tex 2010 The substantive law of the foreign forum is presumed to be 68 Record 00537-38 00881-82 69 Record 00278 at 14 00286 70 Record 00749 17 01027 adequate unless the plaintiff makes some showing to the contrary or unless conditions in the foreign forum made known to the court plainly demonstrate that the plaintiff is highly unlikely to obtain basic justice there Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 674 Tex App Houston Dist 2010 no pet Tommy argues that there is not cause of action in Mexico for breach of informal fiduciary relationships or private trusts.71 But as matter of law Mexico is not an unavailable forum just because it does not recognize all causes of action that may be available in the United States In re Pirelli Tire L.L.C 247 S.W.3d 670 678 Tex 2007 Mexican law permits actions in damages to redress purported injuries such as the one claimed by Tommy.72 An illustrative case is Gallego Garcia 2010 WL 2354585 S.D Cal June 2010 Gallego involved the estate of Francisco Jose Gallego Garcia Sr Francisco Sr who died in San Diego California in 1995 The personal representatives of his estate were Francisco Sr.s wife Rosa Eugenia and one of his sons Francisco Jr. They sued Francisco Sr.s other son Hector Manuel Gallego Garcia Hector Manuel alleging that he engaged in series of Record 00684-85 008 13-15 72 Record 00539-40 00884-85 00913-14 18 01028 fraudulent transfers involving Mexican corporations before Francisco Sr.s death to deprive Rosa Eugenia and Francisco Jr of their inheritance rights Id at Hector Manuel moved to dismiss for forum non conveniens The court concluded that Mexico was an available and adequate alternative forum for Rosa Eugenia and Francisco Jr to assert their claims on behalf of Francisco Sr.s estate Hector Manuel demonstrated that legal representatives of the Estate could initiate legal action in Mexico asserting claims similar to those asserted here that Mexican courts regularly hear disputes over ownership of assets within Mexico including but not limited to real property business interests and stock ownership and that if plaintiffs were successful Mexican court could award damages to the extent they have been deprived of the profits due to them if any from the operation of those businesses Id at Gallego together with Texas Supreme Court and Fifth Circuit precedent demonstrate that Mexican courts are available and adequate In re Pirelli Tire L.L.C 247 S.W.3d 670 678 Tex 2007 DTEX LLC BBVA Bancomer S.A 508 F.3d 785 796 5th Cir 2007 These claims do not belong in United States court Tommy asserts that Mexico is inadequate because limitations has run on his claims in Mexico But the trial court could have conditioned forum non conveniens dismissal on Shelbys agreement not to assert limitation defenses in 19 01029 Mexico In re Mantle Oil Gas LLC 2012 WL 5323584 Tex App Houston Dist 2012 no pet Dunsby Transocean Inc 329 Supp 2d 890 895-96 S.D Tex 2004 Shelby has assented to this agreement.73 Tommys Mexican law expert han Rosenberg opined that Tamaulipan courts would not have subject-matter jurisdiction over Tommys claims because of purported Tamaulipan statute which supposedly would divest Tamaulipan courts of jurisdiction due to the prior filing in the United States.74 However the concept of preemptive jurisdiction under Mexican law does not prevent Mexican court from asserting subject-matter jurisdiction over case dismissed from court in the United States Navarrete de Pedrero Schweizer Aircraft Corp 635 Supp 2d 251 261 W.D.N.Y 2009 And courts both state and federal have refused to recognize foreign laws that purport to make the home forum unavailable because of prior U.S filing Del Istmo Assurance Corp Platon 2011 WL 5508641 S.D Fla Nov 92011 see Morales Ford Motor Co 313 Supp 2d 672 676 S.D Tex 2004 Aguinda Texaco Inc 142 Supp 2d 534 546 S.D.N.Y 2001 affd 303 F.3d 470 2d Cir 2002 Paulownia Plantations de Panama Corp Rajamannan 793 N.W.2d 128 134-35 Minn 2009 Record 00804 00858 Record 00712 20 01030 Mr Rosenberg abandoned his subject-matter jurisdiction opinion while on the stand at the motion to dismiss hearing.75 In its place he substituted new argument that Mexican court would decline to address the merits while Tommys standing as executor was unclear due to the will contest.76 On this score Mexican law is the same as Texas law See Wasson Interests Ltd Adams 405 S.W.3d 971 973 Tex App Tyler 2013 no pet standing is threshold question When the issue is raised it should be addressed first. Mr Rosenbergs argument supports either outright dismissal for forum non conveniens or abatement of the counterclaim pending resolution of the will contest The Private Interest Factors Weigh in Favor of Mexico The private interest factors strongly support dismissal in favor of trial in Mexico The factors pertaining to the private interests of the litigants include the following the ease of access to evidence the availability of compulsory process for the attendance of unwilling witnesses the cost of obtaining attendance of willing witnesses the possibility of view of the premises if appropriate and any other practical factors that make trial expeditious and inexpensive Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 676 Tex App Houston Dist 2010 no pet. Record 00926-27 76 Record 00916-18 00926-27 21 01031 Access to Evidence is Much Greater in Mexico Dismissal is warranted where as here most of the documents and witnesses are located in another jurisdiction Vininar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 677 Tex App Houston Dist 2010 no pet Benz Group Barreto 404 S.W.3d 92 98 Tex App 1-louston Dist 2013 no pet In re SXP Analytics LLC 2012 WL 1357696 at Tex App Houston Dist Apr 13 2002 orig proceeding DTEX LLC BBVA Bancomer S.A 508 F.3d 785 798 5th Cir 2007 Gallego Garcia 2010 WL 2354585 at S.D Cal June 2010 On June 21 2013 Tommy served 194 requests for production of documents on Shelby and in July he served 248 requests Both sets of requests make clear that the documentary evidence in this case is overwhelmingly in Mexico He seeks documents related to Mexican businesses Mexican bank accounts and the Mexican trust.77 Not only are these documents in Mexico but Mexico is also the location of all court files for and lawyer files relating to the Mexican judgments challenged by Tommy in this case such as the 1983 Agreement to Partition Community Property and the 2010 judgment approving the probate of Eduardo Sr.s will and distribution of his estate Record 00483-528 22 01032 The vast majority of witnesses are in Mexico The witnesses to Eduardo Sr.s will and the execution of the trust agreement reside in Mexico So do Eduardo Sr.s legal advisors the Banca Afirme employees who managed the trust and the employees of the trusts Mexican businesses.78 The Availability Compulsory Process Supports Trial in Mexico Witnesses in Mexico cannot be compelled to testify in case in Texas In re Ensco Offshore Intl Co 311 S.W.3d 921 926 Tex 2010 In re Pirelli Tire L.L.C 247 S.W.3d 670 678 Tex 2007 In re BPZ Resources Inc 359 S.W.3d 866 879 Tex App Houston Dist 2012 orig proceeding Seguros Comercial America S.A de American President Lines Ltd 966 S.W.2d 652 656 Tex App San Antonio 1998 no pet. But they can be compelled to testify in Mexico where the Dorseys recently-filed lawsuit is pending The lack of compulsory process in Texas for reaching the great majority of witnesses would be substantially unjust In re BPZ Resources mc 359 S.W.3d 866 875 Tex App Houston Dist 2012 orig proceeding To fix the place of trial at point where litigants cannot compel personal attendance and may be forced to try their cases on deposition is to create condition not satisfactory to litigants DTEX LLC Bancomer S.A 508 F.3d 785 799 5th Cir 2007 The 78 Record 00093-97 00 103-48 00190-252 00254-67 23 01033 supreme court has determined that requiring parties to litigate case in Texas until it becomes clear that it is impossible to defend the case due to the unavailability of evidence and fact witnesses because they are beyond the reach of compulsory process is waste of private and public resources in re BPZ Resources Inc 359 S.W.3d at 875 quoting in re General Elec Co 271 S.W.3d 681 689 Tex 2008 Costs Will be Less in Mexico Because the majority of the pertinent evidence and witnesses are in Mexico it follows that the expense of litigating in Texas will be greater than it would be to litigate in Mexico Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 644 677 Tex App Houston Dist 2010 no pet. For those witnesses who are willing to testify in Texas and who can obtain the necessary visas to do so there will be costs in bringing them to Houston to testify and housing and feeding them while here In re BPZ Resources Inc 359 S.W.3d 866 879 Tex App Houston 2010110 pet. Continuing Tommys lawsuit in the United States will mean both sides will incur significant costs in translating Spanish-language documents and interpreting testimony of Spanish-speaking witnesses In contrast the costs of translation and interpretation in Mexico will be minimal The great majority of the relevant documents are in Spanish and most of the witnesses speak Spanish including both 24 01034 Sylvia and Shelby as well as their siblings Adriana and Eduardo Jr..79 For many courts the need to translate documents and interpret witness testimony has been consideration in concluding that the private interest factors weigh in significant favor of dismissal See Benz Group Barreto 404 S.W.3d 92 98 Tex App Houston Dist 2013 no pet Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 678 Tex App Houston Dist 2010 no pet Dtex LLCv BBVA Bancomer S.A 508 F.3d 785 7995th Cir 2007 There Is No Need for View of Any Premises The possibility of view of the premises is irrelevant in this case Trial Will Be More Expeditious and Inexpensive in Mexico All practical factors overwhelmingly favor trial in Mexico The witnesses documents contracts and court proceedings at issue are largely based in Mexico It makes no sense to try this case in the United States Tommys .Aiguments Are Meritless Tommy argues that the parties reside in Texas But the deference afforded to resident plaintiffs forum choice is not absolute Citizens or residents deserve somewhat more deference than foreign plaintiffs but dismissal should not be automatically barred when plaintiff has filed suit in his home forum As always if the balance of conveniences suggests that trial in the chosen forum 00103-24 00150-69 00178-79 00185 00190-221 00254-60 00272-75 00281-83 00313 00326-32 00342-67 25 01035 would be unnecessarily burdensome for the defendant or the court dismissal is proper Vinmar Trade Fin.Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 673 Tex App Houston Dist 2010 no pet. Texas courts have dismissed claims for forum non conveniens even where Texas residents have been plaintiffs Benz Group 404 S.W.3d 92 99-100 Tex App Houston Dist 2013 no pet Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 668 Tex App Houston Dist 2010 no pet. Texas residents have been defendants In re Ensco Offshore Intl Co 311 S.W.3d 921 927-28 Tex 2010 In re BPZ Resources Inc 359 S.W.3d 866 869-70 Tex App Houston Dist 2012 orig proceeding Both plaintiffs and defendants have included Texas residents Ibarra Orica USA 493 Appx 489 491 5th Cir 2012 SES Prods Inc Aroma Classique LLC 2013 WL 2456797 at Tex App Houston Dist June 2013 no pet. Tommys second private interest argument is that Tamaulipas is dangerous But as matter of law dangerous or violent conditions in foreign forum do not weigh against dismissal in favor of that forum unless those conditions have adversely impacted the judicial system See In re BPZ Resources Inc 359 S.W.3d 866 879 Tex App Houston Dist 2012 orig proceeding Allegations of political unrest have generally been unsuccessful in courts determinations that forum is inconvenient Transunion foreign Corp Pepsico Inc 811 F.2d 127 129 2d Cir 1987 no showing was made that 26 01036 unrest in the has had an adverse effect the political Philippines upon judicial system there Paolicelli Ford Motor Co 289 Fed Appx 387 391 11th Cir Aug 20 2008 plaintiff Bonilla alleges that the political instability in Colombia risks for the but absent evidence the unrest has poses safety parties political affected the Colombian judicial system or would affect litigation of this case this fact is not sufficient to outweigh the other factors that weigh in favor of dismissal Rustal Trading US Inc Makki 17 Fed Appx 331 337 6th Cir Aug 21 2001 forum non conveniens dismissal was warranted despite State Department travel advisory concerning hazards of travel in Sierra Leone in the absence of some credible evidence indicating that the conditions in Sierra Leone would prevent the parties from accessing the courts in Freetown Miralda Tidewater Inc 2012 WL 3637845 at ED La Aug 23 2012 several federal appellate courts have uniformly concluded that the political unrest of the alternative forum does not per se render this forum inadequate in the forum non conveniens context absent some showing that this unrest negatively affects the judicial system of the country or the litigation at issue Morales Ford Motor Co 313 Supp 2d 672 682 S.D Tex 2004 convincing argument against forum non conveniens dismissal premised on delay due to political unrest and the like should involve exact evidence for the length of the delay and delay of many years Such evidence is lacking in this case. 27 01037 Tommy relies only on State Department travel advisory which does not even hint that judicial relief has been foreclosed due to conditions in Tamaulipas.8 Sylvia Adriana and Tommy all have been able to hire attorneys and file claims against Shelby in Tamaulipas in the last few months.81 It is undisputed that Tamaulipas has fully functioning judicial system.82 Tommys own expert witness has handled dozen tort cases in the courts of Tamaulipas.83 The Public Interest Factors Weigh in Favor of Mexico The public interest factors easily support trial of this matter in Mexico Harris County court and jurors should not be burdened with resolving dispute over Mexican court proceedings contracts and business transactions The relevant public interest factors are as follows the administrative difficulties flowing from court congestion the local interest in having localized controversies decided at home the interest in having the trial of diversity case in forum that is at home with the law that must govern the action the avoidance of unnecessary problems in conflict of laws or in the application of foreign law and the unfairness of burdening citizens in an unrelated forum with jury duty Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 678 Tex App Houston Dist 2010 no pet 80 Record 00689-90 00721-30 81 Record 00876-77 00880 82 Record 00876 83 Record 00910 28 01038 Within the public interest factors litigating the suit in the forum that is at home with the governing law is an important consideration In re BPZ Resources Inc 359 S.W.3d 866 876 Tex App Houston Dist 2012 orig proceeding An action generally should be tried in court familiar with the law governing the case Yoroshii Invs Mauritius Pte Ltd BP Intl Ltd 179 S.W.3d 639 646 Tex App El Paso 2005 pet denied see also In re SXP Analytics LLC 2012 WL 1357696 at Tex App Houston Dist Apr 13 2002 orig proceeding There is strong interest in having localized controversies decided at home in forum that is familiar with the state law that must govern the case. Even the possibility that foreign law applies to dispute is sufficient to warrant dismissal on forum non conveniens grounds Vinmar Trade Fin Ltd Utility Trailers de Mexico S.A de 336 S.W.3d 664 678 Tex App Houston Dist 2010 no pet. Further Mexico has strong interest in regulating Mexican companies conducting business and allegedly perpetrating fraud within its boundaries Id at 679 As result Mexican law is applicable even when Texas resident alleges that he was the target of fraud when the fraud occurred in the context of Mexican business transactions with Mexican companies Id Tommy addresses choice of law principally by arguing that he has not pled cause of action under Mexican law But choice of law is not pleadings issue 29 01039 instead choosing the applicable law is obviously question of law Sonat Exploration Co Cudd Pressure Control Inc 271 S.W.3d 228 231 Tex 2008 Tommy has not even attempted to make cogent argument that Texas law somehow could apply to challenge to the order of the Mexican court partitioning community property the Mexican trust agreement and to orders of the Mexican court probating Eduardo Sr.s will Instead he argues that Texas law would govern whether there was fiduciary duty relating to property and trusts located in Mexico and that Texas law would govern whether the marital estate was community property despite an agreed order of Mexican court that it was not He does not and cannot cite single case in support of these arguments much less refute the possibility that foreign law applies to the dispute Tommys principal public-interest argument is that Dorothy lived in Houston But he cannot distinguish Gallego Garcia 2010 WL 2354585 S.D Cal June 2010 case almost directly on point in which the court dismissed for forum non conveniens an action brought by representatives of an estate appointed by United States court to recover for fraud involving Mexican businesses which was directed at decedent who resided in the United States The only basis for San Diegos interest in this litigation is the fact that the Decedents Estate is being probated here as result of the fact that Decedent died here It is undisputed however that Decedent himself had significant connection to Mexico that the Defendants are from 30 01040 Mexico that the assets in dispute are in Mexico and most if not all of the evidence and witnesses are located inMexico Gallego 2010 WL 2354585 at This case is also similar to In re SXP Analytics LLC 2012 WL 1357696 Tex App Houston Dist Apr 13 2002 orig proceeding in which the Court of Appeals held that the district court abused its discretion in failing to dismiss case in favor of Wisconsin forum That case centered on plaintiffs allegations that the defendant had mismanaged and breached fiduciary duties in connection with Wisconsin corporation Just like the trial court in this matter will have to apply foreign law to issues relating to the trust the trial court in SXP would have been required to apply Wisconsins statutory scheme for regulating limited liability companies Id at This fact was enough to warrant dismissal for forum non conveniens should normally be declined where determination of the rights of the litigants involves regulation and management of the internal affairs of the laws of the corporation dependent upon the foreign State or where the relief sought may be more appropriately adjudicated in the courts of the State or country to which the corporation owes its existence Id quoting Koster Am Lumbermen Mist Cas Co 330 U.S 518 530-31 1947 Mexicos interest in this matter is particularly strong because Tommy alleges that Shelby defrauded the Mexican court system through his probate of 31 01041 Eduardo Sr.s will in Mexico and challenges the validity of the 1983 Mexican court order partitioning Eduardo Sr.s and Dorothys community property In DTEX LLC BBVA Bancomer S.A 508 F.3d 785 5th Cir 2007 allegations concerning Mexican judicial proceedings led the Fifth Circuit to conclude that dismissing on forum non conveniens grounds favored the public interest DTEX the plaintiff alleged that defendant Bancomer filed allegedly unlawful lawsuits in Mexican courts Id at 802 DTEX and Bancomer disagreed over whether the Mexican courts previous decisions are binding Id at 803 Concluding that Mexican law likely will apply to this case or at minimum be critical the Fifth Circuit dismissed for forum non conveniens The court explained that Mexican courts have greater interest than an American court in deciding whether Mexicos court system was systematically abused or manipulated to frustrate and delay DTEXs ability to take possession of property purchased in Mexico in an auction arranged by the Mexican government Id at 802 This is Mexican dispute over Mexican agreements property and businesses all relating to Mexican man whose Mexican estate was probated in Mexico Mexico is an adequate and available alternative forum and the private and public interest factors favor dismissal The trial court abused its discretion by denying dismissal II The Trial Court Abused Its Discretion by Denying Abatement 32 01042 The trial court abused its discretion by refusing to abate its consideration of Tommy Dorseys counterclaims while it resolves the will contest and while the proceedings in Mexico remain pending There could be nothing more wasteful or disorderly than proceeding to litigate case which the plaintiff may be divested of his authority to pursue because of the outcome of parallel proceeding Givens Ward 272 SW.3d 63 73 Tex App Waco 2008 no pet quoting Periy Del Rio 66 S.W.3d 239 252 Tex 2001 The obvious reasons for abatement are the conservation of judicial resources avoidance of delay comity convenience and the necessity for an orderly in the trial of contested issues. procedure Shelbys contest of the 2010 will raises issues antecedent to Tommys claims The will contest asks the trial court to remove Tommy as executor because Tommy was appointed pursuant to an invalid will and ii he has material conflict of interest which makes him incapable of properly performing the independent executors fiduciary duties pursuant to Texas Probate Code 149C.84 It is well-established that case should be abated pending determination of plaintiffs standing or capacity to sue Develo-Cepts Inc City of Galveston 668 S.W.2d 790 793 Tex App Houston Dist.J 1984 no writ If the will contest is successful Tommy would lose his capacity to pursue claim against Record 00633-48 33 01043 Shelby Further resolution of the Mexican lawsuits against the Dorseys would foreclose any right to the relief they seek through their counterclaims PRAYER The Court should grant the writ of mandamus and compel the dismissal or abatement of the counterclaims asserted by James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased Respectfully submitted SUSMAN GODFREY LL.P By /s/ Johnny Carter Johnny Carter State Bar No 00796312 cartersusmangodfrey corn Richard Hess State Bar No 24046070 rhesssusmangodfrey corn Kristen Schlemmer State Bar No 24075029 kschlemmersusmangodfrey.com 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713 654-6666 34 01044 Robert Maclntyre Jr State Bar No 12760700 macintyre@mrnlawtexas.com MACINTYRE MCCULLOCH STANFIELD YOUNG 3900 Essex Lane Suite 220 Houston Texas 77027 Telephone 713 54T5400 Attorneys for Shelby Longoria CERTIFICATE OF SERVICE This is to certify that on this the 12th day of November 2013 true and correct copy of the above and foregoing instrument was properly forwarded to the following counsel of record in accordance with Rule 21 of the Texas Rules of Civil Procedure as indicated below James Austin Fisher Via Electronic Mail FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Email jfisherfisherwelch.com Wesley Holmes THE HOLMES LAW FIRM 1000 North Central Expressway Suite 400 Dallas Texas 75231 Email wes@wesholmes.com Attorneys for James Thomas Dorsey Sylvia Dorsey and Adriana Longoria /s/Johnnv Carter Johnny Carter 35 01045 CERTIFICATEOF COMPLIANCE WITH APPELLATE RULE 52.3j This certifies that the undersigned has reviewed this Petition and concluded that factual statement in it is evidence included every supported by competent in the Appendix or record as required by Appellate Rule 52.3j /s/Johnnv Carter Johnny Carter 36 01046 CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4i certif that this document contains 7515 words as indicated by the word- count function of the computer program used to prepare it and excluding the caption identity of parties and counsel statement regarding oral argument table of contents index of authorities statement of the case statement of issues presented statement of jurisdiction statement of procedural history signature proof of service certification certificate of compliance and index as provided by Appellate Rule 9.4i /s/ Johnny Carter Johnny Carter 37 01047 CERTIFICATEOF COMPLIANCE WITH LOCAL RULE 4e6 This certifies that this document has been checked for viruses and maiware /s/ Johnny Carter Johnny Carter 38 01048 NO _____________ IN THE COURT OF APPEALS HOUSTON TEXAS IN RE SHELBY LONGORIA Original Proceeding from the Probate Court Number One Harris County Texas Cause No 414270 APPENDIX TO PETITION FOR WRIT OF MANDAMUS Johnny Carter State Bar No 00796312 Richard Hess State Bar No 24046070 Kristen Schlemmer State Bar No 24075029 SUSMAN GODFmY L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002 Telephone 713 651-9366 Facsimile 713 654-6666 Robert Maclntyre Jr State Bar No 12760700 MAcINTYRE MCCULLOCH STANFIELD YOUNG 3900 Essex Lane Suite 220 Houston Texas 77002 Telephone 713 547-5400 Attorneys for Shelby Longoria 01049 CASE NUIvER 414.270 IN THE ESTATE OF IN PROBATE COURT NO ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS ORDER DENYING MOTION OF SHELBY LONGORIA TO DISMISS OR TO ABATE COUNTERCLAIMS On Ootober 2013 the Court-heard Counter-Defendant Shelby Longot-las Motion To Dismiss Counterclaims for Porunt Non Convenlens or Alternatively To Abate Fending Resolution of Will Contest and Mexican Litigation the Motion Having considered the Motion the brief filed in support of the Motion the response to the Motion the evidence admitted the on the Motion and the record of this case the Court has during hearing concluded that the Motion should be denied IT IS THEREFORE ORDERED that Counter-Defendant Shethy Longorias Motion To Dismiss Counterclaims for Forum Non Conveniens or Alternatively To Abate Pending Resolution of Will Contest and Mexican Litigation be and herby Is DENIED SO ORDERED on this// _day of OC.tfpAcr 2013 PROBATE COURT NUlvSfl ONE Eaauus CoUNTY Thns ORDER DEN21N0 MOTION OP SHELBY LONGOLIA TO DISMISS OR TO ABATE COUNTERCLAIMS Solo Page 01050 CASE NUMBER 14-13-00996-CV IN THE FOURTEENTH COURT OF APPEALS HOUSTON TEXAS IN RE SHELBY LONGORIA Original Proceeding Arising from Cause Number 414270 in Probate Court Number One Harris County Texas RESPONSE TO PETITION FOR WRIT OF MANDAMUS James Austin Fisher Wesley Holmes State Bar of Texas Number 07051650 State Bar of Texas Number 09908495 Shannon L.K Welch THE HOLMES LAW FIRM State Bar of Texas Number 90001699 10000 North Central Expressway FISHER WELCH Suite 400 Professional Corporation Dallas Texas 75231 2800 Lincoln Plaza Telephone 214.890.9266 500 North Akard Street Facsmile 214.890.9295 Dallas Texas 75201 Telephone 214.661.9400 Facsimile 214.661.9404 ATTORNEYS FOR RESPONDENTS JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED AND SYLVIA DORSEY 01051 TABLE OF CONTENTS INDEX OF AUTHORITIES iv ISSUES PRESENTED STATEMENT OF FACTS Objections to Petitioners Statement of Facts Respondents Statement of Facts ARGUMENT 13 The Trial Court Did Not Abuse Its Discretion by Declining To Dismiss the Executors Counterclaims 13 To Show Himself Entitled To Dismissal Shelby Was Required to Bear Heavy Burden To Clearly Show Facts That Strongly Favor Specific Available and Adequate Alternative Forum While Giving Substantial Deference To This Forum 13 The Standard for Dismissal Under the Common Law Is More Stringent Than the Standard Under the Forum Non Conveniens Statute Which Is Inapplicable Here 18 Shelbys Argument Depends Entirely on Documents That Were Not Admitted into Evidence and Testimony That the Trial Court Was Not Obliged to Accept 19 The Petition Relies on Affidavits and Exhibits That Were Not Admitted Below and Are Inadmissible 19 The Petition Relies on Testimony That the Trial Court Was Not Required To Believe 23 01052 Shelby Failed To Prove That Any State in Mexico Is an Adequate and Available Forum for This Case.. 25 The Courts of Tamaulipas Would Not Have Jurisdiction over the Executors Claims Against Shelby or His Third-Party Claims 26 Tamaulipas Is Not an Adequate Alternative Forum Because It Provides No Remedy for the Executors Causes of Action 29 Tamaulipas Is Not an Available Alternative Forum Because the Executors Claims Against Shelby Would Be Barred by an Unwaivable Statute of Repose There 30 Shelby Failed To Prove That the Private-Interest Factors and Public-Interest Factors Favor Litigation of the Executors Claims in Any Other Forum 32 All of the Private-Interest Factors Point to This Forum or Are Neutral 33 Access to Relevant Evidence Is Far Better in This Forum 33 Compulsory Process for Attendance of Unwilling Witnesses Is Available in This Forum But Not in Mexico and the Cost of Obtaining Attendance of Willing Witnesses Is Less Here 40 No View of Any Premises Will Be Needed 40 Judgment of The Trial Court Would Be Fully Enforceable as to All Parties But Judgment of Mexican Court Would Not 41 11 01053 The Practical Problems and Expense of Proceeding in Mexico Are Far Greater 42 All of the Public-Interest Factors Point to This Forum 44 The Dispute Originated Here and There Are No Greater Administrative Difficulties Here Than in Tamaulipas 44 This Community Has the Strongest Relationship to the Litigation So the Burden of Jury Duty Belongs Here 45 The Dispute Arose in Texas Between Texans So This Forum Has the Stronger Interest in Deciding the 45 Controversy Maintaining the Litigation Here Avoids an Issue of Conflicts of Law 48 II The Trial Court Did Not Abuse Its Discretion by Declining To Abate the Executors Counterclaims 50 CONCLUSION AND PRAYER 57 SIGNATURE OF ATTORNEY 59 CERTIFICATE UNDER TEX APP 9.4i 60 CERTIFICATE UNDER TEX APP 52.3j and 52.4 61 CERTIFICATE OF SERVICE UNDER TEX APP 9.5e 62 111 01054 INDEX OF AUTHORITIES Adams Merck Company Inc 353 Fed Appx 960 2009 26 Alpine View Company Ltd Atlas Copco AB 205 F.3d 208 5th Cir 2000 27 American Dredging Company Miller 510 U.S 443 1994 15 Bank of Credit and Commerce International OVERSEAS Ltd State Bank of Pakistan 273 F.3d 241 2d Cir 2001 31 Benz Group Barreto 404 S.W.3d 92 Tex App Houston Dist 2013 no pet 14 11.54 Binder Shepards Inc 133 P.3d 276 Okia 2006 31 Boston Telecommc ns Group Inc Wood 588 F.3d 1201 9th Cir 2009 17 29 42 43 Brady Fourteenth Court ofAppeals 795 S.W.2d 712 Tex.1990 23 City of Keller Wilson 168 S.W.3d 802 Tex 2005 23 Continental Oil Co P.P Industries 504 S.W.2d 616 Tex Civ App Houston Dist 1974 writ ref n.r.e disapproved on other grounds In re Smith Barney Inc 975 S.W.2d 593 Tex 1998 n.6 20 Delfosse C.A C.I Inc.-Federal 267 Cal Rptr 224 227-29 1990 31 iv 01055 Develo-Cepts Inc City of Galveston 668 S.W.2d 790 Tex App Houston Dist 1984 no writ 50 51 52n.117 DiFederico Marriot International Inc 714 F.3d 796 7th Cir 2013 16 25 Dole Food Company Inc Watts 303 F.3d 1104 9th Cir 2002 17 Duha Agrium Inc 448 F.3d 867 6th Cir 2006 16 Fasules DDB Needham Worldwide Inc No 89 1078 1989 WL 55373 N.D Ill 1987 36 Founding Church of Scientology of Washington D.C Verlag 536 F.2d 429 D.C Cir 1976 17 Gallego Garcia No 07-CV-1185 2010 WL 2354585 S.D Cal June 92010 4647 Gomez de Hernandez Bridgestone/Firestone North American Tire L.L 204 S.W.3d 473 Tex App Corpus Christi 2006 pet denied 19 n.55 Guidi InterContinental Hotels Corp 224 F.3d 142 2d Cir 2000 16 Gulf Oil Corp Gilbert 330 U.S 501 1947 17 18 32 33 36 Howeth In vestments Inc City of Hedwig Village 259 S.W.3d 877 Tex App Houston Dist 2008 23 01056 In re Angelini 186 S.W.3d 558 Tex 2006 orig proceeding 23 In re BPZ Resources Inc 359 S.W.3d 866 Tex App Houston Dist 2012 19 n.55 In re ENSCO Offshore International Company 311 S.W.3d 921 Tex 2010 18 19n.55 In re Old Republic National Title Insurance Co No 141001219CV 2011 WL345676 Tex App Houston Dist Feb 2011 orig proceeding 17 In rePirelli Tire L.L.C 247 S.W.3d 670 Tex 2007 19 n.55 In re Smith Barney Inc 975 S.W.2d 593 Tex 1998 n.6 20 Jessop ACF Industries LLC 859 A.2d 801 Pa Super 2004 .. 31 Jiali Tang Synutra International Inc 656 F.3d 242 4th Cir 2011 16 25 Jones Prince Georges County 378 Md 98 835 A.2d 632 2003 31 Kedy Chesterton Co 946A.2d1171R.I.2008 31 Kennecott Holdings Corp Liberty Mutual Insurance Company 578 N.W.2d 358 Minn 1998 31 Kontoulas A.H Robins Company Inc 745 F.2d312 4th Cir 1984 31 vi 01057 Koster American Lumbermens Mutual Casualty Company 330 U.S 518 1947 15 1632 Liberty Mutual Insurance Company Transit Mix Concrete and Materials Company No 06-12-00117-CV 2013 WL 3329026 Tex App Texarkana June 28 2013 pet denied 18 Manu International S.A Avon Products Inc 641 F.2d 62 2d Cir.1981 49 Marchman NCNB Texas National Bank 898 P.2d 709 N.M 1995 31 Mercier Sheraton International Inc 935 F.2d 419 1st Cir 1991 31 Mowrey Johnson Johnson 524 F.Supp 771 W.D Pa 1981 36 Omni Hotels Management Corp Round Hill Developments Ltd 675 F.Supp 745 D.N.H 1987 36 Piper Aircraft Company Reyno 454 U.S 235 1981 15 16 28 29 32 40 Quixtar Inc Signature Management Team LLC 315 S.W.3d28 Tex 2010 141518323340 Reid Walen Hansen 933 F.2d 1390 8th Cir 1991 17 Sanwa Bank Ltd Kato 734 So.2d 557 Fla Dist Ct App 1999 31 vii 01058 Schexnider McDermott International Inc 817 F.2d 1159 5thCir rehg denied 824 F.2d 972 5th Cir cert denied 484 U.S 977 1987 49 SES Products Inc Aroma Classique LLC No 01-12-00219-CV 2013 WL 2456797 Tex App Houston June 62013. 183350 Shewbrooks A.C and Inc 529 So.2d 557 Miss 1988 31 Sinocheni International Company Ltd Malaysia International Shipping Corp 549 U.S 422 2007 14 15 18 SME Racks Inc Sisteinas Mecanicos Para Electronica S.A 382 F.3d 1097 11th Cir 2004 16 Texas Custom Pools Inc Clayton 293 S.W.3d 299 Tex App El Paso 2009 orig proceeding 24 Tuazon R.J Reynolds Tobacco Company 433 F.3d 1163 9th Cir 2006 43 Varo Owens-Illinois Inc 948 A.2d 673 N.J Super 2008 31 Vicknair Phelps Dodge Industries Inc 767 N.W.2d 171 N.D 2009 31 viii 01059 Statutes TEx Civ PRAC REM CODE ANN 71.051 West 2005 18 TEx Civ PRAC REM CODE ANN 71.051i West 2005 18 TEx PR0B CODE ANN 4A West 2013 Supp 46 TEX PROB CODE ANN 4B West 2013 Supp 46 TEx PROB CODE ANN 4F West 2013 Supp 46 TEx PROB CODE ANN 5B West 2013 Supp 46 Rules TEX App 9.41... 60 TEX APP 52.3j.. 61 TEX App 52.4b 61 TEX App 52.4b TEX Civ 176 40 TEX CIV 205 40 TEX Evrn 802 2n.620 Miscellaneous Authorities HAGUE CONVENTION ON TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS 23 U.S.T 2555 1968 42 ix 01060 ISSUES PRESENTED Was it an abuse of discretion for statutory probate court in Harris County Texas to deny motion to dismiss certain claims for forum non conveniens based on the contention that court in Tamaulipas Mexico would be more convenient venue for litigation of those claims where the claims involve four parties none of whom resides anywhere in Mexico all of whom reside in Texas and three of whom reside in Harris County Texas the claims were pleaded by the duly appointed executor of an estate pending in the same probate court the claims were pleaded as counterclaims in will contest in the pending same probate court and presenting common issues of fact the claims seek relief only from party who has lived in Texas for 34 years and who commenced the proceeding in the same probate court in which the counterclaims were pleaded the claims are based on the rights under Texas law of decedent who lived in Texas for the last 25 years of her life lived in Harris County Texas for the last seven years of her life and died in Harris County Texas the claims are expressly based on causes of action that are recognized in Texas law but unrecognized in Mexican law the counter-defendant pleaded third-party claims against two individuals who are not subject to the jurisdiction of the courts in Tamaulipas and the party seeking dismissal had failed to identifr in response to formal request for disclosure single witness who resides in Mexico 01061 Was it an abuse of discretion for statutory probate court in Harris County Texas to deny motion to abate certain claims where the claims were pleaded by the duly appointed executor of an estate pending in the same probate court the claims were pleaded as counterclaims in will contest in the pending same probate court and presenting common issues of fact the party seeking abatement had not filed verified plea in abatement the first asserted for abatement was the claimants lack ground supposed of capacity to serve as executor of the estate but the Trial Court had already made finding of capacity in the manner prescribed by the Texas Probate Code the second asserted ground for abatement was supposed conflict of interest that would disqualify the claimant from serving as executor but no evidence proving the existence of conflict was offered and the third asserted for abatement was need to await ground supposed the outcome of proceedings in Mexico but the movant offered no evidence proving that those proceedings which involved different decedents estate would affect the outcome of the executors counterclaims or any other reasonwhy the litigation in Mexico should be given priority over the litigation here xi 01062 RESPONSE TO PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE COURT OF APPEALS Respondents James Thomas Dorsey as Independent Executor of the Estate of Dorothy Louise Longoria Deceased the Executor and Sylvia Dorsey Sylvia through counsel respectfully submit this response to the Petition for Writ of Mandamus the Petition filed herein by Shelby Longoria Shelby STATEMENT OF FACTS Objections to Petitioners Statement of Facts While we would prefer not to burden the Court with competing statements of facts we are compelled to do so by the impropriety of the statement submitted by Shelby It includes over 35 citations to documents that were not admitted into evidence below These improper references to extraneous materials include citations to inadmissible affidavits1 and citations to exhibits that were attached to the affidavits but not separately offered and admitted into evidence.2 Respondents timely objected See Petition at n.4 nn.8 1012141618 nn.2023-26 nn 2729-31 n.43 15 n.64 23 n.78 n.43 These are citations to affidavit testimony of Shelby and affidavit testimony of one of his attorneys Kristen Schlemmer See Petition at n.2 citing Exhibits 3.1 and 3.2 to the Affidavit of Shelby Longoria n.5 citing Exhibits B.1 and B.2 to the Affidavit of Shelby Longoria n.6 same n.7 citing Exhibit 4.2 to the Affidavit of Kristen Schiemmer n.8 citing Exhibits C.l and C.2 to the Affidavit of Shelby Longoria n.30 citing Ethibit 5.2 to the Affidavit of Kristen Schlemmer n.32 citing Exhibit to the 01063 to the affidavits and their attached exhibits3 and none of them was admitted into evidence save few exhibits to which Respondents withdrew their objections during the hearing.4 Shelby presented in the lower court and he presents in his Petition no argument or authority in response to Respondents objections except as to single exhibit Exhibit which was not admitted.5 despite Shelbys arguments Respondents objections are valid and it would have been harmful error to consider the affidavit testimony and associated exhibits cited in the Petition.6 Affidavit of Kristen Schlemmer n.33 citing Exhibit to the Affidavit of Kristen Schlemmer n.34 same 23 78 citing Exhibits B.1 and B.2 25 n.79 citing Exhibits B.1 B.2 C.1 and C.2 to the Affidavit of Shelby Longoria and Exhibits 4.1 and 5.1 to the Affidavit of Kristen Schlemmer Record 00732-3 Record 00830-31 The exhibits that were attached to affidavits and admitted into evidence by agreement were Exhibits and which can be found at Record 00943-1073 Record 01183-1201 Shelby Longoria Response to Executors Amended Objections to Single Exhibit to the Affidavit of Shelby Longoria Oct 2013 01202-05 Reply Brief in Support of Objections to Exhibit to Affidavit of Shelby Longoria Oct 2013 6The affidavit testimony is inadmissible on several grounds including hearsay See TEX EvID 802 Continental Oil Co P.P.G Indus 504 S.W.2d 616 622 Tex Civ App Houston lst Dist 1974 writ refd n.r.e disapproved on other grounds In re Smith Barney Inc 975 S.W.2d 593 597-98 Tex 1998 affidavits inadmissible as hearsay in proceedings on motion to dismiss for non forum conveniens 01064 Another reason why Respondents are justifiably dissatisfied with Shelbys statement of the facts is that it is highly argumentative and filled with assertions that have no relevance to the issues before the Court but are transparent attempts to cast Respondents in bad light Notable examples are Shelbys assertions that the Decedent Dorothy Louise Longoria Dorothy was induced by her daughters to sign wills in 2009 2010 and 2011 Neither the wills in question nor evidence that the Decedent was induced to sign them was admitted below Shelbys assertions of undue influence are gratuitous slurs and irrelevant to the issues before this Court Also irrelevant are wills supposedly signed by Dorothys husband Eduardo Longoria Sr Eduardo Wish Letter signed by him and so-called Private Agreements between him and his daughters.8 None of these documents purports to be signed by Dorothy and none of them purports to affect her property or her rights.9 She is not even mentioned in the Wish Letter or in the Private Agreements.1 But this case involves her estate not that of her husband The wills Wish Letter and Petition at 5-6 Petition at 3-4 00967-73 Ex F.l F.2 01038-53 Exs 1.11.2 1054-62 Exs K.2 01063-70 Exs L.1 L.2 10 Record 00967-73 Ex F.l F.2 01054-62 Exs K.1 K.2 1063-70 Exs L.1 L.2 01065 Private Agreements of Eduardo Longoria Sr have no relevance to the issues sub judice Finally Respondents are dissatisfied with Shelbys statement of facts because it persistently misrepresents the content of the counterclaims which Shelby seeks to have dismissed For example Shelby discusses the formation of Mexican trust by Eduardo Longoria Sr and repeatedly asserts that the counterclaims contest the validity of the trust To the contrary the counterclaims do not seek decree setting aside the trust.2 For these reasons Respondents exercise their prerogative under TEX APIP 52.4b to submit statement of facts in lieu of that submitted by Shelby Respondents Statement of Facts Procedural Posture of the Litigation This original proceeding arises from will contest that was filed by Shelby on June 18 2013 in statutory probate court Probate Court Number One Harris County Texas the Trial Court.3 Shelby is Petition at 3-4 11 30 12 The Executor contends that Dorothy owned community-property interest in shares of stock that were placed in the trust and he contends that Shelby breached his fiduciary duty to Dorothy in the course of his management of the companies that issued the shares but the Executor does not seek decree setting aside the trust Record 00020-32 Shelby Longoria Contest of2O 10 Will June 182013 01066 the validity of will signed his mother Dorothy on January contesting by 21 2010 over two years before she died on April 2012.14 estate in the Dorothys is pending Trial Court because she was resident of Harris the time of her death she County at died in Harris County and her will was admitted to probate in Harris County.5 Respondent James Thomas Dorsey the Executor is the duly appointed Independent Executor of Dorothys estate.6 In that capacity he pleaded on July 18 2013 set of counterclaims against Shelby the of which that Shelby had gravamen is breached fiduciary duties owed by him to Dorothy.7 On August 30 2013 Shelby as Counter-Defendant pleaded third-party claims his sisters Adriana against Longoria Adriana and Sylvia Dorsey Sylvia.8 On the same day Shelby amended his will contest and thereafter on September 26 2013 the Executor 14 Record 00022 00025 Record 00001-3 Application for Probate of Will and Issuance of Letters Testamentary June 28 2012 01208-09 Order Admitting Will to Probate and Authorizing Letters Testamentary Oct 2012 16Record 01208-09 Order Admitting Will to Probate and Authorizing Letters Testamentary Oct 2012 Record 00036-48 Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased July 18 2013 18 Record 00649-54 Counter-Defendant Shelby Longorias Third-Party Petition Aug 30 2013 01067 amended his counterclaims Shelby Those counterclaims against against Shelby and the related third-party claims of Shelby against and Adriana are the Sylvia subject of this original proceeding Shelby filed in the Trial Court motion to dismiss the Executors counterclaims based on the doctrine offorum non conveniens.2 The counterclaims said Shelby would more conveniently be litigated in the United Mexican States Mexico The motion did not identify particular Mexican state that supposedly would be more convenient forum than Harris Texas but an accompanying County affidavit suggested that the Mexican State of Tamaulipas was where according to the Executor should be required to As Shelby pursue the claims against Shelby.2 an alternative to the remedy of dismissal Shelby asked the Trial Court to abate the Executors counterclaims until Shelbys will contest was fully adjudicated and until case that Adriana and Sylvia had filed in Mexican federal court was concluded.22 19 Record 00633-00648 Shelby Longorias Amended Contest of 2010 Will Aug 30 2013 Record 00655-73 Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased to Shelby Longorias Amended Contest of 2010 Will Sept 26 2013 20 Record 00049-57 21 Record 01080 1083-85 22 Record 0005 3-54 01068 An evidentiary hearing on the motion to dismiss or to abate was convened on October 2013 23 On October 10 2013 the Trial Court issued an order denying the motion in its entirety.24 On November 12 2013 Shelby commenced this original proceeding Shelby urges this Court to issue writ of mandamus commanding the Trial Court to dismiss the Executors counterclaims against Shelby for forum non conveniens In the alternative Shelby seeks writ compelling the Trial Court to abate the counterclaims pending the outcome of his will contest and the case in Mexico.25 Residence of the Parties Shelby the party insisting that for the sake of convenience the Executors counterclaims against him must be brought in Mexico does not live in Mexico He lives in McAllen Texas and has lived there for 34 years.26 The Executor who is the Counter-Plaintiff who is asserting the claims which Shelby seeks to have dismissed lives in Harris County Texas.27 23 Record 00792-93 24 Record 1206-07 25 Petition at 34 26 Record 00861 27 Record 0063 3-34 The address has been redacted but appears in the original pleading filed by Shelby in the Trial Court 01069 Sylvia whom Shelby named as Third-Party Defendant with respect to the Executors counterclaims lives in Harris County Texas.28 Adriana whom Shelby named as Third-Party Defendant with respect the Executors counterclaims lives in Harris County Texas.29 Thus every party to the litigation which Shelby insists must take place in Mexico lives in Texas and three of the four parties live in Harris County Texas Residence of Witnesses In response to formal request for disclosure Shelby did not identify single potential witness who lives anywhere in Mexico.3 Nor did he name one in his testimony during the hearing on his motion to dismiss.3 He did however identify in his disclosures twelve potential witnesses who live in Texas.32 Those identified by Shelby as potential witnesses include his brother Eduardo Longoria Jr also known as Wayo Longoria Wayo who is another of Dorothys 28 Record 00649 The address has been redacted but appears in the original pleading filed by Shelby in the Trial Court 29 Record 00649 The address has been redacted but appears in the original pleading filed by Shelby in the Trial Court 30 Record 00859-60 01153-59 Ex D-3 31 Record 00834-73 32 Record 01154-56 Ex D-3 01070 children Wayo lives in Austin Texas and has lived there for about 35 years.33 He is an important witness because in 1983 Wayo and Shelby both of whom were residing in Texas sent to Dorothy letter in which they promised to hold certain assets as they were and promised to make the fruits available to for direction as to their use.34 In his counterclaims the Executor avers that this letter evidences fiduciary relationship between Shelby and Dorothy and that Shelby breached his fiduciary duty to his mother.35 Another example of fact demonstrating Wayos as importance witness is transaction between him and Shelby in 2007 in the United Following negotiations States with the assistance of American counsel they agreed to redemption of shares of stock in two Mexican holding companies in which the Executor claims Dorothy owned community property rights Wayo and Shelby agreed that to redeem forty- percent interest in the shares one of the companies would pay $24000000 in currency of the United States into trust for Wayos benefit.36 Record 00861 Record 00844-45 01074-75 Ex P-i Record 00658-59 36 Record 00862 00870-72 01163-8 Ex D-6 01071 Respondents identified many other potential witnesses who live in Texas although Shelby failed to identify them in his disclosures.37 They include Shelbys wife Tita who lives with Shelby in McAllen Texas.38 Residence of the Decedent Dorothy lived in Texas for the last 25 years of her life She and her husband Eduardo were married in Laredo Texas lived in initially McAllen Texas later moved to Nuevo Laredo Tamaulipas Mexico and finally settled in Laredo Texas in 1986 or l987 When Eduardo died in 2005 Dorothy moved to Houston where she lived until her death in 20l2 Nature of the Counterclaims Against Shelby The Executors counterclaims begin with this overview41 These counterclaims are brought by citizen of Texas against another citizen of Texas Counter-Plaintiff is the personal representative of an estate pending in this Court and adjudication of these counterclaims is essential to administration of that estate The Decedent lived in Texas for the last 25 years of her life These counterclaims are based entirely on Texas law None of them is based on any law of the United Mexican States Record 00687-8 38 Record 00835 Record 00853 01160-61 Ex.D-4 40 Record 00 855-57 41 Record 00655 10 01072 Thereafter the Executor repeatedly avers that his causes of action are based on Texas law and only on Texas law.42 In addition he makes numerous averments of specific facts occurring in Texas.43 The Executor pleads that fiduciary relationship existed between Shelby and Dorothy and it arose both out of an informal confidential relationship and by express agreement.44 Two letters evidencing that relationship and agreement and signed by Shelby in Texas are specifically identified by the Executor.45 Both letters were admitted into evidence during the hearing on Shelbys motion to dismiss.46 The second of them is dated October 2007 when both Shelby and Dorothy indisputably lived in Texas and it dealt with sum of $450000 specifically large money in currency of the United States that Shelby was by his own admission holding for the benefit of Dorothy.47 The Executor avers and proved at the hearing that Dorothy 42RecordOO66O 1922 00663 J33 35 00664 1JJ36-39 00666 144 00668 1JJ 48-49 00669-70 Prayer for Relief Record 00655 J2 00657 fi 9-10 00658 IJIJ 12 16 00659 17 00660 JJ 19-20 23-25 00661 J26-28 Record 00658 fi 15-16 00659 18 00660 24 Record 00658 16 00659 11 17 46 Record 00844-45 01074-75 Ex P-l 00868 01162 Ex D-5 Record 01162 Ex D-5 11 01073 and Eduardo were married in Texas so all of their property was presumptively community property48 but the Executor also avers that property that was held or should have been held by Shelby in trust for Dorothy included not only property that was or had been her community property but other property as well.49 It is therefore inaccurate to say as Shelby does that the Executors case depends entirely on the existence of community property the Executor avers that Shelby breached his fiduciary duty with respect to Dorothys separate property as well.5 One example identified Executor specifically by the is the $450000 referenced in the letter of October 2007 Finally the Executor avers that Shelby breached in multitude of ways his fiduciary duty to Dorothy and his express agreements with her.52 48 Record 00657 00660 IJ 22 01160-61 Ex D-4 Record 00657 00658 13-15 00660 19-24 00663 IJIJ 9-1 35 50 Record 00663 11 35 Record 00659 17 52 Record 00660 19-20 24-25 00663 35 00666 IJ 43 00668 48 12 01074 ARGUMENT The Trial Court Did Not Abuse Its Discretion by Declining To Dismiss the Executors Counterclaims To Show Himself Entitled To Dismissal Shelby Was Required to Bear Heavy Burden To Clearly Show Facts That Strongly Favor Specific Available and Adequate Alternative Forum While Giving Substantial Deference To This Forum In this proceeding Shelby argues that the Trial Court was required as matter of law to dismiss the Executors counterclaims against Shelby based on forum non conveniens even though Shelby lives in Texas the Executor lives in Texas the third-party defendants live in Texas the Decedent who was the victim of Shelbys torts lived in Texas for the last 25 years of her life and the Decedents estate is being administered in Texas Even in the face of these facts Shelby insists that the Trial Court had no discretion to deny his motion to dismiss that dismissal was absolutely mandatory even though he concedes as he must that the Trial Court has jurisdiction over the subject matter and all of the parties.53 In making this rather remarkable argument Shelby never mentions let alone applies the correct legal standard Shelby cites neither the most recent case in which the Supreme Court of Texas made aforum non conveniens determination nor the most recent case in which the Supreme Court of the United States did so Though Record 00811 13 01075 ignored by Shelby both cases are instructive here See Sinochem Intl Co Malaysia Intl Shipping Corp 549 U.S 422 2007 Quixtar Inc Signature Mngmt Team LLC 315 S.W.3d 28 Tex 2010 In both cases it was held that defendant seeking dismissal for forum non conveniens ordinarily bears heavy burden in opposing the plaintiffs chosen forum Quixtar 315 S.W.3d 2831 Tex 2010 quoting Sinochem 549 U.S at 430 emphasis added.54 But Shelby never acknowledges the heavy burden imposed on him by common law Instead Shelby jumps ahead to address the adequacy and availability of Mexican forum and various factors of private and public interest By considering those criteria without reference to the controlling legal standard Shelbys argument wanders aimlessly and leads to manifestly unjust conclusion In direct contradiction of entire thrust of Shelbys argument both the U.S Supreme Court and the Supreme Court of Texas in their most recent decisions declared that substantially greater deference must be paid to claimants choice of In makingforum non conveniens determinations the Texas Supreme Court has routinely applied the standards enunciated by the United States Supreme Court Quixtar 315 S.W.3d at 32 we regularly consider United States Supreme Court precedent in both our common law and statutory forum non conveniens cases Shelby admits that Texas takes its common-law forum non conveniens doctrine from the equivalent federal doctrine Petition at citing Benz Group Barreto 404 S.W.3d 92 96 Tex App Houston Dist 2013 no pet yet Shelby largely ignores the federal case law in his presentation to this Court 14 01076 forum where as here the claimant lives within the forum Sinochem 549 U.S at 430 Quixtar 315 S.W.3d at 31 This requirement of greater deference to the claimants choice of his own place of residence as the venue of the litigation is deeply rooted in the common law of forum non conveniens dating at least to Koster American Lumbermens Mutual Casualty Co 330 U.S 518 1947 in which the Court wrote V/here there are only two parties to dispute there is good reason why it should be tried in the plaintiffs home forum if that has been his choice He should not be deprived of the presumed advantages of his home jurisdiction except upon clear showing of facts which either establish such oppressiveness and vexation to defendant as to be out of all proportion to plaintiffs convenience which may be shown to be slight or nonexistent or make trial in the chosen forum inappropriate because of considerations affecting the courts own administrative and legal problems 330 U.S at 524 The Supreme Courthas repeatedly confirmedthe continuing validity of this standard Sinochem 549 U.S at 429 American Dredging Co Miller 510 U.S 443 447448 1994 PiperAircraftCo Reyno 454 U.S 235241 1981 Yet Shelby never mentions it Even where the plaintiff does not reside in the forum defendant seeking dismissal for forum non conveniens must make showing that the relevant public and private interests strongly favor specific adequate and available alternative 15 01077 forum DiFederico Marriotlnt Inc 714 F.3d 796 802 7th Cir 2013 quoting Jiali Tang Synutra Intl Inc 656 F.3d 242 246 4th Cir.2011 emphasis in original But when the plaintiff chooses his home forum the plaintiffs choice of forum is entitled to even greater deference DiFederico 714 F.3d at 802-03 citing Pzper Aircraft 454 U.S at 255-56 The forum in which the plaintiff is citizen is presumptively convenient Pzper Aircraft 454 U.S at 256 and should be overridden only when the defendant establish such oppressiveness and vexation to defendant as to be out of all proportion to plaintiffs convenience which maybe shown to be slight or nonexistent Koster 330 U.S at 524 As long as there is real showing of convenience by plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown Id Overwhelming authority stands for the proposition that courts must give substantially greater deference to the claimants choice of forum when the claimant is citizen of the forum DiFederico 714 F.3d at 803 citing Duha Agrium Inc 448 F.3d 867 873 6th Cir 2006 See also SMERacks Inc SistemasMecanicos Para Electronica S.A 382 F.3d 1097 1101 11th Cir 2004 explaining that the presumption in favor of the plaintiffs initial forum choice is at its strongest when the of plaintiffs are citizens residents or corporations this country Guidi InterContinental Hotels Corp 224 F.3d 142 1462dCir 2000 reversingbecause 16 01078 the district court did not recognize that the is entitled to greater deference plaintiff when choosing her home forum Reid Walen Hansen 933 F.2d 1390 1395 8th Cir 1991 citizens should rarely be denied access of the United to courts States Founding Church of Scientology of Washington D.C 536 F.2d 429 435 Verlag D.C Cir 1976 should require positive evidence of unusually extreme circumstances and should be thoroughly convinced that material injustice is manifest before exercising any such discretion to deny citizen access to the courts of this country In sum the Supreme Court has admonished that unless the balance is strongly in favor of the defendant the choice of forum should plaintiffs rarely be disturbed Gulf Oil Corp Gilbert 330 U.S 501 508 1947 emphasis added and that jurisdiction is to be declined only in exceptional circumstances Id at 504 Forum non conveniens is an exceptional tool to be applied sparingly not doctrine that compels plaintiffs to choose the optimal forum for their claim Boston Telecomms Group Inc Wood 588 F.3d 1201 1206 9th Cir 2009 quoting Dole Food Co Inc Watts 303 F.3d 1104 1118 9th Cir.2002 This Court has acknowledged these well-established principles Unless the balance weighs heavily in favor of the defendant court should rarely disturb the plaintiffs choice of forum In re OldRep Nat Titlelns Co.No 14-lO-0l219CV 17 01079 2011 WL 345676 at Tex App Houston Dist Feb 2011 orig proceeding citing In re ENSCO Offshore Intern Co 311 .W.3 92192829 Tex 2010 Accord SES Prods Inc Aroma Classique LLC No 0l-12-00219-CV 2013 WL 2456797 at Tex App Houston Dist June 2013 citing Sinochem 549 U.S at 430 Gulf Oil 330 U.S at 508 Quixtar 315 S.W.3d at 31 These black-letter principles are ignored in the Petition yet they constitute the overarching standard by which courts are to evaluate the various factors relevant to forum non conveniens determinations Because Shelby considers those factors without reference to the controlling standard Shelbys analysis is meaningless The Standard for Dismissal Under the Common Law Is More Stringent Than the Standard Under the Forum Non Conveniens Statute Which Is Inapplicable Here The argument presented by Shelby contains another material error it fails to distinguish cases governed by the common law from cases governed by the Texas forum non conveniens statute TEx CIV PRAc REM CODE ANN 71.051 West 2005 The statute is applicable only to actions for personal injury or wrongful death TEX Civ PRAC REM CODE Ainr 71.05 1i West 2005 so it has no bearing here Forum non conveniens cases under the common law are clearly distinguishable from cases under the statute Liberty Mutual Ins Co Transit Mix Concrete and Materials Co No 06-12-00117-CV 2013 WL 3329026 at Tex 18 01080 App Texarkana June 28 2013 no pet h. Shelby cites several cases that were governed by the statute not by the common law but Shelby fails to mention the statute or advise the Court of this important distinction.55 Shelby had powerful incentive to gloss over the distinction between and common-lawforum non conveniens statutory analysis as the Supreme Court of Texas has observed in cases decided under the common law the private-interest factors and public-interest factors must strongly favor the movant in order for dismissal to be warranted but under the statute mere tipping of the balance in favor of the movant is all that is required In re ENSCO Offshore International Co 311 S.W.3d 921 928-29 Tex 2010 Shelbys Argument Depends Entirely on Documents That Were Not Admitted into Evidence and Testimony That the Trial Court Was Not Obliged to Accept The Petition Relies on Affidavits and Exhibits That Were Not Admitted Below and Are Inadmissible The Petition contains numerous citations to evidence that was not admitted during the hearing on Shelbys motion to dismiss and that is indeed facially See Petition 1723 26 citing In reENSCO Offshore International Co 311 at S.W.3d Tex 2010 15 23 242629 citing In re BPZResources Inc 359 921 927-28 S.W.3d 866 869-70 Tex App Houston Dist 2012 15 16 18 19 23 citing In re Pirelli Tire L.L.C 247 S.W.3d 670 677-78 Tex 2007 15 citing Gomez de Hernandez Bridgestone/Firestone North American Tire L.L.C 204 S.W.3d 473 483 Tex App Corpus Christi 2006 pet denied 19 01081 inadmissible There are for example at least 18 instances of improper citations to the Affidavit of Shelby Several Longoria.56 days before the hearing the Executor filed written to this affidavit.57 was not admitted offered objections It or even into evidence during the hearing on Shelbys motion to dismiss and with good reason no statute or rule authorizes consideration of affidavits in support of motion to dismiss for forum non conveniens and such affidavits inadmissible are therefore hearsay See TEX EvID 802 is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority Continental Oil Co P.P Indus 504 S.W.2d 616622 Tex Civ App Houston Dist 1974 writ ref n.r.e disapproved on other grounds In re Smith Barney Inc 975 S.W.2d 593 597-98 Tex 1998 affidavits inadmissible as in hearsay proceedings on motion to dismiss for forum non conveniens The Affidavit of Shelby Longoria was objectionable on other valid grounds as well.58 56 See Petition at n.4 nn.81012141618 nn.2023-26 nn 2729-3 15 n.64 23 n.78 all citing affidavit testimony of Shelby Longoria Record 00732-3 58 Id 20 01082 The Petition also contains improper citations to the Affidavit of Kristen Schlemmer who is an attorney for Shelby and exhibits attached to her affidavit.59 The Executor timely filed written objections to this affidavit and some of the attached exhibits.6 They were neither offered nor admitted into evidence during the hearing on Shelbys motion to dismiss the Executors counterclaims All told the Petition cites at least ten exhibits that were not admitted into evidence.6 The Executor timely objected to admission of these exhibits.62 Stripped of the assertions that are based on inadmissible affidavits and exhibits that were not admitted into evidence Shelbys statement of facts is reduced to few Petition See e.g n.7 citing Exhibit 4.2 n.32 citing Exhibit n.33 citing Exhibit n.34 same n.43 citing testimony of Kristen Schiemmer 25 n.79 citing Exhibits 4.1 and 5.1 60 Record 00735-3 61 See Petition at n.2 citing Exhibits 3.1 and 3.2 to the Affidavit of Shelby Longoria n.5 citing Exhibits and B.2 to the Affidavit of Shelby Longoria n.6 same n.7 citing Exhibit 4.2 to the Affidavit of Kristen Schlemmer n.8 citing Exhibits C.l and C.2 to the Affidavit of Shelby Longoria n.30 citing Exhibit 5.2 to the Affidavit of Kristen Schlemmer n.32 citing Exhibit to the Affidavit of Kristen Schiemmer n.33 citing Exhibit to the Affidavit of Kristen Schlemmer n.34 same 23 78 citing Exhibits B.l and B.2 25 n.79 citing Exhibits B.l B.2 C.1 and C.2 to the Affidavit of Shelby Longoria and Exhibits 4.1 and 5.1 to the Affidavit of Kristen Schlemmer 62 Record 00734-36 21 01083 disconnected points and his entire argument falls apart.63 One important example is Shelbys argument that entered into an agreement with her oft-repeated Dorothy husband Eduardo Longoria Sr to divide their community property into separate estates and that court in Mexico entered judgment the partitioning community property.64 Neither the alleged agreement nor the alleged judgment was admitted into evidence by the Trial Court so the argument is baseless in this original proceeding.65 Well over half of Shelbys citations to evidence are improper references to affidavits or exhibits that were not admitted into evidence The Petition does not assert that it was error to exclude such materials nor does it present any argument or authority for the proposition that the Executors objections were invalid Needless to say Shelby has no right to mandamus relief based on evidence that was neither offered nor admitted in the Trial Court Riddled with inappropriate citations the Petition is plainly defective and should be denied 63 The few assertions of fact that are supported by admitted evidence rely almost exclusively on the testimony of Shelby himself or that of his expert witness Of course the Trial Court had no obligation to believe that testimony See text infra at 23 64 Petition at 1-2 11-13 22 30 32 65 Interestingly Shelby testified at the hearing on October that the alleged agreement partitioning his parents community property was seen by himfor the first time only two months ago Record 00866 22 01084 The Petition Relies on Testimony That the Trial Court Was Not Required To Believe the hearing on During Shelbys motion to dismiss Shelby called two witnesses himself and an expert witness by the name of Carlos Alberto Enrique Jose Lorenzo Gabuardi Arreola hereinafter referred to as Carlos The Petition frequently cites their testimony incorrectly that the Trial Court was obliged to accept assuming it as true But trial judge who is charged with resolving issues of fact is to empowered make credibility determinations and may choose to believe one witness over another while reviewing court may not impose its own opinion to the Howeth contrary Investments Inc City of Hedwig Village 259 S.W.3d 877 894 Tex App Houston 2008 citing CityofKellerv Wilson 168 S.W.3d 802 819 Tex 2005 It is not necessary to have testimony from both parties before the trier of fact disbelieve the trier of fact may either may disregard even uncontradicted and unimpeached testimony from disinterested witnesses City of Keller 168 S.W.3d at 819 It is axiomatic that the trier of fact is the sole judge of the credibility of the witnesses and appellate courts have no authority to make credibility determinations These principles of course apply in mandamus proceedings In re Angelini 186 S.W.3d 558 560 Tex 2006 citing Brady Fourteenth Court of Appeals 795 23 01085 S.W.2d 712714 Tex.1990 Texas Custom Pools Inc Clayton 293 S.W.3d 299 306 Tex App El Paso 2009 orig proceeding The Petition relies heavily on the testimony of Shelby and Carlos It contains at least eleven citations to testimony given the hearing66 and by Shelby during at least seven citations to testimony of Carlos.67 The Trial Court was not legally required to believe any of this testimony Shelby of course is the Counter-Defendant who is seeking dismissal of the counterclaims against him so he is highly interested witness whose testimony is inherently suspect Carlos is retained expert witness whose testimony was both impeached on cross-examination68 and refuted by the testimony of han Rosenberg the expert called by the Executor.69 The Trial Court had ample reason to disbelieve the testimony of Shelby and Carlos That testimony and the inadmissible affidavits and exhibits identified in the preceding section of this response constitute virtually all of the evidence on which the Petition depends The insurmountable problem for Shelby in this mandamus 66 See Petition at nn.9-lO nn.12-1317 n.25 nn.2729 n.46 11 n.56 16n.65 67 See Petition at n.3 n.44 16 n.65 17 n.68 18 72 28 nn.81-82 68 Record 00889-93 Ex D-l 69 Record 00907-22 01125-42 24 01086 is the lack of conclusive evidence on any of proceeding supporting his position the criteria for forum non conveniens in case in which he bears the burden of proof with respect to every criterion The Trial Court was not required to believe the testimony of Shelby and Carlos and without their testimony Shelby has no colorable argument that he carried his heavy burden to prove facts that would have required the Trial Court to dismiss the Executors counterclaims for forum non conveniens in the face of the substantial deference to be afforded this forum Shelby Failed To Prove That Any State in Mexico Is an Adequate and Available Forum for This Case In order to prevail on motion to dismiss for forum non conveniens the movant must first demonstrate that there is specific adequate and available alternative forum DiFederico 714 F.3d at 802 quoting Jiali Tang 656 F.3d at 246 In his motion to the Trial Court as in his Petition to this Court Shelby failed to identifi the specific forum advocated by him he asserted only that the Executor must pursue his claims somewhere in Mexico But Mexico has federal system in which states enact and enforce their own laws and laws vary from one Mexican state to another.7 Shelbys motion and brief to the Trial Court did not say where exactly 70 Record 01126 25 01087 Shelby contended that the Executor should have asserted his claims71 deficiency that was fatal in itself in light of the movants burden to demonstrate that specific alternative forum is available and adequate Shelbys expert witness however made reference to the laws of the Mexican State of Tamaulipas72 so we will assume for the sake of argument that Tamaulipas is the alternative forum advocated by Shelby For three reasons Tamaulipas is not an available and adequate forum for litigation of the Executors claims first the courts of Tamaulipas would not have jurisdiction over the Executors claims against Shelby or over Shelbys third-party claims against Sylvia and Adriana second the causes of action pleaded by the Executor are not recognized in Tamaulipas or anywhere in Mexico so no remedy is available there third the Executors claims would almost entirely be time-barred by an unwaivable statute of repose Each of these three points precludes the relief sought by Shelby The Courts of Tamaulipas Would Not Have Jurisdiction over the Executors Claims Against Shelby or His Third-Party Claims foreign forum is available when the entire case and all parties can come within the jurisdiction of that forum Adams Merck Co Inc 353 Fed Appx 71 Record 00049-57 00058-92 72 Record 01080 01083-85 26 01088 960 962 2009 quotingAlpine View Co Ltd Atlas CopcoAB 205 F.3d 208 221 5th Cir 2000 emphasis added During the hearing the Court received into evidence without objection by Shelby the affidavit of han Rosenberg highly qualified expert in Mexican law Mr Rosenberg also testified in person during the hearing.74 Mr Rosenberg testified that if the Executor were to file in Tamaulipas the claims that he has as pleaded counterclaims here the court in Tamaulipas would almost certainly dismiss those claims sua sponte for lack ofjurisdiction.75 The Executor would face insurmountable problems of both subject-matter jurisdiction and personal jurisdiction whether or not Shelby purports to submit to the jurisdiction of court in Tamaulipas.76 Consequently the alternative forum proposed by Shelby is unavailable and the Petition must be denied Even greater jurisdictional problems attend the third-party claims of Shelby against Sylvia and Adriana The Third-Party Defendants who are represented by the undersigned attorney will not voluntarily submit to the jurisdiction of the courts of Record 00911-12 01125-42 Ex D-1 Record 00908-22 Record 01133-34 fi 28-34 76 Record 01134 T1J 28-37 27 01089 Tamaulipas so there can be no argument that the third-party claims could be tried there Contrary to Shelbys assertions the amparo proceeding filed by Sylvia Dorsey and Adriana Longoria in federal court in Mexico does not subject them to the jurisdiction of any Mexican court in other Shelbys any proceeding.77 third-party claims against Sylvia and Adriana cannot be tried in Mexico.78 The Supreme Court has held that the inability to implead potential third-party defendants has bearing on forum non conveniens determination Piper Aircraft 454 U.S at 259 In that case the putative third-party defendants were citizens of the alternative forum so their citizenship militated in favor of dismissal Id Here on the other hand Shelby has pleaded third-party claims against two residents of Houston Texas.79 Neither of them is amenable to service of process in Tamaulipas or subject to the jurisdiction of the courts of that State.8 But it might be argued Shelbys third-party claims against his sisters may be pursued in Houston after litigation of the Executors claims is concluded in Record 01136-38 43-52 78 Record 01134 34 See Record 00649 Counter-Defendant Shelby Longorias Third-Party Petition Aug 30 2013 at 1111 2-3 80 Record 01133-34 28 01090 Tamaulipas Even if that is true the inconvenience associated with having multiple proceedings is factor to be weighed in the forum non conveniens analysis It is true of course that if defendants were found liable after trial in the United States they could institute an action for or contribution these indemnity against parties in Scotland It would be far more convenient however to resolve all claims in one trial Id see also Boston Telecomms 588 F.3d at 1211 the inabilityto impleadpotential third-party defendants can be factor So the existence of Shelbys third-party claims cut against his motion to dismiss and provided valid basis for the Trial Courts denial of his motion Tamaulipas Is Not an Adequate Alternative Forum Because It Provides No Remedy for the Executors Causes of Action The Executors causes of action for breach of fiduciary duty do not exist in Mexican law generally or the law of Tamaulipas in particular.81 Unlike Texas Mexico does not recognize or enforce fiduciary duties based on informal fiduciary relationships or private trusts In fact Mexican law does not recognize the existence of private trusts at all Mexican law only recognizes trusts created through federally licensed financial institutions subject to regulatory directive and oversight Mexico 81 Record 01135 JJ 39-40 29 01091 would provide no recourse or remedy so as matter of law no court in Mexico would be an adequate forum for litigation of the Executors counterclaims.82 Shelby cites several cases in which Mexico was held to be an adequate alternative forum83 but in none of them was the cause of action one for breach of fiduciary duty arising out of either an informal fiduciary relationship or private trust agreement actions wholly unrecognized in Mexican law so those cases are inapposite Mexico provides no remedy for the Executors causes of action so Mexico is not an adequate forum for litigation of the Executors counterclaims Tamaulipas Is Not an Available Alternative Forum Because the Executors Claims Against Shelby Would Be Barred by an Unwaivable Statute of Repose There The testimony of han Rosenberg also establishes that if the counterclaims were pleaded in Tamaulipas they would be barred by statute of repose.84 The 82 Id The expert testimony proffered by Shelby on this point is unavailing Carlos testified to the general propositions that Mexico allows claims for money damages and Mexico allows party to seek contractual or extra-contractual damages Record 01083 J1J 29-30 He did not however state that Mexico recognizes cause of action for breach of fiduciary duty arising out of an informal fiduciary relationship or private trust His testimony is too general to be of consequence Furthermore his testimony was effectively neutralized on cross examination Record 00889-93 The Trial Court of course was free to disregard it 83 Petition at 17-19 84 Record 00913-14 30 01092 statute of repose is unwaivable so Shelbys agreement to waive any limitations defense is meaningless This too dooms the Petition As matter of law no adequate alternative forum is available if the claim would be time-barred in the proposed alternative forum See e.g Bank of Credit and Commerce Intl OVERSEAS Ltd State Bank of Pakistan 273 F.3d 241 246 2d Cir 2001 Mercier Sheraton Intl Inc 935 F.2d 419 423-24 1st Cir 1991 Kontoulas A.H Robins Co Inc 745 F.2d 312 316 4th Cir 1984 Vicknairv PhelpsDodge Indus Inc 767N.W.2d 171 177-78 N.D 2009 Delfosse C.A.C.I Inc.-Federal 267 Cal Rptr 224 227-29 1990 Sanwa Bank Ltd Kato 734 So.2d 557 561 Fla Dist Ct App 1999 Jones Prince Georges County 378 Md 98 835 A.2d 632 646 2003 Kennecott Holdings Corp Liberty Mut Ins Co 578 N.W.2d 358 361-62 Minn 1998 Shewbrooks A.C and Inc 529 So.2d 557 561-62 Miss 1988 Varo Owens-Illinois Inc 948 A.2d 673 680-81 N.J Super 2008 Marchman NCNB Texas Nat Bank 898 P.2d 709 724 N.M 1995 Binder Shepard Inc 133 P.3d 276 278-80 Okia 2006 Jessop ACFIndus LLC 859 A.2d 801 803 Pa.Super 2004 Kedy A.W Chesterton Co 946 A.2d 1171 1183-84 R.I 2008 Thus for three independent reasons Tamaulipas is not an available and adequate forum for litigation of the Executors counterclaims against Shelby 31 01093 Shelby Failed To Prove That The Private-Interest Factors and Public-Interest Factors Favor Litigation of the Executors Claims in Any Other Forum The Petition also must be denied because the relevant private-interest factors and public-interest factors do not clearly show facts which either establish such oppressiveness and vexation to defendant as to be out of all proportion to plaintiffs convenience which may be shown to be slight or nonexistent or make trial in the chosen forum inappropriate because of considerations affecting the courts own administrative and legal problems Koster 330 U.S at 524 In Quixtar the Supreme Court of Texas identified the relevant factors after noting that the central focus of the forum non conveniens inquiry is convenience 315 S.W.3d at 33 quoting PiperAircraft 454 U.S at 249 The well-known Gulf Oil factors direct courts to consider both public and private interest considerations in forum non conveniens dismissals 315 S.W.3d at 33 citing Gulf Oil 330 U.S at 50809 Private considerations include the relative ease of access to sources of proof the availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses the possibility of view of premises if view would be appropriate to the action the enforceability of judgment once obtained and all other practical problems that make trial of case easy expeditious and inexpensive Id quoting Gulf Oil 330 U.S at 508 32 01094 Public considerations include difficulties for courts when litigation is piled up in congested centers instead of being handled at its origin the burden of jury duty that ought not to be imposed upon the people of community which has no relation to the litigation local interest in having localized controversies decided at home and avoiding conflicts of law issues Quixtar 315 S.W.3d at 33-34 quoting Gulf Oil 330 U.S at 50809 Based on the evidence admitted by the Trial Court the Trial Court easily could have found that none of the relevant factors militates in favor of the alternative forum proposed by Shelby.85 And Shelby had the burden of proof as to every factor SES Prods 2013 WL 2456797 at All of the Private-Interest Factors Point to This Forum or Are Neutral Access to Relevant Evidence Is Far Better in This Forum The Executor lives in Houston Texas Shelby lives in McAllen Texas The Third-Party Defendants impleaded by Shelby live in Houston Texas Thus three of the four parties live in Houston Texas and all of them live in Texas.86 Shelby 85 In his Petition to this Court Shelby does not assert that the Trial Court erred by excluding any evidence 86 Record 00633-34 00649 00861 33 01095 cites no case and we have found none in which every party was resident of the forum where the case was filed and it was nevertheless dismissed for forum non conven iens Here in addition to the parties many other key witnesses live in Texas The Executor advised the Trial Court of the following witnesses Eduardo Longoria Jr also known as Wayo Longoria who is other child Dorothys the brother of Shelby Sylvia and Adriana and who lives in Austin Texas Adrian Hernandez who served as the personal accountant of both Dorothy and Shelby and whose office is in Houston Texas Pepe Treviflo lawyer who provided estate-planning services to Dorothy and her husband and whose office is in Laredo Texas Shelbys wife Tita Longoria who lives in McAllen Texas and who has knowledge of Dorothys relationship with Shelby and transactions the affecting property of Dorothy Carolyn Beckett lawyer in Austin Texas who has represented Shelby in various matters related to his parents with estates including dispute Adriana Longoria over Shelbys performance of the Private Agreement in 2010 Attorneys accountants and appraisers involved in 2007 transaction negotiated and consummated in Texas between Shelby and his brother Wayo Longoria in which Wayo was paid about $24000000 for his interest in stock forty percent trust containing formerly held in the names of Dorothy and her husband 34 01096 Dorothys friends physicians and caregivers with whom she spoke about her property and about Shelby and her other children during the last seven years of her life when she lived in Houston of witnesses claimed in his brief but never Against this array Shelby proved that the following witnesses live in Mexico the witnesses to execution of will by Eduardo the witnesses to execution of trust agreement and Eduardos by Eduardo legal advisors all of the Banca Afirme employees who managed the trust and all of the employees of the Mexican Trusts Mexican businesses.87 The supposed need for the testimony of these persons is contrived The Executors counterclaims do not contest the will signed by Eduardo so no testimony from those who witnessed the signing of that will is required.88 Likewise the counterclaims do not dispute that Eduardo signed the trust agreement referenced in the Petition so the testimony of the witnesses to that signing is Shelby offered no evidence of the unnecessary identities whereabouts or supposedly relevant knowledge of the unnamed legal advisors of Eduardo or the unnamed employees of Banco Afirme or the unnamed employees of the Mexican Trusts Mexican businesses Shelby proved neither that such have persons knowledge of relevant facts nor that they are located in the State of Tamaulipas 87 Record 00081 88 Record 00655-73 35 01097 Indeed he admitted that the Mexican businesses are in various states in Mexico not only in Tamaulipas so he provided to the Trial Court no evidentiary basis on which the Trial Court could base finding as to the number of witnesses in Tamaulipas or the significance of their testimony.89 Conclusory allegations of need as to unnamed witnesses and unspecified evidentiary materials are insufficient to establish the clear showing mandated by Gulf Oil Corp that balancing of conveniences strongly favors forum non conveniens dismissal Omni Hotels Mgmt Corp Round HillDevs Ltd 675 F.Supp 745752 D.N.H 1987 citing Gulf Oil 330 U.S at 510-11 Accord Fasules DDB Needham Worldwide Inc No 89 1078 1989 WL 55373 at N.D Ill 1987 Mowrey Johnson Johnson 524 F.Supp 771 777 W.D Pa 1981 Moreover since Shelby controls the Mexican businesses90 the Trial Court reasonably could infer that Shelby already has or easily can obtain whatever information might be needed in connection with the Executors counterclaims The bottom line is this all of the potential witnesses who were specifically identified in the proceedings below reside in Texas and most of them reside in the Houston Texas To state the obvious the location of the Trial Court is far more 89 Record 00839 90 Record 00839-41 00861 00863-64 36 01098 convenient for such witnesses than the location of any court in Tamaulipas which is about 300 miles away and requires an international border-crossing to visit But distance is not the only obstacle or even the most daunting obstacle to obtaining in Tamaulipas the testimony of the many witnesses who live in Texas On 12 2013 the United Travel Warning July States Department of State issued about the situation in Mexico.9 security copy was admitted into evidence without objection.92 It provides chilling view of travel in the border region which of course includes Tamaulipas93 Gun battles between rival TCOs Criminal Organizations or with Mexican authorities have taken place in towns and cities many parts of Mexico in especially in the border region Gun battles have occurred in broad daylight on streets and in other public venues such as restaurants and clubs The number of kidnappings and disappearances throughout Mexico is of particular concern Both local and expatriate communities have been victimized In addition local police have been implicated in some of these incidents 91 Record 01143-52 92 Record 00893 Record 01144 emphasis added 37 01099 Carjacking and highway robbery are serious problems in many parts of the border region and U.S citizens have been murdered in such incidents Incidents have occurred during the day and at night and carjackers have used variety of techniques including bumping/moving vehicles to force them to stop and running vehicles off the road at high speeds The situation in Tamaulipas is so bad in fact that employees of the United States Government have been directed to defer non-essential travel to the state of Tamaulipas and are prohibited from personal travel on Tamaulipas highways outside of Matamoros and Nuevo Laredo due to the tenuous security situation.94 When travel for official purposes is essential it is conducted with extensive security precautions.95 While the general public is not forbidden from visiting places categorized under defer non-essential travel USG personnel will not be able to respond quickly to an emergency situation in those areas due to security precautions that must be taken by USG personnel to travel to those areas.96 Record 01149 Record 01144 emphasis added 961d 38 01100 Shelby himself admits that violence street shoot-outs kidnapping and extortion have been persistent threats along the Mexican border to this very day.97 For Shelby to claim that Tamaulipas is convenient venue in the face of these harsh realities betrays again lack of candor to the Court In light of the indisputable danger of travel in Tamaulipas it is established beyond peradventure that for the litigants themselves and for many other witnesses whose testimony is definitely needed Houston Texas is afar more convenient forum than Tamaulipas Although this is obvious true Shelby insists that it is legally inconsequential Based on carefully selected language in the opinions from various cases Shelby argues that the danger of travel in Tamaulipas could not be given any weight by the Trial Court in the absence of highly specific evidence as to the effect of the danger on the legal system there.98 We respectfully disagree In each of those cases the holding was that dismissal was within the discretion of the trial court notwithstanding evidence of political unrest or violence and such evidence did not by itself preclude dismissal None of those cases held that evidence of danger in the proposed alternative forum could not be considered by trial court as affecting the convenience Record 00066 98 Petition at 26-27 39 01101 of the parties and witnesses The central focus of the forum non conveniens inquiry is convenience Quixtar 315 S.W.3d at 33 quoting Piper Aircraft 454 U.S at 249 and the recent warning of the State Department certainly establishes that travel in Tamaulipas is inconvenient to say the least Since even admits that Shelby many witnesses including all of the litigants live in Texas the Trial Court could reasonably have found that some or all of the most imporant witnesses would be detered from traveling to Tamaulipas in order to testify there Compulsory Process for Attendance of Unwilling Witnesses Is Available in This Forum But Not in Mexico and the Cost of Obtaining Attendance of Willing Witnesses Is Less Here All of the witnesses who live in Texas can be compelled by the Trial Court to testify either in person or by deposition See TEX CIV 176205 None of them can be compelled to give testimony in Mexican proceeding For those witnesses who despite the grave danger described above might be willing to travel voluntarily to Tamaulipas the expense of security precautions is prohibitive As Shelby has identified no Mexican witnesses whose testimony is relevant to the Executors counterclaims this factor cuts against dismissal No View of Any Premises Will Be Needed There is no need for the trier of fact to view any premises as Shelby admits.99 Petition at 25 40 01102 Judgment of The Trial Court Would Be Fully Enforceable as to All Parties Judgment of Mexican Court Would Not Shelby ignores this factor and the reason is obvious it undercuts his argument Shelby lives in Texas and he filed the will contest which commenced this litigation The Executor pleaded his counterclaims in to Shelbys will response contest Thus if the counterclaims are allowed to proceed in the Trial Court the judgment of the Trial Court will be fully enforceable against Shelby and of course the Executor In addition entered the Trial Court on Shelbys judgment by third-party claims against Sylvia and Adriana would be fully enforceable As both of them live in Houston the Trial Court unquestionably may exercise personal jurisdiction over them as Shelby admits If on the other hand the counterclaims are dismissed as demanded by Shelby he will not be able to pursue his third-party action as no court in Tamaulipas has jurisdiction over the Third-party Defendants.101 The litigation will become fragmented Duplicative proceedings and multiple judgments will be required to achieve final resolution 100 Record 00811 101 Record 01133-34 41 01103 The Practical Problems and Expense of Proceeding in Mexico Are Far Greater Shelby has not identified any specific problem that will arise from litigation of the Executors counterclaims in the Trial Court but will not arise if the Executor his claims in pursues court in Tamaulipas Respondents on the other hand have identified significant problems with litigation in Tamaulipas Respondents have proven and Shelby has admitted that Tamaulipas is an exceedingly dangerous place so anyone traveling there must incur unreasonable risk and incur substantial expense This factor therefore away from Tamaulipas for security.02 points Shelby argues that the Executors counterclaims against him should be dismissed because documentary evidence regarding the Mexican businesses in which Dorothy had owned interests is kept in Mexico.3 similar situation was faced in Boston Telecommunications Group Inc Wood Although it was foreseeable that documents located in Mexico would have to be obtained the court noted that there are established legal processes such as the HAGUE CONVENTION ON TAKING OF EVIDENCE ABROAD iN CIVIL OR COMMERCIAL MATTERS 23 U.S .T 25551968 by which this can be done and need to invoke those processes does not compel 102 Record 00066 01144 01149 103 Petition at 22 42 01104 dismissal for forum non conveniens Any court will necessarily face some difficulty in securing evidence from abroad but these complications do not necessarily justify dismissal 588 F.3d at 1288 quoting Tuazon R.J Reynolds Tobacco Co 433 F.3d 1163 1181 9th Cir 2006 More importantly Shelbys position is disingenuous because he controls the entities that own the documents4 and he lives in Texas Cf Boston Telecomms 588 F.3d at 1208 finding it was reasonable to assume that documents which the movant represented to belong to foreign entities were in the possession of the chief executive officer who resided in California and effectively managed the companies from there During the hearing on his motion to dismiss Shelby was evasive about his position in the Mexican holding companies and even professed ignorance as to whether he is corporate officer but eventually he conceded that he may be Chairman and that he had directed the companies to pay hundreds of thousands of dollars to his mother.105 And Shelby presented no evidence of facts on which the Trial Court could have based finding that production of the documents would be unduly inconvenient or expensive His concern about access to documentary evidence is red herring 104 Record 00839-41 00861 00863-64 105 Record 00863-64 43 01105 All of the Public-Interest Factors Point to This Forum The Dispute Originated Here and There Are No Greater Administrative Difficulties Here Than in Tamaulipas This dispute arose in Texas Shelby has lived in Texas since the 1970s While living here his fiduciary duty to Dorothy arose under Texas law and the Executor contends Shelby breached his duty under Texas law Dorothy Longoria lived in Texas for her last 25 years and lived in Houston for her last seven The years alleged acts and omissions of Shelby therefore harmed longstanding citizen of this forum Dorothys will was admitted to probate in this forum and her estate is pending in this forum Shelby himself commenced this legal proceeding by filing his will contest in this forum This litigation originated in Texas and must be decided under Texas law Shelby has not asserted let alone proven that the Trial Courts docket is more congested than that of the courts of Tamaulipas As noted in the proceedings below the Trial Court has issued Docket Control Order the case for trial on setting May 19 20 14.106 There is therefore concrete reason to believe that the Trial Court will adjudicate the Executors counterclaims promptly Shelby offered no evidence that court in Tamaulipas or anywhere else would address the merits of the case more quickly than the Trial Court or that litigation in Tamaulipas would be 106 Record 00694 44 01106 administratively easier Indeed there is every reason to believe that the opposite is true This Community Has the Strongest Relationship to the Litigation So the Burden of Jury Duty Belongs Here Both Shelby the alleged wrongdoer and Dorothy the alleged victim resided in this forum for the last 25 years of Dorothys life so this forum has the the strongest relationship to litigation Dorothy died in Houston her will was probated here and her estate is being administered here by an executor who was empowered here all in accordance with Texas law Imposing the burden ofjury duty here is justified Doing so in Mexico is not The Dispute Arose in Texas Between Texans So This Forum Has the Stronger Interest in Deciding the Controversy Because Dorothy lived and died in Texas her estate is being administered in Texas and the Executor of her estate has claims based on fiduciary duty owed to Dorothy by another resident of Texas this State has an interest in deciding the claims an interest far greater than any that could be articulated for the State ofTamaulipas The Legislature of this State has enacted an array of statutes designed to ensure that exercise over matters related to estates probate courts may jurisdiction all pending in those courts See e.g TEX PROB CODE ANN sS 4A providing that courts 45 01107 exercising original probate jurisdiction also have jurisdiction over all matters related to probate proceedings 4B defining matter related to probate proceeding to include any claim by personal representative on behalf of an estate 4F conferring on statutory probate courts exclusive jurisdiction over all probate proceedings 5B authorizing statutory probate courts to transfer to themselves actions pending in district or county courts if they are related to an estate pending in the probate court or if the personal representative of such an estate is party Underlying these statutes is strong public policy in favor of consolidation in the probate courts of all matters related to the estates administered in those courts The same public policy in opposition of an executors stands to dismissal for forum non conveniens claims pleaded on behalf of an estate in the probate court in which the estate is pending Shelby does not deny the existence or the importance of this public policy but he attempts to counter it by citing one case which he claims is almost directly on point because it involved claims by the personal representatives of an estate Gallegov GarciaNo 07-CV-1l85 2010 WL2354585 S.D Cal June 201O While it is true that in Gallego the plaintiffs were personal representatives of an estate it is not true that they brought their claims in the probate court presiding over the estate Rather they brought their claims in federal district court with 107 Petition at 30 46 01108 jurisdiction based solely on diversity of citizenship so the policy in favor of consolidated administration of estates was not implicated Moreover the facts in Gallego are easily distinguished the defendants were Mexican corporation and citizens of Mexico Here the defendant Shelby is citizen of this forum and no claim is asserted against any resident of Mexico Gallego in no way refutes the proposition that the third public-interest factor cuts against dismissal And there is still another public policy of the State of Texas that stands against dismissal of the Executors counterclaims the policy against piecemeal litigation of related controversies The Executors claims are counterclaims There is substantial overlap between the subject matter of Shelbys will contest and the Executors counterclaims both involve inquiry into Dorothys property mental condition and testamentary intent at various times during her adult life.108 We do not contend that counterclaims may never be dismissed for forum non conveniens Shelbys attribution of that contention to us is untrue and an outstanding example of straw man argument.9 What we do contend is that dismissal of counterclaims that are 1081n his will contest Shelby makes allegations concerning Dorothys property and her wills dating back to the 1980s Record 00635 1JJ 8-10 109 See Petition at 13-14 Shelby falsely represents that as the centerpiece of his argument against dismissal the Executor asserted that the Trial Court could not dismiss his counterclaim while maintaining jurisdiction over Shelbys claim 47 01109 closely related to the plaintiffs claims undercuts the public policy against fragmented litigation and therefore that public policy is public-interest factor that the Trial Court could quite properly have taken into account even if it might not have been dispositive by itself No case holds otherwise Maintaining the Litigation Here Avoids an Issue of Conflicts of Law The Executors pleading states explicitly that it is founded entirely on Texas law1 and includes numerous allegations of facts occurring in Texas.111 Shelby asserts that Mexican law might supply the rule of decision but in typical fashion Shelby fails to explain why that is so or to identify specifically any Mexican law that would be controlling We repeat by his counterclaims against Shelby the Executor is not contesting will signed by Eduardo the Executor is not contesting trust agreement signed by Eduardo the Executor is not asserting cause of action under Mexican law and the Executor is not seeking relief from any individual residing in Mexico or any Mexican business entity There simply is no basis for Shelbys assertion that the Executors counterclaims are governed by Mexican law 110 Record 00655 1J2 00660 JJ 1922 00663 IJIJ 33 35 00664 36-39 666 44 668 JJ 48-49 00669-70 Prayer for Relief Record 00655 00657 1111 9-10 658 1111 12 16 659 17 660 1111 19-20 23-25 661 J26-28 48 01110 The counterclaims are based on duty undertaken and breached fiduciary by Shelby while he was resident of Texas The counterclaims also are based in part but not entirely on Dorothys community-property rights under Texas law Dorothy and Eduardo Longoria were married in Texas which establishes that their marital estate was community estate.112 They were living together in Texas when Eduardo died.113 The marriage began and ended in Texas Under Texas law all of their property at the time of Eduardos death is presumed to have been community property If Shelby contends that it was not community property then it is his burden to prove so And if he thinks that he can carry his burden by offering contract supposedly made in Mexico then he is free to try But the issue remains one of Texas law Furthermore even if it may happen that Mexican law comes into play the need to apply foreign law is not in itself reason to apply the doctrine of forum non conveniens Schexnider McDermott Intl Inc 817 F.2d 1159 1163645th Cir rehg denied 824 F.2d 972 5th Cir cert denied 484 U.S 977 1987 Accord Manu Intl S.A Avon Prods Inc 641 F.2d 62 68 2d Cir.1981 must guard against an excessive reluctance to undertake the task of deciding foreign law 112 Record 00867 01160-61 Ex D-4 113 Record 00853 856-57 49 01111 In sum no factor militates in favor of Shelbys position and every factor militates it with one exception and the strongly against exception is factor that in neither direction points Shelby failed miserably to carry his burden to prove all elements of the forum non conveniens analysis and to establish that the balance of factors strongly weighs in favor of dismissal SES 2013 WL 2456797 at II The Trial Court Did Not Abuse Its Discretion by Declining To Abate the Executors Counterclaims After 24 pages of fervent argument that the Trial Court was absolutely required to dismiss the Executors counterclaims and had no discretion to do otherwise Shelby curiously presents half-hearted one-page argument why the Trial Court was absolutely required to abate the counterclaims and had no discretion to do otherwise.14 Shelby asks the Court to issue writ of mandamus compelling the Trial Court to abate the counterclaims until two things happen Shelbys will contest is fully adjudicated and the amparo proceeding involving the estate of Eduardo is fully adjudicated Shelby cites only one case in support of his argument that abatement of the counterclaims was mandatory Develo-Cepts Inc City of Galveston 668 S.W.2d 114 Petition at 32-34 50 01112 790 793 Tex App Houston Dist 1984 no writ.115 This single case is cited for the proposition that is well-established that case should be abated pending determination of plaintiffs standing or capacity to sue.16 The citation of Develo Cepts for this proposition was improper The Court will search the opinion in vain for any support for the proposition in Shelbys Petition or more broadly any support for the argument that the Trial Court abused its discretion by denying his motion to abate the Executors counterclaims The facts inDevelo-Cepts were as follows Develo-Cepts Inc was for-profit company that wished to construct on certain tract of land in Galveston facility for the care and housing of mentally challenged individuals The company did not own the land but hoped to lease it from couple named Wirth The Wirths did not own the land either but were trying to purchase it from persons referred to as the Matthews Ultimately the Wirths efforts to purchase the land were unsuccessful so Develo-Cepts never acquired any interest in the land While sale to the Wirths was under consideration however the Matthews filed an application for special-use permit allowing operation of the facility contemplated by Develo-Cepts The City of Galveston denied the application filed suit against the City seeking Develo-Cepts 115 Petition at 33 61d 51 01113 declaratory and injunctive relief as well as money damages caused the allegedly by denial of the permit 668 S.W.2d at 792 The City of Galveston moved for dismissal in the abatement or alternative The district court dismissed the case On appeal this Court affirmed the dismissal holding that Develo-Cepts lacked standing because it had never owned an interest in the land for which permit was denied 668 S.W.2d at 795 Thus Develo-Cepts was not even an abatement case and its facts bear no resemblence whatsoever to those at bar Nothing about the holding in Develo-Cepts suggests even remotely that the Trial Court was legally obligated to grant Shelbys motion for abatement And Develo-Cepts is the only authority cited by Shelby for the proposition that abatement of the counterclaims is absolutely required as matter of law Neither the will contest nor the ainparo case necessitates abatement of the Executors counterclaims The Trial Court has already determined that the Executor had standing and capacity to file suit By order dated October 2012 the Court admitted to probate Dorothys will dated January 21 2010 and appointed James Thomas Dorsey to serve as Independent Executor of her estate Both the standing and the capacity of the Executor to bring the counterclaims are judicially established.117 no colorable that the Executor lacks standing to Shelby presents argument pursue the counterclaims against Shelby And Shelby failed to plead lack of capacity in the prescribed way which is verified plea in abatement See Develo-Cepts 668 52 01114 According to Shelby there are two reasons why the Trial Court supposedly was required to abate the Executors counterclaims while allowing Shelbys will contest to proceed to trial First Shelby claims that Tommy was appointed pursuant to an invalid will Petition at 33 But the counterclaims were not pleaded by Tommy in his individual capacity They were pleaded by the duly appointed executor of the Estate of Dorothy Louise Longoria and Tommy was named as executor in will that was duly admitted to probate Even if the will contest is successful there will be successor personal representative of that estate and the successor personal will have the same duty and representative legal capacity to marshal the assets of the estate The most valuable assets are the claims against Shelby The will contest cannot obviate litigation of the counterclaims The second reason why according to Shelby the Executors counterclaims should be abated until the conclusion of Shelbys will contest is the claim that the Executor has conflict of interest which renders him incapable of performing his fiduciary duties Petition at 33 But Shelbys Petition to this Court does not identify let alone identify evidence of the supposed conflict of interest In the Trial Court Shelby asserted that conflict of interest exists based solely on Shelbys self serving and wholly unsupported assertions that Mr Dorseys wife Sylvia Dorsey S.W.2d at 793 53 01115 misappropriated funds belonging to Dorothy during her lifetime and Shelbys self-serving and wholly unsupported assertion that Mr Dorseys son Wayo Dorsey stole from Shelby electronic files relating to Mexican businesses and Mexican trust.8 These accusations are irresponsible and categorically unproven denied but even if one assumes for the sake of argument that they are true they provide no basis for abatement of the Executors counterclaims against Shelby Shelby is not beneficiary of the Estate of Dorothy Louise Longoria Dorothy left nothing to him in her will which the Trial Court admitted to probate Shelby therefore has no standing to complain about the Executors supposed failure to investigate alleged torts by Sylvia against her mother As for the alleged theft of computer files by Wayo Dorsey Shelby offers no reason why the Executor would be responsible either to investigate that or to redress it And even if Mr Dorsey were removed as Executor based on these supposed conflicts of interest the Trial Court certainly would appoint successor who would be equally responsible to marshal the assets of the estate including the claims against Shelby There is no logical connection between the facts creating the supposed conflicts of interest and abatement of the counterclaims until the will contest is concluded Shelbys argument makes no sense 118 Record 00089 54 01116 While abatement would serve no it would have salutary purpose certainly undesirable consequences To state the obvious the requested abatement would cause lengthy delay in the disposition of the counterclaims Abatement also would cause an enormous waste of the resources of the Trial Court and the litigants because discovery needed for the will contest substantially overlaps with discovery needed for the counterclaims as comparison of the pleadings demonstrates.19 Both the will contest and the counterclaims require discovery of the estate planning of the Decedent the property owned by her at various times in her adult life her evolving relationships with her children representations made to her by Shelby payments made to her by Shelby information withheld from her by Shelby her physical and mental condition at various times and many other topics If the counterclaims are abated many of the witnesses who are deposed in the will contest will have to be deposed again And of course second trial will have to be conducted The Trial Court certainly had rational basis for declining to abate the counterclaims Shelbys argument that it was an abuse of discretion to deny his motion to abate the counterclaims pending resolution of the will contest is spurious 119 Compare Record 00633-00648 Shelby Longorias Amended Contest of 2010 Will Aug 30 2013 andRecord 00655-73 Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased to Shelby Longorias Amended Contest of 2010 Will Sept 26 2013 55 01117 Finally Shelby asserts that the Trial Court abused its discretion by refusing to abate the Executors counterclaims until the amparo case filed by Adriana and Sylvia is concluded His argument on this point consists of one sentence Further resolution of the Mexican lawsuits against the Dorseys would foreclose any right to the relief they seek through their counterclaims.20 Shelby offers no explanation whatsoever of how an unfavorable decision in the amparo proceeding would foreclose any relief sought by the Executor by his counterclaims in the Trial Court The Petition does not even state what relief is requested in the amparo lawsuit Thus the Petition fails to present proper argument for mandamus relief.2 The amparo proceeding involves the estate of Eduardo Longoria Sr not the estate of Dorothy Louise Longoria It was initiated by Sylvia and Adriana and it is essentially civil-rights action seeking relief known asjuicio de ainaparo from federal court of Mexico The action is based on the fact that state court of Tamaulipas did not give Sylvia and Adriana legally required notice of proceeding in which will of Eduardo Longoria Sr was probated The relief sought is an order 120 Petition at 34 guess what Shelby 121 Neither Respondents nor the Court should have to is contending And it would be improper for Shelby to explain his position for the first time in reply brief 56 01118 compelling the state court to issue the notice required by Mexican law.122 Contrary to Shelbys unsupported assertion an unfavorable outcome in the amparo case cannot possibly affect the counterclaims pleaded by the Executor in the Trial Court as the counterclaims are brought on behalf of the estate of Dorothy not the estate of Eduardo Having failed to demonstrate that the outcome of the proceeding in amparo Mexico might affect the adjudication of the Executors counterclaims in the Trial Court Shelby has wholly failed to show that the Trial Court was legally required to abate the Executors counterclaims in deference to the ainparo case Shelbys argument for abatement is meritless CONCLUSION AND PRAYER The Trial Court was entitled to disbelieve the testimony of Shelby and his expert witness and to disregard the affidavits and exhibits that Shelby filed with his motion but never offered into evidence Shelby failed to conclusively prove facts that left the Trial Court no discretion to deny his motion to dismiss the Executors counterclaims but legally required the Trial Court to dismiss them for forum non conveniens in spite of the facts that every one of the four parties lives in Texas and three of them reside in Harris County Texas the Decedent whose estate is at 122 Record 0090 1-02 57 01119 issue lived her last seven years in Harris County Texas and her estate is being administered there Shelby failed to identify in the manner required by law single witness who lives in Mexico the Executors counterclaims are based entirely on Texas law and he is asserting no rights under Mexican law and the Executors causes of action are not recognized in Mexican law and are barred by an unwaivable statute of repose so no remedy is available there Shelby likewise failed to conclusively prove facts that left the Trial Court no discretion to deny his motion to abate the Executors counterclaims but legally required the Trial Court to abate them The record demonstrates that neither dismissal nor abatement was warranted Accordingly Respondents respectfully request that the Petition be denied 58 01120 DATED December 30 2013 Respectfully submitted /s/ James Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 Shannon L.K Welch State Bar of Texas Number 90001699 FISHER WELCH Professional Corporation 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Facsimile 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 THE HOLMES LAW FIRM 10000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9266 Facsmile 214.890.9295 ATTORNEYS FOR RESPONDENTS JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGO1UA DECEASED AND SYLVIA DORSEY 59 01121 CERTIFICATE UNDER TEX APP 9.4i hereby certify that this document contains 13214 words to according computer program used to prepare it excluding the caption table of contents index of authorities statement of issues presented signature proof of service certification certficate of compliance and index as provided in TEX APP 9.4i /s/ James Austin Fisher James Austin Fisher 60 01122 CERTIFICATEUNDER TEX APP 52.3j and 52.4 hereby certify that have reviewed this response and concluded that every factual statement in this response evidence included in the is supported by competent appendix or record /s/ James Austin Fisher James Austin Fisher 61 01123 CERTIFICATEOF SERVICE UNDER TEX APP 9.5e hereby certify that on December 30 2013 true and correct copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Rule 9.5 of the Texas Rules of Appellate Procedure By agreement of the parties email is an acceptable manner of service Johnny Carter Richard Hess and Kristen Schiemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 YEMAIL TOjcarterdjsusrnangodfrey corn rhessdjsusmangodfrey corn and kschlernrnersusrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO rnacintyre@rnrnlawtexas corn Is James Austin Fisher James Austin Fisher 62 01124 ACCEPTED 20 13-00996 FOURTEENTH COURT OF APPEAL HOUSTON TEXAS 14-13-00996-CV 72648 PM 1/13/2014 CHRISTOPHER PRINI CLERK NO 2013-00996 IN THE FOURTEENTH COURT OF APPEALS FILED IN 14th COURT OF APPEALS Lrrr TcmcKr jJLJj3 \JIN jjj ffitiV HOUSTON TEXAS _____________________________________________________I iI3/2flj4J64g1%f CHRISTOPHER PRINE IN RE SHELBY LONGORIA Clerk Original Proceeding from the Probate Court Number One 1-larris County Texas Cause No 414270 in Further Support of Petition for Writ of Mandamus Shelby Longorias Reply Johnny Carter State Bar No 00796312 cartersusm angodfrey corn Richard Hess State Bar No 24046070 rhesssusrnangodfrey .com Kristen Schiemmer State Bar No 24075029 ksch1ernmersusmaflgOdfrey.c0m 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713 654-6666 Robert Maclntyre Jr State Bar No 12760700 rnacintyre@mrnlaWteXas.cOm M.ACINTYRE MCCULLOCH STANFIELD Youio 2900 Weslayan Suite 150 Houston Texas 77027 713 547-5400 Telephone Attorneys for Shelby Longoria 3009942v 1/013774 01125 Table of Contents The Complete Record Was Properly Before the Court II Mexico Is an Available and Adequate Forum III The Private Interest Factors Weigh in Favor of Mexico 13 IV The Public Interest Factors Weigh in Favor of Mexico 15 The Trial Court Abused Its Discretion by Denying Abatement 17 VI Conclusion 19 CERTIFICATE OF SERVICE .20 CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4i..... 21 3009942v1/013774 01126 Table of Authorities Cases Aguinda Texaco Inc 142 Supp 2d 534 S.D.N.Y 2001 affd 303 F.3d 470 2d Cir 2002 11 American Dredging Co Miller 510U.S.443 114S Ct.981 1994 16 Chang Baxter Healthcare Corp 13 599F.3d7287thCir.2010 Continental Oil Co P.P.G Indus Houston Dist 1973 writ refd 504 S.W.2d 616 Tex App n.r.e Cris man Cooper Indus 13 748 S.W.2d 273 Tex App Dallas 1988 writ denied Del Istmo Assurance Corp Platon 11 2011 WL5508641 S.D.Fla.Nov.92011 Develo-Cepts Inc City of Galveston 668 S.W.2d 790 Tex App Houston 1984 no writ 18 Dolcefino Randolph 19 S.W.3d 906 Tex App Houston Dist.I 2000 pet denied DTEX LLC BBVA Bancomer S.A 10 508 F.3d 785 5th Cir 2007 Dunmore Chicago Title Ins Co 12 400 S.W.3d 635 Tex App Dallas 2013 no pet Duran Henderson Texarkana 2002 pet denied 12 71 S.W.3d 833 Tex App Gomez de Hernandez Bridgestone /Firestone Am Tire L.L 2006 pet denied 10 204 S.W.3d 473 Tex App Corpus Christi 3009942v1/013774 ii 01127 Rouw Co Railway Express Agency 154 S.W.2d 143 Tex Civ App El Paso 1941 writ ref Ibarra Orica USA 493 Fed Appx 489 5th Cir 2012 10 In re Ford Motor Co 591 F.3d 406 5th Cir 2009 10 In re Pirelli Tire L.L 247 S.W.3d 670 Tex 2007 10 12 In re Smith Barney Inc 975 S.W.2d 593 Tex 1998 Morales Ford Motor Co 313 Supp 2d 672 S.D Tex 2004 11 Navarrete de Pedrero Schweizer Aircraft Corp 11 63SF Supp.2d251W.D.N.Y.2009 Nexen Inc Gulf Interstate Eng Co Dist 2006 no pet 12 224 S.W.3d 412 Tex App Houston Paulownia Plantations de Panama Corp Rajamannan 11 793 N.W.2d 128 Minn 2009 Pper Aircraft Co Reyno 14 454 U.S 235 102 Ct 252 1981 Quixtar Inc Signature Mgm Team LLC 315 S.W.3d 28 Tex 2010 Sico North America Inc Willis 2009 WL 3365856 Tex App Houston Dist Sep 10 12 2009 no pet Trailers de Mexico S.A de Vinmar Trade Fin Ltd.v Utility 336 S.W.3d 664 Tex App Houston Dist 2010 no pet 10 15 16 iii 3009942v1/013774 01128 Statutes Tex Prob Code 10 17 Texas Civil Practice Remedies Code 6.005 Rules Tex App 52.7a Tex Evid 1009b 3009942v1/013774 iv 01129 and he Tommys strategy is to deny repeatedly vociferously that is doing what he obviously is doing He told the trial court me we not contesting the of Let say with perfect clarity are validity any judgment of any Mexican court We are not asking you to review or overturn any Mexican proceeding We are not contesting any will that was signed in Mexico1 Tommy continues in the same vein in his mandamus response by for example that he is challenging the validity of the Mexican trust.2 denying But actions speak louder than words statement of claims asserts that Dorothys Tommys operative estate is entitled to receive $49011050 Tommy says this is the value of 50% of the stock in two Mexican companies Vertice S.A de C.V and Inmeubles Terrenos S.A de C.V Empresarial in 2002 which Dorothys husband Eduardo Sr transferred to Mexican trust managed by Mexican bank.3 Tommy served voluminous document requests seeking production and Mexican businesses.4 of documents relating to the trust At the hearing Tommys counsel questioned Shelby extensively held by the trust.5 about the trust and Mexican businesses admitted in his mandamus that he contends that Tommy response in shares of stock Dorothy owned interest community-property that were placed in the trust6 and that the counterclaims also are based in part but not entirely on Dorothys community-property these rights under Texas law.7 Although Tommy hedged Record 00812-13 Mandamus Response at Record 00626 Record 00482-00528 Record 00862-64 0087 1-73 Mandamus Response at Mandamus Response at 49 3009942v 1/0 13774 01130 admissions by suggesting that he had some other theory that did not involve proving the existence of community property he was unable to articulate this theory in any coherent way.8 After defeating Shelbys motion to dismiss Tommy filed motion seeking to compel production of the Mexican documents sought in his requests for production.9 What would Tommy have to prove in order to recover the value of 50% interest in the Mexican businesses which Eduardo Sr transferred in 2002 to the Mexican trust managed by Banca Afirme First Tommy would have to prove that the Mexican separate property agreement was invalid Dorothy and Bduardo If Sr agreed in 1983 to divide their property Dorothy would have no basis to recover half of Eduardo Sr.s property Since the Mexican was entered as an order of Mexican separate property agreement would have order court Tommy somehow to invalidate that would have If Eduardo Sr Second Tommy to invalidate the trust and transferred the shares of the Mexican validly properly businesses to the Mexican trust then Tommy has no basis to claim that Dorothy can somehow reach those shares Tommy does not and how he can the trust through an action cannot explain pierce in Texas court He cannot even explain how he can obtain probate from the trust through an action in Texas probate court discovery would have the Mexican court orders Third Tommy to invalidate Eduardo Sr.s 2002 will In his will Eduardo Sr recited probating in that he transmitted in Trust to the abovementioned Spanish the of all his shares Trustee Afirmej property the stock of the called corresponding to capital corporations VERTICE EMPRESARIAL and INMUIEBLES TERRENOS1 the same shares of which Tommy seeks to Mandamus Response at 12 Supplemental Record Record 00263 3009942v1/013774 01131 recover half for Dorothys estate Eduardo Sr also integrally ratifies all the other stipulations contained in the referred Trust for it is his will that the terms of the Irrevocable Trust Agreement abovementioned be fully respected and performed After Eduardo Sr.s death Shelby probated this will in Mexican court the Mexican court declared the will to be valid and Shelby and his brother inherited the entirety of Eduardo Sr.s estate as result of the Mexican probate orders.2 Even if Tommy somehow were able invalidate the Mexican order and pierce the trust he to partition half of Eduardo Sr.s estate without also still could not recover somehow invalidating the Mexican probate orders which expressly validate Eduardo Sr.s 2002 will ratifying the terms of the trust and they compel dismissal or abatement These are the ineluctable facts Shelby will show below that the complete record was properly before the trial court Mexico is an available and adequate alternative forum the private interest factors strongly support venue in Mexico Mexico and the public interest factors strongly support venue in should be abated alternatively Tommys counterclaims pending resolution of the will contest or the Mexican court proceedings ihe omjlete Record Was Pi operlyj3cfoi ct is The importance of the Mexican separate property agreement highlighted Wright did not or could not consider the entire by Tommys argument that Judge record presented to him Tommy initially objected to everything filed by Shelby.13 Record 002 64 12 Record 00383 13 Record 01186-93 3009942vl/013774 01132 But at the hearing he withdrew his objections except to the Mexican court order partitioning property and few relatively unimportant documents.4 While Tommy was withdrawing his objections to most of the documents he doubled down and asserted even more objections to the Mexican partition order.5 He did this because he knows that Texas court cannot properly hear case which challenges Mexican court order like the one which memorializes the Mexican separate property agreement Tommys objections to the Mexican partition order underscore the need to dismiss this case for forum non conveniens of the order6 This Tommy objects to the authenticity partition could be resolved in the objection easily Tamaulipas by Tamaulipas attorney who attested to the facts contained in the Order or by the Tamaulipas Clerk of the Court who certified it or judge of the Fourth Judicial District of Tamaulipas who by signed it of the Mexican order7 Tommy objected to the translation partition although he identified no specific inaccuracy as required by Tex would vanish case were Evid 1009b This objection if this dismissed and refiled in Mexico The order is in Spanish and would need no translation in Tamaulipas court Mexican order admissible the trial court Because the partition is will be required to recognize the judgment unless Tommy can the for in Texas Civil prove one of grounds non-recognition Practice Remedies Code 36.005 This additional mini-trial 14 Record 00830-31 Record 00832-33 16 Record 00832-33 17 Record 00832-33 3009942v1/013774 01133 over satellite dispute would of course be unnecessary in Mexico Tommy also objected to the Mexican partition order and other documents because Shelby submitted them as exhibits to affidavits Tommy argued that no statute or rule authorizes admission of affidavits in support of motion to dismiss and such affidavits therefore inadmissible for forum non conveniens are did not sustain this objection to the contrary he hearsay.18 Judge Wright told the that he would consider the whole record presented to repeatedly parties him counsel that Judge could not rule on At the hearing Tommys argued Wright had to hold Judge Wright responded the papers but instead an evidentiary hearing and but also explained that you can certainly have your hearing your evidence that he was going to consider everything that had been submitted to him And guess my point is that Im going to you know obviously read it all and without really objecting you know Im going to take it on each its face as that whats being presented to me and by each side is sides of view as to this issue point particular After Tommys counsel withdrew his objections to opening arguments of the documents attached to the affidavits and asserted his new authenticity many 8Record 1187 1189 1190 19 Record 00796 3009942v1/013774 01134 and translation objections to the Mexican partition order Judge Wright responded that he would take everything into account when making ruling And Im still going to be in position when review all of this to go through your objections that are still there to see if they are valid Thats the process will go through And taking that into account will also determine the outcome of the motion itself and taking into account your response So Im glad yall agree to some of it But it consider the and their validity as is still my task to objections go through the whole process of this.21 After hearing testimony from several witnesses Judge Wright reiterated this in his remarks at the conclusion of the hearing approach mean the bottom line is as you know on this one Im the decision maker so will be Ill be taking into account whats reading things and what might not be admissible obviously but been objected to and what to take into get the big picture of what have got to decide consideration so thank yall.22 in his order dismissal stated as he had promised Judge Wright denying Finally that he considered the briefing the evidence admitted during the hearing on the Motion and the record of/his case.23 document is material to the The record on mandamus consists of every that was filed in any underlying proceeding Tex relators claim for relief and that Tommy were of the trial court App 52.7a The documents challenged by part were considered by Judge Wright and record are part of the appellate record 20 00830-33 21 Record 00833-34 22 Record 00933 23 Record 01206 3009942v1/0l3774 01135 should be considered by the Court of Appeals Because Tommy did not obtain ruling on his objections he has waived any right to assert them in this mandamus proceeding See Dolcefino Randolph 19 S.W.3d 906 925-27 Tex App Houston Dist 2000 pet denied holding that hearsay objection could not be on because the trial court ruled on summary-judgment motion urged appeal without disclosing its rulings on the objection cannot consider affidavits and other Tommys position that trial court documents filed with the briefs is directly contrary to the law In Piper Aircraft Co Reyno 454 U.S 235 102 Ct 252 1981 the United States Supreme even to submit affidavits in order to Court held that defendant is not required obtain forum non conveniens dismissal Such detail is not necessary Requiring extensive investigation would defeat the of their motion purpose 454 U.S 102 Ct 267 The Supreme Court noted that the Pzper at 258 at for the Second Circuit has expressly rejected such United States Court of Appeals In other cases dismissals have been requirement provide affidavits failure to provide detailed affidavits Id 454 U.S at 258 n.2 affirmed despite the 102 Ct at 267 n.2 the defendants in Piper did submit Even though affidavits were not required the Court held that the district court them and based on the affidavits Supreme conveniens id 454 U.S at 258-59 102 Ct at properly dismissed for forum non 3009942v1/013774 01136 267 Our examination of the record convinces us that sufficient information was here Both and Hartzell submitted affidavits describing the provided Piper evidentiary problems they would face if the trial were held in the United States. The Texas Court with the United States Supreme Court Supreme agrees an extensive investigation to produce evidence for the dismissal Requiring would defeat the of the for this type of dismissal hearing purpose request altogether Quixtar Inc Signature Mgmt Team LLC 315 S.W.3d 2834 Tex 2010 quoting Piper 454 U.S at 258 102 Ct at 267 forum non information to enable the trial court to conveniens movant must provide enough interests the evidence need not be overly detailed balance the parties Trailers de Mexico S.A de 336 S.W.3d Vinmar Trade Fin Ltd.v Utility 664 676 Tex App Houston Dist 2010 no pet. clear United States and Texas Supreme Court precedent In opposition to the case In Continental Oil Co Tommy offers only one 40-year-old pre-Piper P.P.G Indus 504 S.W.2d 616 622 Tex App Houston Dist 1973 writ that the defendant in this case had the refd n.r.e the court of appeals stated dismissal of this burden of alleging and proving facts which would authorize the conveniens Had the evidence raised issues offact case on the theory of forum non juiy Under such submitted to conditions have been such issues properly could the required proof cannot be supplied by affidavit 3009942v1/013774 01137 The procedure that the court described in Continental Oil holding jury trial when forum non conveniens motion raises issues of fact does not resemble anything authorized by Texas law today and is in fact directly contrary to the Texas Supreme Courts statement in In re Pirelli Tire L.L.C 247 S.W.3d 670 court should affidavits and 687 Tex 2007 that the trial weigh competing evidence when deciding forum non conveniens motion No court has ever applied or even cited Continental Oil for the proposition advanced by Tommy Oil did not or even reference the controlling The court in Continental apply laid out in Gulf Oil factors Instead it applied forum non conveniens principles case called Rouw Co Railway Express Agency 154 S.W.2d 143 Tex Civ Court has now overruled the App El Paso 1941 writ rerd The Texas Supreme based in Continental Oil In re Smith Rouw decision on which the court its analysis the Court Barney Inc 975 S.W.2d 593 598 Tex 1998 In doing so expressly disapproved of Continental Oil Id II Mexico Is an and Adeq.ate Forum the that rebut nearly airtight presumption Tommy has done nothing to Mexico is an available forum In re Ford Motor Co 591 F.3d 406 413 5th Cir Mexico to be unavailable or case 2009 He has not pointed to single finding that He has not distinguished the numerous Texas and federal cases inadequate and available forum DTEX LLC BBVA have found Mexico to be an adequate 3009942v1/013774 01138 Bancomer S.A 508 F.3d 785 796 5th Cir 2007 Ibarra Orica USA 493 Fed Appx 489 493 5th Cir 2012 In re Ford Motor Co 591 F.3d 406 412 5th Cir 2009 In re Pirelli Tire L.L.C 247 S.W.3d 670 677-78 Tex 2007 Vinmar Trade Fin Ltd Trailers de Mexico S.A de 336 S.W.3d 664 675 Utility Tex App Houston Dist 2010 no pet Gomez de Hernandez Bridgestone Firestone Am Tire L.L.C 204 S.W.3d 473 483 Tex App Corpus Christi 2006 pet denied makes the and Tommy now five spurious arguments regarding availability of Mexico as an alternative forum adequacy Mexican court would dismiss case for lack of First Tommy says that over Shelby.24 But as explained in the mandamus petition personal jurisdiction himself to in the amparo Shelby has already subjected personal jurisdiction and the court in Mexico has accepted jurisdiction over him.25 proceeding Mexican court would not exercise personal Second Tommy says that claims against Sylvia and Adriana.26 But jurisdiction over Shelbys third-party availed themselves of the jurisdiction of Mexican Sylvia and Adriana already have forum non conveniens by changing their minds courts They cannot now defeat about their willingness to go to court in Mexico In any event Shelby is willing to 24 Mandamus Response at 27 25 Mandamus Petition at 15-16 26 Mandamus Response at 27-28 10 3009942v1/013774 01139 accept the minimal risk that Sylvia and Adriana are somehow able to avoid personal jurisdiction in the same court system in which they already have asserted claims Third Tommy says that Mexican court would dismiss for lack of subject- matter jurisdiction.27 But the only basis for this argument is purported Tamaulipas statute which according to Tommys expert would divest Tamaulipas courts of jurisdiction due to the prior filing in the United States.28 However the of preemptive jurisdiction under Mexican law does not prevent concept Mexican court from asserting subject-matter jurisdiction over case dismissed from court in the United States Navarrete de Pedrero Schweizer Aircraft Corp 635 Supp 2d 251 261 W.D.N.Y 2009 And courts both state and federal have refused to recognize foreign laws that purport to make the home forum unavailable because of prior U.S filing Del Istmo Assurance Corp Platon 2011 WL 5508641 S.D Fla Nov 2011 see Morales Ford Motor Co 313 Supp 2d 672 676 S.D Tex 2004 Aguinda Texaco Inc 142 Supp 2d 534 546 S.D.N.Y 2001 affd 303 F.3d 470 2d Cir 2002 Paulownia Plantations de Panama Corp Rajamannan 793 N.W.2d 128 134-35 Minn 2009 27 Mandamus Response at 27 28 Record 00712 11 3009942v1/013774 01140 Fourth Tommy complains that Mexico does not recognize cause of action for breach of fiduciary duty in the specific circumstances of this case.29 But as matter of law this well-worn argument does not render Mexico inadequate or unavailable In re Pirelli Tire L.L.C 247 S.W.3d 670 678 Tex 2007 Finally Tommy notes that his expert witness han Rosenberg testified that the estates claims accrued in 1983 and so are barred in Mexico by non-waivable five-year statute of repose.3 This argument is unavailing for at least two reasons dismissal on the Tommys argument demonstrates that his case to is First subject and therefore he has no claim to lose if the case is basis of limitations in Texas transferred to Mexico See Dunmore Chicago Title Ins Co 400 SW.3d 635 of limitations for breach 640 Tex App Dallas 2013 no pet four-year statute unlike statute of limitations which is of fiduciary duty claim Second of substantive right Duran procedural device statute repose is Henderson 71 S.W.3d 833 837 Tex App Texarkana 2002 pet denied Texas court will not automatically apply the Texas statute of repose Therefore choice-of-law to determine which instead the court must employ principles jurisdictions statute of repose to apply Nexen Inc Gulf Interstate Engg Co 224 S.W.3d 412 421-22 Tex App Houston Dist 2006 no pet Sico North America Inc Willis 2009 WL 3365856 at Tex App Houston 29 Mandamus Response at 29-30 30 Mandamus Response at 30-31 Record 00924-25 12 3009942v1/013774 01141 10 2009 no pet Crisman Cooper Indus 748 S.W.2d 273 Dist Sep 275-80 Tex App Dallas 1988 writ denied As result Dorsey loses no substantive or procedural rights due to transfer to Mexico See Chang Baxter Healthcare Corp 599 F.3d 728 733-37 7th Cir 2010 affirming forum non conveniens dismissal despite plaintiffs argument that her claims are barred by Taiwanese statute of because California courts also would apply the repose Taiwanese statute of repose to her claims III The Private Interest Factors Weigh in avor of Mexico to be that the Tommys primary private-interest argument continues parties showed in his mandamus that is merely one live in Texas But as Shelby petition have been willing to factor to be given some weight and Texas courts increasingly in Texas.3 dismiss even when both plaintiffs and defendants reside in Texas.32 Tommy argues that Wayo Longoria is key witness living inform the Court of Appeals that Dorothys estate already has Tommy neglects to Mexico.33 Re also neglects to inform the Court of Appeals that Wayo sued Wayo in Longoria has already been deposed on December 12 2013 in Austin trial most of the witnesses will be in As Shelby explained to the court with knowledge of Eduardo Sr.s Mexico The drafters witnesses to and witnesses 31 Mandamus Petition at 25-26 32 Mandamus Response at 8-9 Record 00462 13 3009942v1/013774 01142 will executed in Nuevo Laredo in 2002 the drafters of the Afirme Trust Eduardo Sr.s advisors relating to the Afirme Trust Banca Afirme personnel responsible for the trust and attorneys friends court personnel and others with knowledge of the separate property agreement and partition order entered into in Nuevo Laredo in 983 Tommy already is seeking extensive documents from Mexican companies documents which belong to the companies not to Shelby.35 Tommy likely will also seek testimony from executives or employees of these same companies defendant does not have to provide detailed information concerning each witness The posture of this case makes clear that most of the witnesses foreign that sufficient will be in Mexico According to the United States Supreme Court is for the court to determine that this factor points in favor of trial in Mexico The Court of Appeals found that the problems of proof could not be because and Hartzell failed to describe with given any weight Piper not be able to obtain were they would evidence if trial specificity the held in the United States It suggested that defendants seeking forum must submit affidavits identifying the non conveniens dismissal witnesses would call and the testimony these witnesses would they if the trial were held in the alternative forum Such detail is provide not necessary Piper and Hartzell have moved for dismissal precisely crucial witnesses are located beyond the reach of because many and thus are difficult to identify or interview compulsory process would defeat the of their Requiring extensive investigation purpose motion Piper Aircraft Co Reyno 454 U.S 235 258 102 Ct 252 267 1981 Record 00080-81 Record 00482-528 14 3009942v1/O 3774 01143 Tommy also continues to argue that Tamaulipas is dangerous place to bring lawsuit But Tommy as well as Adriana and Sylvia has already sued in Mexico They already have Mexican lawyer In fact their Mexican lawyer testified at the forum non conveniens hearing36 Tommy Adriana and Sylvia would not have to travel to Mexico to pursue the estates lawsuit there.37 If they did travel to Mexico the courthouse is located few blocks from the United States border and can be reached without traversing any of the highways as to which there is State Department travel advisory.38 Tommy has not distinguished the many cases which hold that generalized about danger in an alternative forum do not weight against forum non allegations conveniens dismissal.39 He has not cited single case in support of his position.4 He has not offered shred of evidence that violence in Tamaulipas has negatively impacted the Tamaulipas judiciary In fact he presented the testimony of an expert witness who claims to have handled dozen tort claims in court in Tamaulipas.4 IV The Public Interest Factors Weigh in Favor of Mexico show that Texas law apply to his Tommy does not even attempt to will claims or to rebut the possibility that foreign law applies Vinmar Trade Fin 36 Record 00900-07 Record 00886-88 Record 00896-97 Mandamus Petition at 26-27 40 Mandamus Response at 37-39 Record 00910 15 3009942v11013774 01144 Ltd.v Utility Trailers de Mexico S.A de C.V 336 S.W.3d 664 678 Tex App Houston Dist 2010 no pet. He again asserts that he is attempting to plead claim under Texas law42 but he does not even attempt to distinguish cases like Vinmar Gal/ego SXP and DTEX which demonstrate clearly that Mexican law will apply.43 Tommy cannot explain why Texas has stronger interest than Mexico in issues to the Mexican separate property agreement Mexican adjudicating relating order Mexican trust and Mexican probate of Eduardo Sr.s will partition most of relevant documents Tommy does not address the fact that the court orders correspondence etc are in Spanish wills contracts has but forum non Tommy points out that the probate court jurisdiction conveniens is venue doctrine not jurisdictional doctrine.44 American Dredging Co Miller 510 U.S 443 453 114 Ct 981 988 1994 will be piecemeal if his claim is Finally Tommy claims that there litigation of Mexico But there is piecemeal litigation because dismissed in favor already and estate already have sued Shelby in Mexico If Sylvia Adriana Dorothys he would have asserted Dorothys Tommy wanted to avoid piecemeal litigation 42 Mandamus Response at 48 Mandamus Petition at 29-32 Mandamus Response at 45-47 16 3009942v1/013774 01145 right to community property interest in the same court which partitioned her property thirty years ago The Trial Court Abused Its Discretion by Denying Abatement Shelby has standing to challenge the invalid January 2010 will because among other things he is beneficiary to Dorothy Longorias last valid wills.45 Tex IProb Code 10 Shelby challenges the actions of Tommys wife and sister- in-law in taking advantage of Dorothy over the last two and half years of her life.46 Shelby seeks the removal of Tommy as executor not only because he was appointed pursuant to an invalid will but because he will not properly represent the estate by investigating and pursuing claims that the estate has against Sylvia and Adriana.47 It does disservice to the estate and lays bare his true motivations that Tommy would argue for the parties to proceed all the way through discovery and of this matter when the whole proceeding may be invalidated possibly even trial by removal of the executor It would be extraordinarily inefficient to allow Tommy to his claim in the capacity as executor when his position is under such pursue cloud Record 00158-59 00172 46 Record 00636-43 Record 00643-45 3009942v1/013774 17 01146 Tommy that successor executor would pursue the same claim argues any against Shelby There is no evidence of this Tommys say-so is no evidence that there actually is claim for the estate to pursue against Shelby Tommy argues that the Develo-Cepts case cited by Shelby was not even an abatement case In fact the court of appeals in Develo-Cepts overruled point of error abatement of the case Develo-Cepts Inc City of Galveston challenging 668 S.W.2d 790 792-93 Tex App Houston Dist 1984 no writ The case establishes that abatement is proper remedy when the plaintiff allegedly lacks or to sue Id That is analogous to our case in which standing capacity seeks to go through which may be rendered after-the-fact if Tommy trial nullity he is removed as executor due to the success of Shelbys will contest Tommy cannot explain why the probate court should not await the results of Mexico and Adriana The estates claims are the lawsuits filed in by Sylvia on invalidation of the orders of the Mexican court probating Eduardo dependent will That must be resolved the Mexican courts not the Texas Sr.s issue by probate court Tommy does not explain how the estate can seek to recover for the purported conversion of Dorothys community property into separate property held her so there is valid judgment of the Mexican court by husband long as uncontested by Dorothy repeatedly acknowledged by her and entered during her 3009942v11013774 18 01147 lifetime approving the very distribution of her husbands assets which she now seeks to challenge VI Conclusion For the reasons set forth in the mandamus petition and in this reply brief the Court of Appeals should the writ of mandamus and the grant compel dismissal or abatement of the counterclaims asserted by James Thomas Dorsey Independent Executor of the Estate of Dorothy Longoria Deceased Respectfully submitted SUSMAN GODFREY L.L.P By /s/Johnni Carter Johnny Carter State Bar No 00796312 cartersusmangodfrey corn Richard Hess State Bar No 24046070 rhesssusrnangodfrey.com Kristen Schiemmer State Bar No 24075029 kschlemmersusmangodfrey.com 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713 654-6666 3009942v1/013774 19 01148 Robert Maclntyre Jr State Bar No 12760700 macintyre@mmlawtexas.com MACINTYRE MCCULLOCH STANFIELD YOUNG 2900 Weslayan Suite 150 Houston Texas 77027 Telephone 713 547-5400 Attorneys for Shelby Longoria CERTIFICATEOF SERVICE This is to certifr that on this the 13th day of January 2014 true and correct copy of the above and foregoing instrument was properly forwarded to the following counsel of record in accordance with Rule 21 of the Texas Rules of Civil Procedure as indicated below James Austin Fisher Via E-Service and Electronic Mail FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Email fisher@fisherwelch corn Wesley Holmes Via E-Service and Electronic Mail THE HOLMES LAW FIRM 1000 North Central Expressway Suite 400 Dallas Texas 75231 Email wes@wesholmes.corn Attorneys for James Thomas Dorsey Sylvia Dorsey and Adriana Longoria A/Johnny Ca tei Johnny Carter 3009942v1/013774 20 01149 CERTIFICATE OF cOMPLIANcE THAPPELLATE LE94fi certify that this document contains 4468 words as indicated the by word- count function of the used computer program to prepare it and excluding the caption identity of parties and counsel statement regarding oral argument table of contents index of authorities statement of the case statement of issues presented statement of jurisdiction statement of procedural history signature proof of service certification certificate of compliance and index as provided by Appellate Rule 9.4i /s/Johnrw Carter Johnny Carter 3009942v1/013774 21 01150 Petition for Writ of Mandamus Denied and Memorandum Opinion filed March 2014 In The 1InurtnntI uur uf ppiaI NO 14-13-00996-CY IN RE SHELBY LONGORIA Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS Probate Court No County Texas Harris Trial Court Cause No 414270 MEMORANDUM OPINION On November 12 2013 relator Shelby Longoria filed petition for writ of mandamus in this Court See Tex Govt Code Ann 22.221 see also Tex App 52 In the petition relator asks this Court to compel the Honorable Loyd Wright presiding judge of Probate Court No of Harris County to set aside his October 11 2013 order denying relators motion to dismiss counterclaims for 01151 forum non conveniens or alternatively to abate resolution of the pending will contest and the Mexican litigation and grant the same Relator has not shown his entitlement to mandamus relief Accordingly we deny relators petition for writ of mandamus We also lift our stay granted on February 2014 PER CURIAM Panel consists of Justices Christopher Donovan and Brown 01152 FILED 1/14/2015 42717 PM DV Stan Stanart County Clerk Harris County PROBATE COURT Case Number 414270 IN THE ESTATE OF IN THE PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS Shelby Longorias Motion to Dismiss Adriana Longorias Claims 3488503v 1/0 13774 01153 Table of Contents The Private Agreement Should be Construed as Whole Preamble Declarations Clauses Signature Block II Adrianas Claims Fall Within the Scope of the Forum-Selection Clause The Court Must Determine Whether Adrianas Claims Fall Within the Scope of the Forum-Selection Clause The Plain Language of the Forum-Selection Clause Encompasses Adrianas Claims The Parties Reinforced Their Forum Selection by Making Clear that They Could Not Sue Outside Mexico Adrianas Tort Claim Falls Within the Scope of the Forum-Selection Clause Shelby Can Enforce the Forum-Selection Clause 11 The Result Is the Same Under Mexican Law 12 III The Court Must Enforce the Forum-Selection Clause 13 IV Dismissal Is the Proper Remedy 16 Conclusion 18 Certificate of Service 19 3488503v1/013774 01154 Table of Authorities Albemarie Corp AstraZeneca UK Ltd 628 F.3d 643 651 4th Cir 2010 12 AutoNation USA Corp Leroy 105 S.W.3d 190 Tex App Houston Dist 2003 orig proceeding 17 Clark Power Marketing Direct Inc 192 S.W.3d 796 Tex App Houston Dist 2006 no pet 10 14 15 Dean Witter Reynolds Inc Byrd 470 U.S 213 105 S.Ct 1238 1985 17 Deep Water Slender Wells Ltd Shell Intl Exploration Prod Inc 234 S.W.3d 679 Tex App.Houston 2007 pet denied 513 16 Dixon TSE International Inc 330 F.3d 396 5th Cir 2003 Export-Import Bank of the United States Hi-Films S.A de 2010 WL 3743826 S.D.N.Y Sep 24 2010 Fort Worth Indep Sch Dist City of Fort Worth 22 S.W.3d 831 Tex 2000 Hooks Indus Inc Fairmont Supply Co 2001 WL 395341 Tex App Houston Dist Apr 19 2001 no pet 12 In re ADM Investor Svcs Inc 304 S.W.3d 371 Tex 2010 13 18 InreAlUIns Co 148 S.W.3d 109 Tex 2004 In re Automated Collection Technologies Inc 156 S.W.3d 557 Tex 2004 In re Boehme 256 S.W.3d 878 Tex App.Houston 2008 orig proceeding 13 In re Emex Holdings L.L.C 2013 WL 1683614 Tex App Corpus Christi Apr 18 2013 orig proceeding 16 17 In re Fisher 433 S.W.3d 523 Tex 2014 11 3488503v 1/0 13774 01155 In re Harris Corp 2013 WL 2631700 Tex App Austin June 42013 orig proceeding In re International Profit Assocs 274 S.W.3d 672 Tex 2009 10 15 17 In re International Profit Assocs 286 S.W.3d 921 Tex 2009 15 In re Laibe Corp 307 S.W.3d 314 Tex 2010 13 14 In re Lisa Laser USA Inc 310 S.W.3d 880 Tex 2010 11 In re Lyon Fin Servs 257 S.W.3d 228 Tex 2008 14 15 Inre Weekley Homes L.P 180 S.W.3d 127 Tex 2005 11 In re Zotec Partners LLC 353 S.W.3d 533 Tex App San Antonio 2011 orig proceeding 13 Martinez Bloomberg LP 740 F.3d 211 2dCir.2014 12 Phillips Audio Active Ltd 494 1.3d 378 Zdcir 2007 17 Phoenix Network Techs Europe Ltd Neon Sys Inc 177 S.W.3d 605 Tex App Houston Dist.I 2005 no pet SEECO Inc KT RockLLC 416 S.W.3d 664 Tex App Houston Dist 2013 pet denied Smith Kenda Capital LLC 2014 WL 5783581 Tex App Houston Dist Oct 21 2014 no pet 11 13 Southwest Intelecom Inc Hotel Networks Corp 997 S.W.2d 322 Tex App Austin 1999 pet denied TMI Inc Broolcs 225 S.W.3d 783 Tex App Houston Dist 2007 pet denied 15 Yavuz 61 MM Ltd 465 F.3d 418 10th Cir 2006 12 3488503v 1/0 13774 01156 The Court should dismiss Adriana Longorias claims because she agreed to bring them in Mexico Adriana claims that she is owed additional money pursuant to Spanish-language Private Agreement she entered into December 2002 In the Adrianas in Private Agreement father Eduardo Longoria Sr reiterated his wish that Adriana receive an inter vivos gift of $3 million copy of the Private Agreement is attached as Exhibit to this motion and translation is attached as Exhibit 2A The Agreement unambiguously provides that claims will be brought in Mexico Adriana has sued her brother Shelby Longoria even though Shelby is not to the party Private Agreement Adriana claims that Eduardo Sr made Shelby trustee over the money promised to her and that Shelby breached his fiduciary duty to her But Eduardo Sr could not create trust for Adrianas benefit because he had already transferred his assets into trust for which Shelby and his brother Eduardo Jr Wayo were the beneficiaries The trust was administered by Mexican bank Banca Afirme Adriana acknowledged the validity of the Afirme Trust in the Private Agreement The Afirme Trust Agreement is attached as Exhibit to this motion and an English translation is attached as Exhibit 3A Attached as Exhibit is an affidavit of Shelby Longoria explaining his fathers estate plan Adriana asserts that Shelbys influence caused Eduardo Sr to promise only $3 million to her in the Private Agreement She alleges that Shelby manipulated his parents with respect to their estate planning and he induced them to enter into various transactions i.e the Afirme Trust Agreement to increase his own share.1 She claims that she should receive as damages some unspecified payment of more than $3 million from the proceeds of the businesses held by the Afirme Trust Exh First Amended Counterclaims of Adriana Longoria at 14 3488503v 1/0 13774 01157 In Part below Shelby describes the of the Private parts Agreement Part II shows that Adrianas claims fall squarely within the of the exclusive forum-selection clause the scope in Private Agreement In Part III Shelby shows that the forum-selection clause must be enforced Part IV addresses the proper remedy dismissal of all of Adrianas claims to the Private relating Agreement and Afirme Trust The Private Agreement Should be Construed as Whole The Private Agreement is divided into four parts Preamble Declarations Clauses and Signature Block The Court should examine each of these parts of the Agreement so that it can be construed as whole SEECO Inc K.T Rock LLC 416 S.W.3d 664 674 Tex App Houston Dist.1 2013 pet denied contracts are to be construed as whole in an effort to harmonize and give effect to all provisions of the contract. Preamble The Preamble recites that the Private Agreement was executed for two purposes to recognize the Afirme Trust and to recognize Eduardo Sr.s wish to pay Adriana EXECUTED BY EDUARDO LONGORIA THERIOT AND ADRIANA LONGORIA KOWALSKI REGARDING THE ACKNOWLEDGMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF TRUST NO 194-2 MADE IN BANCA AFIRME S.A INSTITUCION DE BANCA MULTIPLE AND ACKNOWLEDGMENT OF PAYMENT OBLIGATION IN FAVOR OF ADRIANA LONGORIA KOWALSKI Declarations Eduardo Sr and Adriana then make three declarations First that Eduardo Sr entered into the Afirme Trust Agreement on October 15 2002 Second that Shelby and Wayo were the Exh 2A 1st page Preamble 3488503v1/013774 01158 designated beneficiaries of the shares of the Mexican which were contributed to the companies Afirme Trust Finally that just as it is the will of their father that EDUARDO and SHELBY LUIS LONGORIA KOWALSKI shall receive the ownership of the shares of all companies it is also the will of her father that ADRIANA LONGORIA KOWALSKI shall receive the quantity specified in this Agreement under the conditions indicated herein.3 Clauses Four clauses are at the heart of the Private Agreement In the first clause Adriana and Eduardo Sr recognized the Afirme Trust The parties recognize the validity and scope of the TRUST and in this regard they are in agreement with all its terms and conditions and therefore declare that the agreement is the final and definitive will of the and parties therefore they comply with all terms and agree that the shares contributed to it are to be transferred to the designated beneficiaries.4 In the second clause Adriana and Eduardo Sr describe the terms and make payment clear that payments to Adriana will be made from the operating cash flow generated by the companies represented by the shares contributed to the Afirme Trust It is the will of her father that the amount of $3000000 three million U.S dollars be delivered to his daughter ADRIANA LONGORIA KOWALSKI from the operating cash flow generated by the companies represented by the shares contributed to the TRUST or by their subsidiaries and therefore it is the obligation of EDUARDO AND SHELBY LUIS LONGORIA KO WALSKI The clause then states that Adriana will receive $12500 per month In the third clause Adriana and Eduardo Sr state that this Agreement is the final and definitive will of the parties and they make clear that the Afirme Trust is responsible for payments to be made to Adriana Exh 2A 1st page Declaration Exh 2A 1st page first clause Exh 2A 1st page second clause 3488503v1/013774 01159 THE TRUSTs obligation to deliver the mentioned quantitites to ADRIANA LONGORIA KOWALSKI in the terms set forth herein shall continue in effect until full after payment acknowledging that payment of the amounts referred to in this Agreement ADRIANA LONGORIA KOWALSKI shall be satisfied in relation to any present or future obligation charged to the TRUST assets or to those of Messrs EDUARDO and SHELBY LUIS LONGORIA KOWALSKI.6 The fourth clause is titled Jurisdiction and Mexican Law Adriana and Eduardo Sr selected application of Mexican law and Reynosa as forum to resolve any disputes This Agreement is established under the jurisdiction and laws of the United Mexican States Therefore the parties exclusively submit to the laws of Mexico thus they expressly waive the application of any law regulation provision or rule of any jurisdiction other than Mexico which might to them due to correspond their residence paternity citizenship domicile or commercial kinship relationship Therefore in the event of any interpretation dispute or any aspect related to this Trust they expressly submit to the courts of the city of Reynosa Tamaulipas Mexico.7 Adriana and Eduardo Sr then agreed that in all cases Mexican will be applicable and jurisdiction that any act performed by party outside Mexico seeking to affect the rights set forth in the Agreement based on law other than Mexican law will not be applicable Likewise the issuance of any law regulations or provisions in jurisdictions outside the Republic of Mexico or any act performed outside the national territory by any party seeking to impose restrictions on this Agreement or to impose the performance of acts djfferent from the for which it is purposes authorized ii impose taxes duties or tax burdens other than those under Mexican Law iii expropriate limit confiscate seize dispose of freeze or otherwise affect the rights of the Agreement based on federal state or municipal laws outside the jurisdiction of the Republic of Mexico shall not apply to this Agreement in all cases the jurisdiction and laws of the Republic of the United Mexican States being applicable under the terms of the previous paragraph.8 Exh 2A 2d page third clause Exh 2A 2d page fourth clause Exh 2A 2d and 3d page fourth clause 3488503v1/013774 01160 Signature Block After the choice-of-law and forum-selection clauses the Private Agreement recites that it was signed by Eduardo Sr and Adriana on December 17 2002 two months after only execution of the Afirme Trust Agreement.9 II Adrianas Claims Fall Within the Scope of the Forum-Selection Clause The Court must determine whether Adrianas claims fall within the of the forum- scope selection clause The forum-selection clause clearly encompasses Adrianas claims relating to the Private Agreement and the Afirme Trust The Private Agreement reinforces the selection of Mexican forum by expressing the parties intent to nullify lawsuits outside Mexico The forum- selection clause is broad enough to Adrianas tort claim for recovery of more than $3 encompass million Shelby can enforce the forum-selection clause even he not to the though is party Private Agreement And the result is the same when as is necessary the Court applies Mexican law to determine the scope of the forum-selection clause The Court Must Determine Whether Adrianas Claims Fall Within the Scope of the Forum-Selection Clause When party seeks to enforce mandatory forum-selection clause court must determine whether the claims in question fall within the scope of that clause The court bases this determination on the language of the clause and the nature of the claims that are allegedly subject to the clause Deep Water Slender Wells Ltd Shell Intl Exploration Prod Inc 234 S.W.3d 679 687-88 Tex App Houston Dist 2007 pet denied This requires common-sense examination of the claims and the forum-selection clause to determine if the clause covers the claims In re Lisa Laser USA Inc 310 S.W.3d 880 884 Tex 2010 9Exh 2A 3d page 3488503v1/013774 01161 When addressing the scope and enforceability of forum-selection clause court should consider Texas state case law the federal case law on which Texas law is based and cases to arbitration clauses which the Texas Court has pertaining Supreme characterized as being type of forum-selection clause In re AIU Ins Co 148 S.W.3d 109 115 116 Tex 2004 In re International Profit Assocs 274 S.W.3d 672 677 Tex 2009 In re Boehme 256 S.W.3d 878 881 Tex App Houston Dist 2008 orig proceeding In construing forum-selection clause our primary goal is to give effect to the written expression of the parties agreement .. We must read the provision in its entirety striving to give meaning to every sentence clause and word to avoid rendering any portion inoperative Phoenix Network Techs Europe Ltd Neon Sys Inc 177 S.W.3d 605 615 Tex App Houston 2005 pet Southwest Dist no quoting Intelecom Inc Hotel Networks Corp 997 S.W.2d 322 324 Tex App Austin 1999 pet denied The Plain Language of the Forum-Selection Clause Encompasses Adrianas Claims The second paragraph of the forum-selection clause provides that in all cases the jurisdiction and laws of the Republic of the United Mexican States is applicable under the terms of the previous paragraph By agreeing that in all cases the jurisdiction of the Republic of the United Mexican States is applicable the parties established Mexico as the exclusive forum for resolution of disputes See In re Automated Collection Technologies Inc 156 S.W.3d 557 558 Tex 2004 directing dismissal of Texas case where the parties had consented to the exclusive jurisdiction of the courts of Montgomery County Pennsylvania. The second paragraph refers back to first paragraph of the forum-selection clause which states that in the event of any interpretation controversy or any aspect related to this Trust they Exh 2A 2d and 3d page 4th clause 3488503v1/013774 01162 expressly submit to the courts of the city of Reynosa Tamaulipas Mexico.1 As result the forum-selection clause encompasses Adrianas claims pertaining to the Afirme Trust including her claims that Shelby fraudulently induced Eduardo Sr to enter into the Afirme Trust The forum-selection clause of course also encompasses claims relating to the Private Agreement in which it is found The first paragraph makes that clear This Agreement is established under the jurisdiction and laws of the United Mexican States.2 The Afirme Trust Agreement contains similar forum-selection clause to the Private Agreement Moreover of The Afirme Trust Agreement was attached to the Private copy Agreement.3 By applying the forum-selection clause to Adrianas claims based on both the Private Agreement and Afirme Trust the Court will effectuate the Texas Supreme Courts directive that when applying forum-selection clause documents pertaining to the same transaction may be read together even if they are executed at different times and do not reference each other and courts all the documents they were of may construe as if part single unified instrument In re Laibe Corp 307 S.W.3d 314 317 Tex 2010 quoting Fort Worth Indep Sch Dist City of Fort Worth 22 S.W.3d 831 840 Tex 2000 see In re Harris Corp 2013 WL 2631700 Tex App Austin June 2013 orig proceeding Smith Kenda Capital LLC 2014 WL 5783581 Tex App Houston Dist Oct 21 2014 no pet both applying forum selection clause because plaintiffs claim relates to the contract which contains the clause even though the plaintiff disclaimed an intent to recover pursuant to the contract Exh 2A 2d page 4th clause 12 Exh 2A 2d page 4th clause 1a 13 Exh 2A 1st page Declaration 3488503vl/013774 01163 The Parties Reinforced Their Forum Selection by Making Clear that They Could Not Sue Outside Mexico Adriana has run afoul of the forum-selection clause lawsuit merely by filing this seeking to recover under Texas law The Private Agreement provides that any act performed outside Mexico such as filing this lawsuit shall not apply to this Agreement i.e will be nullity if it seeks to affect the of the Agreement based on federal rights state or municipal laws outside the jurisdiction of the Republic of Mexico.4 Adriana makes no secret of the fact that she is seeking to affect the rights of the Agreement based on Texas law Under Texas law Adriana is entitled to and hereby requests entry of judgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law.5 Under Texas law Adriana is entitled to and hereby requests entry of judgment against Shelby for exemplary damages in an amount to be determined by the trier of fact in accordance with Texas law.6 Under Texas law Shelby breached his fiduciary duty to Adriana The Private Agreements forum-selection clause thus backs up the choice of exclusive forum by preemptively nulljing lawsuit such as this one which seeks to apply non-Mexican law in non-Mexican forum Moreover the parties used very broad language to provide that any provisions in jurisdictions outside Mexico such as any judgment in this case also shall not apply to this Agreement.8 This works hand-in-glove with Adrianas agreement to waive the application of any law regulation provision or rule of any jurisdiction expressly 14 Exh 2A 2d page 4th clause Exh at 39 44 50 56 161d 40 45 51 171d 18 43 Exh 2A 2d page 4th clause 3488503v 1/0 13774 01164 other than Mexico.19 hard to imagine how could have the expressed more It is parties strongly their intent that any lawsuits be brought in Mexico Where as here the parties agree to submit to venue in one jurisdiction while waiving venue in other locations they have made selection of an exclusive forum for resolving claims In re Fisher 433 S.W.3d 523 532 Tex 2014 finding that forum-selection clause was mandatory even when the selected jurisdiction was non-exclusive when the contract stated that agrees not to proceeding out of or relating to this party bring any arising Agreement in any other court In re Emex Holdings L.L.C 2013 WL 1683614 at Tex App Corpus Christi Apr 18 2013 orig proceeding finding that the following clause was enforceable and exclusive The parties agree that for the construction and compliance herewith they expressly submit themselves to the Jurisdiction and Competence of the Common Affairs Laws and Courts seated in Mexico waiving to any other that may correspond to them due to their present or future domiciles Dixon TSE International Inc 330 F.3d 396 397 5th Cir 2003 finding that the following clause was enforceable and exclusive The Courts of Texas U.S.A shall have jurisdiction over all controversies with respect to the execution interpretation or performance of this Agreement and the parties waive any other venue to which they may be entitled by virtue of domicile or otherwise Export-Import Bank of the United States Hi- Films S.A de CV 2010 WL 3743826 at S.D.N.Y Sep 24 2010 forum selection clauses are mandatory even though they do not expressly use the word exclusive because the parties waived other jurisdictions Adrianas Tort Claim Falls Within the Scope of the Forum-Selection Clause The Agreement is particularly clear with respect to Adrianas tort claim by which she seeks to recover more than $3 million from the cash flow of the companies which were conveyed 9Exh 2A 2d page 4th clause 3488503v1/013774 01165 into the Trust The Agreement preemptively nullifies any act performed outside Mexico by any party seeking to .. impose the performance of acts different from the purposes for which it is authorized.20 This lawsuit an act outside Mexico is performed seeking to impose the performance of payments other than those which the Agreement authorizes Adriana also seeks to vitiate entirely the first clause in the Private Agreement by which she recognizes the validity and scope of the TRUST agrees with all its terms and conditions declare that the agreement is the final and definitive will of the parties and compl with all terms and agree that the shares contributed to it are to be transferred to the designated beneficiaries.21 Adriana now claims through this lawsuit that the Trust is invalid and that the shares contributed to the Trust should be held at least in part for her benefit and not the benefit of the designated beneficiaries She therefore is seeking to impose restrictions on this Agreement and limit the rights of the Agreement based on non-Mexican law an act which also is nullity pursuant to the forum-selection clause.22 party cannot avoid application of forum-selection clause by artful pleading of its claims as tort claims instead of contract claims In re International Profit Assocs 274 S.W.3d 672 677 Tex 2009 Adrianas claims arise from the Private Agreement not any general tort duty owed by Eduardo or Shelby independent of the contract therefore all of these claims are within the scope of the Private Agreements forum-selection clause Id at 677-78 if claim seeks benefit which is found in contract instead of general obligations imposed by law the claim arises under the contract even if it is pled in tort In particular forum-selection clause can encompass claim of tortious conduct relating to the contract in which it is found even if the plaintiff is challenging conduct which predates the contract See Clark Power Marketing 20Exh 2A 2d page 4th clause Exh 2A 1st page 1st clause 22 Exh 2A 2d page 4th clause 10 3488503v 1/0 13774 01166 Direct Inc 192 S.W.3d 796 799 800 Tex App Houston Dist 2006 no pet agreeing with the Dallas Court of Appeals rejection of the argument that forum-selection clause cannot encompass pre-contractual tort claims Shelby Can Enforce the Forum-Selection Clause Since Adriana relies on the Private Agreement and seeks to hold Shelby to its terms Shelby can enforce its forum-selection clause against her even though he is not party to it In In re Lisa Laser USA Inc 310 S.W.3d 880 Tex 2010 the Texas Supreme Court rejected plaintiff HealthTronics attempt to avoid the application of the forum-selection clause to its claims against non-signatory Lisa Germany plaintiff cannot both have his contract and defeat it too In other words HealthTronics cannot claim that Lisa Germany has obligations to HealthTronics under the Distribution Agreement and simultaneously claim that the forum- selection clause does not apply to those claims In re Lisa Laser 310 S.W.3d at 886 quoting In re Weekley Homes L.P 180 S.W.3d 127 135 Tex 2005 person who has agreed to resolve disputes with one party in particular forum may be required in some circumstances to resolve related disputes with other parties in the same forum Smith Kenda Capital LLC 2014 WL 5783581 at Tex App Houston Dist Oct 21 2014 no pet h. One circumstance allowing enforcement by nonsignatory against signatory involves direct benefits estoppel Id at This species of estoppel applies when signatorys claim against nonsignatory references or the existence of the written presumes agreement containing the clause Id quoting In re Trammell 246 S.W.3d 815 821 Tex App Dallas 2008 no pet. Direct benefits estoppel analysis focuses on whether contract containing the clause at issue also includes other terms on which the signatory plaintiff must rely to prosecute its claims 11 3488503v 1/0 13774 01167 Id at For example in Smith the plaintiff was estopped from arguing that the forum selection clause was inapplicable to its claims against the non-signatory defendant because the agreement containing the clause does indeed include other terms on which Smith must rely to pursue his claim Id Similarly here Adriana from is estopped arguing that the forum selection clause is inapplicable because the Private Agreement containing the clause includes the payment terms on which she relies to pursue her claim The Result Is the Same Under Mexican Law All of this clear when read with reference is in English to American law But it is doubly clear when read in Spanish with reference to Mexican law When contract contains choice-of- law clause the Court must the law chosen apply by the parties to determine the scope of the forum-selection clause Hooks Indus Inc Fairmont Supply Co 2001 WL 395341 at Tex App Houston Dist Apr 19 2001 no pet Martinez Bloomberg LP 740 F.3d 211 224 2d Cir 2014 Albemarle Corp AstraZeneca UK Ltd 628 F.3d 643 651 4th Cir 2010 Yavuzv 61MM Ltd 465 F.3d 418 428 10th Cir 2006 Here the parties chose the application of Mexican law Attached as Exhibit to this motion the of Carlos Gabuardi respected Mexican is Affidavit lawyer and academic Professor Gabuardi explains that Mexican law recognizes forum-selection clauses23 that the forum- selection clause here is written to express the parties intent that all lawsuits concerning the Private Agreement and Trust will be brought in Mexico24 that Adriana agreed that lawsuit outside Mexico can have no effect on her rights under the Private Agreement25 and that Shelby can enforce the forum-selection clause.26 23 Exh at 11 15-18 241d atjf 11-14 25 Jd Id at 19 12 3488503v 1/0 13774 01168 III The Court Must Enforce the Forum-Selection Clause court must that mandatory forum-selection clause is valid and trial presume enforceable In re Boehme 256 S.W.3d 878 881 Tex App Houston Dist 2008 orig proceeding emphasis in original The trial court gives full effect to forum selection clause absent that the court should set aside the clause because strong showing by the resisting party the clause is invalid based on reasons such as fraud undue influence or overweening bargaining or enforcement would be unreasonable and unjust Smith Kenda power Capital LLC 2014 WL 5783581 at Tex App Houston Dist Oct 21 2014 no pet Slender Ltd Shell Intl Exploration Production Inc 234 quoting Deep Water Wells 2007 Enforcement can be S.W.3d 679 692 Tex App Houston Dist pet denied avoided in extreme circumstances that courts cannot presently anticipate or foresee In re only ADM Investor Svcs Inc 304 S.W.3d 371 376 Tex 2010 does matter Adriana views as inconvenient Inconvenience to It not if Reynosa witnesses is not sufficient to overcome forum selection clause In re Zotec Partners LLC 353 For example choice-of- S.W.3d 533 537 Tex App San Antonio 2011 orig proceeding forum clause was enforced over objection even when the plaintiff who lived in east Texas was nearing 80 old suffered chronic health problems would be forced to litigate in Illinois years heart often had difficulty walking and had been including fibromyalgia and problems hospitalized several times in recent months In re ADM Investor Svcs Inc 304 S.W.3d 371 375 Tex 2010 small business which In In re Laibe 307 S.W.3d 314 Tex 2010 the manager of would cease if it were sought to avoid trial in Indiana testified that daily operations basically 13 3488503v 1/0 13774 01169 required to pursue lawsuit in Indiana Laibe 307 S.W.3d at 17-18 The Texas Supreme Court rejected this out of hand If merely stating that financial and logistical difficulties will preclude litigation in another state suffices to avoid forum-selection clause the clauses are practically useless Id 318 Fin at quoting In re Lyon Servs 257 S.W.3d 228 234 Tex 2008 Financial difficulties on behalf of one or the other are typically of the reason litigation party part begins In re Lyon Fin Svcs Inc 257 S.W.3d 228 234 Tex 2008 By entering into an agreement with forum-selection clause the parties effectively represent to each other that the agreed forum is not so inconvenient that the clause will enforcing either of court whether reasons deprive party its day in for cost or other In re Lyon Fin Svcs Inc 257 S.W.3d 228 234 Tex 2008 Adriana should be held to her representation that litigation in Reynosa will not be so inconvenient as to deprive her of her day in court It also does not matter if Adriana claims that she was unsophisticated or counsel lacking at the time she signed the Agreement giving her $3 million In In re Lyon Fin Svcs Inc 257 S.W.3d 228 Tex 2008 the plaintiff tried to avoid forum-selection clause by claiming that he was not able to obtain any legal advice he does not have formal business school training he was unaware of the contract provision when signed it and that the documents were presented to him on take-it-or-leave-it-basis Lyon 257 S.W.3d at 233 The Texas Supreme Court rejected these pleas bargain is not negated because one party may have been in more advantageous bargaining position Id The forum selection clause was obvious in the agreement and the plaintiff had an obligation to protect himself by reading what he signed Id Any claim of fraud by Adriana is also unavailing Simply alleging fraud in the inducement of contract is not sufficient to make forum-selection clause unenforceable Clark Power Marketing Direct Inc 192 S.W.3d 796 799 Tex App Houston Dist 2006 no 14 3488503v1/013774 01170 pet. court determining whether or not to enforce forum-selection clause will not inquire into the enforceability of the contract in which that clause is found Id at 800 Fraudulent inducement to sign an agreement containing resolution such dispute agreement as an arbitration clause or forum-selection clause will not bar enforcement of the clause unless the specific clause was the product of fraud or coercion In re Lyon Fin Svcs Inc S.W.3d 228 257 232 Tex 2008 Adriana has not claimed nor could she claim that the forum-selection clause itself was the product of fraud or coercion Adriana claims that she was not able to read the Private Agreement before she signed it and that she did not know what was written on these pages.27 But also unavailing for it is Adriana to claim ignorance of the document she signed It is presumed that signatory to contract understood and agreed to the contents In re International 274 S.W.3d Profit Assocs 672 679 Tex 2009 Parties to contract have an obligation to protect themselves by reading what they sign and absent showing of fraud cannot excuse themselves from the consequences of failing to meet that obligation In re International Profit Assocs 286 S.W.3d 921 924 Tex 2009 party must exercise reasonable diligence for the protection of his or her own interests and failure to do so is not excused by mere confidence in the honesty and integrity of the other party TMI Inc Brooks 225 S.W.3d 783 795 Tex App Houston Dist 2007 pet denied There was nothing hidden about the forum-selection clause It was found right above the signature block and was printed in the same font as every other paragraph of the three-page Private Agreement In In re International Profit Assocs Inc 274 S.W.3d 672 679 Tex 2009 the Texas Supreme Court found that forum-selection clause was not procured through fraud or overreaching because among other things the clauses were part of agreements that were each 27 Exh Adriana Longoria deposition at 20092019 20220 2033 15 3488503v 1/0 13774 01171 two pages in length were located in close to the and proximity signature elements were in the same font style and size as all other provisions Adriana denied in the Private Agreement that there was any bad itself mistake fraud faith or any defect of will that might affect their or decision understanding regarding the content.28 In she her deposition reiterated that she was not claiming the Private Agreement pursuant to which she has received over one million dollars of payments was invalid.29 In In re Emex Holdings L.L.C 2013 WL 1683614 at Tex App Corpus Christi 2013 orig proceeding the parties agreement that there was no fraud bad faith injury or any other cause of nullity established by the Law helped to rebut challenge to Mexican forum-selection clause found in the parties contract Iv Dismissal Is the Proper Remedy motion to dismiss is the proper procedural mechanism for enforcing forum-selection clause that party to the agreement has violated in filing suit Deep Water Slender Wells Ltd Shell Intl Exploration Production Inc 234 S.W.3d 679 687 Tex App Houston Dist 2007 pet denied Adriana has only one claim which is potentially unaffected by dismissal Specifically she seeks to recover $100000 which Shelby purportedly told Dorothy he would give to Adriana after Dorothys death.3 As Shelby will show in forthcoming summary judgment motion he did give Adriana the money but she refused it Nevertheless this claim and this one alone arguably does not relate to the Private Agreement or Afirme Trust 28 Exhibit 2A 2d page third clause 29 Exh Adriana Longoria deposition at 2028-19 30 Exh at 29-33 16 3488503v 1/0 13774 01172 It is immaterial that of the forum-selection application clause may result in Adriana pursuing one claim in Houston and her other claims in Reynosa The fact that the challenger might have to pursue two lawsuits one in Mexico and one in Texas does not meet the standard for avoiding the forum-selection provision In re Emex Holdings L.C 2013 WL 1683614 at Tex App Corpus Christi 2013 orig proceeding An argument that if the clauses are enforced the plaintiff will have to two pursue suits is not the type of unusual and special circumstances that show litigating the contracted- for forum will be so gravely difficult and inconvenient that the will be of plaintiff deprived its day in court In re International Profit Assocs Inc 274 S.W.3d 672 680 Tex 2009 forum selection clause is like an arbitration clause Piecemeal is litigation required when some claims fall within the scope of an arbitration clause and others do not AutoNation USA S.W.3d Corp Leroy 105 190 201 Tex App Houston Dist 2003 orig proceeding Arbitrable claims must be arbitrated even if it may result in the possibly inefficient maintenance of separate proceedings in different forums Dean Witter Reynolds Inc Byrd 470 U.S 213 217 105 S.Ct 1238 1241 1985 The Second Circuit Court of Appeals addressed this situation in Phillips Audio Active Ltd 494 F.3d 378 2d Cir 2007 In that case plaintiff Phillips asserted some claims which were subject to an English forum-selection clause and other claims which were not The only choice was to dismiss some claims in favor of an English forum while retaining the other claims in the United States We are aware that the commencement of separate proceedings in two countries is likely inconvenience to the parties We have considered that the parties intent and continued interests may lie in treating Phillips five claims uniformly but our twin commitments to upholding forum selection clauses where these are found apply and proper choice of forum us to to constrain in deferring plaintiffs the present context to treat Phillips claims separately 17 348 85 03v 1/0 13774 01173 PhiIlis 494 F.3d at 393 It is similarly immaterial that Sylvia Longoria and the Estate of Dorothy Longoria are unaffected by this motion The presence of other parties does not defeat the of the application forum-selection clause See ADM Investor Svcs Inc 304 S.W.3d 371 375 Tex 2010 enforcing forum selection clause against the affected even one defendant was parties though not subject to it because the mere existence of another defendant does not compel joint litigation even if the claims arise out of the same nucleus of facts Conclusion The Court should enter the proposed order submitted with this motion dismissing all of Adriana Longorias claims relating to the Private Agreement or Afirme Trust Respectfully submitted SUSMAN GODFREY L.L.P By /s/ Johnny Carter Johnny Carter State Bar No 00796312 jcarter@susmangodfrey.com Richard Hess State Bar No 24046070 rhess@susmangodfrey.com Kristen Schlemmer State Bar No 24075029 kschlemmer@susmangodfrey.com 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713 654-6666 18 3488503v 1/0 13774 01174 Robert Maclntyre Jr State Bar No 12760700 rnacintyre@rnrnlawtexas.com MACINTYRE MCCULLOCH STANFIELD YOUNG 2900 Weslayan Suite 150 Houston Texas 77027 Telephone 713 547-5400 Attorneys for Shelby Longoria CERTIFICATE OF CONFERENCE Johnny Carter counsel for Shelby Longoria conferred with James counsel for Fisher Adriana Longoria on January 13 2015 Mr Fisher stated that Ms Longoria is opposed to this motion /s/ Johnny Carter Johnny Carter CERTIFICATE OF SERVICE This is to certify that on this the 14th day of January 2015 true and correct of the copy above and foregoing instrument was properly forwarded to the following counsel of record in accordance with Rule 21 of the Texas Rules of Civil Procedure as indicated below James Austin Fisher Via E-Service FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Email jfisherfisherwelch.com Wesley Holmes Via E-Service THE HOLMES LAW FIRM 1000 North Central Expressway Suite 400 Dallas Texas 75231 Email wes@wesholmes.com Attorneys for James Thomas Dorsey Sylvia Dorsey andAdriana Longoria /s/ Johnny Carter Johnny Carter 19 3488503v1/013774 01175 EXHIBIT 01176 Case Number 414270 JN THE ESTATE OF IN THE PROBATE COURT DOROTHY LOUISE LONGORIA NUMBER ONE DECEASED HARRIS COUNTY TEXAS Affidavit of Shelby Longoria in Support of Motion to Dismiss Adriana Lonorias Claims STATE OFt1- COUNTY OFj BEFORE ME the undersigned authority on this day personally Shelby Longoria who being by me first duly sworn stated the following am of of sound My name is Shelby Longoria over twenty-one years age mind and qualified to make this affidavit have personal knowledge of the facts stated herein and am competent to testify thereto am one of four children of Eduardo and Dorothy Longoria My parents were Mexican citizens and lived most of their married lives in Mexico My father was member of of Mexican businessmen Through series of transactions in the 1970s and prominent family he and his brothers had jointly owned Around the 1980s my father split up the businesses that father these businesses same time assumed greater responsibilities for helping my to manage brother Wayo and me My father always expressed the desire that his sons my the Mexican all of the risk associated with those would receive businesses including he wanted receive cash He daughters Adriana and his to in businesses often stated that Sylvia their lifetimes For example he executed Wish Letter in 1992 describing his wish that Adriana and each receive $3 million during their lifetimes The total to be received by my sisters Sylvia exceeded the value of the businesses that time $6 million between them likely at 3489791v11013774 01177 Over time the businesses were consolidated under two Mexican holding companies Vertice Empresarial and Inmuebles Terrenos S.A ITSA In 2002 my father decided to transfer the shares of these companies to trust held by Mexican bank called Banca Afirme Consistent with my fathers consistently-expressed wishes the shares would be held in that trust for the benefit of Wayo and me and our families On October 15 2002 the same day that the Afirme Trust became effective my father executed will recognizing the Afirme Trust Agreement Two months after entering into the Aflrme Trust Agreement my father executed Private Agreement with Adriana Consistent with the wishes previously expressed by the Private Aeement for Adriana to receive $3 million over time my father provided My father passed away in Januaiy 2005 FURTHER AFFIANT SAYETH NOT Shelby Longona SUBSCRIBED AND SWORN TO BEFORE ME this ____ day of January 2015 to which witness my hand and seal of office certif Notary Public State of l-ame Commisston Expnes ____________________ 348979 v1fO 13774 01178 CaUforna Jurat CerUficate or other only the who notary public officer completing this certificate verifies of the individual the Identity signed which Lcumt to this certificate attached and not the Is truthulness accuracy or validity of that document State of California s.s County of7 fYi 2115 Subscribed and sworn to or affirmed before me on this 20 by and ______________________________________________ proved to me on the basis of satisfactory evidence to be the who appeared before me person7 ________ Noryp SOhOMArOt$41y Ihr 1un Srl OPTIONAL INFORMATION Alt huh tic ii Horn a/ion in this 500101 10 1101 UiiiIod by /iiw 1/ coik potif IrS1K/U/0fl/ to/novel iii id n/eachwunI of this J1fl/ tO 1111 iiiiziuthil/izd 1lcixrocitd iimy pmve nooful In poisons yinc on ho sttachscf document Description of Attached Document The certificate is attached to document titled/for the of Method of Afflant Identification purpose 2fe /4 rormsoftdenUflcaflonOcredibettness Notarial ventja detailed in notary Journal on Pagej.3_ Entry..L._. Notary conbct zA 13 2015 Other containing ______ pages and dated Afftants Thumbprints Describe ________ c1 1e oF tiii toro l.nl ooi vjt 01179 EXHIBIT 01180 ACUERrO PRIVAGO CUE CELEBRAN ED1IARDO LONGORIA THEROT ADRIANA LONGORIA KOWALSKI RESPEOTO DEL RECONOCM1D1TO ACEPTACIONDE LOS TERMINOS CONDICONES DEL FIDEICOMISO NO 194-2 CONSTITUIDO EN BANCA APIRME S.A JNSTfrUCION DE BANCA MULTiPLE DEL RECONOCIMIENTO IDE LA OBUGACON DE PAGO FAVOR IDE LA S6JORA ADRIANA LONGOR1A KOWALSICI DE ACUERDO LO SlGUIENTE ECLARACIONES Dec4aron las panes Quo en tetha otubre 15 del .preserte ao se celebr un controo de fidelomiso donde ctu como Fideicomlfene el seæor Eduordo Longotlo Ttet coma ldeIcomisaros los seæores Eduardo Shelby Luls Longoric Kowaiskl coma fJduclarla Ia irsljtuciri do crØdfto Banca Affrrne SA frsfituci6n do Banca MIple el cuai so reglslro con el ntrn era 194-2 del cucil se Onexa und copia al presente Acuerclo en Ia suceslvo et FIDEICOMISO Que en dicho FIDEtCOM1SO se designaron coma benatlctar$os los seæores EDUARDO SHaBY WIS LONGORA KOWALSKI respec$o de l propledod do occlans aporfados ol mlsrno Que de lgual mQnera quo es voluntad su padre que 8DUARDD SHELBY LUS LONGORIA KOWALSKI reciban propledocl de las acciones do tolcriidcid de ecnprescis es voluniad los de su padre que ADRIANA LONGORIA KOWALSKI reciba Ia ccrnttdad quo se eslciblece en ete Acuerdo los condlclones aqut Indlcodas CA US AS Prirnera Del tDECOM1O.- Los partes reconocen Ic vaujdez cilcance del FJDElCOMISO en Id sentldo stÆædo ccuefdo en toos sos IØrrrlnos condlcicnas par to lonto manffies1ar que ditho contrato es Ia votuntad Tinol defirætWa do pot quo esfn conforrnes en todas sos fØrminos las panes Ia es1n conformes qua lc acclones apoi-tadas so franzmitan favor do los beneficicirios deslgnados ADRIANA 00119 01181 Segunda Pao ci AbtAWA LOWGORIA KiQWAL$KL voluniod tie su padre que so Jo eriiregue Jo canfidad do US$3000000.00 ties millones do dolores americanos su hija ADRIANA LONGOR1A KOWALSKI Cl cargo tie los flujos tie opeiocTr q.ie generon las empresas quo representon las ocdones aporlodos en FIDEICOMiSO sus subsidlarics par Jo quo es obligoclon tie EDUARDO SHELBY WIS LONGORLA KOWALSKI en los fØrmirios quo so menaionari continuaciOn Ia fecha do firma del preserite Acuerdo el saldo por eniregar ADRIANA LONGORIA KOWALSJJ on tØrminos del pÆrrafoanteilor aciende Pa canlidad do US$20 10000 dos miRones sesenta nueve mit den dlares cmericcinosj segCtri estodo do cuento quo so anexo to presenlo En virfud tie to anterior se to entreQcirÆ ci ADRIANA LONGORIA KOWAtSKt una carfidad anucil do US$150000.00 ciento cincuenlo rnll dolores omericonos de capital inlereses or mensuauidodes tie US$12500.00 doce ml quinientos dlares cimeiloanas hasla Pa complefa liquidactOn delsaldo quo se reficie oP pÆrrafo anterior De iguci manero el saldo pr pogar cousarO un interØs normdl del 75% seienia cinco por cionlo del 0prinie rate4 publiccido pot el Wail Street Journal So estabtece quo podrOn hocere pogos en bienes en cuyo caso so acordOrah los importes par ambcis panes Los cantidades sern eritregados estrico apego las dlspresiciones legales fiscoles oplicables at momenta de pago Tercera Condlcn DefemIriarte do Ia Vourifad.- Las panes rndnitJestan quo el presenie Acuerdo es voluntad final deflniitlvo do los portes par to quo estir conformes en fodos sus tØrminos rncirrifesfando oderncts quo nb existe error dolo mob fe cualquler viola de Pa voluntqd quo pudiere afeclar su en1ordimionto dedsiOn respect cii coniido del mismo La obligaciOn enfregor las cantidades mendonadas en favor tie ADRIANA LONGOR1A KOWALSKI cargo del FIDEICOMISO en los lØrminos aqut seaPodos continuorO vigente hasta su cornpteto iiquidcicin en Jo lnteligencia quo uno vez llquidados las contidades quo se refle.ren el presente AcUerdo ADRIANA LONGOR1A KOWALSKI so dar6 par satisfecho respecto do oualquier obligociOn presenle ci tulura cargo del potrirnonlo del FIDEICOMISQ de los senores EDUARDO SHELB WIS LONGORIA KOWALSKP PÆg ADRIANA 00120 01182 Cuort iursdccl6n Lelslaclr loana.- presnte Acuerdo so establece bo Ia jurIsdiicln eyes do los Blados linidos Meicanos Par lal motlvo los pcirlesse someten exciusivamente las byes do MŁxco par quo renuncian expresamenie Ia opilcaciÆn do cuakuler Ley reglamenf dsosicln norma do otra Jurlsdbccin diferente Ia mexJcana qtiepudere corresponderbe par mat Ivo do su residencia paerndad cludadon1a doniicUlo pcirentesco relacfn comerdczl par Jo quo en caso de inlerprelocic3n con1roveia cualquier ospecto reloclonado con el presenie Adelcomiso so somelen expresarnente los Iribunoles de Ia ciudd do Reynoscz IcmouJipcis Mexico De Iuol rnanera Jo ernisin do cucdqulor Ley reglomerilo disposlciones en jurisdicciones fuera de Ia Repiblica Melcona cualqUier ado recilizadp fuera del ierrflodo noclonal par cuolqulera do Ids purfes que preiendci Ii lrnparier restricdones al presente Acuerdo 1mporer Jo reoHzodn do actos dfversos los lines parc los quo estÆ auiotizdo que preienda Imponer Jrnpuestos derechos cargas frbukiros d1farertes los previstas en Legisiacin Mexlcana Iii quo prelenda exproplor rwnor coniscar ernbargar disponer congelor do cuciquler orrno dectar los derechos del Acuerdo en base dispasiciones 1egaIe tanto fedetcdes estotalos mundpobos fuera do La urisdlccin do Jo RpObc Mecana no es rd serÆ cpllcable cii presenie Acuerdo debierido en todo caso ciplicarse Jo Jurciicdn beglsbacin Ia Repib1co de bs stados Unidos Medconos en tØnninos del pnfo anterior Vsto lekio Ia ant erlar to rzan las pte.s en Ic do Reynaso Tamouflpc el dk 17 do DICIMR del 2002 Edudo Longorla Tkerlat c4 fTna ogoi\ Kowalsld Pde3 ADRIANA 00121 01183 EXHIBIT 2A 01184 1k \1 1o January 12 2015 Cerlification Park IP Translations This is lo certify that the attached iranslations are to the best of my knowledge and belief true and accurate translation from Spanish into of the English Irrevocable Trust Agreement Sarah Dunham Project Manager Pojec 1umber SUGOj 5OjO3 35 37th Street 8th floor New YorkjJY 10018 212.581 .8870 ParklP.cotr 01185 PRIVATE AGREEMENT EXECUTED BY EDUARDO LONGORIA THERIOT AND ADRIANA LONGORIA KOWALSKI REGARDING THE ACKNOWLEDGMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF TRUST No 194-2 MADE IN BANCA AFIRME S.A INSTITUCION DE BANCA MULTIPLE AND ACKNOWLEDGMENT OF PAYMENT OBLIGATION IN FAVOR OF ADRIANA LONGORIA KOWALSKI ACCORDING TO THE FOLLOWING DECLARATIONS The parties declare On October 15th of this year trust agreement was executed with Mr Eduardo Longoria Theriot acting as Trustor Messrs Eduardo and Shelby Luis Longoria Kowalski as trust beneficiaries and Banca Afirme S.A Institucion de Banca Multiple acting as trust credit institution which was registered with number 194-2 copy of which is attached to this Agreement hereinafter the TRUST That in such TRUST Messrs EDUARDO and SHELBY LUIS LONGORIA KOWALSKI were designated as beneficiaries regarding the ownership of the shares contributed to it That just as it is the will of their father that EDUARDO and SHELBY LUIS LONGORIA KOWALSKI shall receive ownership of the shares of all companies it is also the will of her father that ADRIANA LONGORIA KOWALSKI shall receive the quantity specified in this Agreement under the conditions set forth herein CLAUSES First Regarding THE TRUST The parties recognize the validity and scope of the TRUST and in this regard they are in agreement with all its terms and conditions and therefore declare that the agreement is the final and definitive will of the parties and therefore they comply with terms and that the shares contributed to it are to be transferred to the all agree designated beneficiaries Second Payment to ADRIANA LONGORIA KOWALSKI It is the will of her father that the amount of 3000000.00 three million U.S dollars be delivered to his daughter ADRIANA LONGORIA KOWALSKI from the operating cash flow generated by the companies represented by the shares contributed to the TRUST or by their subsidiaries and therefore it is the obligation of EDUARDO AND SHELBY LUIS LONGORIA KOWALSKI in the terms mentioned below Error Unknown document property name 01186 On the date this Agreement is signed the balance to be delivered to ADRIANA LONGORIA KOWALSKI in terms of the preceding paragraph amounts to the sum of USD 2069100.00 two million sixty-nine thousand one hundred U.S dollars according to the statement of account that is attached hereto By virtue of the foregoing an annual amount of 150000.00 one hundred fifty thousand U.S dollars of principal and interest will be given to ADRIANA LONGORIA KOWALSKI in monthly installments of 1250000 twelve thousand five hundred U.s dollars until the complete payment of the balance referred to above In addition the balance payable shall earn normal interest rate of 75% seventy-five percent of the prime rate published by the Wall Street Journal It is hereby established that payments may be made in the form of goods in which case both parties shall agree to the amount The amounts will be delivered in strict compliance with applicable tax and legal provisions when they are due Third Final and Definitive Will of the Parties The parties state that this Agreement is the final and definitive will of the parties therefore they are in agreement with all its terms further stating that there is no mistake fraud bad faith or any defect of will that might affect their understanding or decision regarding the content The TRUSTs obligation to deliver the mentioned quantities to ADRIANA LONGORIA KOWALSKI in the terms set forth herein shall continue in effect until full payment acknowledging that after payment of the amounts referred to in this Agreement ADRIANA LONGORIA KOWALSKI shall be satisfied in relation to any present or future obligation charged to the TRUST assets or to those of Messrs EDUARDO and SHELBY LUIS LONGORIA KOWALSKI Fourth Jurisdiction and Mexican Law This Agreement is established under the jurisdiction and laws of the United Mexican States Therefore the parties exclusively submit to the laws of Mexico thus they expressly waive the application of any law regulation provision or rule of any jurisdiction other than Mexico which might correspond to them due to their residence paternity citizenship domicile kinship or commercial relationship Therefore in the event of interpretation dispute or any aspect related to this Trust they expressly submit to the any courts of the city of Reynosa Tamaulipas Mexico the Issuance of or outside the Likewise any law regulation provisions in jurisdictions Republic of Mexico or any act performed outside the national territory by any party seeking to impose restrictions on this Agreement or to impose the performance of acts different from the for which authorized ii impose taxes duties or tax burdens other than those purposes it is under Mexican Law iii expropriate limit confiscate seize dispose of freeze or otherwise affect the rights of the Agreement based on federal state or municipal laws outside the of the of Mexico shall not apply to this Agreement in all cases the jurisdiction Republic Errorl Unknown document property name 01187 jurisdiction and laws of the Republic of the United Mexican States being applicable under the terms of the previous paragraph Having seen and read the foregoing the parties sign it in the city of Reynosa Tamaulipas on DECEMBER 17th 2002 Longoria Eduardo Longoria Theriot Longoria Kowaisk Adriana Longoria Kowaiski Errors Unknown document property name 01188 EXHIBIT 01189 Fldeicorniso No 94-2 4AFTRME DE FIDEICOMISO IRRBVOCABLE IDE ADMINISTRACION PATRIMONIAL CONTP.ATO QtIE CELEBRAN POR DNA PARTE COMO FIDEICOMITENTE EL SEOR EDtIARDO LOIORIA THERIOT QtJIEN EN LO STJCESIVO SE LE DBNOMIARA COMO EL FIDEICOMITENTE COMO FIDtICIARIO BANCA AFIR1E 8A XNSTITUCIN DE BANCA NLTIPLE AIRNE GIWPO FITXER DIVISIoN FXDLICIARXA QUIE EN LO STJCESXVO SE LE DENOMINAR$ COMO EL xDt1CzArro REPRESENTADO EN ESTE ACTO POR SUB DELEGADOB FIDUCIARIOS LOS LICENCIADOS ADRM JO1GE LOZANO LOZANO M7tRWEA BEATRIZ QARZA LONORIA ACTO IORfDIco UB SUJETAN AL TENOR LAS SIGtJIENTES DECLARACIONES CLATJSDLAS DECLARACIONES Dec.ara el Sr Eduardo Theriot en oslidad de Longoria FIDEICOMITENTE quet Es una peropna fisica do naciorialidad mexicana con capacidad suficiente .para oe.ebrar el presente contrato .b Que estd casado con su esposa la sefiora Dorothy Kowalsid do habjŒ.ndoae celebrado su natrimonic en la ciudad do Longoria Nuevo Laredo Tajnaulipas habindooe casado bajo el regimen do separncin do bienea Quo en su matriinonio con su esposa procre hijos Adriana Eduardo Silvia Shelby Luis todo do ape.lido Longoria Kowaiski quo ellos son su nica descendencia do las ACCZONES quo se describexi Es legItimo propietario continuaciri emitidas per las sociedades igualmerite descritas en la sucesivo identificadas en su totalidad comb las ACCIONES CONFIDENTIAL SLONGORIA 000172 01190 Fldelcomiso No 194-2 F3ANCA Para efectos del preseite Ocatrato so identificarÆn lae sociedades emisoras de las ACZONs indistintamente en SU conjunto aomo las EMPRESAS Obran en su poder los tItubca representatives de las ACCIONES referidas en eb inciso que precede mianan se encuentran quo librea do todo gravanen LEZMHDO1Af Es su voluntad el afetar en fidejoomiso las ACCIONEL COII el propsito do quo eJ IDUCIARIO en ba tÆrininos quo 50 aealan en este contrato las conserve fiduciaria el enpropiedad quo FIDUCIARIO disponga de eblas conforme be dispuesto en ete coat rate 1IDUCIRIO 10 ha explicado en fornia inequlvoca el valor consecuencias begales del precepto legal contenido en el inciso do la fraccin XIX diecinueve del articulo 106 romano ciento seis do la Ley do Instituciones de CrØdito asI come del alcance contendo do este contrato II. Declara el FIDUCI.RIO par cenduco da sun Debegados Fiduciarios que Su representada es una aociodad legalmente constituida onforine las ieyes mexicanas quo est debidamente autorizada para celebrar operacioxies fiduciarias EstÆ do acuerdo en actuar como Xnstjtucjn fiduciaria on presente contrato Son Delegados Piduciarias de Banca Afirme SA Instituci6n do Danca Md.ltiple Afirme Grupo Finanoicro Divisia iducia4a con facultadea nuficientes J.levar cabo la finna do ese para contrato las cuales no lee ban sido revocadas xii modificadas en fozma aigwia Do conforirnidad con be estabbecido en ci inciso de la fracci6n XIX diecthueve romano del articubo 106 ciento oem de la Ley de Instituciones do Cr6dito declare ha quo explicado en forma inegulvoca las doings ci valor partes consecuencias begabes dcidcha fraccin quo la letra dices CONFIDENTIAL SLONGORIA 000173 01191 Fldcomiso No 94-2 .1 BANCA 2AFIRME ArtIculo 106 las Znstituaiones do Crdito los eatarÆ prohibido XIX. Responder los fideiaomitentes maadantes coniienes del incuznplimientode los los arØditos deudores par quo so otarguen do los emLoaros par las valores se adquiorari quo salvo quo sea par su culpa aogn en Ia .Io dispuasto parte final dl ar.culo 356 a22ora 391 do le Jey General do Tltulos Opera ci ones do CrØdito garantizar la parcepcidn do rendirniontos par lo fondos auya inyersidn so lea encoxn.iende Si al tØnnino del fideicomiso mandato comiai6n conatituido para el otorgwnienta do adito stos no rnbieren sico liquidados par los deudores la institucin deberi tranaferjrlos al fideicomjtenje fideiaomigario segth Øl al xnandanto comitente abstezaiØndose do auhrir Eu Cualguier pacto contrario lo los dos dispuesto en prrafos auteriores noproducir otecflo legal alg-uno En los cant ratos do ideicornisc so maridato aomiei6n insertarÆn en toxma notoria los pÆrraos anteriores do eate inc.fso.y unadoolaracin do la fiduaiar.ia en ci sentido do quo hizo sabr ineguIvocamente su cantenido las de persoxas quienes baya recibido bienes su invoroin para Visto lo a.narior las pa2tes manifiestan tiexen conocimiento qua do las dclaracionea anteriores todas ellas quo son ciertas par lo que es su voluntad celebrax ci contrabo do fideicoiniso prosento conforme lao iguientes CIjAUSLAS PRIXERA- CONSTITUCI6N DEL FIDEICOMIO- El Sr Eduardo Longoria Theriot en su calidad do FIDEICOMITE1rE en eote acto transmite en fideicomiso FIDtICIARIO l.a de lao ACCIONES propledad detalladas en el ixiciso de la Declaracjn del presonte/ contrato \5 y\ CONFIDENTIAL SLONGORIA 000174 01192 FIcicomlso No 194.2 /\ \4AAFRME IC0MIN en eate acto hace entega fisica al FXDUCIJRIO do debidanente los tItuJ.os que amparaxi .as ACIo fjdeicomjtldas enclosados en favor de dst itimo los drminos del artlcuJ.o 129 dela Ioy General de ociedades Mercantiloa el PIICoNxEE so oompe riotificar Adxninjstrador nico al ecretarjo del Conseo de Adzninjstraci6n 1en su de las caso EI4PRESAS emisoras do la transmIsin respecto do las ACI.ONES al presente contrato do Fideicem de fin que se realice la Inacrpci6n correspondiento en ci Registro de Acciorijetas de dichas EMPREBAS remitiendo FIcIjIo la eertifioacjdn dentro correspondierite de plazo do 30 treinta dias hbiles contadog partir do la oelehracj6n del presente contrato En case do quo no se reciba la certificacin del Secrotario del Consejo FXt1CIARIO podrÆ solicitarla directanente zuciuio recibe en este acto los titulos quo ainparan las ACCIONB debidamente endosadas sin asunfr responsabilidad alguna por autenticidad 1egitiinida do dichos tItules per be viaios que soperten consacuentemente aeÆ ci FIDEIcOMINrE guieri deberi responder do is autentic3dad do lea t1tulo del saneanliento para de ci aaso eviccj6 Aixni.smo ci FIUCIARI0 per medio del presente coritrato otorga FIDEICOMITENTE recibo mÆs ainplio en quo derocho proceda El FXEtICIARIO en este acto xnaxiifiesta la do acØptacin su cargo protestandosu fiel legal deseinpefio SEGtJNDA Son parteg en ol presente Contrato do Fideicomiso las siguientes FIDEICOMITENTEI Se1or Eduardo Longoria Theriot FIDIYCIARIO BanoaAfjrme LA Instjtucjn do flanca Mitipla Afirrno Orupo Financiero Divisidn Fiduciaria Deaignacion do PIDEICOMxaMIos En este acto ci FIDEIC0MITEE designs come FI1DEICOMISARIOS EN PRIMER Lt7GAi sustittos pars caso do su fallecimiento Eduardo Shelby Luis anibos do apellidos RN PRIMER LtJGAR Longoria Kowaiski en las siguientes CONFIDENTIAL SLONGORIA 000175 01193 F1decomIo No 194-2 BANCA \tAFIRME proprciones Shelby Luis xongoria Kowaleld en tin 6O aesenta por ciento de los dereohos de fjdeicxiavib derivados del prasente Fideiconjiso yj iEd.1-iardo Longoria Kpwalski en tin 4O cuarenta por ciento de los dereohos de fideicomisario derivados de eate Fideicorniso 1ZMENDOZsiIfliGUo para el caso de fallecimiento de los IDEICONXSUIOS EN RIdER LIt7GAR aualqid.era cia ellos simultÆneamente antes de reothir los beneftcio qte le correspondieran del presente ideicomiso el FXDEICOMXENTE designa somo IDEICOMXARIOS EN SZQD1WOLUWR FIDEICOMISARIOS Los hijos esposa en caso cia los EN SEGt1WO LUGAR pizr LOAR en caso de que ocurra el deceso de algiirio de ellos cuyos nombres se sienoionan en la Clusula Quinta inciso clÆusula Sexta clÆusula Bptima Los Fideicomisarios podrdn ear referidos en presente contrato conia FXDEXCOMIS.RIOS refiriidose todas los designados como fideicomisarios en conjunto en particular refiriudose cada paz-ta designada El FZDUCIARIO llavar registro contable qua acredite los FXDZICOMXSARIOS P1IMER LO como beneficiaries 4e1 patrimonlo del Fideicemiso en la proporci6n qua para oada uno se eeæal en la presexite clÆusula mediaxite la apertura da una subcuenta para cada uno de alice El registro de los rIflEOKISAXIOS ER SEDO LTJGAR se realizarÆ dentro de la subcuenta cada uno de alias que corresponda TERCERA PATRIMONTO DEL IDEICOMIQ ConstituirÆ la materia del presente contrato Las ACCIONES descritas en el incise cia la Declaraci6n del presente contrato Las futuras ACCIONES quef por cualguier causa ilegaren del patrinionlo de este contrato sea paz-ta ya par emjsjn cia nuevas ACCIONES ci ejercicio cia por CON FIDENTIAL SLONGORIA 000176 01194 Pldelcornjso No 94-2 AFRME derivado de patrimoriiales las propias ACCZO2ES asI coino los titulos que pudieran recibirse caxithIo vrtud de en ocurrir la fusi6n esciain transformacin de oualquiera las emisoras cia laa ACCZOlS qua conforinen eJ patrmonio dci presente asi como e1 inoremento ci IDEICOMITENTE ciue podr haoer raspecto ACCIONES representativas del social de otras capita sociedades siempre qua las eniisora.s sean sociedades mextcaxias EZ ME1DOZAC Cualquier otro tipo de valor titulos de rdito parte socialee bienes qua 97 par cuaiqujer forms se aporteri a3 Fideicomiso para quedaz afeotas los fines de este contrato En este supuesto an iiingthi caso se afactarÆ al patrimonio dci valoras presente qua se negocien en mercados de valorea arijroa ya qua siempre saran valoreg qua se negocien en ci mercado de valores znexicano ci Tambin formarn parte de la inateria dcl praaexite fideicomiso lo dividendos pagados en efectivo en ACCIONES en otros bienes muebles inxnueblas de las ACCI01ES aportadas Los rendimientos qua generen las inversieries afectuadas por el PIDUCXARXO con los recursos en diners que formen parte del patrimonio del ideicomiso Cualguier aportacin adicional en ci futuro rea.lce ci que FIDEICOENrE cia cuaiq-uier clase ya sea efectivo especie derechos Cualquier otra aportaci6n en efectiv especie derechos que adquieza el propio Fideicomiso en ci ounuplimiento de sue fines CTARTA OBJETO DEL FIDEICOMISO El presente Fideicomiso tiene por obj eta que el FIDTCIAIIO conserve la propiedad cia las ACCIONES en los tØrminos del propio coxltxato efecito de quepoateriornnente al fallocimiento del PXDEICOXTENTE en los tØrminos condiciones pactados en ci presente tranemita la contrato propiedad las ACCIONES favor de 1OF FIDPfl.COMISAiIOS QUINTA FINBS DEL FXDEXCOIS0 Son fines del presente contrat de .4 fideicomiso que CONFIDENTIAL SLONGORIA 000177 01195 FdeIcomiso No 194-2 BANCA AHRME El FIDUCIARIO reciba mantenga la titularidad de las ACCIOIES fideicomd.tidas El FIDUCIARZO invierta los recurnas en efectivo ne que encuentren dentro dcl patrimonie fideicomitido conforme lo establecido en l.a ClÆusula Dcma Tercera del presente contrato El FIDUCIARXO ejerza los dareches corporativo patrimonialen de las ACCXONES nefiaindose en forma enunciativa mda no lm limitativa ion siguientes de voto ci de recibir accionen capitalizadas come dividendos ci de suscripci6xi de acciones ci de pagar recibir nuevan accoues en ejercicio del derecho de preferencia ci de reeinbo.so total parcial de dichas acciones ci cobra de dividendos en efectivo etcetera niguiendo en todo caso las instrucciones encrito reetha qua par del Comite Teonico Para ci ejercicio de ion demchos corporativos patrimonialen inherentes las ACCIOT2B se obser-varÆn las siuientcs disposiciones El FIt1CIARIO otorgarÆ ion poderesque sean necesarios en favor de las personas que designe ci Comit Tcnico para ci ejercicio de los derechon antes mencionados En aunencia de instrucojones el FZCARZO estarÆ facuitado podrÆ solicitar las instxuociones correspondienten al CornitØ Tcnico para ci ejersicic de ion derechos corporativos patrirnoniale da las AccXONE debiendo obrar come siempre buen padre de fainilia protegiendo en todo cano el patrimonio fideicomitido En caso de aumenton de capital de l.a einisora de lan ACCIONES fideicmitidaa ci flUCXARXO llevarÆ cabo la suscripci6n correspondiente1 previa aportaai6n de los fondon auficientes para bal efecto guedando entablecido que de existir recursos suficientes para ello dentro dcl patrimonio fidaicomitido ci rIDEZCOMXTENTB Comit Tcnco podr instruir al FXnCThRIO para que la nuncripci6n dcl aumento de capital correspondiente se realice con al cargo patrimorilo fideicomitido .1 Asiminmo1 queda establecido qua los veernboisos de eapai parcial total de ian ACCIONES asi coma los pagan CONFIDENTIAL SLONGORIA 000178 01196 HdecomIso No 94-2 i2AFIRME ofectivo divideridos en especie qu en su case decreten las emisoraa do las ACCZONZB incrementar el del patrimonio presente fideiciomiso para su posterior apli.cci6n los fines del mismo dtL IDCARI0 aonornie instruaciones escritas qI.i le expida el Comit TØcnico enajenne afecte grave por oualquier medic la perinitido per Ley tranomita las ACCIONES parto do silas \persona que designe el Comit Thcxjjco en cuyo ease la contraprestaai6n quo corresponda dictha transmisi6u la 97 /recibirÆ el FZDZIC0MITNTE en su case los FIDEICOMISA1IOS Be conviene expresamente en quo el establecimiento do las condiciones do enajenaoi6n serÆ facultad exalusiva del \Tcnico so dard sonocer detalle per escrito iruCIAflIo Previe la formalizaei6n do la enajenaci6zi tanthin eorrespondorÆ.ai ComitØ TØcniao verifisar quo la enajenaci6n do las ACCIONES en su case cumpla con las reglas corporativas doreahos de otros sosios establecidos en los estatutos de la emisora do Ia Ley obligØndose acreditarios al FIDUCIRIO cuando Øste lo solicits En caso do yenta de las ACCIONES en los tØrminos expuestos InEIC0MITENTE deberd cuinplir con las obligaciones fiscales aplicabies su cargo bien en easo de faliecimiento do ste las personae quien le corresponida do acuerdo las disposiciones apj.ica.bies en su case El EInCARI0 conforms instruociones quo reciba del Comit recnico enitregard las cantidades de dinero quo is inatruyaxi al propio 7XBICOMITENTE los ZDEZCO1I5ARIOS siempre que hubiere fondos suficientes en el fideicomiso En caso do fallecimiento del PIIJEICOMrTENTZ io doberÆ ser quo acreditado PIUCIAIIO con la exhibici8n del acta do defunciØn correspondiente el presente fideicomiso continuard vigents el derecho de los IDEICOMISARTOS recibir los beneficios estara auborciinado hasta en tanto el Comit TØcniao instruya al FIDCIARIO para entregue ica quo FIDEZCOMISARIOS los recursos exiatentes en el patrirnonio 1el Fideicomiso las ACCIONES fideicomitidas en las proporci4es seialadas cada uno do indica en pan ellos aegdrn se la Cl.usula Sogunda extinguiØndose en see memento el fideicomi4o 1nn CONFIDENTIAL SLONGORIA 000179 01197 FIdelcomISO No 194-2 Bin taxito Los XDBitCoMISZog eciben las ACCXQNES Los recursos axistentes on ci fideicomiso fjdeiond.tida8 producto de La yenta do las ACCXON$ en su caso el presente continuar XDUCIAZIO ejercitard Los ideicomiso vigente ci de las ACCIONES conforme derechos corporativos patrimoniaJ.os lo instruyaei Con1it Tcniao do ocurra el deceso del Fidaicomisario Eduardo En caso quo los dareolios La correspondlan an el r1ongoria Kowalsid qua Fideicomiso sern para los ouatxo XDEIcOMX8ARIOS jMENflOV presente do nornbres Michelle Bernardo SEGUNDO X1tIGAR Alejandra Biduardo todos do apellidos Longoria Hernndez Sophi en las bajo los trxnthoo Longoria Zyiiont proporiones condiciones qua so refiere La clÆusula Sptirna de falleaiiniento do los ZflEXCoEISAIOS EN En ci supuesto LUGAI Bernardo Eduardo Longord.a Hernndez Sofia SEGUNDO mencionados en el inciso anterior en Longoria Zygrnont oualquier tiempo durante La vigancia dcl presexito Fideicoiniso La participaci6n qua Leo correapondia sara distribuid ntre todos los demÆs FXDEICOMXSARIOS SEGUZWO LTGAR qua queden en vida qua se refieie el inciso anterior increinantando por lo tenth su participacin en el pzesente Fideicomiso Bin supuesto do fallecimiento cia Aleandra Michelle Longoia Hern.ndez en durante La vigencia del presente cualquier\tiernpo La La correspcnd.a sara Fideicoittio par4cipacion qua distribulda en partos Juales entre sua hijos Alfonso IlLn Alejandro Diego axnhcn apeilido Argtzindagtii Longoria En caso do ocurra al deceso del Fideicomiaario Shelby Luis quo Los derechos La corraspondlan del Lorigoria Kowalaki quo presente fideicomiso sern pare los cuatro FXDEICOMI5ARIOS EN SEGUNDO IUGA do nombre Enriqucta Chapa de Longoria Shelby Sarah Louise Adriana Dorothy do apellidos Longoria Chapa en partes iguales bajo be tdrmiuos condiciones quo so ref iere la cidusula Sexta En eJ aupuesto de falieciuiiento de algurio do los cuatro FIDBICOMISARXOS EN SEGUNDO LUGAR mencionados en el inciso anterior en cualql2ier tiempo duranta La vigencia del presete Fideicomiso La partiaipaoi6n qua Le correspondla sard distribuida entre Los EDEXCOMISARXOS EN SEGUNDO TJUGAR queden cxi vida incrementando por lo tanto su participacifl ci presenbe rideicomiso CON FIDENTIAL SLONGORIA 000180 01198 F1deIcornso No 194-2 JPI2AHRME SEXTA DISPOSICIONES ESPECIALES EN CASO 1E FALLECIMIENTO IDE SHELBY LtlIS LONORIA KOWALSKI En caso de fallecimiento del sellor Shelby Luis Lorigoria Xowalski en cualquier tiempo durante la iigenoia del presents fideicomiso se estarÆ lo dispuesto aeta clÆusula par TJ FXEICOMISARXOS ZN SEGtTZqDO LAR- Cbmo se eata.b.ece en la clÆusula Segunda los FZDZXCOMI$AgIOg EN SZGWO LIDGAR designados para el caso de fallecimiento del ZICOMISARIO ZN PRIMER LUcAR Shelby Iui Longoria iowaleid aerÆn su esposa arias de MZOOZA Enriqueta Chapa Longoria sue hijos Adriana Sarah Shelby todos de apellido Longoria Chapa en partes iguales Zn case de fallecimiento de cualquiera de los YXIEICOMISARXOS ZN SEGUNDO LUGAE en cualq-uier tiempo durante la dl vigencla presente Fideicomiso la participacin .e qiie corroapozidia serf distrlbuida enitre ba IDEIC0MISARIOS EN SEIDNDO LtIGAR que queden en vida incrementando bo tanto per su participactOn en el presente Fideicorniso daso de los FISEICOMISARIOS EN SEGUNDO LUGAP menores de edad detos serxi rapresentados per sue tutores representantes designados de acerdo las dispoeicioz-ies civiles aplicables SPTIMA DISPOSICIONEff ESPEIATES EN CASO IDE FALLECIMIENTO IDE EDUARDO TjONGORIA IOWALSKI En caso de fallŁcijexito del seller Eduardo Longoria Kowaleki en cualguier tiempo duzante la vigenciia del presents fideicomiso se estar bo dispuesto per eata cliusula FIIDEICOMISARIOS ZN SEGUNDO TjUC.R- Como se establece en la clÆusula los Segunda FIZICOI4ISA1Ios ZN SEGUDO LUGAR designados para el caso de fallecimiento del FIIDEICOMISARIO ZN PRIMER LUGAR Eduardo Longoria Kowalski ser.n sue cuatro hijos Eduardo Alejandra Bernardo odos de apellido Longoria IernÆndez Sophia Longoria Zygrnont en las siguientes proporciones FIDEICOMISAEIO EN SEGUNDO Lt7GAR PORCENTMZS EDTJARDO LONGORIA HERNANDEZ 37 5% BERNAIZDO LONGORIA HERNANDES 375% ALEJANDRA LONGORIA HJLRNANDEZ 12 5% SOPHIA LONGORIAZYGMONT 125% Total 100% CONFIDENTIAL SLONGORIA 000181 01199 FidelcomlsoNo T94-2 It BANCA En e3 supueato de fa.lecimiento de los FI.EICOlIARX0S EN sEGmwo LtIQAR Bernardo Eduardo Longoria HernÆndez Sophia Iongoria Zygmont antee mencionados en cualquier tiempo durante la vigencia del preoente ideicomieo que lea .a participacin 1uI correspondla serÆ distribuida entre todo los demÆs FIDEXC0MXSA1IOa EN 6EGNDO LGAR quo queden en vida incrementando por lo tanto su en presents partioipacin Fideicomiso En e3 supuesto de fallecimiento do lejandra dirante la MENDOZA Michelle Longoria HernÆndez en cualquier tiempo T4o.97 vigencia del presente Fideicomiso le la participacidn quo coreepondia serd distribuida en partes iguales entre sus hijos Alfonso ZllÆn IUejandro Diego axnboa de apellido Arguindegui Longoria DISPOSICZONES ESECIALES PAP.A LOS FIDEICOMISAEIOS EN SEGUNDO LUcAR Desde este momento desigriados los quedan FXDEICOMISARIOS ZN ZUDO LUGAR que so refiere el inciso anterior en los porcentajes indicados sin embargo los EDEXCOMXSARZOS EN SEGUNDO LUQAR Eduardo Bernardo Longoria Hern.ndoz tendrdxi la opcin do disponer en su calidad do FIDEICOMXSARIOS EN SEGUNDO LUGAR do 25% veinticinco porciento que le corresponderla Alejandra Michelle Longoria Herndndez Sophia Longoria Zygmont contra la entrega en efectivo de dicho 25% en an favor do acuerdo valor de las ElPRESAS calculado en tØrminos do la c.usula DØcima Primela Dicha opci6ri ser ejercida da la siguiente inanera La opci6n do los FIDEICOMISARIOS EN SEGUNDO t1GAR Eduardo ernardo Longoria Kowalaki para recibir del presente fidetcomiso el 25% veinticinco porciento que le corresponderia Alejandra Michelle Longoria Hernndez Sophia Longoria Zygmont es otorgada en forma autoniÆtica solo podrn ejercerla ms tardar dentro del primer aæo calendario si.guiente del fallecimierito do Eduardo Longoria Kowalski En caso do no querer ejercerla debern de notificar por escrito do tal intenciOn tanto al FIDUCIARIO como Alejandra Michelle Longoria HernÆlldez Sophia Longoria Zygmont en cuyo caso stas tendrÆrx derecho su 25% veinticinco porciento do las ACCIONES esto iltimo tambidn ocurrirtarito en caso de que notifiquenu intencin do no ejercitar dicha opcin aol coma en e3 4.o do que no ejerciten la opcin dentra del plazo an aeflalado CON FIDENTIAL SLONGORIA 000182 01200 Hdefcomlso No 194-2 /A CA AFERME La deterunaci6n del valor del 25s veinticinco porciento que les corresponda Alejandra Michelle Longorla HernÆxidez Sophia Longoria Zygmont se efeotuarÆ la fecha de fallecimiento del PZEICOZfISAIO EN PIMEP LUGJi Eduardo Longoria Iowalaki de acuerdo al procedimiento de valuaci6n establecido en la clusula Dcima Priu1era tJna vez determinado el valoi- del 25 veinticiiico MENDOZA trminos del Eduardo porciento en inciso anterior ala 97 valor tdo Tm Bernardo Longoria Kowalsid entregarn dicho Alejandra Michelle Longoria flernÆndez Sophia Longoria zygmont en u.n plazo de 10 diez aæos co u.n interds del siete porciento anual en d6lares de los Etados Unidos de America El primer pago daberÆ ser nia tardar en el primer aniversario del fallecimiento del IDEICOMSAXO EN PRXNE Zt7GAR Eduardo Lorigoria Kowaiski asi sucesivainente eada silo hasta cubrir totalmente la cantidad establecida en el plazode 10 diez aiio Conforme se vaya realizaiido cad page se entenderÆ liberadas las ACCI0ES correapondintes favor cle Eduardo BØrnardo Longoria Hern.ndez en paxtes igualas En tanto se eate oump.iende con la enhregas favor da Alejandra Michelle Longoria Her.nØ.ndez Sophia Longoria Zygmont en los t6rminos apuntados en los inoisos a.nteriores ci ejercicio de los derechos patrimonia.les corporativos de las ACCIONES qua les corresponden Østas 25% seren ejarcidos en an totalidad por Eduardo Bernardo Longoria HcrnÆdez en partes igualea en su calidad de IflEICOMISARIOS EN EGmDO LGAR En caso de incumplimiento en mac de doe pagos cousecutivos Alejandra Michelle Longoria Rernndez Sophia Longoria Zygniont1 Øctas tendre.n derecho al remanente de las ACCIONES no cubiertas podr.n per lo tanto ejercer sue derechos pÆtrimoniales corporativos derivados de dichas ACCIONES en los tdrxninos previstos en este contrato QUda axpresamente etablecida la obligacin de notifir al IDUCIARTO dcl ejercicio de la opci6n establecidÆ en punto anterior bien de la decisi6n de no ejereicio CONFIDENTIAL SLONGORIA 000183 01201 Rdeicomtso No 94-2 BANCA la misma asi come del incuinplimiento en cualqi.iiera de los pages cargo de Eduardo Bernardo Longoria Iernndez bien del cuinplimiento total de la obligacixf de pago fin de gus el FEDCIARIO estd en poaibiJ.idad de reasignar los dereehos de Fideicomisarlo de acuerdo lo previsto en aste punte Salvo acuerdo expreso entre las partes interesadas en caso de gus per cualguier causa no se ejerza la opcin dentro del primer aio calendario sigi.ente al del fallecimiento de duardo Longoria Kowaleld la textdrÆ porno el FIDUCIARZO asignar ENDOZ opcin defixiitivamente se Aleandra ejercida Michelle Longoria HernÆndez Tarn Iongoria Zygmoxlt el porthentaje de participacin de sophia ___ los derechos de Fideicornisario de confoinidad con lo establecido en el punto 1-uno de esta misma clÆusula OBLACIONES CAIWO DE LOS FXDEICOISARIOS EN 8ZGU2DO LtYQAK olamente en el case de qiie los FIEICOMISARXOS SEDO LUQAR Eduardo ernardo Longoria Hernndez no ejerzazi la de recibir el 25% veinticirico porciento cia las opci6n ACCIOES de Alejandra Michelle Longozia Herng.ndez Sophia Longoria Zygmoxit lo cual debern hacaii del conocimiento del FXDUCXAgIO los FIDEICOMISARIOS $EVNDO LTJGAR deberÆri entregar directaiuente sin intervencin del FXDCIAEIO la cantidad de US$100000.00 cien mu d6lare de los Estados nido de Axnrica Sophia tiongoria Zygmont ef sate de que data realice sus estudios universitarios Diaha cantidad ser su Colette ella la entregada macire Zygmont para qua administre en beneficio de Sophia Longoria Zygmont El FIDUCIARIO podrÆ con la autorizacin expresa del Cornitd Tdcnico con cargo al patrimonio lquido del FideicomisO hasta donde el mismo alcance una vez le sea notificado que no ejercicio de la opcidn per parts de los FIDEICOMISARXOS EZ SEGU1D0 LUGAR bien en caso de gus La opc6n as tuviera por no ejercida per ha.bar tranecurrido el plaza para ello 3.a cantidad antes indicada en Ia forma tdrminos exitregar eatablecidos en el pdrrafo anterior sin responsabilidad alguna per el destino real gus as is llegue dar dicha cantidad Zi FIDUCIARXO no asunie responsabilidad a.guna la imposibi.idad per de cumplir con este fin en ran no oxistir fondes lN.quidos para cubrir la cantidad bien en caso de gus detos fuan insuficientes en cuyo case podrA hacer pago parcal .13 CONFIDENTIAL SLONGORIA 000184 01202 Ffdelcomiso No 94-2 JLJ AHRMtE oCTAV ADMINISTRACI6N DE LAS EMPESAS Las ACCIONES quo ornan del patrimouio del ideicomiso parte presente correeponden quo se encuentran operando diversos negocio mercanties ininobiliarios do diversa Indole directamente trav ye sea empresas 8Ubsidiarias La adminiatraoidn de dichos negocios la echa la ha ilovado Shelby Luis Lorigoria icowaleki quien coritinuarÆ hacidndclo durante Ia vigencia del prosente Fideicomiso en los tØrxninos condicicziee las asainbleae do quo accionistas lo acuerde Eu eBte senido Shelby Iuis Longoria TMEN1OZ.ICowalski ewigira como Adininiatrador nico Presidente del ConSeo do las PRESAS sue eubsidiarias Tim En caso do fallecimiento incapacidad do do los dos cuaJ.quera FIDZICOMISARIOS EN PRIMEE LUGJ Eduardo Shelby IuiS Longoria Kowaleki la adniinistracin de lee EMPRESAS ens subsidiarias pasarÆ maos do un ConitØ Ejecutivo en tØrminos do la cJ.Æusula siguiente el cual entrarÆ en funcionee temporalmente hasta Se que determine la administraci6n definitive de lea EMPRESAS sue subsidiaries en en caso la eeparaci6n do los socios en trniinoa do las clueuias Novena Ddcima En el evexito de failecimiento incapacidad do Eduardo Shelby Luis Longoria Kowaiski ci ComitØ TØCUiCO instruirl lo conducento fin do liamar inmediatamente tine asa.rnblea do accionistas de las EMPRESAS sue aubsidiaria acciones son materia del cuyaa presente Fideicomiso efecto do lievar eabo la integraai6z del Comitd Ejecutivo quo so ref lore la cliusula siguiente en en caso de ael considerarlo necesario so lee otorgue poderes do administraci6n sufic1ente lievar cabo su funciEn El failecimiento do Eduardo Luis Kowaleki se Shelby Longoria acreditard mediante acta do defuncin correspondiente En caso do incapacidad sta serd deteniinada po el ComitÆ Tcnico con eJ voto unnime do ens niembros tomando como base la opinin por escrito de 3-tree medicos particulares ael lo determine Los quo 3-tree medicos antes menci.onados sordn elegidos ci por propio Conite Tdcnico sin ixitervencin ni responsabilidad el alg-una para FIDUCIARIO quien solo tendr la obligacidn do recibir la comunicacin escrita por parte do ComitØ TØcnico en la quo se determine la incapacidad Cuando el FZDUCIARXO obre do Æcuerdo las instrucciones del ComitØ TØcnico no incurrirØ en responsahilidad alguna do conformidad con establecido el artIciiio 80 do la boy do Instituciones do Credito \1 CONFIDENTIAL SLONGORIA 000185 01203 Fldelcomlso No 194-2 AF1RME NOVZNA EYEcuIYQ.- Shelby Zuis __RA En Longoria oaso de fdlleoimiento iCowaleki la Ta.1thp incapacidad.de administaci6n de UE las UN Eduardo C0M 2HPRESAB paaarÆ manos cle Un Coinit Ejeoutivo de acuerdo 10 siguiente El ComitØ Ejecutiro eatard integrado asia 6 mierttbros por con U5 respectivos auplentes Cada mIonthro del CORIIt Ejecutivo serd zeaponaabls de una de la xsaa .cle xiegocio del grupo de EMPRESZtL En sate acto el ZENTE designa los aiguientea miembros del Comit Ejcutvo ritular uplexitea Area de Negocio Eduardo Longoria Eduardo Longoria Direccin eueral Kowal ski Herndndez Shelby Luis Loagoria Enriueta Chapa de Direcci6n General Kbwalski Longoria Rafael de Je5is Marta Morttelonge Inmobiiiario Carbajal_Galindo SaJ Garza Molina NØstor S.nchez Automotrz Edilic Luis Madrigal Marco ..ntonio Industrial Cepeda Torres Garza Ral Jess Rasnhrez Hugo JimØuz Restaurantes Vola V.zquez Se deaigna aomo Presidents del Comit Ejasutivo en caso de fallecimiento incapacidad de Eduardo Longoria owalski Shelby Luis Longoria Kowaiski En caso de fallesimiento incapacidad de Shelby Luis Longoria Kowaleki fungirÆ como Presidents del ComitØ Ejecutivo Eduardo Longoria KowaLski En caso de renimcia incapacidad fallesimiento del presidente designado en los tØrminos del pdrrafo anterior fungir como presidents su respective suplente ii El Presidente del Comit Ejecutivo tendrd roto de calidad en cao desinpate iii El ConitØ Ejecutivo as enoargard 1e las operaciones de las EMRESAS aus subidiarias deberd rendir cuentas al Comjt Tcnico del pres9ite Fideicomiao iv HL Comt Ejecutivo s6lo podr celebrar actos adniniatracin sin que pueda disponer de bienea activos 15 CONFIDENTIAL SLONGORIA 000186 01204 FIdeIconilSO No 194.2 \AL monos Ge deredhos de las EHPRESAS GUS susidiaria qiie 10 indique el Comit6 TØcnico 1c deber continuar las operaciones El ComitØ Ejecutivo Ge normales do las EUR8AG sus aubsjdjarias tal coma en todo momento venianopezafldo con axiterioridad procurando con las no poner en riego las mismas cuxnpliendo l.egales aplicablea cada unade cl4\ disposiciofles efecto do tomar vi El Comt EjecUtiva so reunirÆ cada lunes 4ENDOZA cada asu.nto par tratar decisiones en corijunto respecto ci Cads miembro resporisable do un area do negocio preseritaxa el cual sara do trabajo seguir por l.a semana1 plan do los del Coinit par el resto integrantes aprobado minuta serd Do cada reuni6n so levantard una quo Ejecutivo del Comit6 firniada por los asitentes cada junta podrdn asistir los FXDEICOISARXOS EjeCutivo texidrn derecho mao no representantes guienos opinar votar inf.crme monsual al CornitØ presentar un vii El ComitØ Ejecutivo EMRESAS sus TØcnico do laa operaciones de las do cada junta Dicho aubsidiarias anexando las minutas tal of ecto informe so preaeritarÆ en una junta anvoaada para do cada mes cada deritro do los primeros 15 quince- dias los YIDZICOMXSARIOS auG junta podran asitir tendrØn derecho opinar mÆs no representantes quienos votar ref iere el anterior deberd viii El informe quo se punto cuando menos Un desglo8e de los 3ngresos egresos contener balance do cada uria de las PRE8AS sus subsidiarias estado de pdrdidas ganancias eatado de origen general1 do recursos flujo de efectivo ap.icacin externos para ix El ComitØ Ejecutivo podra apoyarse en aseSores l.a toma do decisionas Igualmente dichos aseSores podrdn ComitØ estime asistir las juntas que el propio convexiientes libremente remover los mjembrt5e El ComitØ TØcnico podr en caso de considerarlo necesaric del Comitd EjecutiVo estabiecido en l.a clÆusuia DØcima Tercer los tØrminos CONFIDENTIAL SLONGORIA 000187 01205 Fidelcomiso No 194-2 AF1RME _____ Ig-ualmente en case do cOnsiderarj.osneceaarjo podrÆ designar un auditor exterrio quo audito las MPRZSAS Queda expresamente establecido corisentido las per partes que en este contrato gue intervieneri qua IDt7CIARIO adquiere la titularidad do las ACCIOEg obeto del presente Fideicomiso solo estar obligada otorgar los poderes quo resu.ten necesarios para ejercicio do los darechos inherantes las favor do miamas la las al afecto deterjne personas que ComitÆ Tcnico aol como aunipllr con las instrucciorxea MENDOZA qua en su ciaso le dicte ComitØ TØinico en este sentido per 10 quo la partes expreaainente sin reser-va alguna dede eate nomento roleva.n FXDUCZARIO do cualcruier responsa.blidad thligaa6n de si ice ejerciar por derechos corporativos inherentes las ACCIONES aol como do .a forma sentido tØrminos en que apoderado que so designe represento vote las ACCIONES en asaxnbiea aol como sri el ciaso do quo los tØrrninos condicionee quo FIXEICOMITENTE eta.blece en esta c.Æusula aol eomo en la cAuaizla ctava anterior dØc.ima do este Fideicomiso no se llevaran cabo total parcialniexite Los lineamlentos eatabieoidos en la clÆusu.a.octava asi conic en la presente clÆusula so realizan ICOMXENTE por para ser observados exo.usivamente por los integrantes del Comitd TØcnicio sin intex-verxcin reaponsabilidad obligacidu aigima para FxrrncIARro en la inteligencia do qua acuerdo quo agul Se etablece debezØ ser observado tanth6n en ou los uiomento per FIDEICOMI$ARZOS spc6x DE LOS SOCIOS Al faliecar encontrarae en estado de incapacidad de cualquiera los FIDEICOMISARI0$ EN PIMEP IjtTQAR el Fl ICOWRIO EN PRIMER LUGAR quo sobreviva juntaznente con los FIDEICOMISARI0S EN BEGUDo LUGAR sus representantes tendrn la opcin de contirxuar con la sociedad las EMLRESAS en separarge cono socios quodÆndose cada uno de ellos con diferentes EMRESAS en base su valor calculado do acuerdo la clÆusula DØcima Prmniera sig-uiente El acuerdo de separaciOn so ilevari conforme lo siguiente Ii Para efectos do la separacin so considerari dos uno grupos per cada familia de los FIDEICONZSARIOS EN PRIMER LJUThR ii En caso de fallecmmiento de Shelby Luis Longoria Kowaloki toda vez quo los FIDEICOMISARIOS EN SEGUNDO LGAR designado CONFIDENTIAL SLONGORIA 000188 01206 FldeIcomISO No 194-2 en la en SU lugar esposa hijos no participan los ni de la admiflistracfl de negocios opezando gozan efectos de 1a presents experiencia para nianejarlos para LUGM de Shelby Luis clusula los IDEIC0MISARIO$ EN sEGrmmo iowalaki tendrÆn referencia sobre los negocios Longoria nmobiliarios en el proseso d.e separaci6n buscarÆ la sepaaci6n de lea scios se iii En todo caso se gue cuanta al valor de las lieve con jueticia equidad en valor sara determinadc de EPRESAS El de las empresas ZMENBOZA o.97 acuerdo al proceso iridicado en la clAusula aigi.1iente zealizan el Los liziesmientos establecidos en esta olausula se por exclusivannte los FIDEXCOMITENT para ocr observados por integranteo del ComitØ TØcnco sin ntervenoin responsabilidad la inteligencia de qu.e obligaci6zi alguna para el XDUCIAXIO en eta1lece del3erÆ aer observado tainbiØn en ci acuerdo que aqul se ___ su ruomento por los 1IEIaO2IBA1IOS V1LUACI6 DE EMPESAS- Para efectos de DCIMA LEIEER.A riAs determinar ci valor de las EPRESA otis subsidiarias estas en la serin valuadas por dos peritos valtadores expertos externos de ias partes que efecto materia indepexidientes ComitØ TØcnico IOs valuaran cada determine elija ci peritos mismo igØtodo de EMPRSA otis subsidiarias utilizando el valuaain En caso de existir uzia dierencia menor del 10% dies los peritos se tomara como valor en los vaioxes presentados per de las dos yaluaciones En case de exiatir real ci promedio dieerenoias de mao del 10% diez porciento en lo valoras los Sc deaigrzara un tercer perito presentados per peritos tercer avaldo ne los tres avalos valuador quien praczticarÆ tin tomarÆ como valor de los dos avalilos practioados se prozuedio mao cercanos El resultado de la valuaci6n efeotuada ser riotificado al FIDUCIARIO travds del ComibØ TØcnico DE INVERSION Los recursos en numerario que DECIMA SEGUNDA FORMA de eats fideicomiso se invertirn per integren patrimonio instrucciones escrito le remita FIDUCIARIO conforms las que per $1 ntezidido falta do ias ComitØ TØcnico en que instrucciones correspondientes DUCIARlO inverti custodiarÆ en forma discrecional el adrninistrarÆ patrimoro is CON FIDENTIAL SLONGORIA 000189 01207 8ANcA Hdeicomjso No 942 AJRNFE fideicomjtjdo en oualguiera de los insumentog Itu1os valore g.ze C0fltinuac6n se Instruinentos de deuda instx-uje05 del mercado de Sociedades de di.nero Invarsj6n en instru1flent de En deuda cualciujer otro instruniento t.tuJ.o la docuxnento que durante vigenaja do esto cozitrato Posterior la firma del aparezc en el mercado mismo con las caractertjcas mencionadas aflterjornaute Lon strwiteno tiIu1 Valoree docunientos en in inveraj6rj podn quo se rea1ic estar nsoritos no en el do Va1ot Intenodjarjas Registro Nacional no debjondo comerjai sin adqi.iirjrse papel avai baucarjo El ICOMITNrE libera do toda respanaajjjj en onto acto par al FIDUCZARo cualquier menoncabo quo pudiaren derivar do m.inunvafla in ousensjon do la cotjza6n do ion valore1 documenton adqu ido tituio al del celebracjn asnpa.ro Oorato do invruj6x cuya so realice fi.deicomjtjdo en para in iverj dcl patrinionjo quo nu anna gonere daiio perjujcjos sean consecuenaja quo do in Buspenj do .ncumpUm3nto del lo ernisor en aa como pagan qiiebra oporacjn par el tipo do realizada cono.r al Ooxltrato do de inversn su Invernj6n cualenqujera tipo do quo Øsa sea aol corno del valores tituio document05 aaignad Asirnjgmo IIC0ZIE no se reserva accj6 presente utuo quo ejercjtar derecho InStitucj6 do Banca MClitiple en Afirnie contra de Banca Afirme SA celabxacj6n Grupo Financiero par in del referjdo contrato do inversjn El ICIA no ser responsj9 de los menoscaIos de cuando actde coneorjdad Oon lo quo eatablece el artlclo 391 de in General de Tltuj.os Ley Operacjonen do Crclito T2nCJs De confoznjdad do in con el articulo 80 Ley do InstitUcjoen de Credit0 el IDEZC0M.ENTE coflstituy5 un Camitd Lan zion gue procedan .Tdcnjco ion dan cason al rIDCIo provistos en Iidejaomjso ste CONFIDENTIAL SLONGORIA 000190 01208 RANCA Fldelcomlso No 194-2 AFIRM El comitØ Tcxiico estarÆ ifltegxado propietarog per -res- iniembros con sue respectiveg Suplentes quienee son designados en este acto por elFZDExcoMxrrrE de is sigiiiente Inaura arLoe uie Lonoria Trr Lz iZ lENDozA En is toina de sue decisiones de acuerd las faculadee se refiere la qua presente el olÆusula ComitØ Thcnjco deberi todo en memento respetar curaplir ice derechos de los en tdznd.noe del presenta Fidejoomiso asimisxno debar obserirar eti .o qua le corresponds lo establecido en las c.iueulas octava novena dØciina de este Fidejconjso so de ncurrjr en pena responsabilidad persona La deaignacj6n de miembroe del cpmit TØcnico an eate rea.jza qua acto FIbZICOMflENeE se egactua con base en lo en todo Giguiervte morne1to Conijtd Thnico debari estar dos integrado per xuienthros nus respective3 sup1efeg FIDEXC0i4ZSARIQ correspojente EN PRIMER UGAJ Shelby Luis Longoria deslgndose en ICowaiski coneacuencia Shelby Luis Longorja Kowaiski su respectivo suplente Enriqueta Chaps Farlas de Longoria su reepectivo supiente Asimiarno Comitd Thcnico deber estar integrado por Un inienibro su respectivo corraspondiente suplenta FIEicoMIguIo Lusi Eduardo Longorla Kowalskj designÆndoe en coneecuencia Lorigoria Eduardo rcowalskj su respective auplanta En auserioja defjnjtjva inoapacjdad del FIXDMICOMXTENTE ice FIDEICOMISARZOS EN PRIMER LUGAR en su caco sue respect3.vos FIDEIOMISARIOB EN SZGUflO LUGAP podrÆn designar cambiar revocar lee miembros del Ccmit Tcnjco .e de gus corresponda acuerdo purito anterior medjante oojnuxljcado escrito qua por dirijan FXDucro en is qua se nontbre haga consear el firxns de los iutagrantea del ComitØ la Ucnico ael Como aceptacj6n del cargo gue Se lee confjera El Comit Tdcnico sesionar VÆlidaxflote reunirse de la mayoria sun miembros propietarjos sue reepeotjvoa suplentea deciejones ne tomar srÆ.n vdjdas inicamente de Votes por mayor5 lit CONFIDENTIAL SLONGORIA 000191 01209 Ffdelcomlso No 942 BANCA AFIRME El nombrainiaxito de los mlenthros del Conit Tcnico as de carÆcter honorUioo por lo qua no tendr deracho parcibir retrthuci6n alguna por en desempeo En caso do ausencia incapacidad nuerte renuxioia do alguno do los mieinbroa del ComibØ Tonico Øste serÆ sustituido par l.a persona quo designe el IDEICOMIgAxzo EN PRXMER LGAR gue corresponda El Comit Tcnico deberÆ reunirse cada vaz quo so requiera do dichas reuniones se deber levantar un acta en l.a que se cansignen los acuerdos tomados Las reuniones del CoinitØ Tcnico debern ser en l.a ciudad de Reynosa Taxnaulipas pudiendo reunirse en otro lugar en Mxico en el extrsnj era si aol lo acuerdan por mayorla Las convocatorias las reuniorzes para del CoxnitØ TØonico podn ear realizadas por dualquiera de sue integrantes iuediarxte carta con acuse do recibo telegrams resto los dirigido cia iuiembros propietarios auplentes del Comit6 TØcnido par aorreo electr6nico dahiendo confirinar el receptor BU reoepci4n cualquier otra forma acredite fehacientemeute los cue qua mienibros han sido notificados Con unaanticipacin de par lo menos 5-cinoo dias naturaea l.a focha de l.a reuni6n convocada adjuntando l.a ordan del cia qua sea objeto do l.a reuni6n Las reuriiones del ComitØ Tcnico so ofectuar.n en l.a feoha hora domieilio sefialado en l.a propia corxvocatozia En caso do que cualquiera de los iiienbros del asista ComitØ no l.a reun6n por tal motivo no so toxnar decii6n pueda una resecto so llevar cabo una convocatoria aegwida para reuxiirae los tree dias hbiles siguientes en caso de iriasistexioja so l1avar cabo ix1a terder convocatoria para rounirse dia hÆbil siguiente En cualquiera de los casos axiteriores so requerir de l.a mayorIa los miembros del Conit Thcuico para l.a tona do decisiones En el caso do encontrarse reunidos la mayozia do los miembros propiatarios sue respectivos auplentes dcl ComitØ TØcnico podrÆ seionar sue acuerdos ser.n vÆlidos sin necesidad de convocatoria algu.na 10 El ComitØ T6cnico tendn la faaultades so en que establece4\ este Contrato ncluive l.a do modificar dar par terminad el 21 CON FIDENTAL SLONGORIA 000192 01210 8ANC \AFRME presents Fideicomiao facultades en sate acto el qie FIDEICO4ITENI le confiere expreaaente .1.En cada reuni6n del Comit Thcnco un podrÆ comparecer representante del YXCIARIO quien participarÆ con voz pero sin vote 12.E FIDUCIARIO quadarÆ libre de toda reaponsabilidad cuando actteajustndoae las inatrucciones acuer1os adoptados por el Comit TØcnico l3E3 Comib TØcnico reunr cuando lo considers neoesario mediante la convocatoria realizada de aouerdo los puntos a.nteriores 14.En caso de que estuviere en operaciones Comit Ejecutivo El ComitØ Tcnico se reuxiirÆ mensualmente dentro de los primeros 15 q.iince dias de cada mea revisar dicutir para inforine gue pmaentax si Comt6 Ejecutivo ECIMA CUARTA POLTICAS EcLAS DE COMPORTN4IENTO PAM EL COMIT TCL.TICO COMT Et7ECtJTIVO Los integrants del Comit TØcnico del ComitØ Ejecutivo deberÆn actuar en odo memento totnando en conaideraci6n que amboa PIDEICOMIsRIoB EN PRXMER LtIGAP en su case sus respectivos IDEXCOMIBARIOS EN SEGUNDO rjtlGAR reciban en todo memento trato juato eitativo entre ellos el ya que objetivo del presente instruinento es cada quien tenga derecho que sea titular de lo bienea fideicomjtjdoa en las proporcines establecidas Por ta motive en case de alguna duda controversia cualquier deeisi6n que tengan qile tomar se deber hacer tomando en cuenta siempre en primer lugar bajo el citado principio de equidad igualdad Dc igual manera cualquier accin que tome el Coinit Tcnico deber aer sieinpra en beneficio de los YZDEICONIa7RIOS Los Comits mencionado podrÆn apoyarse en la opinin de expertos asasores para l.a bourn de dciaiones DECIMA QUINTh YRISDXCCIN LGISLACIN MEXICANA El preo4te Fideiccmiio se establooe bajo l.a jurisdiccin de los Unidos Mexicanos participando en ØJ ciudadans mexicanos re CONFIDENTIAL SLONGORIA 000193 01211 Fldeicomlso No 194-2 BANCA \AFRME /\ biene ubicados dentro del terrjtojo nacional Per tal motivo el presonte Fideicomiso el IICOMITEN los XDICOISARIOB so someten excusivamente las leyes de lo las Mexico per que parte renuiwian .a expresalnente aplicacin do cualquier Ley reglamento disposicin norma do otra jurisdicci6n diferexite la mexicana que pudiere correapoderje per motive de su residericia paternidad ciudadanla domicilie parentesco relacin comercial presente futura por le gue en case de iziterpretacin doxltroversia cualguier relacionado con aspecto presente Fideicomiso so someten expresamente los tribnna.les de la ciudad de Reynosa Tanaulipas Mexico Do igual manera la emisin do cualquier Ley roglamento disposiciones en rJuriadiccionea fuera de la Rep.blica Mexicana cualqiiier acto realizado fuera del erritorIo nacional sea ya por el FIDEXCOMITNTE FXDZXCOZ4XSAEI0B cualquier persona relacionada que tenga relacin con el Fjdeicomjsp mientbros del Cornit TØcnico Comite mjecutivo que pretanda imponer restricciones al al presente Fidoicomiso realizacj6rde prabia actos diveraos los finea ou imponer.a1a estautajzado control der ecem so per parte del FInECoXITENTE DZCOMXSAioS del ComitØ TcUCOJ ii quo pretenda imponer impuestos dereci-jos cargas trflutarias diferentea las previstas en la Legislac.6n Mexicana iii que pretenda exprepiar limitar confiacar embargar disponer congolar do cualqtzier fomna afectar el patrimonlo del Fideicomiso en base dipoicionee legales tanto federales estatales muxiicipales fuera do la jurisdiccjn do la Repbliaa Mexicana no es ni ser aplicab.e al presente Fideicomiso debiendo en todo case aplicarse La urisdjecj6n legislacin de la Replblica do las Bistados Unidos Mexicanoc an terminos del pÆrrafo anterior CIMA SEXTA MANIFPSTACI6N INITIvA LA VOLUNTD Tanto el FIDZICOMITNT come los nEICOMISARI0S del Fideicomiso presente manifistan qua el presente contrato es la voluntad final definitiva de la partes per lo quo estÆn conformea en todos sus terthinos manifestando adems quo no existe error dab mala fe cualquier vicio do la voluntad quo pudiere afectar su entondimiente decisi6n al respeato contenido del miamo 23 CONFIDENTIAL SLONGORIA 000194 01212 FIcIecomIso No 194-2 \\AFJRME DCIM SPTMA MODIICACIONES DEL IDEICOMISO- El pesente contrato podrd darse por terminado moclificarse nicainente previo acuerdo instrucci6n del Comit T6cnico el IDt1C1O mediante la ausoripcidn del convenjo correspondiente DECIM7 OCTAVA CLAUSULA DE NO AFECTACION- Para todos los efectos legales gue hubiere lugar en base l.a propia naturaleza del preeente Fideicomiso ningn FXDZXCOMISAEIO .bsneficiario del mierno tondrÆ derecho alguno sobre parte l.a totalidad del patrimonio del presente Fideicomiso liasta en tanto so haya MENDOZstriuido eJ patrimonio del Fideicomiso medjante su ejecuci6n parcia total favor del PXDEICOMTSAR1O oorrespondiente En UcoO97 ningdn caso riingn FXDEICOMISAEIO beneficiario del fidoicomiso tendrÆ el derecho do transferir asignar gravar hipoteoar afectar sue derechos interesee aui contenidos ya sean presentes futuros do igual manera no serd el presente Fideicomiso ni los interoses derechos do cua1uier FIEICOMISAPXO beneficlarie aujeto reclainos demandas do sue acreedores do lee acreedores del DEICOMITENTE ni serÆ.n sujeto gravamen embargo ejecuci6n do riingn proceso de Ley Tarto los ingresos gezierados como el patrixnoriio mismo del Fideicomiao no podrn aer sujetos prerida embargo garantia tranaferencia yenta do oualquier manra aer comprometidos afeotados por cualquier FZDEIcIOXIBARIO beneficiario xii aer el patrinonio iii cualguier ingreso derivado del presente Fideicomiso manera afectado contratos cxi cualquier eujeto pox actos deudas cualguier otro acto do oualuier FIZCOMIBAF.IO berieficario del FIDZICOMITE1T por cualquier reclaino de alirnentos mauutencin de cualguier FIDEICOMXARXO beneficiario del propo FIDEICOMITENTE derivado do cualquier acuerdo do separaci6n ni son eujeto cualquior cesi6n otro acto voluntario involuntario do diaposicin afectacin derivado de un proceso legal previo l.a distribucidn del patrimonio do Fideicomiso mediante l.a ejocuci6n do parcia total del Fideicomiso favor del FIDEXCOMISARI0 correspondiente FIDEICOMISARXO le En los casos do ue algxi beneficianlo so haya otorgado algn derecho bajo el amparo del presnte Fideiconipo mientras tanto no se haya ejecutado el parcialment presente el mismo en su favor el FIDt7CIA1IO continrÆ conaervando la propiedad deli patninionlo de dicho FXDEICOHX$JU beneficiario ii 24 CONFIDENTIAL SLONGORIA 000195 01213 Fidelcomiso No 194-2 BANCA iAFIRME DCIMA NOVENA VALIxiEZ DE LO9 TOLOS DE PROPIEDAD El PIDUCARO la de los bienes adquiere propiedad derechos pie inegran el patriinonio fideicomitido en base los titulos representativos de las ACCIONEB gus en sets acto le sea entregados per el FIDEICO4ZTENTE consecuentemente no ser responsable en forma i\j9 algima xii frente los XEC0MISAJOS xii frente terceros incluyendo aqiØllos en cuyo favor se liegue traxismitir parte la totalidad del patrimonio fideicomitido per defectos vicios del titulo de propiedad correspondiente las impugnaciones por qua $8 hicieran los derechos los misinos gus amparen ZDOZA responsabilidad cjue an todo case asulne el InEIcoMxTENrE VIGSIMA .17PJJ4IENTO PAPA CAO VICCI6N El PXDEXCOMXTENT as obliga al saneamiento para el caso de evioci6n en tdrminos da lay respeoto los bienes derecthes gus hubiere aportado al patrimonio de eats fideicomiso Cuando WInUCIARIO en cuinplimiexito los nes da eats contrato transmita parts la tobalidad del patrimonlo fideicoinitido el __ FIDEICOI4ITENTE responderÆ al sansainiento para el caco de evicciOn en tØrminos de ley facultando en eats atto al FIDUCIARIO para obligarlo en dichos tirniinos ante las .perscrias fIsicas morales quienes conforms site contrato se lee trasmita la parts totalidad del patrmozxio fideicomitido VGSIA RIMERA RESPONSAILDAO DEL FIDUcIARIO Cuando el FIDUCIARIO actde en aumplirniento las instrucciones del Comt Tcnico estarÆ libre de toda respoxisabilidad en los trminos de .o dispuesto en el artIculo 80 ochexita de la Ley de Institucionea de CrØdito El FIDUCIAWLO no es responsable de hechos observancias actos xii omisiones de las partea contratantes de terceras .personas autoridades anteriores posteriores esta fecha xii de actos jurIdicos en los gus no haya intervenido direcstamente interpretaciones de autoridades canthios en torrto la legislaci6n vigente gus dificulten contrarlen impidan sancionen eJ ouxnpliminto de sus funciones la valides cia1 presents Fideicomiso siendo cargo del FIDEZCOMXTZNTZ todas tas consecuencias lega3.es do lo anterior no siendo respons4l.e asimismo el FIDUCIARIO del destine final qua se le da 23 CONFIDENTIAL SLONGORIA 000196 01214 FdeicomSO No 154-2 material do los bienes entregue ni la entrega cantidades quo de las l.eva cabo en cujuplimiento fideicomitido5 quo el Comit TcflicO tntruccion giradas por en ningn evento no responde con eu pa.trimonio FzDcIARIO relacionada con ci do cualguier recjlainaci6n sin excepcin de Autoridades do terceros presente ideicomiao proveniente fidiCOTflitid0 ditima insta-ticia con cargo patrimoflO aerd en al El FIDUCTZO manifestando las partes eli conformidad respecto laa expresaifleflte pactadas tiene su cargo mis obligaciones que ZMENDOZAflb de las cuales no cpiedan en la icy dentro oNo.91 en eSte contra-to fiecales laboralea do ningi.iria indole incluidas las si los darechoS FIDUCIARXO no eati obligado eercer per El fideicomitidas s6lo estari obligada las ACCTONES inhexeritoS do la las resulten necesarios favor expedir los po4eres ciue asumir al efecte le ndque el Comit TcnicO sin personae quo la tØrminos en quo sponsabilidad aigwia per ci entido fozma consecuencias do ha-her eercido so voten la ACCIONES ni per lao IDUCIMIO no rociba inatruociorios para el vote Cuando ci tØrminos do .ete pdrrafo quedari los poderea en los otorgar del se derivara do cualquier rosponeahilidad quo liberada del derecho do voto inejercieio ni responsabilidad do incidir El FI1DtICLARIO no tendri obligaei6n decisiones do interrenir en las verificar en foxina alguna emisoras de las ACCXONE$ do las E.MPREBAS administracirl fideicomitidas cuenbas al tenor del Al ear requevida el 7XPrICXARIO rendir do XntitUiOflO$ de cuatrc do is Ley artiaulo 84 ochanta CrØdito FXDEXCOMITENE El DEL VIGESIMA SEGtflDA en su caso los FIDEICOMISARIOS EN P2ER IJUGAR FIDEICOMITENTE salvo reatituir SE0UW0 LTICAR so obligan sacar en paz en esta iitiina hubiere erogado por FIDt1CZARO las cantidades quo iniciadas ci extrajudicialea per cQncepto FIDEICOMITENTE do acciones yb judiciales per terceros en contra do ci IDRO qUO fuxcionariOS con mot\vo afectar FIDUCXAEXO sue pudieren contrato do fideiomiso del presente 26 CONFIDENTIAL SLONGORIA 000197 01215 FidelcornisO No 194-2 AFIRME FIDUCI7tIO El rIDIYCIARIO VIBXMA TERCERA FACULThDES DEL patrirnonio fideicomitido con las facultadea adrninistrarÆ 391 trescientos rioventa deberes qua etableCefl los artIculos relativos de la General de Titulos Operaciones uno demÆa Lay demÆs do l.a Lay do Crdd4.to 84 ochenta cuatro aLicableG cia Tntitucione de Crddito CtfRT ADTRI11O1t1P iI IQQ CUO lCR reciba requerimientos alguna de notifioacin alguna de autoridad cualqjuier en demanda general judicial aviso velacionado con patrixnonio del prasenta cualguier eacrito rIDBIICOMITENTE en su caso contrato lo notif.car por hbil de aqudl en Comitd TdcilicO niÆs tardar cia siguiente hubiare recthido la notificaciri correspondienta gue Comitd Tdcnico deberÆ instruir El FIDEICONITENTE ansu caso mÆs cia hÆbil de escrito FIDtCIARXO tardar siguierite por notificacin se ref iere el en que hubiere recibJ-do l.a qua aqudl data pÆrrafo innediato anterior de l.a presente c1usula para qkie los nacesarios la perstna persoxias quo otorgue poderes el DZCQMXTENTE el Cornitd efecto hubiere desigrxado par rdcnico efeoto de que so aboqueli uidado cortaervacidt deferisa del patrirnonio este contrao legal cia sara de las gestiones del apoderado El WIDUCXARIO rio responsable aostas Ge derivexi de los ni del pago de honorarios gastos quo juicios roapectivos los cuales en todo caso sern con cargo su caso el Comitd patrimonio fideicomitido El Fl ICOHITENTE en Tcnico inatruir FIDCZARZO para qua con cargo podrÆ se los honorarios gastos en patrimoxiio fideicomitldo paguen derivada del cuidado conservaci6n general cualesquier expensa defensa cia patrimonio de esta contrato los pleitos cobianzas qua Be expidan par En todos poderes para los tdrminos del fideicomiso so deber el IDUCIARIO en presente anterior de la transcribir el contextido del pxrafo inmediato presente clÆusu.a FIDUCIARIO El FIDUCIA1IO VXGSIM QtINTA INFORNE DEL an forina mensual YZDEICDITENTE cii si caso Comitd Tcnio inforxne las operaciones rea.izadaa con patrirno un respecto fidaicomitido 27 CONFIDENTIAL SLONGORIA 000198 01216 FidelcorniSO No 194-2 TcniCO gozar da un su aaao el Couitd El FIEICOMITENTE en de la fechÆ do dIas iaturales contados partir plazo de 15 qunCe del citado inorme para realizar la obervaCi0ne9 ecpediciii quedando as aclaraoiones que juzgue pertinentea solicitnZ XCOITENTE no realica on caso do qua el PX eatablecido quo dentro del plazc antes aolioite aclaraciories observaciofleS ttcitalnente el infone so entenderd quo ha aprobado citado correspondi0flt El .LZMENDOZrIGSIZfA SEXTA conferido en el presente renunciar al oargo FDUCXRXO podrd de un juez do prinera causas graves juicio contrato per establece el domicilic conorme lo del lugar do su instancia do General de Titulos Opracicfl0a 391 de la Lay articulo Crdito ustituir al en ualqizier tiempe Eli podrd aviso Østa con yeiute dias bbiles do un IUCIARIO pasando cabo dicba fecha en so pretenda lievar anticipaoin La quo conducente par La 5utituci6fl eecto do qua prepare sustituci6ri del XLUCXAXtIO podrd do La misxna Dicha formalizaciri otras institicionoe nacionalea con otra realizarse in legal par desetflpeflar siempre quo tengall capaidad extranjeras fiduciarLa procederd La austitucidfl el cargo 1i rIIUCIARIO honoraries quo do su satisfacc6n do Los gastos previo page esto coTitrato tenga derecho percibir eonforuidad estard facultada en El FIDUCIARIO VXGSIRA 5PTIMA NPtJESTQS fideicoutitido los cargar al patrirnonio cualquier tiempo para media do quo so realicen por quo graven Las operaciones impuestos el en riesg fideicomiso do tal forma quo no se ponga este do las obligaciofles fiscales correspondientes cumplimiento fines de este contrato en cumplimiento los Eara case do quo do las ACCXONES quo La transmisi6ii total parcial so roalice estarÆ La do este fideicomiso so integran 01 patrimcnio la legialacin fiscal aplicabie dispuesto par VIG5XMA OCTAV IQ lios gastos cue do lea fines do ete contratO sedn so originen en cumplimiento fideicoTnitidO EL 1dIJ1IO crnrgard \al con ctrgo al patrimonia honorarias de tercercis quo hubi4ke Udeiconhitido lea patrinionio el contrato conforme La quo establece presente contratado CONFIDENTIAL SLONGORIA 000199 01217 No ANCA Fldelcomiso 194-2 AflRM Sean r2ecesarios para ci cuidado conservaci6n deferisa del patrimonio fideicomitido VIGSIMA NOVENA DtTRACIN DEL PTDEICOMXSQ- La duraci6n de este fideicemiso ser la necesaria para la realizaci6n de sus finŁsy terminarÆ per ualquiera de los en ci articulo supuestos previstos 392 treecientos noventa .y doe de la Lay Genera de TItulos Operaciones cia CrØdito que seen compatibles con la naturaJ.ea fines de este contrato con excepai.6n de la causal establecida en la fracci6n VZ per no reservarse ci PIDEICOMITENTE en forrna expresa ci derecho de revocar ci presents Fideiccrniso TRI8XMA HONOARIOS DEL PIDUOIARIO El iDUCIJXO cobrarÆ PIDEICOMTENTE per ci desexnpeio del cargo qua aqi.iI se le conflere los siguientes honorarios Por aceptaein del cargo estudio eia.boraci6n del cotrato de fideicomiso la cantidad de $20000.00 veinte mu pesos 00/100 morieda nacional pagader6e per 1nica oaaai6n al memento de firma dcl contrato de fideicemiso Per administraain da fideicomiso cantidad mensuai cia $5000.00 ciaco mu pesos 00/100 M.N pagaderos per trimestres anticipados una vez ocurrido evento de fallecimiento del ZDEXCOMITENTE los honorarios vigentes esa fecha por administraci6n del fidejcomiao se incrementr.n en un 40s cuarenta por ciento Per firma de Convenios Modificatorios Contrato de Fideicomiso la cantidad de $6000.00 seis mi pesos 00/100 M.N pagaderos momento de firma del Convenlo correspondiente ci Per otorgaxniento de poderes calebracin cia cualquier otro acto xiecesario para la consecuai6n de los fines del fideicomiso la cantidad cia $3000.00 tree mi pesos oo/ioo M.N pagaderos momertto de firma dcl instruxnento correspondiente Los honorarios antes mencionados causas ci Impuesto v4or Agregado de acuerdo .a icy da la materia se ue.taÆn eni mae de enero de ada aæo ide acuerdo al porcentaje de thf1ac3n verificado en ci aflo anterior al ajuste determinado per ci Ban de Mxico el organismo qua lo supla CON FIDENTIAL SLONGORIA 000200 01218 Fideicomiso No 194-2 LAFRME TRXGBIMA PRIERA DQ14ICILIOS Las aefIa.aæ como sus partee domisilios para cualguier aviso notjfjcacjOn en general para lee efectos del presente fideicomiso los v4 siguierites El FIEXCOMITENE Oaxaca No 620 Cal Rodr1uez 88630 Rayncea Tamaulipas M6d.co ip pxczzo Averiida Hidalgo ntiuezo 234 Poniento Zona Centro LEZMENDOZA.Monterrey N.L CP 64000 MØico No97 El COMIT TCNXCO Oaxaa No 620 Co RodrIguez 88630 Reyrioea Tamaulipas Mxico CuaJ.quier oambio do domicilio deberg ser comunicado escrito al per FIDUCIARIO en la inteligencia do quo toda comunicacin est quo dirigida ditlino domicilio seflalado las surtirÆ todos par partes los efectos legalee TRIGSIMA BEGu2WA ASPOS HON0RRIpS DERECHOS IMPtIEHTO8 Todos los gastos derechos honorarios impuestos quo so causen en cuinp.imiento do los fines do eSte fidisornjso 8erxx cargo do FXExco1ITENTE TRIGSIMA TERCEP MANIFESTACIªN DEFINITIVA DE LA VOLUNTAp- Taxito FIDEIC0ITENTE como los FIEICoMI8Ios del presente Fideicomiso maxiifiestan ue el pros onto contrato es la voluntad final definitiva do las lo partes par que estxx confozines en todos sue tØx-minos manifestaxido adenÆa no quo existe error dolo n%a3a fe .o cualquier vicio do la vountad quo pudiere afectar su entendinjento deaisin respecto contenido del mierno TRIGSXMA CUARTA flqDIZACr6N El FDEIQOMTENTE los FIDEICOMISARIOB EN PRIMER LUOAR so defender obligan solidaziwnante sacaz en paz salvo al FIDtICIARIO ael coma sue consejeros delogados fiduciarios funcionario emploados apoderados asesores de toda cualquier responsabilidad daflo obligaci6ri demanda sentencia transacci6n requarimionto gae.os y/o costae do cua.quier naturaleza ncluyendo los houcrariede a.bogados que directa irxdirectazntxnte so hagan valor contra no CONFIDENTIAL SLONGORIA 000201 01219 SA Fldelcomlso No 194-2 \JLIAAFJRME resultado de impuesta sabre incurda por con xnotivo consecuencia da coma actos realizados par el onplinjanto do para eJ lea fines consignados en este fideicomlso ontrato de defensa del patrjinonjo fideioomj4do por reclamaciones multas penaa cualquer otro adeudo de naturaleza en cua.quier rolacjn con patrimonjo fidej.coinjtjdo con este coritrat de fideicorniso ya sea ante autoridadea Judicialos tribuales adminjstravas arbitrales ciua.quier otra barito de carcter local instancia fedal aol como de la Mexicana Rep.blica extranj eras En el caso qua so genera cualguier situaoj8 de hacho acto do autorjdad Sonsecuenoja de lndoj.e legal qua produzea responsabjlidadas pecunjarias sobre el Fidelaomiao patrjrnonjo yb ci del iduaiazjo qua hubieren sido omisiones genarados por actos de las partes do eSte oontrato de PZDcIIO en culnpl.jnjento do ba fidejcoznjso por el fines del pr050ute contrato per tercerea incluyedo erogaciones relacionadas con los actos conceptos quo so mencionaji el p.rrafo do anterior a-i pago derivado dicIas responaabjljdades pecimiarias correr del aoljdarjaje cargo FnE.ICONITE1 PRIMER LUQAR compronetjndooe en an caso do zcoJg responder il.jmjtadanae con su proplo patrimonjo do pago quo so hubieto efecbuado efectuar vaya ci IDUCIZO renurxcjando Gflefjjos do orden ecciuajn quo pudiraxi corresponderles ci rixco en ecte acto conforme autorjza la FIDUCIARIO ley para que do lan cant idades quo integre el de1comjj realice las patrimonic abl.igaojones do apljcacjoues ara aunplir las pago derivadao do obl acion pecunjarias le hbjer impuegt derivadas do quo so ion conceptos en el quo so menclonan contenido do los dos p.rrafos de esta inteligencia de clÆusula en Ia qua dichaa aplicaciones oar equiparadas por ningn motivo podrÆri asimiladas boa honoraries Sc eotal en ante coritrato del Fiduojarlo qua La sola aceptaoi6n tÆcita expresa do los derechos do lIDEICOMISARXO implicar l.a aceptacj.n dc lan en esta obligaajoues que clusula so oStablecen para las partes Qt1INT I1I8DICcT. Xara la CUaLp.jmjento interpretacidu ejecuojn dcl presente las someton contrato partes se expresamente lea tribuzzalea competentes do l.a ciudad do Reioaa Tamau1jpa renunojando aualqujer otra jurisdjcc6n 2c 32 CONFIDENTIAL SLONGORIA 000202 01220 No BANC\ Fldelcomrso 194-2 AFIRME fuera competenoja gte pudiera correspondej.1ea en razxi de su doutcilo preeeæte futuro fizma el prasente instrijinento en res tantoa en original eJ dSa de 15 gtince hay de octu.bre del 2002 dos mu dos ante in presencia de dos testigos en 1a.ojudad de Nuevo Laredo Tamaulipaa Z1YARiO LOG0PIA THERIO ZXCOMITENTE PZDUCIARIA BANCA APXRZ4Z a.A XNSTITUcIN DE BANCA MLTXPL AFIRNE GRUPO INANCXERo Ziviai6n iduoiarja Rapresentada pc LIC AX JORGE LOZANO LOZARO LIC MkR1L2t BArRxz GARZA DELEGADO PIDTICIARIo LOGQR EXIEGADO 41 MARTA MOTELONO GA1ZA PEDRO RAMREZ DE ALSA ALDAPE 32 CONFIDENTIAL SLONGORIA 000203 01221 EXHIBIT 3A 01222 Trust No 194-2 Banca Afirme IRREVOCABLE TRUST AGREEMENT FOR ASSET MANAGEMENT ENTERED INTO BY MR EDUARDO LONGORIA THERIOT ACTiNG AS TRUSTOR HEREiNAFTER REFERRED TO AS THE TRUSTOR AND BANCA AFIRME FULL-SERVICE BANKiNG INSTITUTION AFIRME FiNANCIAL GROUP FIDUCIARY DIVISION ACTING AS TRUSTEE HEREINAFTER REFERRED TO AS THE TRUSTEE AND REPRESENTED BY ITS FIDUCIARY DELEGATES LIC ADRIAN JORGE LOZANO LOZANO AND LIC MARTHA BEATRIZ GARZA LONGORIA THIS LEGAL ACT IS SUBJECT TO THE FOLLOWING REPRESENTATIONS AND CLAUSES REPRESENTATIONS Mr Eduardo Longoria Theriot acting in his capacity of TRUSTOR represents that He is an individual of Mexican nationality and with legal capacity to enter into this agreement He married to Ms Dorothy Kowalski de Longoria with whom he entered into matrimony in the city of Nuevo Laredo Tamaulipas under separate property system During his marriage to his wife he fathered four children Adriana Eduardo Silvia and Shelby Luis all surnamed Longoria Kowalski They are their only descendants He is the legitimate owner of the SHARES described hereinafter issued by the companies also described hereinafter hereinafter collectively referred to as the SHARES SHARES Issuing entity SERIES SERIES TOTAL VØrtice Empresarial de 50 684 734 C.V Inmuebles Terrenos 49.000 4.375.350 4.424.350 deC.V For purposes of this agreement the companies that issued the SHARES will be referred to interchangeably as the COMPANIES He has in his possession the certificates of the SHARES mentioned above which are free of liens and encumbrances 01223 Trust No 194-2 Banca Afirme It is his will to place all SHARES in trust so that the TRUSTEE pursuant to the terms of this agreement may hold them in fiduciary ownership and use them in accordance with the stipulations of this agreement The TRUSTEE has unequivocally explained to him the value and legal consequences of the legal provision included in item of section XLX nineteen in Roman numbers of article 106 one hundred and six of the Credit Instimtions Act as well as the scope and content of this agreement II The TRUSTEE through its Fiduciary Delegates represents that They represent legally established company formed in accordance with Mexican laws which is duly authorized to enter into fiduciary transactions It to act as fiduciary institution under the terms of this agreement agrees They are the Fiduciary Delegates of Banca Afirme Full-Service Banking Institution Afirme Financial Group Fiduciary Division and they have sufficient authority to sign this agreement which has not been revoked nor modified in any way Pursuant to the provisions of item of section XIX nineteen in Roman numbers of article 106 one hundred and six of the Credit Institutions Law the other parties have been provided with an unequivocal explanation of the value and legal consequences of that section which states Article 106 Credit Institutions may not XIX.. Respond on behalf of trustors principals or consignors for breach by debtors for the credits granted or for the issuers for the acquired values unless as result of wrongful acts pursuant to the provisions of the final part of article 356 now 391 of the Securities and Credit Transactions Law or guarantee receipt of revenue on the invested funds established If upon termination of the trust mandate or commission for granting credits these have not been liquidated by the debtors the institution will be required to transfer them to the trustor or trustee as appropriate or to the principal or consignor refraining from covering the amount the provisions of the previous two paragraphs will be null and Any agreement contrary void In mandate or commission the above paragraphs of this section will be trust agreements with statement the trustee that he or she has clearly inserted together by stating 01224 Trust No 194-2 Banca Afirme unequivocally communicated its content to the person from whom he or she received assets to invest After reviewing the aboye provisions the parties acknowledge that they are aware of the previous representations and hold all of them to be true Therefore it is their will to enter into this trust agreement pursuant to the following CLAUSES CREATION OF THE TRUST Mr Eduardo Longoria Theriot in his capacity of TRUSTOR hereby transfers in trust to the TRUSTEE the ownership of the SHARES listed in item of Representation of this agreement The TRUSTOR hereby physically gives the TRUSTEE the certificates of the SHARES held in trust duly endorsed in favor of the TRUSTEE According to the terms of article 129 of the Law of Business Corporations the TRUSTOR to notify the Sole Director or the Secretary of the Board of Directors as appropriate agrees of the issuing COMPANIES regarding the transfer of SHARES to the Trust agreement described herein in order to carry out the corresponding inscription in the Stock Ledger of such COMPANIES sending the TRUSTEE the corresponding certificate within 30 thirty business days from the date of execution of this agreement If the certification is not received from the Secretary of the Board the TRUSTEE may request it directly At this time the TRUSTEE receives the certificates covering the SI-IARES duly endorsed without assuming for the authenticity and legitimacy of such certificates or for any liability any defect they may have Consequently the TRUSTOR is liable for the authenticity of the certificates and for the corresponding remedies in the case of dispossession Moreover the TRUSTEE hereby grants to the TRUSTOR the broadest receipt allowed by law The TRUSTEE hereby acknowledges acceptance of its position and agrees that it will faithfully and diligently perform its duties in accordance with the law PARTIES TO THE TRUST.- The parties to this Trust Agreement are the following TRUSTOR Mr Eduardo Longoria Theriot TRUSTEE Banca Afirme Full-Service Banking Institution Afirme Financial Group Fiduciary Division Designation of BENEFICIARIES The TRUSTOR hereby names the following persons as PRIMARY BENEFICIARIES or alternates in the event of their death PRIMARY BENEFICIARIES Eduardo and Shelby Luis both surnamed Longoria Kowalski in the following proportions Shelby 01225 Trust No 194-2 BancaAfirme Luis Longoria Kowaiski with 60% sixty percent of the beneficiary derived from Trust and rights this ii Eduardo Longoria Kowaiski with 40% forty percent of the beneficiary rights derived from this Trust Likewise if any of the PRIMARY BENEFICIARIES die at the time of or before receiving the benefits derived from this Agreement the TRUSTOR appoints the following persons as SECONDARY BENEFICIARIES SECONDARY BENEFICIARIES In the event of the death of either of the above the children and spouses as applicable of the PRIMARY BENEFICIARIES whose names are specified in Clause Five items and Clause Six and Clause Seven For purposes of this agreement Beneficiaries shall be referred to as BENEFICIARIES when referring to all beneficiaries in general in specific cases each beneficiary shall be named individually The TRUSTEE will keep an accounting record to accredit all PRIMARY BENEFICIARIES as beneficiaries of the Trust assets in the proportion corresponding to each beneficiary as specified in this clause sub-account will be opened for each party The accounting record of SECONDARY BENEFICIARIES will be recorded in the sub- account corresponding to each of them TRUST ASSETS The following items constitute the material object of this agreement All SHARES described in item of Representation of this agreement All future SHARES that may be added to the trust assets because they are purchased because new SHARES have been issued or because of the exercise of ownership rights derived from the same SHARES also all certificates received under the terms of merger demerger or transformation of any of the issuing entities that make up the patrimony of this agreement and all SHARES purchased by the TRUSTOR representing the capital stock of other companies if and when those issuing entities are Mexican companies Any other type of security or credit deed or company shares or properties that for any reason are added to the TRUST to be covered by this agreement In such case under no circumstance shall the current assets be modified since the assets must always consist of securities traded on the Mexican stock exchange All dividends paid in cash in SHARES or in other personal or real properties from the contributed SHARES will also be incorporated into the trust assets 01226 Trust No 194-2 Banca Afirme All obtained from profits investments made by the TRUSTEE using cash resources included in the Trust assets Any additional contribution that the TRUSTOR may make in the future either in cash in kind or in rights Any other contribution in cash in kind or in rights acquired by the Trust to achieve its stated purposes OBJECT OF THE TRUST.-.- This of object this Trust is to guarantee that the TRUSTEE will hold the ownership of all its SHARES under the terms of this so agreement that subsequently upon the death of the TRUSTOR these SHARES may be inherited by the BENEFICIARIES under the terms and conditions set forth in this agreement PURPOSES OF THE TRUST The purposes of this Trust agreement include the following Guarantee that the TRUSTEE receives and holds ownership of all SHARES incorporated into this trust Guarantee that the TRUSTEE invests all cash resources incorporated into the trust assets according to the stipulations of Clause Thirteen of this agreement Guarantee that the TRUSTEE exercises all corporate and ownership rights corresponding to the SHARES including but not limited to the following right to vote to receive capitalized shares or dividends subscribe and to shares to pay receive new shares in exercise of of first refusal receive or rights to total partial reimbursement for such shares and to collect dividends cash others In in among all cases the written instructions received by the Technical Committee should be followed To exercise and corporate ownership rights of these SHARES the following provisions must be complied with The TRUSTEE will grant powers of attorney to all persons appointed by the Technical Committee so they exert mentioned above may all rights If no instructions are provided the TRUSTEE will have the right to ask the Technical Committee to these provide instructions to exercise and all corporate ownership rights related to the SHARES always acting with all reasonable care and diligence to protect the trust assets in all situations If the capital stock of the issuing of trust SHARES the TRUSTEE entity increases will execute the corresponding subscription once sufficient funds are contributed for that purpose If sufficient resources are available in the trust assets the TRUSTOR or the Technical Committee shall inform the TRUSTEE that the subscription of the corresponding increased capital shall be covered using trust assets 01227 Trust No 194-2 Banca Afirme Likewise it is hereby agreed that all partial or total reimbursements of SHARES as well as dividend payments in cash or in kind that issuing entities of SHARES decree will increase the trust assets which will then be used for the of the trust as stated herein purposes If the TRUSTEE based on the written instructions of the Technical Committee conveys offers as collateral encumbers or transfers by any means allowed by the Law all or part of the SHARES to another party appointed by the Technical Committee the consideration from such transfer will be received by the TRUSTOR or when appropriate by the BENEFICIARIES It is expressly agreed that the Technical Committee will be exclusively authorized to establish the conditions for the conveyance and that detailed written report in that regard will be sent to the TRUSTEE Before the conveyance is formalized the Technical Committee shall also veri1 that the conveyance of the SHARES complies with all corporate regulations and the rights of other shareholders as stated in the regulations of the issuing entity and the Law and shall accredit compliance to the TRUSTEE upon request If SHARES are sold under the terms mentioned above the TRUSTOR must comply with all corresponding tax obligations If the TRUSTOR dies this obligation must be complied with by the parties responsible to comply with those obligations under applicable law Based on the instructions received from the Technical Committee the TRUSTEE will transfer the amount of money it is instructed to transfer by the TRUSTOR or the BENEFICIARIES if sufficient funds are available in the trust for that purpose If the TRUSTOR dies this will be accredited to the TRUSTEE through submission of the corresponding death certificate so that this trust may remain valid The right of BENEFICIARIES to receive benefits will remain subordinated until the Technical Committee asks the TRUSTEE to deliver to the BENEFICIARIES all existing resources from the trust assets and trust SHARES in the proportions stated for each party in Clause Two at which time the trust will be terminated Until such time as the BENEFICIARIES receive the trust SHARES or until the existing resources in the trust or the proceeds from the sale of the SHARES are distributed as applicable in each case this Trust shall continue to be valid and the TRUSTEE shall exercise the corporate and asset rights corresponding to the SHARES pursuant to the instructions of the Technical Committee In the event of the death of Beneficiary Eduardo Longoria Kowalski the rights corresponding in this Trust shall be transferred to the four SECONDARY named Michelle Bernardo and Eduardo surnamed BENEFICIARIES Alejandra all 01228 Trust No 194-2 Banca Afirnie Longoria Hernandez and Sofia Longoria Zygmont in the proportions and under the terms and conditions described in clause Seven in the event of the death of the SECONDARY BENEFICIARIES Bernardo and Eduardo Longoria Hernandez or Sofia Longoria Zygmont mentioned in the previous section at any time during the validity of this Trust the share that corresponded to them shall be distributed among the other surviving SECONDARY BENEFICIARIES to which the section refers thereby increasing their share in this Trust In the event of the death previous of Alejandra Michell Longoria Hernandez at any time during the term of this Trust the share that corresponded to her shall be distributed in equal parts to her children Alfonso Than and Alejandro Diego both surnamed Arguindegui Longoria In the event of the death of the Beneficiary Shelby Luis Longoria Kowaiski the rights corresponding to this trust shall be transferred to the four SECONDARY BENEFICIARIES named Enriqueta Chapa de Longoria Shelby Sarah Louise and Adriana Dorothy all surnamed Longoria Chapa in equal parts under the terms and conditions described in clause Six In the event of the death of any of the four SECONDARY BENEFICIARIES named in the previous section at any time during the term of this Trust the shares that corresponded to them shall be distributed to the surviving SECONDARY BENEFICIARIES increasing their share in this Trust thereby SIXTH SPECIAL PROVISIONS IN THE EVENT OF THE DEATH OF SHELBY LUIS LONGORIA KOWALSKI In the event of the death of Mr Shelby Luis Longoria of of this clause will Kowaiski at any time during the term this trust the stipulations apply SECONDARY BENEFICIARIES.- As established in clause Two the SECONDARY BENEFICIARIES named in the event of the death of the PRIMARY BENEFICIARY Shelby Luis Longoria Kowalski will be his wife Enriqueta Chapa Farias de Longoria and his children Adriana Sarah and Shelby all surnamed Longoria Chapa in equal parts 01229 Trust No 194-2 Banca Afirme In the event of the death of any of the SECONDARY BENEFICIARIES at any time during the term of this Trust the share that corresponded to him her shall be distributed to the surviving SECONDARY BENEFICIARIES thereby increasing their share in this Trust Minor SECONDARY BENEFICIARIES shall be represented by their legal guardians or representatives appointed pursuant to the applicable civil provisions SEVENTH SPECIAL PROVISIONS IN THE EVENT OF THE DEATH OF EDUARDO LONGORIA KOWALSKI In the event of the death of Mr Eduardo Longoria Kowalski at any time during the term of this trust the stipulations of this clause will apply SECONDARY BENEFICIARIES.- As established in clause Two the SECONDARY BENEFICIARIES named in the event of the death of the PRIMARY BENEFICIARY Eduardo Longoria Kowalski will be his four children Eduardo Alejandra Bernardo all surnamed Longoria Hernandez and Sophia Longoria Zygmont in the following proportions SECONDARY BENEFICIARY PERCENTAGES EDUARDO LONGORIA HERNANDEZ 37.5% BERNARDO LONGORIA HERNANDEZ 7.5% ALEJANDRA LONGORIA HERNANDEZ 12.5% SOPHIA LONGORTA ZYGMONT 12.5% Total 100% In the event of the death of the abovementioned SECONDARY BENEFICIARIES Bernardo and Eduardo Longoria Hernandez or Sophia Longoria Zygmont at any time during the term of this Trust the share that corresponded to him her shall be distributed to all other surviving SECONDARY BENEFICIARIES thereby increasing their share in this Trust In the event of the death of Alejandra Michelle Hernandez at time during the term of this Trust the share that Longoria any 01230 Trust No 194-2 Banca Afirme corresponded to her shall be distributed in equal parts to her children Alfonso Illan and Alejandro Diego both surnamed Arguindegui Longoria SPECIAL PROVISIONS FOR THE SECONDARY BENEFICIARIES From this time forward the SECONDARY BENEFICIARIES to which the previous section refers are designated in the percentages indicated however the SECONDARY BENEFICIARIES Eduardo and Bernardo Longoria Hernandez shall have the option of deciding upon the disposition of the 25% twenty five percent that would correspond to Alejandra Michelle Longoria Hernandez and Sophia Longoria Zygmont in their capacity as SECONDARY BENEFICIARIES against the delivery in cash of said 25% in their favor pursuant to the value of the COMPANIES cakulated in accordance with the stipulations of clause Eleven Said option shall be exercised in the following manner The option of the SECONDARY BENEFICIARIES Eduardo and Bernardo Longoria Kowalski to receive from this Trust the 25% twenty five percent that would correspond to Alejandra Michelle Longoria Hernandez and Sophia and exercise it Longoria Zygmont is granted automatically they may only within the first calendar after the death of Eduardo Longoria Kowalski If year do not wish to exercise this right they shall give written notice of their they intent both to the TRUSTEE as well as to Alejandra Michelle Longoria Hernandez and Longoria Zygmont in which case they will have the Sophia right to their 25% twenty five percent of the SHARES this shall also occur if notice of their intent to not exercise the option as well as if they do they give not exercise the option within the abovementioned term The calculation of the value of the 25% twenty five percent that corresponds to Michelle Longoria Hernandez and Sophia Longoria Zygmont shall be Alejandra performed on the date of the death of the PRIMARY BENEFICIARY Eduardo Kowalski pursuant to the valuation procedure established in clause Longoria Eleven 01231 Trust No 194-2 Banca Afirme Once the value of the 25% twenty five percent has been calculated in accordance with the previous section Eduardo and Bernardo Longoria Kowaiski will deliver said amount to Alejandra Michelle Longoria Hernandez and Sophia Longoria Zygmont within term of ten 10 years with an interest of seven percent annually in United States dollars The first payment shall be made not later than the first anniversary of the death of the PRIMARY BENEFICIARY Eduardo Longoria Kowalski and so on successively each year until the amount established is totally covered within the 10 ten year term As each payment is made the corresponding SHARES in favor of Eduardo and Bernardo Longoria Hernandez shall be understood to have been released in equal parts As long as the deliveries in favor of Alejandra Michelle Longoria Hernandez and Sophia Flernandez Zygmont are being complied with under the terms indicated in the previous sections the exercise of the equity and corporate rights of the SHARES corresponding to this 25% shall be exercised completely by Eduardo and Bernardo Longoria Hernandez in equal parts in their capacity as SECONDARY BENEFICIARIES In case of nonpayment of more than two consecutive payments to Alejandra Michelle Longoria Hernandez and Sophia Longoria Zygmont they shall be entitled to the remainder of the unpaid shares and therefore exercise their and derived from said may equity corporate rights SHARES under the terms provided by this contract The obligation to notify the TRUSTEE of the exercise of the option established in the previous number is expressly established or else the decision to not point exercise that well as the of any of the payments Eduardo and option as nonpayment Bernardo Longoria Hernandez are obligated to make or else full compliance with the payment obligation so that the TRUSTEE may be able to reallocate the rights of the Beneficiary pursuant to the provisions of this paragraph Unless the interested 01232 Trust No 194-2 Banca Afirme parties expressly agree otherwise and if for any reason the option is not exercised within the first calendar after the death of Eduardo Longoria Kowalski the year option will be considered to have not been exercised and the TRUSTEE will definitely allocate to Alejandra Michelle Longoria HernÆndez and Sophia Longoria Zygmont the percentage of participation in the Trust rights that has been agreed in item one of this same clause OBLIGATIONS OF SECONDARY BENEFICIARIES.- Only if SECONDARY BENEFICIARIES Eduardo and Bernardo Longoria HernÆndez do not exercise the option of receiving 25% twenty-five percent of the SHARES of Alejandra Michelle Longoria HemÆndez and Sophia Longoria Zygmont which should be reported to the TRUSTEE the SECONDARY BENEFICIARIES should directly and without the intervention of the TRUSTEE deliver the amount of US$ 100000.00 one hundred thousand US dollars to Sophia Longoria Zygmont so that she may receive her university education This sum will be delivered to her mother Colette Zygmont who will be responsible to administer the funds for the benefit of Sophia Longoria Zygmont With the authorization of the Technical Committee and charged to the net Trust express assets the TRUSTEE after being notified of the non-exercise of the option by SECONDARY BENEFICIARIES or if the option has been considered non-exercised because the deadline for exercising the option has expired the TRUSTEE may deliver the amount of money mentioned above in the manner and under the terms agreed in the previous paragraph without being liable for the actual use of the funds The TRUSTEE assumes no liability for the impossibility of complying with this purpose if there are insufficient liquid assets to cover the amount in such case partial payment may be made ADMiNISTRATION OF COMPANIES.- The SHARES that are incorporated into the Trust assets correspond to COMPANIES that are operating various commercial and real estate ventures either directly or through subsidiaries To date the administration of such businesses has been the responsibility of Shelby Luis Longoria Kowalski who will continue to perform those duties during the term of this Trust or under the terms and conditions agreed upon in shareholders meetings In that regard Shelby Luis Longoria Kowalski will serve as Sole Director or Chairman of the Board of the COMPANIES and their subsidiaries In the event of the death or incapacity of either of the PRIMARY BENEFICIARIES Eduardo or Shelby Luis Longoria Kowaiski the administration of the COMPANIES and their subsidiaries will become the responsibility of an Executive Committee under the terms of the following clause This Committee will perform its duties provisionally until the definitive administration of the COMPANIES and their subsidiaries is determined or until Nine and Ten the separation of the shareholders occurs under the terms of clauses 01233 Trust No 194-2 Banca Afirme In the event of the death or incapacity of Eduardo or Shelby Luis Longoria Kowaiski the Technical Committee will take the necessary measures required to immediately call meeting of the shareholders of the COMPANIES and their subsidiaries whose shares are the subject matter of this Trust in order to form the Executive Committee referred to in the necessary grant them following clause and if sufficient authority to perform their duties The death of Eduardo or Shelby Luis Longoria Kowalski will be accredited by the death certificate In the case of incapacity this will be determined by the corresponding Technical Committee with the unanimous vote of the members based on the written of three private confirming the incapacity These three physicians will opinion physicians be chosen by the Technical Committee itself without the participation of or liability attributable to the TRUSTEE whose only obligation will be to receive the written notification from the Technical Committee reporting the incapacity When the TRUSTEE acts in accordance with the instructions of the Technical Committee it will incur no liability pursuant to the provisions of article 80 of the Credit Institutions Law ADMINISTRATION OF COMPANIES THROUGH AN EXECUTIVE COMMITTEE In the event of the death or incapacity of Eduardo or Shelby Luis Longoria Kowalski the administration of the COMPANIES will become the responsibility of an Executive Committee pursuant to the following The Executive Committee will be composed of six members with their alternates Each member of the Executive Committee will be responsible respective for one of the business areas of the group of COMPANIES The TRUSTOR hereby appoints the following persons as members of the Executive Committee Member Alternate Business Area Eduardo .Longoria Kowalski Eduardo Longoria General Directorate HernÆndez Shelby Luis Longoria Enriqueta Chapa de General Directorate Kowaiski Longoria Rafael de Jesis Marta Montelongo Real Estate Carbalal Galindo Garza Saul Garza Molina NØstor Sanchez Automotive Edilio Luis Marco Antonio Industrial Madrigal Cepeda Torres Garza RaUl Jesus Ramfrez Hugo Jimnez Restaurants Vela VÆzguez of Eduardo the Chairman In the event of the death or incapacity Longoria Kowalski Committee will be Shelby Luis Longoria Kowalski In the event of of the Executive 01234 Trust No 194-2 Banca Afirme the death or incapacity of Shelby Luis the Chairman Longoria Kowaiski of the Executive Committee will be Eduardo Longoria Kowaiski In the event of the resignation incapacity or death of the chairman appointed under the terms of the previous paragraph the corresponding alternate will serve in that capacity ii The Chairman of the Executive Committee will cast the deciding vote in the event of tie iii The Executive Committee will be responsible for the operations of the COMPANIES and their subsidiaries and will be required to render accounts to the Technical Committee of this Trust iv The Executive Committee shall only perform administration acts without the authority to convey property assets or rights of the COMPANIES or their subsidiaries unless the Technical Committee indicates otherwise The Executive Committee shall continue the normal of the operations COMPANIES and their subsidiaries in the same way they were operated previously always ensuring that COMPANIES are not at risk and that they are operating in compliance with the legal provisions applicable in each case vi The Executive Committee will meet every Monday in order to make decisions together regarding each issue Each member responsible for business area will present the work plan for that week which should be approved by the rest of the members of the Executive Committee Minutes will be prepared of each meeting to be signed by all attendees BENEFICIARIES or their attend representatives may each meeting of the Executive Committee and they will be entitled to offer their opinions but not to vote vii The Executive Committee will submit monthly report to the Technical Committee about the operations of the COMPANIES and their subsidiaries attaching the minutes of each meeting Such will be report presented during meeting called for that purpose within the first 15 fifteen- days of each month BENEFICIARIES or their representatives may attend each meeting and they will be entitled to offer their opinions but not to vote viii The report referred to in the previous paragraph shall include at least an itemization of the income and expenditures of all COMPANIES and their subsidiaries balance sheet profit and loss statement statement of changes in financial position and cash flow statement 01235 Trust No 194-2 3anca Afirme on external advisors decisions ix The Executive Committee may rely in making such external advisors attend meetings if the Committee believes it Similarly may is appropriate for them to do so The Executive Committee may freely remove the members of the Executive if considers according to the stipulations of Clause Committee it it necessary Thirteen Likewise if the Committee believes it is necessary it may appoint an external auditor to audit the COMPANIES The parties to this agreement expressly establish and agree that the TRUSTEE acquires the ownership of the SHARES which are the subject of this Trust and will only be bound to the inherent grant the powers of attorney that may be required in order to exercise rights to the the Technical Committee designates for that the same to person or persons that Committee purpose as well as complying with the instructions that in its case the Technical issues and that reason the parties expressly and with no reservation in that regard for whatsoever from this moment release the TRUSTEE from any responsibility or liability to exercise on his own the corporate rights inherent to the SI-IARES as well as the form which the to and exercise voting manner and terms in agent that is appointed represent rights corresponding to the SHARES in meetings of shareholders as well as in the case that the terms and conditions that the TRUSTOR establishes in this clause as well as in clause Eight and Ten of this Trust were not fully or partially complied with The established in clause Eight as well as in this clause are established by the guidelines TRUSTOR and will be strictly complied with by the members of the Technical Committee without any intervention responsibility or liability whatsoever for the TRUSTEE with the understanding that the agreement established herein shall also be complied with by the BENEFICIARIES at the appropriate time TEN SEPARATION OF THE SHAREHOLDERS Upon the death or incapacity of any of the PRIMARY BENEFICIARIES the surviving PRIMARY BENEFICIARY along with have the to the SECONDARY BENEFICIARIES or their representatives shall option of the COMPANIES or to each one of them remaining with remain shareholders separate 01236 Trust No 194-2 Banca Afirme different COMPANIES based on their value calculated pursuant to clause Eleven below The separation agreement shall be carried out pursuant to the following For purposes of the separation two groups are considered one per each family of the PRIMARY BENEFICIARIES ii In the event of the death of Shelby Luis Longoria Kowalski and provided that the SECONDARY BENEFICIARIES designated to assume his place wife and children are not involved in the administration of the businesses in operation or do not have the experience required to manage those businesses for purposes of this clause the SECONDARY BENEFICIARIES of Shelby Luis Longoria Kowalski shall have the right of first refusal to receive the real estate businesses during the separation process In all the will seek to conduct the separation based on principles of iii cases parties fairness and equality regarding the value of the COMPANIES The value of the companies shall be calculated using the described in the following process clause The guidelines established in this clause are provided by the TRUSTOR to be complied with exclusively by the members of the Technical Committee without the intervention responsibility or liability whatsoever for the TRUSTEE with the understanding that the agreement established herein shall also be complied with by the BENEFICIARIES at the appropriate time ELEVEN VALUATION OF THE COMPANIES For purposes of determining the value of the COMPANIES and their subsidiaries these shall be appraised by two external appraisal experts who are independent of the parties that the Technical Committee determines and chooses for that purpose The experts shall appraise each COMPANY and its subsidiaries using the same appraisal method If there is difference of less than 10% ten in the values presented by the experts the average of both shall be taken as the real value If there are differences of more than appraisals 10% ten percent in the values presented by the experts third appraisal expert shall be appointed who will conduct third appraisal Of the three appraisals the average of the two closest appraisals shall be taken as the value 01237 Trust No 194-2 Banca Afirme The results of the appraisal shall be reported to the TRUSTEE through the Technical Committee TWELVE INVESTMENT METHOD The cash resources that make up the assets of this trust shall be invested by the TRUSTEE pursuant to the instructions that the Technical Committee sends in writing with the understanding that if no such instructions are provided at its discretion the TRUSTEE shall invest manage and safeguard the trust assets using any of the instruments bonds securities or documents indicated below Debt instruments or currency market instruments Investment Companies in debt instruments Any other instrument bond or document which during th term of this contract and after the signature of the same become available on the market with the previously mentioned characteristics The instruments bonds securities or documents in which the investment may be made may not be registered with the National Securities and Brokers Registry and no or may commercial paper will be acquired without bank endorsement The TRUSTOR hereby releases the TRUSTEE from any liability for damages derived from the depreciation or suspension of the trading of securities bonds or documents under the protection of the investment contract signed for the investment on acquired and which damages or are consequence of the the trust property may result in or breach of the issuers as well as for the types of payment suspension bankruptcy transactions conducted under the terms of the investment contract and its Investment the be as well as the of bonds securities or assigned Policy as case may type documents Likewise the TRUSTOR reserves no present or future action or right to act against Banca Afirme S.A Institucion de Banca Multiple Afirme Grupo Financiero based on the signature of the aforementioned investment contract 01238 Trust No 194-2 Banca Afirme The TRUSTEE shall not be liable for diminishment of the value of the assets when it acts in accordance with the provisions of article 391 of the Securities and Credit Transactions Law THIRTEENTH TECHNICAL COMMI1TEE.- Pursuant to article 80 of the Credit Institutions Law the TRUSTOR hereby forms Technical Committee and agrees to provide the TRUSTEE with the applicable instructions regarding the scenarios described in this Trust The Technical Committee shall be made up of three- regular members with their respective alternates who are hereby appointed by the TRUSTOR as follows Regular Members Alternate Members Shelby Luis Longoria Kowalski Marta Beatriz Montelongo Garza Enriqueta Chapa Farias Rebeca Ortiz Eduardo Longoria Kowalski Eduardo Longoria Hernandez In making decisions in accordance with the authority referred to in this clause the Technical Committee must at all times respect and honor the rights of the BENEFICIARIES under the terms of this Trust also in matters for which it is responsible it will comply with the provisions of clauses eight nine and ten of this Trust under penalty of incurring personal liability The appointment by the TRUSTOR of the members of the Technical Committee by means of this act is based on the following at all times the Technical Committee shall be composed of two members and their respective alternates corresponding to the PRIMARY BENEFICIARY Shelby Luis Longoria Kowaiski consequently appointing Shelby Luis Longoria Kowalski and his respective alternate and Enriqueta Chapa Farias de Longoria and her respective alternate Likewise the Technical Committee shall be composed of one member and his respective alternate corresponding to the PRIMARY BENEFICIARY Eduardo Longoria 01239 Trust No 194-2 Banca Afirnie Kowaiski consequently appointing Eduardo Longoria Kowaiski and his respective alternate In event of the definitive absence or disability of the TRUSTOR the PRIMARY BENEFICIARiES or their respective SECONDARY BENEFICIARIES as each case appoint revoke or change the members of the applicable in may Technical Committee as applicable in accordance with the previous section through written notification sent to the TRUSTEE reporting the name and signature of the members of the Technical Committee as well as the acceptance by the member in question of the position conferred The Technical Committee will hold valid meeting when the majority of its regular members or their respective alternates are in attendance and decisions will be made by majority vote The appointment of the members of the Technical Committee is honorific in nature therefore not be receive for their services and they will entitled to any remuneration In the event of the absence disability death or resignation of any of the members of the Technical Committee the member shall be replaced by the person appointed by the corresponding PRIMARY BENEFICIARY The Technical Committee shall meet every time it is required to do so and minutes of each the decisions made The meetings of will be prepared meeting setting forth the Technical Committee are to be held in the city of Reynosa Tamaulipas members may meet another location in Mexico or abroad if the however the at majority of the members agree 01240 Trust No 194-2 LOGOJ Banca Afirme Invitations th of the Technical Committee to meetings may be sent by any of its members through letter with confirmation of receipt telegram sent to the rest of the regular members and the of the Technical alternates Committee who will be required to confirm receipt through an e-mail or by any other means by which it can reliably be verified that the members have been notified ahead of time at least 5- five calendar days before the date of the meeting in question enclosing the agenda points for the meeting The meetings of the Technical Committee will be held on the date the time and the address any member of at at indicated on the invitation If the Committee meeting and fails to attend the if for that reason decision cannot be made regarding matter on the agenda second invitation will be issued so that meeting may be held three business days after the date of the original meeting in case of an absence third invitation will be issued be to meeting to held on the next business day In any of the previous cases the majority of the members of the Technical Committee will be required for the decision making If the majority of the regular members or their alternates respective on the Technical Committee are gathered hold and be they may meeting their agreements shall valid and no prior invitation will be required in this case 10 The Technical Committee shall have the established in this powers Contract including the authority to amend or terminate this Trust powers that the TRUSTOR hereby expressly grants to them 11 In each meeting of the Technical Committee representative of the TRUSTEE may appear who shall participate with voice but without vote 12 The TRUSTEE will be released from all liability when it acts in accordance with the instructions or resolutions adopted by the Technical Committee 01241 Trust No 194-2 Banca Afirme 13 The Technical Committee shall gather when deemed necessary through invitations issued in accordance with the previous points and 14 If the Executive Committee is in operation the Technical Committee shall gather monthly within the first 15 fifleen days of each month so as to review and discuss the report that the Executive Committee shall present FOURTEENTH BEHAVIOR RULES AND POLICIES FOR THE TECHNICAL AND EXECUTIVE COMMITTEE The members of the Technical Committee and the Executive Committee shall act at all times taking into consideration that both PRIIvIARY BENEFICJARIES and their corresponding SECONDARY BENEFICIARIES as applicable in each case will at all times receive fair and equal treatment since the purpose of this instrument is to ensure that each of them has the right or is the holder of the trust in the proportions established For this reason in the event of any dispute property controversy or if any decision is to be made the above principle of equality and equity will always be the basis for any such decisions Likewise any action taken by the Technical Committee should always be made to benefit the BENEFICIARIES The abovementioned Committees consultants may be supported by the opinions of expert in their decision-making FIFTEENTH MEXICAN JURISDICTION AND LEGISLATION This Trust is established under the jurisdiction of the United Mexican States its parties are Mexican citizens and its assets are located within the national territory Therefore this Trust the TRUSTOR and the BENEFICIARIES are exclusively subject to the laws of Mexico thus the waive the application of any Law regulation provision or rule of any parties expressly jurisdiction other than Mexico to which they may be entitled due to their present or future residence citizenship domicile kinship or commercial relationships therefore paternity 01242 Trust No 194-2 BancaAfirme any interpretation dispute or any aspect related to this Trust will be expressly subject to the courts of the city of Reynosa Tamaulipas Mexico Likewise the issuance of any Law regulation or provision in jurisdictions outside the of Mexico or any act performed outside the national whether Republic territory it is by the TRUSTOR BENEFICIARIES or any person related to the Trust or members of the Technical Committee or Executive Committee for the of imposing restrictions purpose on this Trust imposing the performance of acts different from the purposes for which it is authorized or which attempts to change or impact the control of the Trust by the TRUSTOR BENEFICIARIES or the Technical Committee ii that attempts to impose taxes fees or tax charges other than those allowed by Mexican Law iii that attempts to expropriate limit confiscate seize take freeze or offer as collateral the assets of the Trust based on federal state or municipal legal provisions outside the jurisdiction of the Mexican Republic are not and shall not be applicable to this Trust and in all cases the jurisdiction and legislation of the Republic of the United Mexican States will be applied under the terms of the previous paragraph SIXTEEN DECLARATION OF WILL Both the TRUSTOR as well as the BENEFICIARIES of this Trust declare that this contract is the final and definitive will of the parties therefore they agree to all of its terms and they also represent that no error fraud bad faith or any defect exists that may affect their understanding or decision regarding its contents SEVENTEEN TRUST AMENDMENTS This contract may terminated or amended solely based on the and instructions of the Technical Committee and the prior agreement TRUSTEE through the signature of the corresponding agreement EIGHTEEN NON-TRANSFERABLE CLAUSE For all the corresponding legal effects and based on nature of this Trust no BENEFICIARY of the same shall be in any way entitled to part or the totality of the assets of this Trust until the assets of the Trust have been distributed through its partial or total execution in favor of the corresponding already 01243 Trust No 194-2 Banca Afirme BENEFICIARY In no case whatsoever will any BENEFICIARY of the trust be entitled to transfer appoint tax mortgage or pledge their present or future rights or interests contained herein likewise this Trust or the interests or rights of any BENEFICIARY may not be subject to claims or lawsuits from their creditors or the creditors of the BENEFICIARIES nor will they be subject to taxes seizures or enforcement of any ruling in any legal proceeding Both the income generated as well as the assets of the Trust itself may not be subject to pledges seizures guarantees transfers or sale or in any way be compromised or offered as collateral by any BENEFICIARY nor will the assets or any income derived from this Trust be subject to or offered as collateral in any way by acts debts contracts or any other act of any BENEFICIARY or the TRUST or by any claim for alimony or child support by any BENEFICIARY or the TRUSTOR himself or derived from any separation agreement neither shall it be subject to any transfer or any other voluntary or involuntary act of disposition or conveyance derived from legal process prior to the distribution of the assets of the Trust through the partial or total execution of the Trust in favor of the corresponding BENEFICIARY In the cases in which any BENEFICIARY is granted any right under the terms of this Trust and while the same has not been totally or partially executed in his/ her favor the TRUSTEE will continue to maintain ownership of the assets of said BENEFICIARY NINETEEN VALIDITY OF THE PROPERTY TITLE DEEDS The BENEFICIARY acquires ownership of the assets and rights that make up the trust assets based on the representative title deeds of the SHARES which are hereby delivered by the TRUSTOR and consequently the TRUSTOR will not be liable in any way whatsoever to the BENEFICIARIES or any third parties including those to whom all or part of the trust assets are transferred for defects or hidden defects in the corresponding property title deed and be any such the covered will or for challenges to rights thereby in any case liability assumed by the TRUSTOR 01244 Trust No 194-2 Banca Afirme TWENTY REMEDY IN THE EVENT OF DISPOSSESSION The TRUSTOR will be obligated to remedy any dispossession in accordance with the law with respect to the assets and rights contributed by the TRUSTOR to the assets of this trust When the TRUSTEE in compliance with the purposes of this contract transfers all or part of the trust assets the TRUSTOR shall remedy any dispossession in accordance with the law and therefore hereby authorizes the TRUSTEE to make binding decisions under those terms before the individuals or legal entities to whom all or part of the trust assets are transferred under the terms of this contract TWENTY-ONE TRUSTEE LTABILITY When the TRUSTEE acts in accordance with the instructions of the Technical Committee it shall be released from all liability under the terms provided in article 80 eighty of the Credit Institutions Law The TRUSTEE is not liable for the deeds acts or omissions of the contracting parties or third parties or authorities prior or subsequent to this date or for legal acts in which the TRUSTEE has not directly participated or the interpretations of authorities or changes in applicable laws that hinder oppose prevent or sanction the compliance with their duties or the validity of this Trust and all legal consequences of the foregoing will be the responsibility of the TRUSTOR and the TRUSTEE will not be liable for the final use of the amounts transferred or for the material delivery of the trust assets it carries out in compliance with the instructions of the Technical Committee In no case will the TRUSTEE be required to respond using its own assets and without this Trust from Authorities third shall be in the exception any claim related to or parties last instance charged to the trust assets and the parties hereby represent that they are in agreement in that regard The TRUSTEE does not assume any liability beyond the liability set forth in this contract or the law excluding tax or labor liability of any type expressly The TRUSTEE will not be obligated to exercise the rights inherent to the trust SHARES on the TRUSTEES own behalf it will only be obligated to issue any powers of attorney 01245 Trust No 194-2 Banca Afirme which may be necessary to the persons that the Technical Committee indicates for that purpose without assuming whatsoever with any liability regard to the manner form and terms in which the SHARES vote or for the consequences of having exercised the to right vote When the TRUSTEE receives no instructions regarding the issuance of powers of attorney under the terms of this shall be released from any paragraph it liability derived from the failure to exercise the right to vote The TRUSTEE will not have the liability or responsibility to influence verify or in any way intervene in the administration decisions of the COMPANIES that issue the trust SHARES Upon request the TRUSTEE shall render accounts according to Article 84 eighty four of the Credit Injtitutions Law TWENTY-TWO TRUSTOR LIABILITIES The TRUSTOR and the PRIMARY and SECONDARY BENEFICIARIES as applicable in each case will be obligated to hold the TRUSTEE harmless and return to the TRUSTEE the amounts that the TRUSTEE may have incurred as result of legal or extrajudicial actions initiated by the TRUSTOR and br by third parties against the TRUSTEE that may affect the TRUSTEE or its officers by reason of this trust contract TWENTY-THREE POWERS OF THE TRUSTEE.- The TRUSTEE will manage the trust assets with the and duties established 391 three hundred powers in articles ninety one and other related articles of the Securities and Credit Transactions Law and article 84 eighty four and other applicable articles of the Credit Institutions Law TWENTY-FOUR DEFENSE OF THE TRUST PROPERTY.- Whenever the TRUSTEE receives any notification regarding any judicial lawsuit requirements from any authority and any notification related to the assets of this contract the TRUSTEE will send written notice to the TRUSTOR or the Technical Committee not later than the next business day after the date on which the corresponding notification was received 01246 Trust No 194-2 Banca Afirme The TRUSTOR or the Technical Committee will written instructions to the provide TRUSTEE not later than the next business day after the date on which the notification referred to in the previous paragraph in this clause was that the received so necessary of attorney power may be granted to the person or persons appointed by the TRUSTOR or by the Technical Committee in order for them to focus on the care conservation or legal defense of the trust assets described in this contract The TRUSTEE shall not be responsible for the actions taken by the legal representative nor will it be obligated to pay fees or costs derived from the respective legal proceedings which will in all cases be charged to the trust assets The TRUSTOR the Technical or Committee may instruct the TRUSTEE the any fees and to charge to trust assets expenses derived from the care conservation or defense of the trust assets The contents of the preceding paragraph of this clause must be transcribed in every power of attorney for litigation and collections issued by the TRUSTEE under the terms of this trust TWENTY-FIVE REPORTS FROM THE TRUSTEE The TRUSTEE shall render report regarding the transactions involving the trust assets to the TRUSTOR or the Technical Committee on monthly basis The TRUSTOR or Technical Committee will have period of 15 calendar days effective as of the date of issuance of the aforementioned report to comment or request any clarifications they deem appropriate with the understanding that if the TRUSTOR does not comment or request clarifications within the aforementioned period it will be understood that the corresponding has been approved report TWENTY-SIX RESIGNATION OR REPLACEMENT OF TH.E TRUSTEE The TRUSTEE may resign from the position conferred by this contract for serious reasons 01247 Trust No 194-2 Banca Afirme subject to the of first ruling instance judge in the TRUSTEES domicile pursuant to article 391 of the Securities and Credit Transactions Law The TRUSTOR may replace the TRUSTEE at any time with an advance notice of twenty business days prior to the date on which the replacement is to anticipated occur so that all necessary procedures required for the formalization of the change may be prepared The TRUSTEE may be replaced by another international or foreign institution or institutions if and when they have the to legal capacity perform those duties The TRUSTEE will proceed with the fiduciary replacement the after payment of the expenses or fees it is entitled to receive under the terms of this contract TWENTY-SEVEN TAXES The TRUSTEE will be authorized at any time to charge the trust assets for any the taxes owed on the transactions the trust involving assets in such way as to ensure that compliance with the corresponding tax obligations is not jeopardized If with compliance the purpose of this contract involves full or partial transfer of the SHARES which make up the assets of this trust all such transfers shall be subject to applicable tax laws TWENTY-EIGHT THIRD PARTY EXPENSES AND FEES The expenses incurred in the compliance with the purposes of this contract will be charged to the trust The property TRUSTEE will charge the trust for all fees owed to property third parties contracted pursuant to the provisions of this contract and which are for the necessary care conservation or defense of the trust assets TWENTY-NINE TRUST TERM The duration of this trust will be the term to necessary comply with its and the be terminated may any of the situations described purposes trust in in article 392 three hundred and ninety of the Securities two and Credit Transactions Law that are compatible with the nature and of purposes this contract with the of the exception grounds for termination VI described in section for faIlure by the TRUSTOR to expressly reserve the right to revoke this Trust 01248 Trust No 194-2 Banca Afirme THIRTY TRUSTEE FEES The TRUSTEE shall charge the following fees to the TRUSTOR for the performance of the duties conferred herein For the acceptance of the position study and preparation of the trust contract the sum of $20000.00 twenty thousand Mexican pesos and 00/100 payable one time only upon signature of the trust contract For the administration of the trust the monthly sum of $5000.00 five thousand Mexican and 00/100 payable by quarters in advance and once the death of pesos the TRIJSTOR occurs the fees in force as of that date for the administration of the trust shall increase by 40% forty per cent For the signature of Amendments to the Trust Contract the sum of $6000.00 six thousand Mexican and 00/100 payable at the time the corresponding pesos Agreement is signed For the issuance of Powers of Attorney and the execution of any other act necessary to achieve the purposes of the trust the sum of $3000.00 three thousand Mexican and 00/100 at the time the corresponding instrument is signed pesos payable The abovementioned fees will be subject to the value added tax pursuant to applicable be adjusted the month of January of each year based on the inflation law and shall in percentage verified during the year prior to the adjustment and calculated by the Bank any entity that may replace of Mexico or it in the future THIRTY-ONE DOMICILE The parties designate the addresses listed below as their domiciles for notice and in for any purposes related to this trust any notification general THE TRUSTOR Oaxaca No 620 Col Rodriguez Zip Code 88630 Reynosa Tamaulipas Mexico 01249 Trust No 194-2 Banca Afirme THE TRUSTEE Hidalgo Avenue number 234 West Central Zone Monterrey Nuevo Leon Zip Code 64000 Mexico THE TECHNICAL COMMflTEE Oaxaca No 620 Col Rodriguez Zip Code 88630 Reynosa Tamaulipas Mexico Any address be reported change shall in writing to the TRUSTEE with the understanding that all communications addressed to the last domicile indicated the by parties shall produce all legal effects THIRTY-TWO EXPENSES FEES AND TAXES All expenses fees and taxes incurred in the compliance with the purposes of this trust will be the responsibility of the TRUSTOR THIRTY-THREE DEFINITIVE DECLARATION OF WILL Both the TRUSTOR as well as the BENEFICIARIES of this Trust declare that this contract is the final and definitive will of the parties and therefore they agree to all its terms furthermore that no declaring fraud bad or defect of consent has occurred error faith any that may affect their understanding or decisions regarding its contents THIRTY-FOUR COMPENSATION The TRUSTOR and the PRIMARY BENEFICIARIES are bound to jointly defend and hold the TRUSTEE as well as its consultants fiduciary delegates officers employees agents or advisors harmless from and against all and any responsibility damages liability legal action judgment settlement requirement expense and or costs of any nature including attorneys fees which are directly or indirectly charged are the result of are imposed upon or incurred by reason of or as consequence of the acts performed by the TRUSTEE in the compliance of the purposes contained in this trust contract and the defense of the trust assets or by claims fines judgments or any other debt of any nature regarding the trust assets or this trust contract whether it is before administrative judicial 01250 Trust No 194-2 Banca Afirme court arbitration or any other instance of authorities on the local or federal level in the Republic of Mexico or in any foreign jurisdiction If de facto situation or authority act or of nature was any consequence legal generated and resulted in fines charged to the Trust and or the property of the Trustee caused by acts or omissions of the parties to the trust contract by the TRUSTEE in compliance with the purposes of this contract or by third parties including distributions related to the acts and concepts mentioned in the previous paragraph the payment derived from said pecuniary liabilities shall be the joint obligation of the TRUSTOR and if applicable the PRIMARY BENEFJCIARIES who agree to respond without limitation using their own assets for the payment that was made or will be made by the TRUSTEE waiving the benefit of order or exclusion that may correspond to them pursuant to the law Likewise the TRUSTOR hereby authorizes the TRUSTEE so that from the trust assets it may allocate the amounts required to comply with the payment liabilities derived from the concepts mentioned in the content of the two paragraphs of this clause with the understanding that in no case may said allocations be equated with or absorbed into the fees of the Trustee that are established in this contract The mere tacit or express acceptance of the rights of the BENEFICIARY will imply the acceptance of the obligations that are established for the parties in this clause THIRTY-FIVE JURISDICTION For the interpretation compliance and execution of this contract the parties are expressly subject to the courts with jurisdiction in the city of Reynosa Tamaulipas expressly waiving any other jurisdiction regional laws or authority to which they may be entitled by reason of their present or future domicile 01251 Trust No 194-2 Banca Afirme This instrument in each is signed triplicate of the three counterparts having the same value as an original October 15 2002 today fifteen two thousand two in the presence of the two undersigned witnesses in the of Nuevo city Laredo Tamaulipas Illegible Mr EDUARDO LONGORIA THERIOT TRUSTOR TRUSTEE BANCA AFIRME S.A FULL-SERVICE BANKING INSTITUTION AFIRME FINANCIAL GROUP Fiduciary Division Represented by Illegible Illegible LIC ADRIAN JORGE LOZANO LOZANO LIC MARTHA BEATRIZ GARZA FIDUCIARY DELEGATE LONGORIA FIDUCIARY DELEGATE Illegible Illegible WITNESS WITNESS MARTA MONTELONGO GARZA PEDRO RAMIREZ DE ALBA ALDAPE 01252 II krcti January 122015 Certillccthon Park IP Translations This is to certify that he attached translations are to the best of my knowledge and belief true and accurate Ironslation from Spanish into English of the Private Agreement Sarah Dunham tATSTI Project Manager ttaty.puiic Sta1901 NBWYOIk N.O1SM36S Project Number S1iGOJ5O1.OO3 Ou1th In js Qonty mni$IOfl Lpk Jtrn 50 15 37th Street Bth Floor New York NY 10018 212.581.8870 PorklP.COm 01253 EXHIBIT 01254 Case Number 414270 IN THE ESTATE OF IN THE PROBATE COURT DOROTHY LOUISE LONGORIA NUMBER ONE DECEASED HARRIS COUNTY TEXAS Affidavit of Dr Carlos Gabuardi STATE OF TEXAS HARRIS COUNTY BEFORE ME the undersigned authority on this day personally appeared Carlos Alberto Enrique JosØ Lorenzo Gabuardi Arreola who being by me first duly sworn stated the following My name is Dr Carlos Alberto Enrique JosØ Lorenzo Gabuardi Arreola PhD am over twenty-one years of age of sound mind and qualified to make this affidavit have personal knowledge of the facts stated herein and am to testify thereto competent have been retained counsel for Shelby by Longoria as consultant and expert witness on Mexican law in the above-titled action In connection with this have been engagement requested to address several legal questions under the context of Spanish language document named Acuerdo Privado signed by Mr Eduardo Longoria Theriot and Ms Adriana Longoria Kowalski Based review of documents on my and my expertise in Mexican law have the following opinions The Jurisdiction and Mexican Law clause in the Acuerdo Privado referred to above is valid and enforceable under Mexican agreement law and more specifically under the authority of the Civil Code in effect in the currently State of Tamaulipas By the fact that Ms Adriana Longoria Kowaiski actually did execute the Acuerdo Privado referred to above she expressly and voluntarily submitted 01255 herself to the exclusive jurisdiction of both Mexican law and the courts located in Reynosa Tamaulipas Mexico waiving other venue any whatsoever Under the terms of the Jurisdiction and Mexican Law clause in the Acuerdo Privado referred to above the parties therein expressly stated their intent to bar the issuance of any law regulation or provisions in jurisdictions outside Mexico therefore barring the applicability of any judicial acts taken outside of Mexico Under the terms of the Jurisdiction and Mexican law clause in the Acuerdo Privado referred to above the parties therein expressly agreed not to perform acts outside Mexico which would impose the performance of acts different than the purposes for which the Acuerdo Privado is authorized or which would affect the rights of the Acuerdo Privado based on laws outside the jurisdiction of Mexico If Mr Shelby Longoria is sued upon the basis of the Acuerdo Privado referred above he seek enforcement of and to may the the Jurisdiction Mexican law clauses styled in such agreement BACKGROUND have studied practiced and taught law in Mexico and the United States for over 30 years received License in Jurisprudence from Universidad de Monterrey in 1981 Master of Laws LL.M with distinction from Tulane University in 2001 and Doctorate of Laws Ph.D from Tulane University in 2007 true and correct copy of my resume is attached to this Affidavit as Exhibit have taught law in various law schools in Mexico and the United States Since 1983 have held research and teaching positions at several other universities in Mexico and the United States For example have been member of the National Researchers System of 01256 Mexico since 2008 served as Professor of Law and researcher at the Instituto Tecnologico de Estudios Superiores de Monterrey in Mexico 1998-2011 acted as the Head of the Law Department and served as Professor of Law at the Universidad de Monterrey in Mexico 1990- 1993 was Visiting Professor of Law at St Marys University School of Law in San Antonio Texas 1993-1994 and held Adjunct Professor of Law positions at both The Washington College of Law American University Washington D.C Summer 1994 and Universidad Regiomontana in Monterrey Mexico 1983-1985 As professor have taught courses on Comparative International Law Private International Law Public International Law International Business Transactions and the Legal Framework of Doing Business in Mexico others among have maintained law practice since 1980 in various companies and law firms currently practice law at Gabuardi Abogados in Monterrey Mexico since 2004 have also worked as lawyer in the legal department of the World Bank in Washington D.C 1994-1996 and as both Corporate Legal Manager and the Assistant Secretary of the Board of Directors of Grupo Gamesa Mexican manufacturing company 1980-1985 My law practice focuses on Corporate Law Contracts Business Transactions Private International Law as well as in International and Domestic Litigation am member of several legal professional organizations in both Mexico and internationally including the Barra Mexicana de Abogados Colegio de Abogados CapItulo Nuevo Leon the Mexican Bar Association Nuevo Leon Inn where was the Chair of the International and Comparative Law Committee the Colegio de Abogados de Monterrey the Monterrey Bar Association the Academia Nuevo Leonesa de Derecho Mercantil the Nuevo Leon Academy of Commercial Law the Asosiacion Nacional de Abogados de Empresa the 01257 National Association of Corporate Lawyers the External Advisory Board of NAFTA the Law and Business Review of the Americas the Mexican Academy of Private International and Comparative Law Academia MØxicana de Derecho Internacional Privado Comparado the Mexican Association of Private International Law Professors the Asociaein Mexicana de Profesores de Derecho Internacional and the International of Comparative Privado Academy Law also was part of the group that founded the US-Mexico Bar Association and later on served as its Mexican co-chair of the Legal Education Committee Further have served on the Board of the Centre for Regional Advisory Conciliation and Arbitration of St Marys University School of Law San Antonio Texas also co-planned and administered titled Joint Venture Transnational and program Study Training Program for U.S and Mexican Business Lawyers held at the St Marys University School of Law and Universidad de Monterrey 10 During my academic career have published more than 20 academic articles and two books in both Mexico and abroad on topics including Commercial Law and Business Transactions Private International Law and Comparative Law Most recently the Puerto Rico Supreme Court cited my article on forum non conveniens titled Entre Ia jurisdiccin la competencia el forum non conveniens originally published in the BoletIn Mexicano de Derecho Comparado in 2008 in its opinion deciding whether to the common-law incorporate doctrine of forum non conveniens in Puerto Rico IL OPINIONS 11 The first part of the 4l Clause in the Acuerdo Privado Jurisdiction and Mexican Law reads as follows This Agreement is established under the jurisdiction and 01258 laws of the United Mexican States Therefore the parties exclusively submit to the laws of Mexico thus they expressly waive the application of any Law regulation provision or rule of any jurisdiction other than Mexico which might correspond to them due to their residence paternity citizenship domicile kinship or commercial relationship 12 Then as corollary to that provision the parties set forth that as consequence of their submission to the jurisdiction and the laws of Mexico the parties submitted to the courts located in Reynosa Tamaulipas Mexico to hear cases relating to the interpretation disputes or any other aspect related to the Afirme Trust This language ties together the parties choice of law and choice of forum and this linkage makes clear that the choice of forum extends to disputes about the Acuerdo Privado Accordingly any claim by Ms Adriana Longoria Kowaisky to receive payments under the Acuerdo Privado or alternatively to receive payments beyond what the Acuerdo Privado provides for would be subject to the forum selection clause under Mexican Law 13 The 4th clause has second paragraph whereby the parties to the Acuerdo Privado created legal wall barring any intrusion from non-Mexican law regulation or provisions of any sort seeking to impose restrictions or impose performance of acts other than the ones set forth in said instrument ii impose any duties or tax burdens other than those set forth by Mexican Law iii any act of expropriation limitation confiscation re-possession disposal or any sort freezing or any other act which may have an effect on the rights derived from such Acuerdo Privado adding that in any circumstances the jurisdiction and legislation of Mexico shall be applied to such Acuerdo Privado under the terms of the first paragraph of the 4th clause Emphasis added by Affiant 01259 14 This provision shows the parties intent not to seek any provisions from U.S court which would affect the parties rights under the Acuerdo Privado 15 The clause of the Acuerdo Privado fully complies with the Code of Civil Procedure of the State of Tamaulipas which under the of Article 1792 sets forth that authority the only type of jurisdiction territorial jurisdiction is upon which the parties to an agreement may agree 16 There are similar provisions in other Mexican Statutes providing for the possibility of entering into agreements on territorial and Mexican Federal Courts jurisdiction have settled case law on this matter For example an express clause to extend jurisdiction takes place when the parties and waive other which be clearly categorically jurisdictions to they may entitled and designate the court to which they want to be submitted either or through public private document.3 Moreover if defendant submitted himself to the courts of named this city fact is sufficient to to those courts as allowed assign jurisdiction by applicable legislation.4 17 Furthermore the agreement in the 4h clause second paragraph of the Acuerdo Privado imposes on the parties the obligation to refrain themselves an obligation not do Article 179 of Code of Civil Procedure of the State of Tamaulipas Territorial jurisdiction is the only of type upon which the parties to an agreement may agree jurisdiction Question on Jurisdiction 175/81 Controversy between the Second District Court in the State of Morelos and the District Court inthe State of Hidalgo February 29 1984 Majority of three votes Dissenting opinions Gloria LeOn Orantes and Jore Olivera Toro Writer of the Opinion Mariano Azuela Gtitron Clerk Jaime MarroquIn Zaleta Supreme Court of Justice of the Nation Third Chamber Weekly Judicial or the Federation Seventh Epoch Volume 181-186 Fourth Section Page 108 Registry Number 240245 Isolated thesis Subject Matter Civil See Exhibit Question on Jurisdiction 78/84 Controversy between the Fourth Civil Court of the State of Puebla and the Twentieth Civil Court of the Federal District May 30 1985 Five votes Writer of the Opinion Ernesto Diaz Infante Clerk Tarcicio ObregOn Lemus Supreme Court of Justice of the Nation Third Chamber Judicial Weekly or the Federation Seventh Epoch Volume 193-198 Fourth Section Page 31 Registry Number 240103 Isolated thesis Subject Matter Civil Seventh Epoch Report 1985 page 16 Question on Jurisdiction 153/84 Controversy between the Forty Third Civil Court of the Federal District and the Forth Civil Court of First Instance of TorreOn Coahila May 30 1985 Five Votes Writer of the Opinion Ernesto Diaz Infante Clerk Tarcicio Obregn Lemus See Appendix to the Weekly or the Federation Judicial 1917-1985 Ninth Section Thesis 14 page 25 authorized under the heading CIVIL JURISDICTION BY SUBMISSION EXTENSION OF TERRITORIAL JURISDICTION AUTHORIZED BY LAW See Exhibit 01260 from seeking to affect the rights of the Acuerdo Privado based on law outside of Mexico The parties therefore for example not to file lawsuit in Texas of agreed seeking the application Texas law to their rights under the Acuerdo Privado 18 The Supreme Court of Mexico has stated that an obligation not to do something is continuous and enforceable for the parties to an agreement.5 19 If Mr Shelby Longoria is sued upon the basis of the Acuerdo Privado referred to above he may seek the enforcement of the Jurisdiction and Mexican Law clause in such agreement against Ms Adriana Longoria Kowakski based upon the principle set forth in article 12596 of the Civil Code of Tamaulipas that that the to contract are bound not provides rtps only to the contractual terms set forth thereby but also to the ications of the same according to their own nature according to good faith usages and the law declare under penalty of perjury under the laws of the Ettes of America that the foregoing is true and correct FURTHER AFFIANT SAYETH NOT Dr Carlos Alberto Gabuardi Arreola Direct Amparo 67647/58 Juan Bringas Zamora October 14 1959 Five votes Writer of the Opinion Mariano RamIrez VÆzquez Supreme Court of Justice of the Nation Third Chamber Judicial Weekly or the Federation Sixth Epoch Volume XXVIII Fourth Section Page 224 Registry Number 271744 Isolated thesis Subject Matter Civil See Exhibit Article 1259 of the Civil Code of Tamaulipas All contracts are perfected merely by consent unless they required to observe formalities set forth by statute Contracts are binding to the parties thereto since they are perfected and they are bound not only to the contractual terms set forth thereby but also to the implications of the same according to their own nature according to good faith usages and the law 01261 SUBSCRIBED AND SWORN TO BEFORE ME this 13th1 day of January 2015 to certif which witness my hand and seal of office eLkS /11naA4 Notary Public aZ74 State of Printed Name _________________________ My Commission Expires ____________________ 01262 EXHIBIT 01263 Executive Summary Curriculum Vitae Dr Carlos A.Gabuardi Ph.D Dr Carlos Gabuardi Lic Jur LL.M Ph.D is practicing lawyer He holds License In Jurisprudence from Universidad de Monterrey Master of Laws with distinction from of Tulane University and Doctorate of Laws Ph.D from the same university Doctor Gabuardi has published several articles in Law Reviews and Journals in Mexico and abroad He is currently member of the National Researches System with Level Dr Gabuardi was lawyer in the Legal Department of the World Bank Washington D.C Corporate Legal Manager and Assistant Secretary of Grupo Gamesa He was Professor of Law and researcher at the Instituto Tecnolgico de Estudios Superiores de Monterrey Head of the Law Department and Professor of Law at Universidad de Monterrey Visiting Professor of Law St Marys University School of Law San Antonio Texas co-planner and administrator of Venture Transuational and the program Joint Study Training Program for U.S and Mexican Business Lawyers St Marys University School of Law and Universidad de Monterrey Adjunct Professor of Law The Washington College of Law American University Washington D.C Adjunct Professor of Law Universidad Regiomontana Member Regional Advisory Board of the Centre for Conciliation and Arbitration of St Marys University School of Law San Antonio Texas He Is member of the Mexican Bar Association Nuevo Leon inn member of the Monterrey Bar Association Coleglo de Abogados de Manterrey member of the Academia Nuevo Leonesa de Derecho Mercantii The Nuevo Leon Academy of Commercial Law Asoslacin Nacional de Abogados de Empresa A.C National Association of Corporate Lawyers member of the US Mexico Bar Association where he was the Mexican co-Chair of the Legal Education Committee member External Advisory Board de NAFTA Law and Business Review of the Americas member of the Mexican Academy of Private International and Comparative Law member of the Mexican Academy of member of the International Academy of Comparative Law Former President of Province XXVIJJ of the International Legal Fraternity Phi Delta Phi He was member of the Editorial Board of the National Section of the newspaper El Norte Grupo Reforma and he represented Monterrey Tech before the Justice Consortium of the Eurosocial Program and he is also Co-Secretary and numbered member of the Group of the 100 of the Ceter for Legal Innovation Development and Research for Latin-America Garrigues Tec de Monterrey Dr Gabuardi has also produced and conducted los talk-shows The World of Law and the Law in the World Tec 94.9 FM and Law and Justice AW Noticlas 1280 AM Dr Gabuard has taught courses on Comparative Law Private International Law Public International Law and International Business Transactions and The Legal Framework of Doing Business Dr Gabuardis law practice focuses on Corporate Law Contracts Business Transactions as well as on international and Domestic Litigation 01264 EXHIBIT 01265 Jurisdiction Express voluntary extension The clause of the document in which that is written cannot be applied to circumstances other that those set forth by such clause Article 23 of the Federal Code of Civil Procedure sets forth that territorial jurisdiction may be extended by mutual consent of the parties either express or implied voluntary express clause to extend jurisdiction or express extension of jurisdiction as it has been improperly been called takes when the place parties concerned clearly and categorically waive to the jurisdiction to which be they may entitled and accurately designate the court to which they want to be submitted The decision of be stated extending jurisdiction may either in public or private document Now ever since jurisdiction is procedural requirement that is sine qua non requirement to begin valid legal process it is without question that jurisdiction can only be extended when the terms set forth in such extension clause take place cannot be that the court to It accepted is empowered arbitrarily apply such clause to circumstances different those included the would that in same because that create procedural uncertainty and would trigger larger number of disputes on jurisdictional issues Question on Jurisdiction 175/81 Controversy between the Second District Court in the State of Morelos and the District Court in the State of Hidalgo February 29 1984 Majority of three votes Dissenting opinions Gloria Leon Orantes and Jore Olivera Toro Writer of the Opinion Mariano Azuela Gtlitron Clerk Jaime Marroquin Zaleta Supreme Court of Justice of the Nation Third Chamber Judicial Weekly or the Federation Seventh Epoch Volume 181-186 Fourth Section Page 108 Registry Number 240245 Isolated thesis Subject Matter Civil 01266 Suprema Corte de Justicia de Ia Nacin SØptima Epoca NUm de Registro 240245 Instancia Tercera Sala Tesis Aislada Fuente Semanario Judicial de Ia FederaciOn Volumen 181-186 Cuarta Parte Materias Civil Tesis PÆgina 108 COMPETENCIA PRORROGA VOLUNTARIA EXPRESA LA CLAUSULA DEL DOCUMENTO EN EL QUE SE HAGA CONSTAR NO PUEDE APLICARSE SUPUESTOS NO PREVISTOS EN ELLA El artIculo 23 del Cdigo Federal de Procedimientos Civiles dispone Ia competencia territorial que es prorrogable por mutuo consentimiento de las partes expreso tÆcito La prrroga de competencia voluntaria expresa prrroga de jurisdiccin coma impropiamente se le expresa llama tiene lugar cuando los interesados renuncian clara terminantemente at fuero que Ia ley les concede designan con toda precision al juez quien se someten Esta decisiOn de Ia prorrogar competencia puede hacerse constar en instrumento piblico privado Ahora bien como Ia competencia es un presupuesto procesal es decir un requisito sin el cual no puede iniciarse ni desenvolverse vlidamente un proceso es inconcuso que Ia misma no puede tenerse par prorrogacla en forma expresa sino cuando se actualicen los supuestos previstos par los interesados en Ia clusula del documento en que acordaron prOrroga Na es posible aceptar que es facultad del juzgador Ia de aplicar su arbitrio dicha clÆusula casos distintos de los mencionen en que Pa misma pues ello crearla una situaciOn de incertidumbre procesal darla pie al planteamiento de un mayor niimero de conflictos competenciales Competencia 175/81 Suscitada entre los Jueces Segundo de Distrito en el Estado de Morelos de Distrito en el Estado de Hidalgo 29 de febrero de 1984 MayorIa de tres votos Disidentes Gloria Leon Orantes Jorge Olivera Toro Ponente Mariano Azuela GQitrn Secretario Jaime MarroquIn Zaleta 01267 EXHIBIT 01268 Civil Jurisdiction by Submission Extension of Territorial Jurisdiction Authorized by Law If the defendant submitted himself to the courts of named in the event of breach city of any of the obligations entered into Deed of Mortgage this fact is sufficient to assign jurisdiction to given court if the of the courts legislation competing acknowledge the principle the it is court of competent the one to which jurisdiction the parties submitted themselves expressly or impliedly when that jurisdiction can be waived principle which is applicable if there was an extension of territorial jurisdiction as authorized by the law Question on Jurisdiction 78/84 Controversy between the Fourth Civil Court of the State of Puebla and the Twentieth Civil Court of the Federal District 1985 May 30 Five votes Writer of the Opinion Emesto Diaz Infante Clerk Tarcicio Obregon Lemus Supreme Court of Justice of the Nation Third Chamber Judicial Weekly or the Federation Seventh Epoch Volume 193-198 Fourth Section Page 31 Registry Number 240103 Isolated thesis Subject Matter Civil Seventh Epoch Report 1985 page 16 Question on Jurisdiction 153/84 Controversy between the Forty Third Civil Court of the Federal District and the Forth Civil Court of First Instance of TorreOn Coahila May 30 1985 Five Votes Writer of the Opinion Ernesto Diaz Infante Clerk Tarcicio Obregn Lemus See Appendix to the Judicial Weekly or the Federation 1917-1985 Ninth Section Thesis 14 page 25 authorized under the heading CIVIL JURISDICTION BY SUBMISSION EXTENSION OF TERRITORIAL JURISDICTION AUTHORIZED BY LAW. 01269 Suprema Corte de Justicia de Ia Nacin SØptima Epoca Nm de Registro 240103 Instancia Tercera Sala Tesis Aislada Fuente Semanario Judicial de Ia Federacin Volumen 193-198 Cuarta Parte Materias Civil Tesis PÆgina 31 COMPETENCIA CIVIL POR SUMISION PRORROGA DE LA COMPETENCIA TERRITORIAL AUTORIZADA POR LA LEY Si Ia demandada se sometl los tribunales de una ciudad para el caso de incumplimiento de alguna de las obllgaciones contraidas en una escritura de hipoteca esta circunstancia basta establecer para Ia competencia silas legislaciones de los Estados cuyos Jueces compiten reconocen el de principio que es Juez competente aquØl aI que los litigantes se hubieren sometido expresa tÆcitamente cuando se trate de fuero renunciable tiene hubo de principio que aplicacin si prrroga competencia territorial autorizado por Ia ley Competencia civil 78/84 Suscitada entre los Jueces Cuarto de lo Civil de Puebla Puebla VigØsimo de lo Civil del Distrito Federal 30 de mayo de 1985 Cinco votos Ponente Ernesto DIaz Infante Secretario Tarcicio Obregn Lemus SØptima Epoca Iriforme 1985 pÆgina 16 Competencia 153/84 Suscitada entre los Jueces CuadragØsimo Tercero de lo Civil del D.F Cuarto de Primera Instancia de lo Civil de Torren CoahuUa 30 de de 1985 mayo Cinco votos Ponente Ernesto DIaz Infante Secretario Tarcicio Obregon Lemus VØase ApØndice al Semanario Judicial de Federacin 1917-1985 Novena Parte tesis 14 pÆgina 25 bajo el rubro COMPETENCIA CIVIL POR SUMISION PRORROGA DE LA COMPETENCIA TERRITORIAL AUTORIZADA POR LA LEY. 01270 EXHIBIT 01271 Obligations not to do Value of the same An obligation not to do is continuous its value is valued by the harm damages caused by its infringement because under article 2028 of the Civil Code it is set forth that the one who is obligated not to do something shall be subject to the payment of the harm and damages caused by its breach and if there is material the creditor construction may require that such construction be destroyed at the cost of the party that caused the breach therefore when the defendant fail to comply with its main obligation not to compete with plaintiff in selling milk products within given time frame the value of the main obligation is represented by the damages that was caused that is that is the privation of the benefit profit or gain that caused the unfair competition value that should be considered as the basis to quanti1y the in the penalty agreed upon third clause of the contract which the cause of action based not upon is Therefore it is accurate that in the obligations not to do there is no principal obligation refraining such conducts is the cause of the agreement and it reason to exist in this additionally case the party to the agreed clause was entered with or of independence authonomy the agreement for the dissolution and liquidation of the company and that is the best evidence that the amount of capital stock is not the value of the main obligation Direct Amparo 67647/58 Juan Bringas Zamora October 14 1959 Five votes Writer of the Opinion Mariano RamIrez VÆzquez Supreme Court of Justice of the Nation Third Chamber Judicial Weekly or the Federation Sixth Epoch Volume XXVIII Fourth Section Page 224 Registry Number 271744 Isolated thesis Subject Matter Civil 01272 Suprema Corte de Justicia de Ia Nacin Sexta Epoca Nm de Registro 271744 Instancia Tercera Sala Tesis Aislada Fuente Semanario Judicial de Ia FederaciOn Volumen XXVIII Cuarta Parte Materias Civil Tesis PÆgina 224 OBLIGAC1ONES DE NO HACER VALOR DE LAS La obligacin de no hacer es de tracto sucesivo su valor es el daæo se causa con perjuiclo que el hacer correlativo pues el articulo 2028 del Cdigo Civil establece el estuviere no que que obligado hacer alguna cosa quedar sujeto al pago de daIios perjuicios en caso de contravencin si hubiere obra material podrÆ el acreedor sea destruida costa del exigir que obligado por tanto cuando el demandado falt al cumplimiento de Ia obligacion principal de no competir al actor en Ia yenta de productos lÆcteos dentro de cierto plazo el valor de Ia estÆ obligacin principal representado por el del perjuicio que le caus sea Ia privacin del beneficio utilidad lucro le que ocasion con competencia desleal mismo valor debe servir de base para cuantificacln de Ia que Ia pena convencional pactada en Ia clÆusula tercera del contrato fundatorlo de Ia accin Consiguientemente no es exacto que en las obligaciones de no hacer no existe obllgacln principal los actos de abstencin son el mvil del pacto razOn de su adems en Ia existencia Ia especie Ia pactada pudo celebrarse con independencia autonomla del convenio de disolucin liquidacin de Ia sociedad esto es Ia mejor evidencia de que el monto del capital social no es el valor de Ia obligacion principal Amparo directo 6764/58 Juan Bringas Zamora 14 de octubre de 1959 Cinco votos Ponente Mariano RamIrez VÆzquez 01273 EXHIBIT 01274 CASE NUMBER 414270 IN THE ESTATE OF IN PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA TO THE HONORABLE JUDGE OF THIS COURT COMES NOW Adriana Longoria as Counter-Plaintiff and pleads the following amended counterclaims in response to Shelby Longorias Second Amended Contest of2O 10 Will or filed any subsequently pleading making the same or similar allegations against Adriana Longoria and states the following causes of action against Shelby Longoria as Counter-Defendant The Parties Counter-Plaintiff Adriana Longoria Adriana or Counter-Plaintiff is an individual who resides in Harris County Texas Counter-Defendant Shelby Longoria Shelby or Counter-Defendant is an individual who resides in Hidalgo County Texas Counter-Defendant commenced this action and has appeared through counsel herein so this pleading be served on him may through his attorneys of record Jurisdiction Pursuant to Subsection of the 32.001b Texas Estates Codes and other applicable law the Court has jurisdiction over the subject matter of this civil action The FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 01275 exercise of pendent and ancillary jurisdiction over these counterclaims is necessary to promote judicial efficiency and economy The Court has in personam jurisdiction over Counter-Defendant Shelby Longoria by virtue ofhis filing on June 182013 of Shelby Longorias Contest of 2010 Will and his subsequent of amendments thereto filing In addition general personal jurisdiction exists because has had Shelby Longoria Continuous and systematic contacts with the State of Texas and specific personal jurisdiction exists because this action arises out of contacts by Shelby Longoria with the State of Texas as explained below Venue Pursuant to Sections 33.002 and 33003 of the Texas Estates Code the venue of this action is proper Conditions Precedent All conditions precedent to Counter-Plaintiffs rights to plead and to prosecute these counterclaims and the to recover relief requested herein have occurred or been fulfilled Facts Applicable to All Causes of Action1 On 1942 July Eduardo Longoria Eluardo also known as Eduardo Longoria Theriot and Louise Kowaiski Dorothy Dorothy were married in the City of Laredo in Webb County Texas This petition does not recite every fact on which the Counter-Plaintiffs claims are based It is intended only to be short statement of the cause of action sufficient to give fair notice of the claim involved as required by TEx Civ P.47 FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGOR Page 01276 When they were married Dorothy was citizen of the United States of America and Eduardo was of the United citizen Mexican States Mexico but he had been in the United living States and after the wedding the couple initially settled in McAllen Texas The marriage of Eduardo and was Dorothy subject to the laws of the State of Texas including the law of community property 10 Eduardo and Dorothy had four children all of whom are living Their names are Adriana Longoria Adriana who is Counter-Plaintiff herein Eduardo Longoria Jr also known as Wayo Longoria Wayo Sylvia Dorsey Sylvia Shelby Longoria Shelby who is Counter-Defendant herein 11 Eduardo and Dorothy amassed considerable wealth through variety of business activities and investments 12 In the 1970s Shelby began to work in his businesses parents and he quickly gained control of them 13 After he gained control of the family businesses and investments Shelby controlled his parents flow of money by restricting the to them even putting them on an allowance and regulating it and them strictly by deceiving concerning the status of their businesses and investments over which he had complete control FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 01277 14 Shelby also manipulated his parents with respect to their estate and planning he induced them to enter into various transactions which were shrewdly calculated by Shelby to reduce the amounts to be inherited by each of Shelbys siblings and to increase his own share 15 On or about December 17 2002 Shelby induced Eduardo to enter into contract entitled Acuerdo Privada or Private Agreement with Adriana Although the Private Agreement does not state that it includes all of the financial benefits that Adriana would ever receive from her father Shelby fraudulently induced Eduardo to believe that the amounts to be paid under the Private Agreement would be fair allocation of his estate as far as Adriana was concerned The truth however was that the amounts contemplated by the Private Agreement would even if paid in full represent only tiny fraction of the value of Eduardos estate Moreover Shelby knew that ultimately he would have the raw terminate the payments Adriana should he choose do power to to to so and that she probably would lack the resources necessary to seek redress for such action 16 According to the terms of the Private Agreement Adriana was to receive $150000 per year in monthly installments of $12500 until she had received total of $2069100 plus interest thereon to be calculated at rate equal to 75 percent of theprime rate published by the Wall Street Journal and with all sums expressed and to be paid in currency of the United States 17 Shelby was not signatory party to the Private Agreement FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONOORIA Page 01278 18 Shelby was however named in the Private Agreement as an individual who was responsible to see that the required payments to Adriana were made by the Mexican businesses and Shelby did in fact control the businesses that generated the cash flow that was supposed to be used to make payments under the Private Agreement 19 Shelby expressly assumed the contractual obligation to cause the payments to be made and for some time Shelby caused payments to be made to Adriana but he did so fraudulently as explained below 19 The Private Agreement created trust relationship and it identified Shelby as person who was to serve in the role of trustee i.e managing certain property the Mexican businesses and their cash flow of another for the benefit Adriana Shelby accepted this role and thereby assumed fiduciary responsibility to perform the Private Agreement 20 Instead ofperforming his contractual and fiduciary duty to cause the businesses to pay the amounts owed to Adriana pursuant to the Private Agreement Shelby used his fathers money to make payments to Adriana After his father died Shelby used his mothers money to make payments to Adriana Shelby knew that Dorothy intended for Adriana to inherit some of Dorothys he both defrauded and money so Dorothy interfered with Adrianas inheritance rights by using Dorothys money supposedly to satisfy contractual obligations under the Private Agreementwhich was not signed by Dorothy and indeed does not even mention Dorothy 21 Eduardo died on January 26 2005 in Webb County Texas FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 01279 22 After the death of Eduardo Shelby continued to cause payments to be made to Adriana but he did so deceitfully using Dorothys money to make the payments instead ofusing the cash flow of the Mexican businesses as contemplated by the Private Agreement 23 Shelby has lived in Texas since 1979 and he was living in Texas when the Private Agreement was made 24 Adriana and Eduardo also lived in Texas when the Private Agreement was made and thereafter 25 Shelby and Adriana had an informal fiduciary relationship under which Shelby had fiduciary duty to see that Adriana received the payments contemplated by the Private Agreement The informal fiduciary relationship between Shelby and Adriana arose in Texas pursuant to Texas law 26 Shelby and Adriana also had an express fiduciary relationship arising under the Private Agreement 27 In or around October 2010 Shelby caused the payments to Adriana to cease 28 Shelby did so with malice toward Adriana based on grudge against her and without legal justification or excuse 29 Shelby caused further harm to Adriana in 2012 shortly after their mother died on April of that year by breaching contractual obligation of which Adriana was third party beneficiary 30 The obligation was set forth in an agreement dated October 2007 between Shelby and Dorothy The agreement was in the form of letter which Shelby sent from his FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 01280 home in McAllen Texas to Dorothy at her residence in Houston Texas and which Dorothy then signed In the agreement Shelby specifically promised that within thirty days after Dorothy died he would pay $100000 to Sylvia and $100000 to Adriana Adriana was third-party beneficiary of the October 2007 contract between Shelby and Dorothy 32 Upon Dorothys death Shelby repudiated and breached his contractual obligation to pay $100000 to Adriana While he did tender to Adriana check for $100000 he had printed on the check language that if the check was negotiated would have resulted in release of among other things all obligations which Shelby Longoria may have or is claimed to have to the estate of Dorothy Longoria or any beneficiary thereof 33 Shelby had no right to impose such self-serving conditions and he did so maliciously as he knew that Adriana was beneficiary of Dorothys estate and that he had obligations to Adriana 34 Shelby knew that Dorothy intended for her daughters to receive her entire estate so he manipulated Dorothy to enter into various transactions which were designed to benefit Shelby and to reduce the value of Dorothys estate Respoudeat Superior 35 Whenever it is alleged herein that Shelby acted or communicated in any fashion then such allegation should be taken to mean That Shelby himself took such action or made such communication or in the alternative FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 01281 That duly authorized agent of Shelby took such action or made such communication on behalf of Shelby and in the course and scope of the agency or in the alternative That such action or communication was by one having apparent authority to do so on behalf of Shelby or in the alternative That Shelby ratified and adopted such action or communication as its own and thereby became legally responsible for it Statement Pursuant to Rule 47 of the Texas Rules of Civil Procedure 36 Adriana seeks monetary relief over $1000000 First Cause of Action Tortious Intererence with Inheritance Rights 37 Adriana repeats and incorporates by reference all of the foregoing averments If averment is inconsistent with this cause of action the averment is pleaded in the any alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 38 Shelby tortiously interfered with Adrianas inheritance rights 39 The tortious interference by Shelby proximately caused compensable harm to Adriana Under Texas law Adriana is entitled to and hereby requests entry ofjudgment for actual damages in an amount to be determined by the trier of fact in against Shelby accordance with Texas law 40 The tortious interference by Shelby was committed with malice as that term is defined in Chapter 41 of the Texas Civil Practice and Remedies Code Under Texas law FIRST AMENDED COUNTERCLAIMS OF ADPJANA LONGORIA Page 01282 Adriana is entitled to and of judgment against hereby requests entry Shelby for exemplary damages in an amount to be determined by the trier of fact accordance in with Texas law 41 Anticipating that Shelby will plead the defense of limitations in to this response cause of action Adriana pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes of any application statute of limitations because this counterclaim arises out of the same transactions or occurrences or least one at if not more of the same transactions or that occurrences are the subject matter of Shelbys claim against Adriana and this counterclaim does not require for its the adjudication presence of third parties of whom the court cannot acquire jurisdiction Second Cause of Action Breaches of Fiduciary Duty 42 Adriana repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 43 Under Texas law Shelby breached his fiduciary Adriana duty to by inter al/a maliciously causing the monthly payments to her to cease because of held grudge by him and asserting fraudulent excuse for the cessation of the monthly payments 44 The breaches of fiduciary duty by Shelby proximately caused compensable harm to Adriana Under Texas law Adriana entitled and is to hereby requests entry of judgment against Shelby for actual damages in an amount to be determined of by the trier fact in accordance with Texas law FIRST AMENDED COUNTERCLAIMS OF ADRJIANA LONGORIA Page 01283 45 The breaches of fiduciary duty by Shelby constituted fraud and were committed with malice as those terms are defined in Chapter 41 of the Texas Civil Practice and Remedies Code Under Texas law Adriana is entitled to and hereby requests entry of judgment against Shelby for exemplary damages in an amount to be determined by the trier of fact in accordance with Texas law 46 Pursuant to Section 114.064 of the Texas Trust Code and other applicable law Adriana is entitled to an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action 47 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Adriana pleads that Section 16.069 ofthe Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations because this counterclaim arises out of the same transactions or occurrences or at least one if not more of the same transactions or occurrences that are the subject matter of Shelbys claim against Adriana and this counterclaim does not require for its adjudication the of third presence parties of whom the court cannot acquire jurisdiction Third Cause of Action Tortious Interference with Contract 48 Adriana repeats and incorporates by reference all of the foregoing averrnents If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 49 Shelby tortiously interfered with the performance of the Private Agreement between Eduardo and Adriana FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORTA Page 10 01284 50 The tortious interference by Shelby proximately caused compensable harm to Adriana Under Texas law Adriana is entitled to and hereby requests entry of judgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law 51 The tortious interference by Shelby was committed with malice as that term is defined in Chapter 41 of the Texas Civil Practice and Remedies Code Under Texas law Adriana is entitled to and hereby requests entry of judgment against Shelby for exemplary damages in an amount to be determined by the trier of fact in accordance with Texas law 52 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Adriana pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations because this counterclaim arises out of the same transactions or occurrences or at least one if not more of the same transactions or occurrences that are the subject matter of Shelbys claim against Adriana and this counterclaim does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Fourth Cause of Action Breach of Contractual Obligation To Perform Private Agreement 53 Adriana repeats and incorporates by reference all of the foregoing averments If averment inconsistent with this cause of action the averment is pleaded in the any is alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 54 Shelby assumed the contractual obligation to cause the Mexican businesses to make the payments owed to Adriana under the Private Agreement FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 11 01285 55 Shelby breached his obligations under the Private Agreement first by using Eduardos money to make payments that should have been thade by the businesses then by using Dorothys money to make payments that should have been made by the businesses and finally by cutting off all payments entirely 56 The breaches by Shelby proximately caused compensable harm to Adriana Under Texas law Adriana is entitled to and hereby requests entry of judgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law 57 It was both reasonable and necessary for Adriana to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable law Adriana is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Fifth Cause of Action Breach of Promise To Pay $100000 to Adriana 58 Adriana repeats and incorporates by reference all of the foregoing averments If averment is inconsistent with this cause of action the averment is pleaded in the any alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 59 In the agreement dated October 2007 Shelby promised Dorothy that within thirty days of her death he would pay $100000 to Adriana This promise was made by while he was in Texas and was directed to Dorothy at her residence in Shelby residing it Houston Texas Adriana was third-party beneficiary of the promise made by Shelby to FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 12 01286 Dorothy Shelby breached his promise to Dorothy by tendering to Adriana check that she could not negotiate without her waiving rights in Dorothys estate and her rights against Shelby He had no right to impose such self-serving conditions 60 Based on the doctrines ofbreach-of-contract promissory estoppel and money- had-and-received under Texas law Adriana is entitled and to hereby requests of entry judgment against Shelby for $100000 in accordance with Texas law 61 It was both reasonable and for necessary Adriana to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Adriana entitled is to and hereby requests an award of attorney fees including litigation expenses reasonably and incurred necessarily in connection with this action Prayer for Relief WHEREFORE PREMISES CONSIDERED Counter-Plaintiff Adriana Longoria prays that upon due notice and by jury trial or upon hearing on motion for entry of default judgment or motion for the Court render judgment for her and summary judgment against Counter-Defendant Shelby Longoria awarding the following relief under Texas law an award of actual damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law an award of exemplary damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact accordance in with Texas law FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 13 01287 an award of fees attorney including litigation expenses reasonably and necessarily incurred by Counter-Plaintiff in connection with her fourth cause of action under Texas law an award of prejudgment interest on all actual damages at the rate highest authorized by Texas law to the date of judgment an award of all costs incurred by Counter-Plaintiff in the course of preparing and prosecuting this civil action an award of postjudgment interest on all relief the monetary at highest rate authorized by Texas law from the date of judgment until paid all writs and processes to collect the necessary judgment and all other relief to which Counter-Plaintiff is entitled under Texas law or which may deem the Court appropriate under the circumstances and applicable Texas law Any inconsistent allegations or prayers for relief are in the pleaded alternative as expressly authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure Reservation of Rights To Amend and To Supplement This Pleading Adriana presently does not know of the specific all acts and omissions that caused harm to her or all of the relevant circumstances surrounding such acts and she omissions so that anticipates it may be necessary to plead additional causes of action after is discovery conducted Accordingly Adriana hereby reserves the rights to amend and to supplement this pleading FIRST AMENDED COUNTERCLAIMS OF ADRJANA LONGORIA Page 14 01288 DATED December11 2014 Respectfully submitted /s/ James Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 Shannon L.K Welch State Bar of Texas Number 90001699 FISHER WELCH Professional Corporation Ross Tower Suite 2800 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Facsimile 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 THE HOLMES LAW FmM 10000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9267 Facsimile 214.890.9295 ATTORNEYS FOR COUNTER-PLAINTIFF ADRIANA LONGORIA FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 15 01289 CERTIFICATE OF SERVICE hereby certify that on December 11 2014 true and correct copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schiemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 BY EMAIL TO jcarter@susmangodfrey.com rhess@susrnangodfrey corn and kschlernmer@susrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO rnacintyre@rnrnlawtexas.com /s/.James Austin Fisher James Austin Fisher FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA Page 16 01290 EXHIBIT 01291 VOLUME II ADRIANA LONGORIA 8/26/2014 Page 144 NO 414270 IN THE ESTATE OF IN THE PROBATE COURT DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS ORAL AND VIDEOTAPED DEPOSITION OF ADRIANA LONGORIA AUGUST 26 2014 VOL UME II ORAL AND VIDEOTAPED LEPOSITION OF ADRIANA LONGORIA produced as witness at the instance of Counsel for She....by Longoria and duly sworn was taJen in the abovestyled and numbered cause on the 26th of August 2014 from 208 p.m to 449 p.m before AMY PRIGMORE CSR in and for the State of Texas reported by stenographic means at the offices of SUSMAN GODFREY LLP 1000 Louisiana Suite 500 Houston Texas pursuant to th.e Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto MERRILL CORPORATION HOUSTON 1-888-513-9800 WWW.MERRILLCORP.COM/LAW 01292 VOLUME II ADRIANA LONGORIA 8/26/2014 Page 200 This is the one we signed at dinnertime It was his birthday October And you see the first clause it says The parties recognize the validity and scope of the trust Do you see that The paragraph right before the $3 million to you Uh-huh Okay So back in 2002 in October you say 10 on your fathers birthday you executed an agreement 11 that affirms the validity and the scope of this trust referenced in the document right 13 MR FISHER Objection form 14 BY MR HESS Your answer 15 nell was not able to read it before 16 signed it 17 All right Obviously you didnt sign 18 Exhibit 102 but you signed Exhibit 103 the 19 Spanish language one 20 Yes 21 And when you say you were riot able to read 22 it youre not telling me that youre incapable of 23 reading it right 24 No was saying it was too brief amount of 25 time MERRILL CORPORATION HOUSTON 1-888-51 3-9800 WWW.MERRILLCORP.COM/LAW 01293 VOLUME II ADRIANA LONGORIA 8/26/2014 Page 201 You feel today that you didnt have enough time to read Exhibit 103 before you signed it Yes You dont dispute that you did sign it dont dispute that did sign it You dont dispute that you could have had the opportunity to read it whenever you wanted No They they were picked up then and there 10 see Do you recognize this is the 11 by which youve been paid -- agreement 12 Yes do 13 -- an allowance 14 Yes do 15 every month every year between 16 As had all the years prior in my life 17 MR FISHER You didnt let him 18 finish the question so you dont even know what 19 you were answering 20 BY MR HESS You dont even know what 21 was asking 22 No dont am so terribly sorry 23 Thats all right 24 suppose Ill leave here renegade 25 Just try to do better MERRILL CORPORATION HOUSTON 18885139800 WW.MERRILLCORP COM/LAW 01294 VOLUME II ADRIANA LONGORIA 8/26/2014 Page 202 will truly. You signed an agreement Yes -- in 2002 And under the terms of that agreement you have been paid an allowance monthly all way up until October 2010 Yes Are you claiming that this agreement is somehow invalid 10 No 11 Okay This is valid agreement that you 12 signed and which your father signed 13 Witness nods head 14 MR FISHER Objection form 15 BY MR HESS You nodded before Mr Fisher 16 objected 17 But what is your answer anyway out loud 18 What see here on the paper is my signature 19 and my fathervs signature 20 While you may have some complaints today 21 that you wish you had more time to read it you 22 dont dispute that you signed it and that youve 23 been paid pursuant to this agreement up until 24 October 2010 25 did not know what was written on MERRILL CORPORATION HOUSTON 1888-5139800 WWW.MERRILLCORP.COM/LAW 01295 VOLUME Ii ADRIANA LONGORIA 6/26/2014 Page 203 these pages And almost feel that my father at that time as you can see his signature was quite ill You dont dispute No -- that you signed it and that youve been to this agreement all the way up to paid pursuant 2010 Let me say that do 10 -- right 11 -- not know where those payments came from 12 were they the same payments from the trus hat 13 had been paid for for 50 years monthly 14 When got my morley got it in my account 15 like had been for 50 years prior Are going to turn around and give all 16 you 17 that money back if this agreement is invalid 18 have no money Ive spent it the bottom of 19 Well look at page MR FISHER Which exhibit 20 21 MR HESS Exhibit 102 22 BY MR HESS Where it says The balance 23 to be delivered to Adriana Longoria Kowalski in 24 terms of previous paragraph amounts to 2069100 25 And it carries over onto the second page MERRILL CORPORATION HOUSTON WWW.MERRILLCORP.COM/LAW 1-8885139800 01296 VOLUME II ADRIANA LONGORIA 8/26/2014 Page 234 STATE OF TEXAS COUNTY OF HARRIS Amy Prigmore Texas CSR No 3929 do hereby certify That the foregoing deposition of ADRIANA LONGORIA was taken before me at the time and place herein set forth at which time the witness was put under oath by me That the testimony of the witness made at the 10 time of the examination were recorded 11 stenographically by me were thereafter transcribed 12 under my direction and supervision and that the 13 foregoing is true record of same 14 further certify that am neither counsel 15 for nor related to any party to said action nor in 16 any way interested in the outcome thereof 17 In witness whereof have subscribed my 18 name this the day of 2014 ____ ANY IGMOR Texas CSR 3929 22 Expiration Date 12/31/14 MERRILL CORPORTION 23 315 Capitol Street Suite 210 Houston Texas 77093 24 Firm No 210 25 MERRILL CORPORATION HOUSTON 1-888-513-9800 WWW.MERRILLCORP.COM/LAW 01297 EXHIBIT 01298 Case Number 414270 IN THE ESTATE OF IN THE PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS Affidavit of Johnny Carter in Support of Shelby Longorias Motion to Dismiss Adriana Longorias Claims Johnny Carter declare as follows My name is Johnny Carter am over the age of twenty-one 21 years am to testify to the matters stated herein have personal knowledge of the facts and competent statements in this declaration and each of the facts and statements is true and correct am an attorney in the law firm of Susman Godfrey L.L.P am licensed to practice law in the state of Texas and before this Court am counsel of record for Shelby Longoria in the above-referenced litigation Attached as Exhibit is true and correct copy of document dated December 17 2002 titled Acuerdo Privado Attached as Exhibit 2A is true and correct copy of certified translation of the Acuerdo Privado Attached as Exhibit is true and correct copy of document dated October 15 2002 titled Banca Afirme Fideicomiso No 194-2 Attached as Exhibit 3A is true and correct copy of certified translation of Banca Afirme Fideicomiso No 194-2 Attached as Exhibit is true and correct copy of the First Amended Counterclaims of Adriana Longoria 3498307v 1/0 13774 01299 Attached as Exhibit is true and correct copy of excerpts from the deposition of Adriana Longoria FURTHER AFFIANT SAITH NOT Jhny7 Carter SUBSCRIBED AND SWORN TO BEFORE ME Notary Public by Johnny Carter which witness hand on this 14th day of January 2015 to certify my official and seal of office Notary Public in and for the State CElIA HERNANDEZ State of Texas Notary Public Commission Expires 11-10-2018 My Commission Expires. 3498307v 1/0 13774 01300 CASE NUMBER 414.270 IN THE ESTATE OF PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS RESPONSE OF AD1UANA LONGORIA TO SHELBY LONGORLAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS TO THE HONORABLE JUDGE OF THIS COURT Adriana Longoria Adriana hereby timely responds to Shelby Longoria Motion to Dismiss Adriana Longorias Claims the Motion To Dismiss SUMMARY OF RESPONSE The Motion To Dismiss should be denied for four reasons First the Motion To Dismiss is based on forum-selection clause that by its express terms does not apply to Adrianas counterclaims Second the forum-selection clause is unreasonable and unjust in light of the pre existing fiduciary relationship of the parties where the agreement was made where the parties resided and the manifest unacceptability of the specified forum Third the forum-selection clause is unenforceable because it was procured through fraud and overreaching by Shelby Longoria Shelby Fourth by litigating Adriana counterclaims in this Court for year without invoking the forum-selection clause Shelby waived his alleged right to do so RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 01301 EVIDENCE SUPPORTING THIS RESPONSE Adriana hereby offers the following evidence in support of her response The Affidavit of Adriana Longoria which affidavit is Exhibit to this response and is incorporated herein by reference Exhibit to that affidavit letter dated October 22 2010 from Carolyn Beckett to Adriana is not offered to prove the truth of the assertions therein except for one passage quoted below The Affidavit of James Austin Fisher Fisher Affidavit which affidavit is Exhibit to this response and is incorporated herein by reference Exhibits through to that affidavit excerpts of depositions and responses to written discovery requests in this case are not offered to prove the truth of any assertions therein but to prove what positions were taken and more importantly what position was not taken by Shelby for full year after Adriana pleaded her counterclaims against him The only exception is the deposition testimony of Shelby that he was the one that was instrumental in getting the money sent Adriana in order to comply with dads wishes That testimony is offered to prove the truth of the facts admitted by him The Affidavit of han Rosenberg Rosenberg Affidavit which affidavit is Exhibit to this response and is incorporated herein by reference The affidavit of Ilan Rosenberg was originally filed herein on September 30 2013 Exhibit to this response is true and correct copy of it RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGOPJAS CLAIMS Page 01302 In addition Adriana hereby requests that the Court take judicial notice of the contents and the date of filing of each of the following pleadings Original Counterclaims of Adriana Longoria submitted for electronic filing on January 2014 but not file-stamped until January 2014 due to technical failure Counter-Defendant Shelby Longorias Answer to Original Counterclaims of Adriana Longoria filed on January 21 2014 First Amended Counterclaims of Adriana Longoria filed on December 11 2014 Counter-Defendant Shelby Longorias Answer to First Amended Counterclaims of Adriana Longoria filed on January 20 2015 Second Amended Counterclaims of Adriana Longoria filed on February 2015 OBJECTIONS TO EVIDENCE ATTACHED TO MOTION TO DISMISS Adriana hereby objects to the Affidavit of Dr Carlos Gabuardi which is attached to the Motion To Dismiss as Exhibit Paragraph subparagraphs and and paragraphs 11-19 of that affidavit contain opinions about the meaning and legal effect of ordinary terms of contract Adriana to each of them individually and separately because the objects construction of ordinary contractual terms is matter of law for the Court and the parol alters the terms of written evidence rule prohibits admission of extrinsic evidence that contract see David Sacks P.C Haden 266 S.W.3d 447 451 Tex 2008 citing RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 01303 Rincones Windberg 705 S.W.2d 846 849 Tex App Austin 1986 no writ or that renders them ambiguous Americo Lfe Inc Meyer 440 S.W.3d 18 22 Tex 2014 the parol evidence rule precludes considering evidence that would render contract ambiguous when the document on its face is capable of definite legal meaning Sun Oil Co citing Del Madeley 626 .W.2d 726 731-32 Tex 1981 The remainder of the Affidavit of Dr Carlos Gabuardi is by itself irrelevant Accordingly Adriana requests that these objections be sustained and that the Affidavit of Dr Carlos Gabuardi be stricken and disregarded Adriana also hereby objects to Exhibits and 3A which are attached to the Motion To Dismiss on the ground that they are not authenticated See TEx EvID 602 90 1a Those exhibits are referenced in Exhibit the Affidavit of Johnny Carter in Support of Shelby Longorias Motion to Dismiss Adriana Longorias Claims but the affiant is merely an attorney for Shelby in this proceeding He does not testify that Exhibit is true and correct copy of the original Nor does he testify that he has personal knowledge of the execution or terms of the original Exhibit 3A is merely translation of Exhibit so Exhibit 3A can have no better claim of authenticity than Exhibit Consequently Adriana requests that Exhibits and 3A be stricken and disregarded RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADPJANA LONGORIAS CLAIMS Page 01304 ARGUMENT AND AUTHORITIES There are four reasons why the Motion To Dismiss must be denied as matter of law Each is independent of the others and each by itself requires denial The Forum-Selection Clause Does Not Apply to Adrianas Claims The Forum-Selection Clause Applies Only to Litigation Regarding Certain Trust Not Litigation Regarding the Private Agreement The Private Agreement does indeed contain forum-selection clause but the clause does not say what Shelby wants it to say logical first step in the analysis would be to identif the forum-selection clause in question but the Motion To Dismiss never does so Instead Shelby argues at length about other contractual provisions such as choice-of-law provisions which do not speak to the question of where lawsuits may be brought The one and only forum-selection provision in the Private Agreement is the third sentence of the first paragraph of the Fourth clause of the Private Agreement To avoid being accused of taking that one sentence out of context we quote the entire paragraph in which it appears This Agreement is established under the jurisdiction and laws of the United Mexican States Therefore the parties exclusively submit to the laws of Mexico thus they expressly waive application of any law regulation provision or rule of any jurisdiction other than Mexico which might correspond to them due to their residence paternity citizenship domicile kinship or commercial relationship Therefore in the event of any or any aspect related to this Trust they interpretation dispute submit to the courts of the city of Reynosa expressly Tamaulipas Mexico RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 01305 Emphasis added Only the italicized sentence is forum-selection provision There is no other in the Private Agreement This forum-selection clause simply does not say that lawsuit to enforce right conferred by the Private Agreement must be brought in Reynosa Rather it says that the parties submitted to the courts of Reynosa with regard to any interpretation dispute or any aspect related to this Trust Emphasis added The Spanish word that is translated Trust is Fideicomiso Fideicomiso does not mean Agreement Fideicomiso is defined term in the Private Agreement It is defined as one particular trust trust that was created on October 15 2002 by Eduardo Longoria Theriot the father of Adriana and Shelby as settlor and that named Banca Afirme S.A as trustee the Afirme Trust Thus it is no accident that the word Fideicomiso is capitalized in the forum-selection clause it had very specific expressly defined meaning and that meaning did not include the Private Agreement which did not even exist when the Trust was formed The capitalization of Fideicomiso leaves no doubt that the reference to it in the forum-selection clause is reference to the Afirme Trust not to the Private Agreement The words Acuerdo Privado mean Private Agreement They do not mean the same thing as Fideicomiso as the translation proffered by Shelby makes clear.2 the parties used the term presente Acuerdo or this Agreement Significantly elsewhere in the very paragraph that includes the forum-selection clause but not in the Motion To Dismiss Ex 2A at RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS AJRLANA LONGORIAS CLAIMS Page 01306 forum-selection clause itself thus showing that the reference to el presente Fideicomiso in the forum-selection clause was an intentional distinction of the Afinne Trust from the Private Agreement Nothing in the Private Agreement claims enforce says that to rights conferred by the Private Agreement may only be brought in the courts of Reynosa Counsel for Shelby obviously recognized this problem with their position so they constructed an elaborate sophistry designed to divert attention from the wording of the forum-selection clause to other parts of the Private Agreement.3 Hence the Motion To Dismiss relies heavily on choice-of-law provisions in the Private Agreement But choice-of-law clause and forum-selection clause are two different things The first two sentences of the Fourth clause quoted above are quite plainly choice-of-law provisions notwithstanding Shelbys inadmissible extrinsic evidence to the contrary They do not require dismissal of Adriana counterclaims in this Court Likewise claim to enforce the Private Agreement is not an effort to modify it or to limit it or to set it aside The second paragraph of the Fourth clause therefore lends no support to Shelbys argument That paragraph does not address actions to enforce the Private Agreement at all And it does not address where such actions may be brought The fact that Motion To Dismiss at 6-9 devoting two sentences on pages 6-7 to the forum selection clause itself and over three pages to other provisions of the Private Agreement RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORJAS MOTION TO DISMISS ADRJANA LONGORIAS CLAIMS Page 01307 Shelbys counsel felt the need to devote so much verbiage to plainly irrelevant paragraph belies the weakness of their of the forum-selection clause itself interpretation Two of Adrianas Causes of Action Are Unrelated to the Private Agreement So the Forum-Selection Clause Cannot Apply to Them Before moving to the second independent ground for denial of the Motion To Dismiss it should be noted that even if the forum-selection clause had referred to claims related to the Private Agreement instead of being limited to claims related to the Trust it still would not apply to all of Adriana counterclaims The First Cause of Action and the Fifth Cause of Action pleaded by Adriana neither assert right arising under the Private Agreement nor depend on its validity or meaning Consequently Shelbys request that those causes of action be dismissed is frivolous The First Cause of Action is based on the legal theory of tortious interference with inheritance rights The gravamen of the claim is that Shelby fraudulently reduced the amount of be inherited by Adriana Shelby did so in two ways he lied his money to at least to parents about the value of the Mexican businesses that Shelby was managing in an effort to induce his parents to leave the businesses to him and give less money to his sisters and he misappropriated his parents money some of which would otherwise have gone to Adriana Neither of on the meaning or enforceability of either the Private theory liability depends Agreement or the Afirme Trust Nor do they seek to set aside either the Private Agreement or the Afirme Trust RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 01308 The Fifth Cause of Action is based on contract dated October 2007 between Shelby and his mother Dorothy Adriana is third-party beneficiary of that contract because it expressly requires Shelby to pay $100000 to Adriana The contract does not mention the Private Agreement and is wholly unrelated to it II The Forum-Selection Clause Is Unreasonable and Unjust forum-selection clause is unenforceable if it is unreasonable and unjust In re Automated Collection Technologies Inc 156 .W.3 557 559 Tex 2004 In re AIU Ins Co 148 S.W.3d 109 113 Tex 2004 If specified forum is remote alien forum in which there is serious inconvenience. to one or both of the parties that forum may be considered unreasonable and unjust Carnival Cruise Lines Inc Shute 499 U.S 585 592 1991 quoting The Bremen Zapata Off-Shore Co 407 U.S 17 1972 As construed by Shelby the forum-selection clause in the Private Agreement is unreasonable and unjust for two reasons first it contravenes pre-existing and overarching fiduciary relationship between Shelby and Adriana under which she had subtantial under Texas law and it surreptiously to those rights rights operates negate according to Shelby without explicit notice to Adriana that it is doing so thereby breach of fiduciary duty by Shelby and second it effectively deprives Adriana constituting of any remedy by requiring litigation in remote alien forum that will not recognize her claims and is so dangerous and corrupt that it is manifestly unreasonable to expect Adriana to assert her claims there RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 01309 The Private Agreement was signed in Texas contrary to what it says about the place of execution.4 Both of the signatory parties were residents of Texas and both of the other parties who are identified as having obligations thereunder Shelby and his brother Eduardo Longoria Kowaiski also resided in Texas.5 The context of the agreement was longstanding confidential relationship between and Adriana Shelby as fiduciary as beneficiary.6 Shelby had assumed the obligation to fulfill his fathers wishes with regard to payments to be made to Adriana from the revenues of certain businesses which Shelby was managing The Private Agreement itself recites these facts Eduardo had previously directed that $3000000 be paid to Adriana from the operating cash flow generated by the companies represented by the shares contributed to the TRUST or by their subsidiaries the principal balance owed to Aciriana as of the date of the Private Agreement was $2069100 and it was the obligation of Shelby and his brother to cause that amount plus interest to be paid to Adriana by continuing to make monthly payments to her.7 Thus when the Private Agreement was signed there already was well-established fiduciary relationship Ex Affidavit of Adriana Longoria at 11 51d at2J4 Motion To Dismiss Ex 2A at 1-2 RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 10 01310 between Adriana and Shelby It had arisen in Texas under Texas law and it had existed for at least ten years prior to the execution of the Private Agreement.8 One of Adriana counterclaims is based on her informal fiduciary relationship with Shelby But informal fiduciary relationships are not recognized in Mexico.9 If construed in the manner urged by Shelby the forum-selection clause would have the practical effect of depriving Adriana of any remedy for violation of her rights under Texas law rights independent of the Private Agreement and vested before the Private Agreement ever existed And the forum-selection clause would do so without explicit notice to Adriana of that result Cf Carnival Cruise Lines 499 U.S at 595 respondents have conceded that they were given notice of the forum provision and therefore retained the option of rejecting the contract with impunity It bears emphasis that forum-selection clauses are subject to judicial scrutiny for fundamental fairness and as part of such scrutiny courts consider whether there is any indication that the specified forum was selected as means to discourage party from pursuing legitimate claims Carnival Cruise Lines 499 U.S at 595 That of course is precisely what Shelby is trying to do The second the forum-selection misconstrued by Shelby is reason why clause as unreasonable and unjust is that the specified forum is one of the most dangerous places in the world The United States Department of State has issued Travel Warning about the Lx Affidavit of Adriana Longoria at Ex Affidavit of Ilan Rosenberg at 10-11 RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 11 01311 security situation in Mexico It was last updated on December 24 2014 in order to provide additional warnings and to impose more restrictions on travel by personnel of our government It provides chilling view of travel in the border region which of course includes Tamaulipas The number of kidnappings throughout Mexico is of particular concern and appears to be on the rise According to statistics published by the Mexican Secretaria de Gobernacion SEGOB in 2013 kidnappings nationwide increased 20 percent over the previous year While kidnappings can occur anywhere according to SEGOB during this timeframe the states with the highest numbers of kidnappings were Tamaulzpas Guerrero MichoacÆn Estado de Mexico and Morelos Additionally according to widely publicized study by the agency responsible for national statistics INEGI the National Institute of Statistics and Geography Mexico suffered an estimated 105682 kidnappings in 2012 only 1317 were reported to the police Police have been implicated in some of these incidents Both local and expatriate communities have been victimized Emphasis added The situation in Tamaulipas is so bad that employees of the United States Government have been directed to defer non-essential travel to the state of Tamaulipas because conflicts between rival criminal elements andlor the Mexican military can occur in all parts of the region and at all times of the day.2 The warning continues Matamoros eynosa Nuevo Laredo and Ciudad Victoria have experienced numerous gun Ex Fisher Affidavit at Ex Id at 2Id at5 RESPONSE OF ADRIANA LONOORIA TO SHELBY LONOORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 12 01312 battles and attacks with explosive devices in the past year The number of reported kidnappings for Tamaulipas is among the highest in Mexico and the number of U.S citizens reported to the consulates in Matamoros and Nuevo Laredo as being kidnapped abducted or disappearing involuntarilyin 2014 has also increased.3 All U.S government employees are prohibited from personal travel to Reynosa and most of the rest of Tamaulipas.4 Shelby himself has represented to this Court that artel violence Street shoot-outs kidnapping and extortion have been persistent threats along the Mexican border.5 And one of Shelbys lawyers wrote in letter to Adriana that very real threats of kidnapping torture and murder part of working as businessman in the cross-border areas of northern Mexico.6 She added street violence and shootouts are an every day occurrence and is dangerous to travel to many of the areas in which the businesses of the Mexican Companies as the companies that Eduardo had owned and directed are located Id emphasis added 4Id 5CoTER-DEFENDT SHELBY LONGORIA BRIEF ll SUPPORT OF His MOTION TO DISMISS COUNTERCLAIMS FOR FORUM NON CONVENIENS OR ALTERNATIVELY TO ABATE PENDING RESOLUTION OF WILL CONTEST AND MEXICAN LITIGATION filed Aug.7 2013 at 16 Ex Affidavit of Adriana Longoria Ex at 71d RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 13 01313 For Shelby to claim that Reynosa Tamaulipas is reasonable venue for litigation of Adrianas counterclaims in the face of the harsh realities that he has acknowledged elsewhere betrays lack of candor toward the Court III The Forum-Selection Clause Was Procured by Fraud and Overreaching It is axiomatic that failure to disclose information fraud where may constitute there is duty to disclose Bradford Vento 48 S.W.3d 749 754-55 Tex 2001 duty to disclose arises where there is confidential or fiduciary relationship Insurance Co North America Morris 981 S.W.2d 667 674-75 Tex 1998 Texas recognizes that fiduciary relationships may arise informally from moral social domestic or purely personal relationships Meyer Cathey 167 S.W.3d 327 330-3 Tex 2005 quoting Associated Indemnity Corp CAT Contracting Inc 964 S.W.2d 276 287 Tex 1998 Thigpen Locke 363 S.W.2d 247 253 Tex 1962 Follett 180 S.W.2d 334 337 Tex 1944 When Adriana signed the Private Agreement her relationship with Shelby was already one of trust and confidence because he is her brother and because for many years before then he had accepted the responsibility to make payments to her in accordance with her fathers wishes.8 Eduardo wishes to for Adriana were expressed at various times and in provide various ways but one such wish that pre-dates the Private Agreement is described in the 18 Ex Affidavit of Adriana Longoria at IJ RESPONSE OF ADRIANA LONOORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 14 01314 Private Agreement itself in the second clause.19 For about ten years before Adriana signed the Private Agreement Shelby had caused businesses in Mexico which he controlled to make payments to Adriana in accordance with Eduardo wishes.2 Many times Adriana had heard Eduardo ask Shelby to see that the businesses made payments to Adriana and many times Adriana had heard Shelby promise to do so.2 Shelby himself admitted was the one that was instrumental in getting the money sent in order to comply with my dads wishes.22 Moreover Shelby knew that Adriana was in vulnerable position and that Adriana needed the payments that her father had promised and that Shelby had been sending in order to pay even her most basic living expenses.23 Throughout this period of time Eduardo Shelby and Adriana all lived in Texas.24 Thus based on Shelbys own words and conduct in Texas over period of many years Adriana understood and Shelby acknowledged that they had relationship of trust and confidence and specifically that Adriana was trusting him to see that Eduardos wishes were carried out for her benefit.25 Id Motion To Dismiss Ex 2A at 1-2 20 Ex Affidavit of Adriana Longoria at IJ 21 Id 22 Ex Fisher Affidavit Ex ORAL AND VIDEOTAPED DEPOSITION OF SHELBY LONGORIA Oct 2014 at 156 lines 8-9 23 Ex Affidavit of Adriana Longoria at 251d RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS ADRIANA LONGORIAS CLAIMS Page 15 MOTION TO DISMISS 01315 Thus the fiduciary relationship between Shelby and Adriana predated and transcended the Private Agreement Because Shelby owed fiduciary duty to Adriana he had an affirmative duty to disclose facts that might affect her interests If it were the case that the Private Agreement contained forum-selection clause that prevented Adriana from seeking its enforcement in the state where Eduardo Adriana and Shelby all lived and choice-of-law clause that eliminated his then-existing fiduciary duty to Adriana then Shelby should have disclosed that when he presented the Private Agreement to Adriana for her to affirmative sign and discouraged her from reading it His failure to comply with his duty to disclose these alleged facts would constitute fraud rendering the forum-selection and choice- of-law provisions unenforceable IV Shelby Waived His Alleged Right To Invoke the Forum-Selection Clause forum-selection clause may be waived Perry Homes Cull 258 .W.3 580589- 601 Tex 2008 finding waiver of arbitration clause type of forum-selection clause And one of the ways in which forum-selection clause may be waived is by substantially invoking the judicial process different forum to the others partys detriment or prejudice 258 S.W.3d at 589-90 Whether or not litigant has substantially invoked the judicial process is determined on case-by-case basis by examination of the totality of the circumstances but the guiding principle is this party who enjoys substantial direct benefits an advantage in the pretrial process should be barred from by gaining litigation RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS ADRIANA LONGORIAS CLAIMS Page 16 MOTION TO DISMISS 01316 turning around and seeking in another forum with the spoils 258 .W.3d at 592- 93 That is precisely what Shelby has done Adriana first pleaded her counterclaims on January 201 426 She amended them on December 11 2014 and again on February 2015.27 Those amendments added one cause of action which is denominated the Fourth Cause of Action in the last amendment.28 What are now the First Second Third and Fifth Causes of Action all were pleaded in the original statement of Adriana counterclaims filed on January 201 429 Shelby litigated those four causes of action for year before he asserted his alleged right to dismissal of them based on the forum-selection clause Shelby filed his original answer to the counterclaims on January 21 2014.30 Shelby did not plead that Adriana counterclaims should be dismissed based on the forum-selection 26See ORIGINAL COUNTERCLAIMS OF ADRIANA LONGORTA submitted for electronic filing on Jan 2014 but not file-stamped until Jan 2014 due to technical failure 27See FIRST AMENDED COUNTERCLAIMS OF ADRIANA LONGORIA filed Dec 112014 SECOND AMENDED COUNTERCLAIMS OF ADRJANA LONGORJA filed Feb 2015 28 See SECOND AMENDED COUNTERCLAIMS OF ADRIArsTA LONGOPJA filed Feb 2015 at 12 29See ORIGINAL COUNTERCLAIMS OF ADRIANA LONGORIA submitted for electronic filing on Jan 62014 but not file-stamped until Jan 92014 due to technical failure at 7-11 30 See COUNTER-DEFENDANT SHELBY LONGORIAS ANSWER TO ORIGINAL COUNTERCLAIMS OF ADRIANA LONGORIA filed Jan 21 2014 RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS ADRIANA LONGORIAS CLAIMS Page 17 MOTION TO DISMISS 01317 clause of the Private Agreement Shelbys answer did not mention that clause It did however assert numerous defenses all based on Texas law.3 On April 2014 Shelby amended his disclosures under Rule 194 of the Texas Rules of Civil Procedure.32 Shelbys disclosure under subpart which requires statement of the legal theories and in general the factual bases of your claims or defenses did not mention the forum-selection clause of the Private Agreement nor did it disclose that Shelby would seek dismissal of the counterclaims based on it On August 26 2014 Shelbys attorney took the deposition upon oral examination of Adriana and he asked many questions filling ten pages of the transcript about the Private Agreement and payments made under it.33 On September 12 2014 Shelby responded to set of requests by Adriana for production of documents and things.34 The requests included nine categories through and through 10 of documents related to the Private Agreement and payments made or to 31 were derived from Mexican law Id Shelby did not plead that any of his defenses 32Ex Fisher Affidavit Ex SHELBY LONGORIA SECOND AMENDED RESPONSE TO REQUESTS FOR DIsCLOSURE Apr 2014 33Bx Fisher Affidavit Ex ORAL AND VIDEOTAPED DEPOSITION OF ADRIANA LONGORIA Aug 26 2014 at 197-206 Ex Fisher Affidavit Ex SHELBY LONGORIAS RESPONSES TO ADRi.NA LONGOR1AS FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS Sept 12 2015 RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS CLAIMS Page 18 MOTION TO DISMISS ADRIANA LONGORIAS 01318 be made to Adriana thereunder.35 Shelby did not object to any request based on the proposition that the litigation of claims related to the Private Agreement should not be conducted here On September 15 2014 Shelby responded to set of interrogatories propounded by Adriana.36 All of the interrogatories dealt with the Private Agreement and the payments that had been made thereunder.37 Shelby answered some of the interrogatories and objected to but he did not object Adrianas others to any on the ground that counterclaims supposedly could not be litigated in this Court On October 2014 an attorney for Adriana took the deposition upon oral examination of Shelby and questioned Shelby extensively about the formation of the Private Agreement and the payments made pursuant to it.38 Shelby did not object to any of the questions on the ground that litigation of Adrianas counterclaims in this Court is supposedly improper 351d at 2.6 For example the first category of items requested was documents in which the Private Agreement is mentioned Id at 36 Ex Fisher Affidavit Ex SHELBY LONGORIAS RESPONSES TO ADRIANAS FIRST SET OF INTERROGATORTES Sept 15 2014 371d For example Interrogatory asked Shelby to state what you contend to be the total amount of money that Adriana has been paid pursuant to the Private Agreement Id at2 38 Ex Fisher Affidavit Lx ORAL AND VIDEOTAPED DEPOSITION OF SHELBY LONGORIA Oct 2014 at 133-56 RESPONSE OF ADRIANA LONGORJA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 19 01319 Not until January 14 of this year about year after he first pleaded in to response Adrianas counterclaims did Shelby fmally file the Motion To Dismiss asserting for the first time that Adrianas counterclaims should be dismissed based on the forum-selection clause in the Private Agreement On the next day however Shelby again amended his disclosures and again failed to disclose any reliance by him on the forum-selection clause of the Private Agreement.39 Shelbys delay and ambivalence in asserting his position regarding the forum-selection clause of the Private Agreement has caused demonstrable prejudice to Adriana She was subjected to deposition questioning of the subject and she was required to provide written discovery as well Moreover even if one assumes arguendo that her counterclaims would be recognized in Tamaulipas at all they would be subject to one-year statute of limitations there4 so her ability to recover over year of payments due would be barred as result of Shelbys failure to invoke the forum-selection clause in timely manner That loss of substantive constitutes prejudice caused directly by Shelbys delay in rights indisputably asserting his alleged right to dismissal of Adrianas counterclaims In sum even if one assumes for the sake of argument that Shelby once had right to dismissal of Adrianas counterclaims based on the forum-selection clause in the Private 39Bx Fisher Affidavit Ex SHELBY LONGORIAS THIRD AMENDED RESPONSE TO REQUESTS FOR DISCLOSURE Jan 15 2015 Ex Affidavit of Ilan Rosenberg at 11 RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRJANA LONGORTAS CLAIMS Page 20 01320 Agreement the Motion To Dismiss still must be denied because that supposed right was waived by Shelby He waived it by litigating the counterclaims in this Court without asserting that they should be dismissed To allow Shelby to litigate the counterclaims here and then to invoke the forum-selection clause would cause unfair prejudice to Adriana because significant portion of her claims are now barred by limitations in Tamaulipas assuming that contrary to the testimony of Ilan Rosenberg her claims would be recognized at all in Tamaulipas CONCLUSION Adrianas objections to the Affidavit of Dr Carlos Gabuardi should be sustained and the affidavit stricken Adrianas objections to Exhibits and 3A should be sustained and the exhibits stricken and the Motion To Dismiss should be denied proposed order accompanies this response RESPONSE OF ADRIANA LONGORTA TO SHELBY LONGORIAS ADRIANA LONGORIAS CLAIMS 21 MOTION TO DISMISS Page 01321 DATED February 92015 Respectfully submitted /s/ James Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 email jfisher@fisherwelch.com Shannon L.K Welch State Bar of Texas Number 90001699 email swelch@fisherwelch.com FIsHER WELCH Professional Corporation Ross Tower Suite 2800 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Facsimile 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 email wes@wesholmes.com THE HOLMES LAW FnM 10000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9266 Facsimile 214890.9295 ATTORNEYS FOR ADRIANA LONGORIA SYLVIA DORSEY AND JAMES THOMAS DORSEY AS INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 22 01322 CERTIFICATE OF SERVICE .1 hereby certifr that on February 92015 true and correct copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schiemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 BY EMAIL TOjcartersusmangodfrey corn rhess@susmangodfrey corn and kschlemrnersusrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO macinre@mmlawtexas corn /s/ James Austin Fisher James Austin Fisher RESPONSE OF ADRIANA LONGORIA TO SHELBY LONGORIAS MOTION TO DISMISS ADRIANA LONGORIAS CLAIMS Page 23 01323 EXHIBIT 01324 CASE NUMBER 414270 IN THE ESTATE OF IN PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS AFFIDAVIT OF ADRIANA LONGORIA STATE OF TEXAS COUNTY OF HARRIS BEFORE ME the undersigned authority on this day appeared in person Adriana Longoria who is known by me to be the person whose signature appears below and who being first duly sworn upon oath testified as follows My name is Adriana Longoria have read this affidavit and the exhibits attached hereto affirm that the facts set forth in this affidavit are within my personal knowledge and are true and correct Eduardo Longoria Theriot was my father He died in January 2005 Dorothy Louise Longoria was my mother Her maiden name was Kowaiski She died in April 2012 Shelby Longoria is one of my brothers document entitled ACUERDO PRIVADO is attached to this affidavit as EXHIBIT My brother Shelby presented the original of this document to my father and me for signature in Laredo Texas was not in Reynosa Tamaulipas or anywhere else in Mexico when it was presented to me or when signed it Shelby discouraged me from reading the ACUERDO PRIVADO He did not say to me that it contained clause saying that submitted to the courts of the city of Reynosa Tamaulipas Mexico in the event of any interpretation dispute or other aspect of the ACUERDO PRIVADO or words to that effect and have had no such understanding either when signed it or since then To this day do not read the ACUIERDO PRIVADO as saying that any lawsuit to enforce my rights under the ACUERDO PRIVADO must be brought in Reynosa Rather the ACUERDO AFFDAVIT OF ADRTANA LONGORIA Page 01325 PRIVADO says that my father and submit to the courts ofReynosa only with regard to interpretacin controversia cualquier aspecto relacionado con el presente Fidelcomiso which understandmean .in English interpretation dispute to or any aspect related to this Trust emphasis added The word Fidelcomiso means Trust and moreover it is capitalized so it seems to me to be referring quite clearly to the defined term Fidelcomiso which is defined in the DECLARACIONES on the first page of the ACUERDO PRIVADO The term Fidelcomiso is defined on that page as certain trust relationship supposedly created by my father with Banca Afirme S.A on October 15 2002 The words ACUERDO PRIVADO mean PRIVATE AGREEMENT they do not mean the same thing as Fidelcomiso and the ACUERDO PRIVADO itself was not dated October 15 2002 but rather it was dated December 17 2002 see nothing in the ACUERDO PRIVADO saying that claims to enforce the ACUERDO PRIVADO may only be brought in the courts of Reynosa When signed the ACUERDO PRIVADO my relationship with Shelby was one of trust and confidence because he is my brother and because for many years he had accepted the responsibility to make payments to me in accordance with my fathers wishes My fathers wishes to provide for me were expressed at various the second times and in various ways but one such wish of my father is described in clause of the ACUERDO PRIVADO which appears at the top of the second page For about ten years before signed the ACUERDO PRIVADO Shelby had caused businesses in Mexico which he controlled to make payments to me in accordance with my fathers wishes Many times had heard my father ask Shelby to see that payments were made to me and many times had heard Shelby promise to do so Shelby knew that was in vulnerable position and that needed the payments that my father had promised and that Shelby had been sending me in order to pay even my most basic living expenses Throughout this period of time my father Shelby and all lived in Texas Thus based on Shelbys own words and conduct in Texas over period of many years understood and Shelby acknowledged that we had relationship of trust and confidence and specifically that was trusting him to see that my fathers wishes were carried out for my benefit Because of that relationship trusted Shelby not to ask me to sign document that contained false representation such as the representation that it was being signed in Mexico when in fact it was signed in Texas and trusted Shelby not to ask me to sign document that contained provisions harmful to my interests such as provision that would essentially nullify my rights by requiring me to attempt to pursue them in such dangerous place as Reynosa Tamaulipas AFFIDAVIT OF ADRIANA LONGORIA Page 01326 The dangers associated with travel in Tamaulipas are well known to my family because around 1986 my father was kidnapped and held for ransom there As result of that traumatic incident my father and mother moved to Texas where they lived for the rest of their lives In late October or in November of 2010 received leter from Carolyn Beckett an attorney for Shelby true and correct copy of this letter is attached to this affidavit as EXHIBIT There are many assertions in the letter with which disagree but note and agree with her description on page of the extreme level of danger associated with travel in Tamaulipas This concludes my affidavit testimony Adriana Longoria SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority by Adriana Longoria on February 2015 tary Pub ic in and for th ate of Texas Printed Name of Notary Public My Commission Expires AFFDAVIT OF ADRIANA LONGORIA Page 01327 EXHIBIT 01328 EXHIBIT 01329 October22 2010 Ms Adriana Longoria VIA Federal Express 6138 San Feilpe Houston IX 77057 Re Notice of Request for Resolution and Notice of Intention to Discontinue Future Payments Under The 2002 Private Agreement Absent Resolution of Issues Dear Ms Longoria As you are aware this law firm has represented Shelby Longoria Shelby regarding the demands you have made to additional funds you claim are due you from your deceased fathers Eduardo Longoria Theriots Mr Longoria estate Within the last several months you have not only increased your demands about the manner and the amounts of payments you have received under the terms of the agreement executed in 2002 the 2002 Private Agreement between you and your father Mr Longoria but you also have apparently taken to new level the assault on Shelbys personal reputation personal life and his family by impugning his moral arid ethical character to numerous of his friends business associates and acquaintances This letter is intended to communicate to you our firms investigation and review of all the events concerning Mr Longorias estate planning and the probate of his estate and to state to you in writing that it is our firms opinion that Shelbys conduct in handling Mr Longorias estate issues has been further this firms that to arises out beyond reproach It is opinion Shelbys obligation you solely of his personal feeling of moral duty to fulfill his deceased fathers wishes and not as result of any binding obligation under either Mexican law or the laws of the United States to continue to arrange the scheduled payments to you Most importantly this letter is to notify you of the following regarding Shelbys intentions Shelby is in the process of initiating litigation against you to enjoin your wrongful and intentional libel and slander of him and his family this litigation will not be handled by this law firm and this letter will not address your wrongful slanderous conduct and ii he will propose to you and your representative and this firm final solution to deal with these demands for money not due under any legally enforceable document and iii he hereby notifies you that in the absence of such an agreed solution Shelby will cease his efforts to arrange for your benefit those payment requests which he has voluntarily undertaken out of his for his father and his integrity to fulfill his solely respect personal fathers wishes that are not reflected or wishes in any binding legal obligation undertaking and finally iv he has requested that this firm prepare and deliver this letter to you in final attempt to communicate to you his and this firms position regarding each and every document relevant to the numerous claims you have made to additional millions of dollars you believe are due from fathers estate apparently you your 72d 7R7fll si2 27V -7 77J 01330 Ms Adriana Longoria October 22 2010 Page As this firm understands your demands you have received to date distributions made both prior to and after your fathers death pursuant to the Private Agreement the amount of signed by you in $3168619.00 In addition to these amounts over time to the Wish including interest paid pursuant Letter and Private Agreement you have also received directly from father vehicles home your your in Houston large ranch in Mexico and numerous cash gifts You have now additionally demanded as an unsubstantiated and be $5 and illogical right to paid up to million more you apparently claim that these additional millions are due from the fact that Shelby directly to you notwithstanding your fathers estate was divided in your fathers last will between Shelby and your other brother Eduardo Wayo Longoria after consideration had been given by your father to payments previously made to you and Sylvia It appears you have directed your wrongful demands and threats and your slander and libel to only Shelby After reviewing all of the relevant documents we have concluded that only the terms of the Private Agreement signed on December 17 2002 you govern the payments your father had committed to you The Private Agreement You are fully aware of both your fathers Wish Letter written in 1992 and the subsequent 2002 Private Agreement with father You are also aware that has you signed your your brother Shelby voluntarily attempted to see that payments under the 2002 Private Agreement have continued to be made to you although Shelby has never had nor does he now have legal responsibility to make those payments nor does he have legal right to compel the trust to approve the release of funds that those comprise payments The 2002 Private Agreement was dated December 17 2002 and constitutes valid contract under Mexican law wherein your father undertook to update the earlier similar but less formal statement that he referred to as Wish Letter when he had prepared that earlier statement in 1992 Although the 1992 Wish Letter was signed only by your father the more formal and binding contract evidenced by the 2002 was signed by both you and your father1 Private Agreement and describes in some detail the payments your father had made to you under the Wish Letter from 1992 through 2002 and the amounts remaining to be paid as of the December 2002 date he had prepared the more fomial 2002 Private Agreement It is clear from the terms of the 2002 Private Agreement that your father was apparently concerned that he might not live long enough to see all of the payments described in that agreement made to you but he instructed and was hopeful that his two sons would continue to make those payments to the extent that they were able to until the terms of the agreement were satisfied The 2002 Private Agreement while not formal bequest under Mexican law was effectively private directive by your father to his two sons Wayo Longoria and Shelby to attempt to continue the payments he had made you during the last 13 years of his life if he had not satisfied the agreements terms by the time of his death It is also noteworthy that only Shelby has endeavored to fulfill your fathers wishes by continuing to request of the trust that payments be set aside for that purpose While the 2002 Private Agreement does not impose legal obligation on Wayo or Shelby under either Mexican or US law to continue the payments described in the agreement Shelby alone has made the significant effort to honor his fathers wishes that payments to you continue under the Private Agreement Shelby considers the 2002 Private Agreement with you and the similar agreement he made with Sylvia to represent fathers commitment to his daughters and although the law does not continue that obligation after his death Shelby made the decision to attempt to continue to carry out his fathers wishes In fact the Private Agreement between your father and Tile 2002 Private Agreement and tile 2002 Will were signed at practically the same lime and although you claim to be entitled to the payments described in the 2002 Private Agreement you have made allegations that your father was not of sufficient mental capacity to execute the 2002 Will This is an obvious contradiction and you cannot have it both ways 01331 Ms Adriana Longoria October 22 2010 Page your sister Sylvia was satisfied with combination of lump sum payments the following year your fathers death has at Sylvias request Shelby continued to request that the trust agree to allow payments to be made to you since Mr Longorias death often in excess of the amounts in provided the 2002 Private Agreement solely to fulfill his moral obligation to your father and his expressed desire to provide for you In addition Shelby has arranged to provide 100% of the support for your mother and has paid off the loan on the condo in Houston currently occupied Mrs Longoria by although you and Sylvia are the direct beneficiaries of that loan repayment as the shareholders in the corporation that owns that condo One of your ongoing allegations this firm has researched and addressed is the idea that there is some document or some set of documents that your father may have executed during his lifetime that was more generous to you personally than the documents which have been recognized the by probate court as being Mr Longorias testamentary documents This firm has reviewed each of the relevant documents and set forth below are our opinions on the legal effect of both the goals expressed and anticipated in the documents when father executed them and the revisions that your he made over the years as his plans for his estate solidified Shelbys in the U.S and in attorneys Mexico have researched all of these issues and the information which follows of the is description important documents and events which occurred between 1992 and 2010 and our analysis of the legal enforceability of your 2002 Private Agreement History of Important Documents and Events Between 1992-2010 The 1988 Wills and the 1992 Wish Letter Throughout his life Mr Longoria was Mexican citizen He owned and directed the operations of several companies in Mexico the Mexican Companies and his net worth was at one time valued in excess of $10 million before he suffered substantial losses in the period from 1989-1995 Two severe economic events seriously depleted your fathers U.S assets and his total net worth during that period At some point in the 1980s your brother Wayo moved his residence to Austin Texas to embark upon various real estate ventures with Mr Longoria and Shelby signing as guarantors on many of the loan documents Wayo used to buy properties in Austin on leveraged considerably debt With the crash of the real estate market in Austin in the late 1980s Mr Longoria and Shelby suddenly became directly liable on their guarantees for millions of dollars of debt Wayo had incurred in his real estate speculation Ultimately Wayo filed for bankruptcy protection against his creditors an option not taken by although available to Mr Longoria and Shelby Multiple claims were made against Shelby and Mr Longoria as guarantors of the debt and over long period of time reductions of the debt were negotiated and approximately $4 million was paid out to creditors some of whom Wayo had been discharged from in his own bankruptcy These legal actions took their toll on the value of Mr Longorias estate such that the only significant U.S asset was the remaining valuable Laredo house which Mr when Longoria gave to you and Sylvia in 1995 he transferred 50% of the stock of Casaco Inc to each daughter In addition to the Austin financial disaster during that same period the Mexican Companies suffered severe financial setbacks from multiple peso devaluations Mr Longorias net worth dropped significantly and his estate plan for his family was reconsidered 1992 Mr Longoria In had two wills in place one executed in Mexico in 1988 the 1988 Mexican Will providing that upon his death ownership of the Mexican Companies would be divided equally between his sons Shelby and Wayo The second was will he executed in the United States the 1988 U.S Will The 1988 U.S Will left the property he owned in the United States at the time including the Laredo home to his wife with remainder to his daughters at his wifes death However after many of his Mexican and U.S assets were depleted as result of the losses in Austin real estate and other business/currency reversals that occurred prior to 1992 Mr Longoria 01332 Ms Adriana Longoria October22 2010 Page determined to put in place new plan and program to provide current significant cash transfers to his daughters Sylvia and Adriana and to have his sons to take care of wife He agree his clearly abandoned the idea of separate U.S Will and instead instituted that gifting program put immediately available cash in his daughters hands to effect transfer of their share of his estate over period of time For his sons he earmarked the non-cash business operations requiring hands-on daily management and work and considerable business experience and risk to maintain and realize any lone-term value Because by 1992 Mr Longoria had no appreciable business or investment assets left in the U.S Mr Longoria implemented his gift giving plan and prepared the 1992 Wish Letter mentioned above promising to give over period of time $3 million to each daughter The $3 million gift required no corresponding work on your or your sisters part and gave each of you risk-free source of funds to be paid out in installments beginning in 1992 Of significance to Shelbys general feeling of moral obligation to his father is the fact that the Wish Letter provided that in the event of his death the Wish Letter was to act as non-contractual directive to Mr Longorias sons to use their efforts in operating and managing the Mexican companies so as to allow those companies to generate sufficient income to continue making payments to you and Sylvia Thus even after your fathers death it is clear that he desired his daughters to have flow of cash with no obligation to do anything to be paid and he intended and desired that his sons receive only the operating businesses assets that required full-time management and work considerable risk-taking and no guaranteed cash flow as their share of his total estate Based on review of these documents It is clear that Mr Longoria Intended the 1992 Wish Letter to serve as substitute for the earlier 1988 U.S Will and to serve as corollary to his 1988 Mexican Will The Wish Letter provided series of nter vivos gifts to each of his daughters over time with the total gifts worth very significant percentage of the value of his entire estate at the time By preparing the 1992 Wish Letter and making this series of inter vivos transfers to his daughters Mr Longoria attempted to create mechanism that could provide you and your sister Sylvia the ability to share in his estate his death so as allow not create own expected prior to to you to only your investment fund over time from the cash generated from his Mexican holdings through the monthly payments but also to start immediate distributions to you to protect you from future financial setbacks similar to those your father experienced in the late 1980s Beginning with the first payments he made under the Wish Letter Mr Longoria maintained detailed statement of the amounts he paid each daughter under the Wish Letter--this statement also showed the remaining balance left to be paid at any point in time from the starting balance of $3 million As time went on and he became less involved in the businesses he required his sons and ultimately only Shelby to take over the operation of the Mexican Companies and the maintenance of the account statements for each daughter Thus in 1992 the Wish Letter directive represented significant portion of Mr Longorias net worth It provided that $250000 was to be paid to each of Adriana and Sylvia between 1992 and 1997 in 59 monthly installments of $4000 with final payment of $14000 After these first 60 payments were made the remaining balance of $2750000 was to be paid annually in 10 equal installments of capital -- with 120 monthly installments of interest added -- provided funds were available from the operating cash flows of the Mexican Companies If the provisions of the Wish Letter had been followed exactly Adriana and Sylvia would have received approximately $300000 each year after 1997 and would have received the full amount of the payments to satisfy the terms of their respective gifts under the Wish Letter by the year 2007 However as you and Sylvia frequently requested additional amounts be paid to you between 1992 and 1997 you were ultimately each paid over $500000 during that first year period leaving approximately $2500000 to be paid to each of you over the next ten years These cash payments in addition to the interest transferred in the Laredo house were assets that required no time commitment no management expertise and no business or personal risk of either or your sister you 01333 Ms Adriana Longoria October22 2010 Page The 2002 Mexican Will and the Private Agreements In November of 2002 Mr Longoria executed new Will in Nuevo Laredo Mexico 2002 the Will0 that be and proved to his last will testament revoking all prior wills.2 That 2002 Will referenced transfer Mr Longoria had made to place all of the Mexican Companies in Mexican trust for the benefit of his sons The trustee took responsibility for the legal of of the Mexican ownership all Companies The trust provided Shelby 60% beneficial interest and Wayo 40% beneficial interest later the value of the interests was equalized by the further transfer of real property to Wayo The 2002 Will referred to and acknowledged his wife and daughters but did not expressly provide any further bequest to either of Adriana Sylvia or Mrs Longoria Instead Mr Longoria updated the terms of the 1992 Wish Letter incorporating its terms into the more formal 2002 Private Agreements prepared separately for each daughter.3 With the restatement of the substantial gifts to both you and Sylvia he did not further reference an additional bequest for his daughters in the 2002 Will It was Mr Longorias express intent that Shelby and Wayo continue the Private Agreement payments after his death When he had finished the documentation of his planning namely the transfer of the Mexican Companies to the trust the restatement of his to his daughters and the 2002 Will he gifts/bequests transferring all other properties may have held at his death to his sons Mr Longoria had completed his final dispositive planning of his estate as it existed at that time All of these dispositive documents were executed within months of each other and when read together they clearly demonstrate that your father had carefully provided for all of his family in manner that he wanted directed and intended.4 On December 17 2002 the two separate private agreements were executed between Mr Longoria and you and Sylvia Longoria Of course neither daughter has ever claimed that Mr was Longoria not competent to enter into these Private Each Private served Agreements Agreement effectively as an updated restatement of the Wish Letter and included the precise remaining balance due as of December 2002 of the original $3 million provided for each daughter in the original 1992 Wish Letter copy of the statement of each account was included as an exhibit to each daughters Private Agreement showing the history of payments made with respect to that daughter and verifying the remaining balance under the agreement the Ledger As payments were later made to each daughter under the 2002 Private Agreements during his life and after his death through the efforts Shelby has made the Ledgers were continually updated and the Ledger for Adriana now shows approximately $725737 as the current remaining balance As noted above In December of 2002 you and your father negotiated and you and he signed the Private Agreement and you have never claimed that father was not of sound mind nor too feeble or aged to have your had the mental $2.5 capacity to agree to this approximately million payment to you restated tn that agreement However you have asserted that the month earlier your father was too feeble to have executed the 2002 Will and you have actually suggested that Shelby exercised influence over father to coerce his negative your execution of the new will Your inconsistent is so obvious that no further comment position is required At the time that he executed the 2002 Will in addition to his business friends and multiple relationships family all agreeing that he was alert and competent Mr Longoria also relied on his friend and physician in Nuevo Laredo to act as witness in his 2002 Lest Will and Testament There is also signed letter in the family files from well respected Laredo Texas Physician testifying that he was of sound mind In addition Mr Longoilas lifelong end very well respected attorney that prepared the 2002 Will has recently restated his opinion that Mr Longoria was the author of the contents of his own documents very thoughtful of the plans he had established for each of his children and knew precisely what he intended His oral bul expressed intent was that Shelby and would care mother death clearly Wayo for their following his in manner that allowed her to remain comfortable but without the to the estate ability dissipate remaining assets Shelby has honored that directive 01334 Ms Adriana Longoria October 22 2010 Page The Private Agreements each daughter and were be for provided that Shelby Wayo to responsible for to sisters the making payments their in event they had not been fully paid off at the time of Mr Longorias death The funds to make the payments were to be taken from the cash flow of operating the Mexican Companies if available However neither Shelby nor Wayo either signed private agreement did the Mexican which Mr has nor trustee of the trust Longoria established Wayo perhaps virtue of his has by presence in Austin never undertaken to participate in fulfilling his fathers wishes Shelby undertook that task alone he now the brother yet is you have criticized and threatened The 2002 Private Agreement between Adriana and Mr Longoria showed an unpaid balance of $2069100 as of the date it was executed in December 2002 At the time that agreement was signed Adriana had requested that her monthly payments be reduced to extend the of time length she would receive payments and accrue interest on her remaining balance Therefore the 2002 Private Agreement provided that she was to receive monthly payments of $12500 composed of principal and interest totaling $150000 annually until the account balance of $2069100 together with the interest accrued on that amount was paid out Following the execution of the 2002 Private Agreement Adriana however frequently monthly payments requested exceeding $12500 Shelby accommodated these requests as funds were available and Adriana received on average $200000 annually between 2002 and 2010 both prior to and after Mr Longorias death Shelbys staff recorded each of these payments on the Ledger and the remaining balance after each payment and forwarded copy of the Ledger to Adriana regularly each month for her review Gifts of Stock in Casaco Inc and Payoff of Debt on the Houston Condo 1995- In 1995 Mr Longoria gifted 500 shares in Casaco Inc to each of Adriana and Sylvia constituting all of the stock of that Texas corporation At the time the corporation owned the Laredo home Mr and Mrs Longoria used as their U.S residence valued at approximately $600000 in 1995 The iJ daughters 50% interest in the value of the Laredo home was not deducted from the $3 million provided in the original 1992 Wish Letter or the later 2002 Private Agreements The transfers of stock were treated as independent of the gifts from Mr Longorias estate of cash payments under the Wish Letter Following Mr Longorias death in 2005 Mrs Longoria established residence in Houston presumably to be closer to her daughters To accommodate Mrs Lorigorias move Casaco Inc purchased condo in Houston the Houston Condo in 2005 To make this purchase Casaco Texas Inc formed Casaco LLC which bought the subsidiary Houston Condo for $1130065 make the purchase taking Shortly mortgage thereafter loan to Casaco sold the Laredo house and the loan on the Houston Condo was reduced by the $825353 net sales proceeds received on the sale of the house The loan was completely paid off in December 2009 with funds from the Mexican Companies operating cash reserves again on Shelbys request and with no reduction to the amount posted on the Ledger which recorded the transfers pursuant to the updated Private Agreements As of 2010 the Houston condo was valued at $1400000 such that each daughter now owns approximately $700000 of the value of the condo in addition to all of the personal property owned by Mrs Longoria in the condo Again this asset requires no work no management no risk of loss just as your father intended All risk-taking was according to his estate plan assigned only to your brothers and ultimately fell exclusively on the shoulders of Shelby 01335 Ms Adriana Longoria October22 2010 Page7 The Payment of the Remainder of Sylvias Private Agreement in 2006 During the early 2000s Sylvia Longoria requested that the remainder of her balance pursuant to her Private Agreement the SLI Private Agreement be paid to her in shorter Installments In 2006 Shelby informed you that Sylvia had requested prepayment of the remainder of her balance but that he would be unable seek consent from the trustee do the same to to for you due to lack of available funds from the Mexican Companies you also wanted of funds under if prepayment your Private Agreement at the same time You expressed no objection and requested that the balance Shelby pay you remaining then $1374262 as of December 2006 in longer installments so as to last as long as possible and earn as much interest as possible With the remainder of her balance your approval Shelby paid Sylvia and Sylvia signed release on December 29 2006 to the effect that the balance on the SLK Private Agreement had been paid in full The Value of the MexIcan Companies from 2002.2010 Beginning in the early 1990s at Mr Longorias direction Shelby began to take more responsibility for the operation of the Mexican Companies with Mr Longoria playing as time passed more limited role in managing the companies Shelby had been involved in one way or another in the businesses in Mexico with his father since he ________ came home from college He started working on full-time basis in 1975 and Mr Longoria had put him in position of in the 1978-1979 As Shelby became responsibility managing companies by increasingly involved in the daily operation of the Mexican Companies Mr Longoria was able to turn attention to other and Since his family matters ranch activities that time Shelby has lived through all of the ups and downs of the family businesses including the severe losses sustained in the early 1990s in Austin and the major peso devaluations in Mexico In addition Shelby has dealt with significant political instability in the region and the real threats very of kidnapping torture and murder that businessman is part of working as in the cross-border areas of northern Mexico Street violence and shootouts are an every day occurrence It is dangerous to travel to many of the areas in which the businesses of the Mexican Companies are located and it is that environment that Shelby works in daily to make the businesses successful He feels very loyal to the employees of the Mexican Companies and wants to make the businesses work for these employees also but he does so knowing the personal risks involved in just going back and forth to monitor the companies activities This Is not safe stable environment and the very real possibility of governmental nationalization of the businesses is always on his mind When you contrast the dangers and instability that Shelby confronts daily with the very stable cash flow that Mr Longoria had set up for his daughters you begin to see how concerned Shelby is that nether Adriana nor her advisors understand what he must deal with to ensure that her monthly payments can continue to be made on regular basis In 2002 the Mexican Companies conducted several different businesses in different locales Over Shelbys years as manager of these companies these activities have increased significantly an increase attributable exclusively to Shelbys diligence and hard work The success of the Mexican Companies required dedicated full-time active work totally different from the passive flow of funds your father had arranged for his daughters Mr Longorias thought was that if his sons were to achieve value from the Mexican Companies they had to earn it 01336 Ms Adriana Longoria October 22 2010 Page The Enforceability of the Terms of Adrlana Longorias 2002 Private Agreement The 2002 Private Agreement Adriana signed with her father is to Mexican subject law specifically the law of the State of Tamaulipas Mexico.5 It was executed by Mr Longoria and Adriana and neither Shelby nor Wayo were involved in its negotiation or in the execution of the agreement As private agreement to be dealt with independently of the of Mr Longorias 2002 the probate Will formal probate Mexico did include proceedings in appropriately not administration of the 2002 Private Agreement or consider it part of the probate of Mr Longorias estate It is what it is labeled private agreement Because neither Shelby nor Wayo signed the agreements they would not be to individually subject enforcement If payments were not made under U.S or Mexican law After fathers death your in 2005 however you are certainly aware that payments did not stop It was through Shelbys efforts that these payments continued He has not only been key person in helping the Mexican Companies produce sufficient cash flow to fund the monthly payments he has also corresponded with the trustee of the trust to for transfers gain approval of the monthly payments As you well know from conversations over the has always many years Shelby felt that the Private Agreements represented commitment made by his father to give each daughter their share of their parents estate to be paid over period of time as his father had directed Because of his commitment to his fatheis wishes Shelby alone has made the efforts to his fathers necessary fulfill wishes and honor the funds made over requests for the years Shelby was also the person who made sure the condo loan was off who paid Shelby was the person increased the interest rate on the unpaid balances in the Ledger statement What has motivated him to fulfill an unenforceable contract and pay more than the contract provided for It was his love for his father and his love for his family In summary Shelby has never been obligated to continue the monthly or to ensure that payments they were continued but he has in fact taken to see that there was all necessary steps money available to make the payments and that the payments were the be made approved by trust to While he had only what he perceived to be moral commitment to his fathers he has fulfill wishes in fact worked tirelessly to fulfill them Adriana1s Allegations Against Shelby The 2D02 Will and the 2002 Private Agreements were executed at virtually the same time Neither sister has ever complained that her father was not competent to enter into the Private Agreements each have accepted benefits through those Private Agreements and after was Sylvias agreement paid out you have continued demand that your to Private Agreement be honored Interestingly you now claim that Shelby somehow negatively and unduly influenced Mr exclude Longoria to you Sylvia and Mrs Longoria from Mr Longorias last will executed one month before the Private in 2002 You claim the benefits of the Private Agreements all Agreement you negotiated directly with your father in late 2002 yet you claim that Shelby manipulated Mr Longoria during his failing health in the execution of the 2002 Will one month earlier It is this firms opinion that the allegations you make concerning Shelby and your demands for more money are meritless Given the historical background underpinning the decisions Mr Longoria made regarding his estate planning and the independent testaments to the of his mental quality faculties in 2002 including the letter from his physician testifying that he was of sound mind at the time that he executed his 2002 Will and the 2002 Private Agreements your allegations regarding By their terms neither of the Private Adriana and were laws specific Agreements with Sylvia subject to the of he United States 01337 Ms Adriana Longoria October 22 2010 Page some type of negative influence are groundless It is the case that Mr Longoria excluded you and Sylvia from his 2002 Will because he had already provided for your bequests in the earlier Wish Letter which he 2002 updated at the time of his Will by executing the new private agreements with you and Sylvia in 2002 He intended for his continuing and substantial long-term inter vivos gifts to provide for his daughters both during his hfe5 and to serve as nest egg for you to use to provide for death Wish and yourselves after his as expressed in both the Letter the Private Agreements Sylvia both understood and acknowledged your fathers intentions to Shelby it is only you Adriana that makes and continues to make such meritless claims Approximately $725737.00 is left on the Ledger under Adrianas 2002 Private Agreement as of this date The Ledger reflects payments made over the past 18 years The current projection shows that payments can be made in the amount of $150000 year for the next years Mr Longoria believed that the $3000000 provided each daughter in the original Wish Letter and later as the terms were updated in the 2002 Private Agreements reflected fair apportionment of his net worth both in 1992 and later in 2002 These payments under these agreements have provided Adriana with 18 years of an income stream to date with another left total amount sufficient to live years comfortably and make plans for the future to provide for your own support your estate planning and your retirement if used carefully.7 Any increase in the value of the Mexican Companies that has occurred over the years and most particularly after Mr Longorias death in 2005 has been the result of Shelbys long hours of work personal sacrifice and resourcefulness and cannot under any rule of law or private agreement create an additional obligation for Shelby to provide now larger bequest to his siblings Any such demand is without merit Shelby has made every effort to cause the trust to allow the Mexican Companies to continue the payments to you and Sylvia in accordance with the provisions of your respective Private Agreements as evidenced by the payment of the balance to Sylvia in 2006 and the continued payments to you Adriana through September 2010 He has honored requests by you to provide amounts exceeding those provided in the payment schedule of the 2002 Private Agreement out of respect for his fathers wishes and even if misplaced his love and affection for his family Shelby has taken on the sole financial responsibility of caring for his mother Mrs Longoria and has provided her with monthly cash payments of approximately $17000 since Mr Longorias death in 2005 In addition he caused the loan on the Houston Condo to be fully paid directly benefiting his sisters equally from funds provided from the operating cash flows of the Mexican Companies without further reducing the Ledger balances No one but Shelby has made any effort to provide for the women in his family in accordance with his fathers wishes It also seems clear that after suffering the Austin financial disaster and the several Mexican government peso devaluations father wanted his daughters to begin to have the benefit of his estate immediately to protect your you from the possible future loss of his entire estate He treated your brothers quite differently he left them to their own work ethics and their own decisions on risk taking and entitled them only to possible future inheritance through his will after his death for the assets at that time It Is this firms understanding that Shelby frequently advised Adriana to spend her money wisely and not to the funds she receives on frivolous consumer purchases He has spoken on numerous occasions to spend Hart Adrianas him help Adriana both her choices regarding Raymond elder sons to enlist to with lifestyle financial management and her need to accumulate financial reserves rather than spending each monthly payment as she has received them Unless Adriarias brother Wayo is willing to take on life-long commitment to support sister who has made consistently poor choices regarding her own fiscal responsibility to care for her an agreement cannot be reached regarding the Adriana has it will fall to Raymond if allegations made and continues to make 01338 Ms Adriana Longoria October 22 2010 Page 10 Although Shelbys payments to you and Sylvia including payments made to reduce the loan for the Houston condo and his continuing support of Mrs Longoria testify to Shelbys willingness to fulfill and exceed Mr Longorias wishes regarding his fathers that willingness has been private bequests destroyed by your intentional threats to harm Shelby and his family and almost continuous your conduct of spreading vicious and false rumors about Shelby and his this family past year As result of the false stories and made allegations you have to Shelbys friends family members business associates and even strangers which have had the calculated effect of slandering Shelbys name and good character he is lawsuit to enjoin from further slander and initiating you libel Based upon the outcome of that and your response suit Shelby may continue to try to fulfill his fathers wishes but only if some definitive agreement is reached resolving the egregious threats and his concerns about the virulent efforts you has employed to harm him and his family In summation Shelby will no longer seek the consent of the trust to provide cash from the trust assets the Mexican Companies to continue the This has resulted monthly payments in discontinued payments effective October 2010 Shelby will make no further efforts on behalf your until you and your representatives have discussed and resolved your disputes with Shelby or you decide otherwise how you prefer to proceed Sincerely Carolyn ii Beckett cbeckett@sjbt.com 512.370.2733 Direct CMBtb 01339 EXHIBIT 01340 ACUERO FRI VAOO QIJE CELEBRAN EDIIARDO LOGORlA THER1OT ARIANA LDNORIA KOWALSKI RESPET0 DEL RECONOCIMIENTO tE LOS TERMINOS ACEPTACIN YCONDICKNES bEL FIDEICOM1SO NO 194-2 CCSTfl1JIDO EN BANCA AIIRME SA 4NSTITUCION DE ANCA MULTIPLE Da RECONOCIMIENTO DE OBUGACIN DE PAGO 1AVOR IE LA SEI4ORA ADRIANA LONGORIA KOWALSI DE ACUERDO LO lGUlENTE DECLARACIONE$ .1 Dciran las psjes ue er ecte otubre 15 del presente qo se cejebr un conirofo de fldeIoniso doMe octu came Fldeicamflerite el sefor Eduardo Longoilo Theioi ocirno fldeIaomorios as ses EdUerdo Shelby Luls Longorie Kowaiski coma liducorle Jo iristjfucn de crØdito Barca AfIrrne S.A lnsfltucin de ancci MCfllpIe el cuOl se registrocon el nOmero 94-2 del cud onexa und coplo 01 presente Acuerdo en Ia suceslyo el F1DEICOMISO Quo en dicho F1DBCOMISO se desiroron coma benefidartos los seforesEDUARDO SHELBY WIS LON3ORIA IOWALSKI respecfa de prpJodad de las acclonos ciportaclcis misrno c4 Quo do iguat matero quo es l volunad de su padre quo EDtJARDO SHELBY LyIS LONGORIA KOWA.S1i reciban Ia propIadoi do las acciones do totalkid do las rnpresas es volunlad do su padre quo ADRIANA LONGORIA KOWA1.2KI redbu Jo ccnfidcId so establece en e1e quo AcuercAo las condlclones oqut 1ndcodas CIAU.SULAS Pdrnero DeL EICOMSQ.- Las pcirfes reconacen la vaidez alcunce del FJDEICOMISO- en tel sentldo stdfi de acuerdo en todos sts iØrrrlros condlclones par to fanto rnenlfieslaæ quo dko contrato es Ia volunfod linol defirltve do laspanes pot Jo quo esln conformes en tocios sts tØrmlros esn conformes quo la oclones ØI aportadas so fransmilan favor do los neficlorios deslgnados ADRIANA 00119 01341 Seunda io ADIANA LtGOIA KOWAL$KL Es voluntad su padre quo so le snireue to fldad do US3OOOOOO.OO sililonos do dlares arneicanas su ADRANA LONGORIA KOWAISK1 cargo do los flujos do operod6n quo generon los ampresas quo ropresenan las aoctonos oporlada en ei FDEtCOM1SO sus sulsldorias par Ia quo as abllgacon do EDUARQ SHELBY LUIS LONGORIA KOWALSK en los tØrminos quo menclonan ci canfinuaciri fech do lirma del presenfe Acuordo of saldo par eniregar AIRIANA LONGORIA KOWALSll er tØrrninas del pÆrrafo anterIor asclerde confidad do JS$2.06 ODQD dos mittones sesenta nueve ml cten dolores cimoricanas segCin estcc4o do cuenfa que so onoxa Ia presene En yfrtud do to anterior se le -a eearÆ ADRIANA LONGORIA KOWAtSKI una carfidad do US$hOOoO.QO ariual ciento cincuenja rnli d4ares amettc.anos do capita irTterses en mensualidades de US$ 2500.00 cloce mit quinerto df ares amerlcancs hasci to completa tiquidoc1n del sado quo so roflore el prraf antetior Do Iguot manera el saldo pr pogar causor un interØs normal del 75% setenia cinco pat ciorito dot rprirno ral publicado par of Vial Street Journal So estbtece quo podrØn hctcerse en bienes en so pugos cuy coso acordrah los importes par anbcs panes Las aantidados sern eniregados en estilcto apego 105 alsosiciones legales fIscoles aplicabtes qi momenta de pago Tecero Centnante Condicln do In Vcrluritad.- Las panes mdniflesiari quo el Acuerdo as presenie voluntod final dpllnitWa do las partes par to qua estÆri confarmes en fodos sus iØrmtnas rncinffestando adernÆs que no exisie error dc4o maId fe cualquer vtca de to voluntcid qua pudtere afeclar su enleridimlento decisiOn tespacto at coniido do mismo La obllgaciOn entegar las conlidades mencionadas en favor do ADRIANA LONGORIA IOWALSKI cargo del FIDEICOMISO en los lOnninos aqul selocidos contnuarÆ vigerrie hasto su cornpleia tiquidaoen en Ia inteligenca quo uno vez Iqudadas los ccxntidodes quo se reftejen at presente AcUerdo DRIANA LNGORlA KOWALSKl par scntfsfocho se dar6 respecto do ouaquier obtlgaciOn .pnesenle Mura cargo del pafrirnonlo do HDECOMIO do to seiores EDUARDO SHEt.BY WIS LONGORIA KOWALSKL PÆg2 ADRIANA 00120 01342 Cucrtc UrStI1I6n Lesloc16n Mex1are.- El presente Acuerdo se estoblece juflsdidn eyes de los Fslodos Iiniidoz Meioanos For lal rntlto las partes somefen ecc1vz1vomente las leyes cia MØxiao par to qua renurian expresamente Ic apflcacic5n cia cuatular Lay reglamenlo disposlcin norma de afro jUrlsdicdn dlferante ala .rnecano qua pudlere con-esponderla por rnallvo cia residendci su pcilernlciod ciudadanlo donuioMo parerdesco reIac6n comeralal par to qua en coso cia 1nleire1ocin coniiroveJc cucliquier speato reiaalonado con al preseflie Hdelcorniso se somalen axpresamente los tib.unles de Ia cludad cia Reynosa Tcmc$ullpcis MeXico De Iguol maneia Jo emisln cia cuaqoiar Lay reIomerib en poslcione jurlsdiadones fuaro de Ia Repblica MeXicon cuolqui- acto -ealisarJp fuercr del terriforo nudonal por cualquiera cia Icis paes que pretenda Impanar restiicclanes cii presecite Acudo oirnporer eollzcidl6n cia ocios dlveios los fines parc los qua e cUiodo qua pretenclo imponer lrnpuestos derechos .cargas frfouorias diererctes ICE en to previsfas LegistaclOn Mexlcana fill qua prefenda expropJor ilmitar tonlscar eribcrgar disponer congelar de cucilqular forrnc aec1ar Los derechas del Acuerdo en base disposidones legales toniio federcdes e1citoIes municipoles fuer cia to juæsdlcd6n cia Ia Repbilc MeXiccina no as Ti sara pIlcabte cii pTesenle Acuordo deblendo en ioda caso aptlcarse Jo JuscIIc16n LoglsIacln de a RepObflcci de os EsLodos Urildos Medccinos en tØrrriinos dat prrafoiriterior VMo tedp enterler Ia thman pfes en Ia citudad de Relnesa Tcmeupas el dua 17 cia DCIM1E del 2OZ2 Edaii.do ocr Therlof ADRIANA 00121 01343 EXHIBIT 01344 CASE NUMBER 414270 IN THE ESTATE OF IN PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS AFFIDAVIT OF JAMES AUSTIN FISHER STATE OF TEXAS COUNTY OF DALLAS BEFORE ME the undersigned authority on this day appeared in person James Austin Fisher who is known by me to be the person whose signature appears below and who being first duly sworn upon oath testified as follows My name is James Austin Fisher have read this affidavit and the exhibits attached hereto in their entirety and affirm that this affidavit is true and correct am 58 years old am fully competent to give this testimony became licensed to practice law in the State of Colorado on October 16 1981 and in the State on August 29 1986 Both of Texas licenses are in good standing also have been admittedpro hac vice to practice law in the courts of other states and have been admitted to appear in many federal courts of the United States of America including federal courts in all of the districts situated in the State of Texas have practiced law continuously since 1981 Since 1986 have practiced law primarily in the State of Texas although have also represented clients in many other jurisdictions within the United States of America have never been the subject of any disciplinary action by any court Presently am the President of law firm named Fisher Welch Professional Corporation am one of the attorneys for Adriana Longoria in the above-captioned case In the course of working on this case acquired personal knowledge of the facts set forth below EXHIBIT AFFDAVIT OF JAMES AUSTIN FISHER Page 01345 Attached hereto as Exhibit true and is correct copy of document entitled Mexico Travel Warning published on the website of the United States Department of State and printed on February 2015 Attached hereto as Exhibit is true and correct copy of Shelby Longoria Second Amended Response to Requests for Disclosure which was served on April 32014 on August 262014 one of Shelbys attorney took the deposition upon oral examination of Adriana Attached hereto as Exhibit and Longoria is true correct copy of pages 197-208 of the transcript of that deposition Attached hereto as Exhibit is true and correct copy of Shelby Longorias Responses to Adriana Longorias First Requests for Production of Documents and Things which was served on September 12 2014 Attached hereto as Exhibit is true and copy of Shelby correct Longorias Responses to Adrianas First Set of Interrogatories which was served on September 15 2014 On October 2014 took the deposition upon oral examination of Shelby Longoria Attached hereto as Exhibit is true and correct copy of pages 133-156 of the transcript of that deposition 10 Attached hereto as Exhibit is true and correct copy of Shelby Longorias Third Amended Response to Requests for Disclosure which was served on January 15 2015 11 This concludes my affidavit testimony James Austin Fisher AFFIDAVIT OF JAMES AUSTIN FISHER Page 01346 SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority by James Austin Fisher on February 9ry Public State of Texas u- Nst PrintŁd Name of Notary Public My Commission Expires AFFIDAViT OF JAMES AUSTIN FISHER Page 01347 EXHIBIT 01348 2/7/2015 Mexico Travel Warning Czrct rid U.s Eban Cct EXHIBIT Passports Alerts and Warnings Mexico Travel Warning ftjjjf Email Mexico Travel Warning LAST UPDATED DECEMBER 24 2014 The U.S Department of State warns U.S citizens about the risk of traveling to certain places in Mexico due to threats to safety and security posed by organized criminal groups in the country U.S citizens have been the target of violent crimes such as kidnapping carjacking and robbery by organized criminal groups in various Mexican states For information on conditions of Mexico which can travelers should reference the security in specific regions vary state-by-state assessments further below This Travel Warning replaces the Travel Warning for Mexico issued October 10 2014 to update information about the security situation and to advise the public of additional restrictions on the travel of U.S government USG personnel Genera Conditions Millions of US citizens safely visit Mexico each year for study tourism and business including more than 150000 who cross the border every day The Mexican government dedicates substantial resources to protect visitors to major tourist destinations and there is no evidence that organized criminal groups have targeted U.S visitors or residents based on their nationality Resort areas and tourist destinations in Mexico generally do not see the levels of drug-related violence and crime that are reported in the border region or in areas along major trafficking routes Nevertheless U.S travelers should be aware that the Mexican government has been engaged in an extensive effort to counter organized criminal groups that engage in narcotics trafficking and other unlawful activities throughout Mexico The groups themselves are engaged in violent struggle to control drug trafficking routes and other criminal activity Crime and violence are serious problems and can occur anywhere U.S citizens have fallen victim to criminal activity including homicide gun battles kidnapping carjacking and highway robbery While many of those killed in organized crime-related violence have themselves been involved in criminal activity innocent persons have also been killed The number of U.S citizens reported to the Department of State as murdered in Mexico was 81 in 2013 and 85 in 2014 to date Gun battles between rival criminal organizations or with Mexican authorities have taken place in towns and cities in many parts of Mexico Gun battles have occurred in broad daylight on streets and in other public venues such as restaurants and clubs During some of these incidents U.S citizens have been trapped and temporarily prevented from leaving the area Criminal organizations have used stolen cars buses and trucks to create roadblocks on major thoroughfares preventing the military and police from responding to criminal activity The location and timing of future armed engagements is unpredictable We recommend that you defer travel to the areas specifically identified in this Travel Warning and exercise extreme caution when traveling throughout the other areas for which advisories are in effect Mexico concern and be on the According to statistics The number of kidnappings throughout is of particular appears to rise published by the Mexican Secretaria de Gobernacion SEGOB in 2013 kidnappings nationwide increased 20 percent over the previous year While kidnappings can occur anywhere according to SEGOB during this timeframe the states with the highest Estado de and Morelos to numbers of kidnappings were Tamaulipas Guerrero MichoacÆn Mexico Additionally according INEGI Institute of Statistics and widely publicized study by the agency responsible for national statistics the National Mexico suffered an estimated 105682 kidnappings 2012 only 1317 were reported to the police Police have been Geography in implicated in some of these incidents Both local and expatriate communities have been victimized More than 130 kidnappings of U.S citizens were reported to the U.S Embassy and consulates in Mexico between January and November of 2014 1/8 http//travel .state.gov/contenl/passports/englishlalertswarnings/mexico-travel-warning.html 01349 2TI2015 Mexico Travel Warning U.S citizens are encouraged to lower their personal profiles and to avoid displaying indicators of wealth such as expensive or expensive-looking jewelry watches or cameras U.S citizens are encouraged to maintain awareness of their surroundings and avoid situations in which they may be isolated or stand out as potential victims Kidnappings in Mexico have included traditional express and virtual kidnappings Victims of traditional kidnappings are physically abducted and held captive until ransom is paid for release Express kidnappings are those in which victim is abducted for short time and forced to withdraw money usually from an ATM then released virtual kidnapping is an extortion-by-deception scheme wherein victim is contacted by phone and convinced to Isolate themselves from family and friends until ransom is paid The victim is coerced by threat of violence to remain isolated and to provide phone numbers for the victims family or loved ones The victims family is then contacted and ransom for the kidnapped extracted Recently some travelers to Mexico staying at hotels as guests have been targets of such virtual kidnapping schemes Of particular safety concern are casinos sports books or other gambling establishments and adult entertainment establishments U.S government personnel are specifically prohibited from patronizing these establishments in the states of Coahuila Durango Zecatecas Aguascalientes San Luis Potosi Nuevo Leon Tamaulipas Jalisco Colima and Nayarit Carjackincj and highway robbery are serious problems in many parts of the border region and U.S citizens have been murdered in such incidents Most victims who complied with carjackers demands have reported that they were not physically harmed Carjackers have shot at vehicles that have attempted to flee Incidents have occurred during the day and at night and carjackers have used variety of techniques including roadblocks bumping/moving vehicles to force them to stop and running vehicles off the road at high speeds There are indications that criminals target newer and larger vehicles especially dark-colored SUVs However even drivers of old sedans and buses coming from the United States have been targeted While violent incidents can occur anywhere and at any time they most frequently occur at night and on isolated roads To reduce risk when traveling by road we strongly urge you to travel between cities throughout Mexico only during daylight hours to avoid isolated roads and to use toll roads cuotas whenever possible The Mexican government has deployed federal police and military personnel throughout the country as part of its efforts to combat organized criminal groups U.S citizens traveling on Mexican roads and highways by car or bus may encounter government checkpoints staffed by military or law enforcement personnel In some places criminal organizations have erected their own unauthorized checkpoints at times wearing police and military uniforms and have killed or abducted motorists who have failed to stop at them You should cooperate at all checkpoints Demonstrations are common and occur in all parts of the country Even demonstrations intended to be peaceful can turn confrontational and escalate into violence Protesters in Mexico may block traffic on roads including major thoroughfares or take control of toll booths on highways U.S citizens are urged to avoid areas of demonstrations and to exercise caution if in the vicinity of any protests Travelers who encounter protestors demanding unofficial tolls are generally allowed to pass upon payment Travelers are urged not to exit from major highways U.S Citizens should avoid participating in demonstrations and other activities that might be deemed political by the authorities as the Mexican Constitution prohibits political activities by foreigners such actions may result in detention and/or deportation The imposes restrictions on U.S government employees travel in Mexico Since July 2010 USG employees are Department prohibited from driving on non-official travel from the US.-Mexico border to or from the interior of Mexico or Central America vehicle hours on 15 road between Hermosillo and Nogales on Personal travel by motor is permitted during daylight Highway toll 45 between Ciudad Juarez and Chihuahua City arid on the main roads between Palomas Chihuahua and Nuevo Casas Highway Grandes Chihuahua U.S and their families are prohibited from personal travel to all areas to which is advised to defer non government personnel it essential travel When travel for official is essential is conducted with extensive security precautions U.S purposes it and their families are allowed to travel for personal reasons to the areas where no advisory is in effect or government personnel where the advisory is to exercise caution While the general public is not forbidden from visiting places categorized under defer U.S not be able to to an emergency situation in those areas due non-essential travel government personnel will respond quickly to precautions that must be taken by U.S government personnel to travel to those areas Travel at night is prohibited security for U.S government personnel in some states as indicated below For more information on road safety and crime along Mexicos roadways see the Department of States Country Specific Information State-by-State Asseasm ent 2/8 http//travel .state.gov/contenu/passports/englishalertswarnings/mexico-travel-warning.html 01350 2/7/2015 Mexico Travel Warning Below is state-by-state assessment of security conditions throughout Mexico Travelers should be mindful that even if no advisories are effect for in given state crime and violence can still occur For general information about travel and other conditions in see our Mexico Country Specific Information Aguascalientes Exercise caution when traveling to the areas of the state that border the state of Zacatecas as criminal organization activity in that region continues Baja California Tijuana Rosarito Ensenada and Mexicali are major cities/travel destinations in the state of Baja California Exercise caution in the northern state of Baja California particularly at night Criminal activity along highways is continuing security concern According to the Baja State Secretariat for Public Security from January to October 2014 Tijuana and Rosarito experienced Increasing homicide rates compared to the same the period in previous year While most of these homicides appeared to be targeted criminal organization turf battles assassinations between criminal groups have resulted in violent crime in areas frequented by U.S citizens Shooting which innocent incidents in bystanders have been injured have occurred during daylight hours Baja California Sur Cabo San Lucas and La Paz are major cities/travel destinations in the state of Southern Baja California Exercise caution in the state capital of La Paz to the of Interior According Department of Mexico in 2013 Baja California Sur registered homicide rate since 1997 these homicides its highest Many oF occurred in La Paz where there has been an increase in organized crime-related violence Campeche No advisory is in effect Chiapas Palenque and San Cristobal de las Casas are major cities/travel destinations in No Chiapas advisory is in effect Chihuahua Ciudad uarez Chihuahua City and Copper Canyon are major cities/travel destinations in Chihuahua Exercise caution in traveling to the business and districts the northeast shopping in section of Ciudad Juarez and its major industrial parks the central downtown section and major industrial the of parks in city Chihuahua the town of Palomas the urban area of the of Ojinaga and the towns of Nuevo Casas Grandes and Casas Grandes and city their immediate environs Travel to the Nuevo Casas Grandes area should be through the Palomas port of entry POE on U.S Highway 11 contInuing south until reaching Mexico Highway west to Nuevo Casas Grandes Travel to Ojinaga should be on the U.S side via U.S 67 Highway through the Presidio POE Defer non-essential travel to other areas in the state of Chihuahua and travel between cities only on major highways and only during daylight hours Crime and violence remain serious problems the state of throughout Chihuahua particularly in the southern portion of the state and the Sierra Mountains in including Copper Canyon Coahuila Defer non-essential travel to the state of Coahuila except the city of where should exercise caution Saltillo you Violence and criminal activity along the highways are continuing security particularly the northern border between concerns along Piedras Negras and Nuevo Laredo The state of Coahuila continues to experience high rates of violent crime including murder kidnapping and armed carjacking. Colima Manzanillo is major city/travel destination in Colima Defer non-essential travel to the areas of the state of Colima that border the state of Michoacn including the city of Tecoman The situation the Michoacn border security along continues to be the most unstable in the state and personal travel by U.S not this government personnel is permitted in area Durango Exercise caution in the state of Durango Violence and criminal activity along the highways are continuing security concern Several areas in the state continue to experience high rates of violence and remain volatile and U.S unpredictable government personnel may travel outside the city of Durango only during daylight hours on toll roads and must return to the city of Durango to abide by curfew of a.m to am Estado de Mexico Toluca and Teotihuacan are major travel destinations in Estado de Mexico Exercise caution in the State of Mexico Many areas of the state have seen high levels of crime and insecurity as organized criminal have groups expanded their activities from the states of Guerrero and MichoacÆn and have also experienced high levels of street crime The September 2014 INEGI crime victimization survey indicated that the State of Mexico had the highest incidence of crime in Mexico with 47778 victims per 100000 Due to high rates of crime and insecurity defer non-essential travel to the municipalities of Coacalco Ecatepec Nezahualcoyotl La Paz Valle del Chalco Solidaridad Chalco and Ixtapaluca which are eastern portions of the greater Mexico City metropolitan area located just to the east of the Federal District of Mexico and Benito Juarez airport unless traveling directly through the areas on major thoroughfares Defer non-essential travel to the municipality of Tlatlaya in the southwest portion of the state and non-essential travel on any roads between Santa Marta in the southeast portion of the state and Huitzilac in the state of Morelos including the Lagunas de Zempoala National Park and surrounding areas due to high rates of http//travel.state.gov/content/passports/englishfalertswarnings/mexjco-travel_warning.html 3/8 01351 2/7/2015 Mexico Travel Warning crime and insecurity Guanajuato San Miguel de Allende and Leon are major cities/travel destinations in Guanajuato No advisory is in effect Guerrero Acapulco Ixtapa Taxco and Zihuatanejo are major cities/travel destinations in Guerrero Defer non essential travel to parts of the state except for the cities of Acapulco Ixtapa and Travel to and all Zihuatanejo Acapulco Ixtapa/Zihuatanejo only by air or cruise ship exercise caution and remain in tourist areas Travel in and out of Acapulco by air and cruise ship is permitted for U.S government personnel U.S government personnel are prohibited from traveling within Guerrero state by land including via the 95D toll road cuota to/from Mexico City and Acapulco as well as highway 200 between Acapulco and Ixtapa/Zihuatanejo In Acapulco defer non-essential travel to areas further than two blocks inland of the Costera Miguel Aleman Boulevard which parallels the popular beach areas Lodging for U.S government personnel is limited to the hotel zone aona hotelera of Acapulco beginning from the Krystal Beach Acapulco hotel in the north and going south through Puerto Marquez including the Playa Diamante area and ending at The Resort at Mundo Imperial hotel In general the popular tourist area of Diamante just south of the city has been less affected by violence Any activity outside the hotel zone for U.S government personnel is limited to the coastal area from La Quebrada to the beginning of the hotel zone and only during daylight hours The state of Guerrero was the most violent state in Mexico in 2013 with 2087 homicides and 207 reported cases of to the Mexican Secretariado Nacional de Seguridad Publica Self-defense kidnapping according Ejecutivo groups operate independently of the government in many areas of Guerrero Armed members of these groups frequently maintain roadblocks and although not considered hostile to foreigners or tourists are suspicious of outsiders and should be considered volatile and unpredictable 1-lidalgo No advisory is in effect Jalisco Guadalajara Puerto Vallarta and Lake Chapala are major cities/travel destinations in 3alisco Defer non essential travel to areas of the state that border the states of MichoacÆn and Zacatecas The security situation along the MichoacÆn and Zacatecas borders continues to be unstable Exercise caution in rural areas and when using secondary highways U.S government personnel are authorized to use Federal toll road 15D for travel to Mexico City however they may not stop in the town of La Barca for any reason U.S government personnel are prohibited from personal travel to areas of 3alisco that border Zacatecas and are prohibited from intercity travel at night Mexico City also known as the Federal District No advisory is in effect See also the discussion in the section on Estado de Mexico for areas within the greater Mexico City metropolitan area MichoacÆn Morelia is major city/travel destination in MichoacÆn Defer non-essential travel to the state of Michoacn except the cities of Morelia and Lzaro Cardenas and the area north of federal toll road 15D where you should exercise caution U.S government employees are prohibited from traveling by land in Michoacn except on federal toll road 15D during daylight hours Flying into Morelia and Lzaro Cardenas is the recommended method of travel Attacks on Mexican government officials law enforcement and military personnel and other incidents of organized crime-related violence have occurred throughout Michoacdn Armed members of some self-defense groups maintain roadblocks and although not considered hostile to foreigners or tourists are suspicious of outsiders and should be considered volatile and unpredictable Some self-defense groups in MichoacÆn are reputed to be linked to organized crime Morelos Cuernavaca destination in Morelos Exercise caution the state of Morelos due to the is major city/travel in You also defer non-essential travel on any roads between in the unpredictable nature of organized crime violence should F-luitzilac northwest corner of the state and Santa Marta in the state of Mexico including the Lagunas de Zempoala National Park and surrounding areas Numerous incidents of organized crime-related violence have also occurred in the city of Cuernavaca Nayarit The Riviera Nayarit coast including the cities of Tepic Xalisco and San Bias is major travel destination in the border the as well as rural Nayarit Defer non-essential travel to areas of state of Nayarit that states of Sinaloa or Durango all areas and secondary highways Nuevo Leon Monterrey destination in Nuevo Leon Exercise caution in the state of Nuevo Leon is major city/travel violence and has decreased dramatically within the Although the level of organized crime-related general Insecurity in Monterrey last two incidents of violence have occurred Security services in and around Monterrey are robust and have years sporadic and effective violent crimes however instances of violence remain concern in the more remote proven responsive in combating of the state U.S and their dependents may travel outside the city of Monterrey only during regions government personnel hours on and must return to the city of San Pedro Garza Garcia municipal boundaries to abide by curfew of daylight toll roads a.m and am except for travel to the airport after a.m kffnIJfrl ......-wrninri html 4/8 01352 2/7/2015 Mexico Travel Warning Oaxaca Oaxaca Huatulco and Puerto Escondido are major cities/travel destinations in Oaxaca No advisory is in effect Puebla No advisory is in effect Queretaro No advisory is in effect Quintana Roo Cancun Cozumel Playa del Carmen Riviera Maya and Tulum are major cities/travel destinations in Quintana Roo No advisory Is in effect San Luis Potosi Exercise caution In the state of San Luls Potosi U.S government personnel may travel outside the City of San Luis Potosi only during daylight hours on toll roads and must return to the city of San Luis Potosi to abide by curfew of am to am Sinaloa Mazatlan is major city/travel destination in Sinaloa Defer non-essential travel to the state of Sinaloa the except city of Mazatlan where you should exercise caution particularly late at night and in the early morning One of Mexicos most powerful criminal organizations is based in the state of Sinaloa and violent crime rates remain of the state high in many parts Travel off the toll roads in remote areas of Sinaloa is especially dangerous and should be avoided We recommend that any travel in Mazatlan be limited to Zona Dorada and the historic town center as well as direct routes to/from these locations and the airport Sonora Nogales Puerto Peæasco Hermosillo and San Carlos are major cities/travel destinations in Sonora Sonora is key region in the international drug and human trafficking trades and can be extremely dangerous for travelers Travelers throughout Sonora are encouraged to limit travel to main roads during daylight hours The region west of Nogales east of Sonoyta and from Caborca north including the towns of Saric Tubutama and Altar and the eastern edge of Sonora bordering Chihuahua are known centers of illegal activity and non-essential travel between these cities should be avoided Travelers should also defer the non-essential travel to eastern edge of the state of Sonora which borders the state of Chihuahua all points along that border east of the northern city of Agua Prieta and the southern town of Alamos and defer non-essential travel within the city of Ciudad Obregon and south of the city of Navojoa You should exercise caution while transiting Vicam in southern Sonora due to roadblocks that can be instituted ad hoc by local indigenous and environmental groups U.S citizens visiting Puerto Peuiasco should use the Sonora border crossing and to hours Lukeville Arizona/Sonoyta limit driving daylight Tabasco Villahermosa is major city/travel destination in Tabasco- No advisory is in effect Tamaulipas Matamoros Nuevo Laredo Reynosa and Tampico are major cities/travel destinations in Tamaulipas Defer non-essential travel to the state of Tamaulipas All U.S government employees are prohibited from personal travel to all but the central zones of Matamoros and Nuevo Laredo and on Tamaulipas highways outside of Matamoros Reynosa and Nuevo Laredo due to the risks posed by armed robbery and carjacking particularly along the northern border While no highway routes through Tamaulipas are considered safe the highways between Matamoros-Ciudad Victoria Reynosa-Ciudad Victoria Ciudad Victoria-Tampico Monterrey-Nuevo Laredo and Monterrey-Reynosa are more prone to criminal activity Public and private passenger buses traveling through Tamaulipas are sometimes targeted by organized criminal groups These groups sometimes take all passengers hostage and demand ransom payments In Tamaulipas U.S government employees are subject to movement restrictions and curfew between midnight and am Matamoros Reynosa Nuevo Laredo and Cludad Victoria have experienced numerous gun battles and attacks with explosive devices in the past year Violent conflicts between rival criminal elements and/or the Mexican military can occur in all parts of the region and at all times of the day The number of reported kidnappings for Tamaulipas is among the highest in Mexico and the number of U.S citizens reported to the consulates in Matamoros and Nuevo Laredo as being kidnapped abducted or disappearing involuntarily in 2014 has also increased Tiaxcala No advisory is in effect Veracruz Exercise caution when traveling In the state of Veracruz The state of Veracruz continues to experience violence among rival criminal organizations Yucatan Merida and Chichen Itza are major cities/travel destinations in Yucatan No advisory is in effect Zacatecas Exercise caution in the state of Zacatecas Robberies carjackings and organized criminal activity remain concern U.S personnel may travel outside the of Zacatecas only during daylight hOurs on toll roads and must return to government city the city of Zacatecas to abide by curfew of am to am 5/8 http//travel.stale.gov/content/passports/english/alertswarnings/mexico-travel-warning.html 01353 217/2015 Mexico Travel Warning Further Information For more detailed information on staying safe in Mexico please see the State Departments Country Specific Information for Mexico For the latest security information U.S citizens traveling abroad should regularly monitor the State Departments internet web site where the current Worldwide Caution Travel Warnings and Travel Alerts can be found Follow us on Twitter and the Bureau of Consular Affairs page on Facebook as well Up-to-date information on can also be obtained security by calling 1-888- 407-4747 toll free the United States and Canada for callers outside the States and in or United Canada regular toll line at 001- 202-501-4444 These numbers are available from 800 a.m to 800 p.m Eastern Time Monday through Friday except U.S federal holidays U.S citizens traveling or residing overseas are encouraged to enroll with the State Departments Smart Traveler Enrollment Program For any emergencies involving U.S citizens in Mexico please contact the U.S Embassy or U.S Consulate with responsibility for that persons location in Mexico For information on the ten U.S consular districts in Mexico complete with links to Embassy and Consulate websites consult the Mexico U.S Consular The numbers below please District map provided for the Embassy and Consulates are available around the clock The U.S Embassy is located in Mexico City at Passo de Ia Reforma 305 Colonia Cuauhtemoc telephone from the United States 011-52-55-5080-2000 telephone within Mexico City 5080-2000 telephone long distance within Mexico 01-55-5080-2000 U.S citizens may also contact the Embassy by e-mail Consulates with consular districts Ciudad Juarez Chihuahua Paseo de Ia Victoria 3650 telephone 01152656 227-3000 Guadalajara Nayarit Jalisco Aguas Calientes and Colima Progreso 175 telephone 01152333 268-2100 Hermosillo Sinaloa and the southern part of the state of Sonora Avenida Monterrey 141 telephone 01152662 289-3500 Matamoros the southern part of Tamaulipas with the exception of the city of Tampico Avenida Primera 2002 telephone 011 52868 812-4402 Merida Campeche Yucatan and Quintana Roo Calle 60 no 338-K 29 31 Col Alcala Martin Merida Yucatan Mexico 97050 telephone 01152999 942-5700 or 202-250-3711 U.S number Monterrey Nuevo Leon Durango Zacatecas San Luis Potosi and the southern part of CoahuilaProlongacion Ave Alfonso Reyes No 150 Col Valle Poniente Santa Catarina Nuevo Leon 66196 telephone 011S2818 047-3100 Nogales the northern part of Sonora Calle San Jose Nogales Sonora telephone 01152631 311-8150 Nuevo Laredo the northern part of Coahuila and the northwestern part of Tamaulipas Calle Allende 3330 Col Jardin telephone 01152867 714-0512 Tijuana Baja California Norte and Baja California Sur Paseo de Las Culturas s/n Mesa de Otay telephone 011 52 664 977- 2000 All other Mexican states the Federal District of Mexico City and the city of Tampico Tamaulipas are part of the Embassys consular district Consular Agencies Acapulco Hotel Emporio Costera Miguel Aleman 121 Suite 14 telephone 01152744 481-0100 or 01152744 484- 0300 CancØn Blvd Kukulcan Km 13 ZH Torre La Europea Despacho 301 Cancun Quintana Roo Mexico C.P 77500 telephone 011 52998 883-0272 Los Cabos Las Tiendas de Palmilla Local B221 Carretera Transpeninsular Km 27.5 San JosØ del Cabo BCS Mexico 23406 telephone 624 143-3566 Fax 624 143-6750 MazatlØn Playa Gaviotas 202 Zone Dorada telephone 01152669 916-5889 Oaxaca Macedonio AlcalØ no 407 interior 20 telephone 01152951 514-3054 011 52951 516-2853 Piedras Negras Abasolo 211 Zona Centro Piedras Negras Coah telephone 01152878 782-5586 Playa del Carmen The Palapa Calle Sur between Avenida 15 and Avenida 20 telephone 01152984 873-0303 or 202- 370-6708e U.S number Puerto Vallarta Paradise Plaza Paseo de los Cocoteros Local Interior 17 Nuevo Vallarta Nayarit telephone 01152 322 222-0069 San Miguel de Allende Centro Comercial La Luciernaga Libramiento Manuel Zavala Pepe KBZON telephone 01152415 152-2357 Embassies Consulates 6/8 http//travel.state.govlcontentlpassports/englishlalertswarnlngs/mexico-travel-warning.html 01354 2/7/2015 Mexico Travel Warning Assistance for U.S Citizens U.S Embassy Mexico City Paseo de Ia Reforma 305 Colonia Cuauhternoc Mexico D.F Mexico C.P 06500 Telephone 5255 5080-2000 Emergency After-Hours Telephone 5255 5080-2000 ext 0155 5080-2000 ext within Mexico /5080-2000 within Mexico City Fax 5255 5080-2201 Email acsmexicocity@state.gov U.S Embassy Mexico City V1W MORE LOCATIONS 7/8 http//travel.state.gov/content/passports/englisWalertswarnings/mexico-travel-warning.html 01355 2f7/2015 Mexico Travel Warning LPOItD JtTEG click to enlarge Learn About Your Destination EnteraCountryorArea Enroll in STEP Enrolling in this free service will allow us to better assist in case you of an emergency while you are abroad About Us Find US Embassy or STAY CONNECTED Consulate Newsroom Contact is Passport Statisttcs Careers Legal orisideraltons Consular Notification and Access U.S Passports International Parental Ii c1 Ot Studntc kIm It tercounlr Joptton Intenattona1 Travel .hslri Aoduction Pnvuct Copyntihc Disciairnr FOIC No FEAR Ofcu Ol the tespector General USA.ov GobernoU5A.ov This site is managed by the Bureau of Consular Affairs 11.5 artmeni of State http//travel.state.gov/contenflpassports/englislilalertswarnings/mexico-travel-warning.html 8/8 01356 EXHIBIT 01357 Case Number 414270 THE ESTATE OF iN THE PROBATE DOROTHY LOUISE LONGORIA COURT NUMBER ONE DECEASED HARRIS COUNTY TEXAS Shelby Longorias Second Amended Response to Requests for Disclosure TO James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased Sylvia Dorsey and Adriana Longoria by and through their attorneys of record James Austin Fisher FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Shelby Longoria Will Contestant and Counter-Defendant in the above-styled and numbered cause and pursuant to Rule 194 of the Texas Rules of Civil Procedure answers the following requests for disclosure separately and fully in writing REQUEST FOR DISCLOSURE The correct names of the parties to the lawsuit RESPONSE The parties are correctly named REQUEST FOR DISCLOSURE The name address and telephone number of any potential parties RESPONSE Eduardo Wayo Longoria Jr ________________ 1702 Cresthaven Dr EXI-IIBJT Austin Texas 78704 512 535-0105 REOUEST FOR DISCLOSURE ci _____________ The legal theories and in general the factual bases of your claims or defenses RESPONSE The will that Sylvia Longoria Dorsey offered into probate is invalid On January 21 lacked the by law to make valid last will and 2010 Dorothy testamentary capacity required exerted testament Further the 2010 Will was executed as the result of undue influence by Sylvia 3004728v1/013774 01358 over Dorothy The influence effectively operated to subvert or mind the overpower Dorothys at time she executed the insirument in would not have executed the 2010 Will question Dorothy but for the influence exerted by Sylvia Sylvia also tortiously interfered with Shelbys inheritance rights by inducing Dorothy to execute the purported 2010 Will Adriana also tortiously interfered with Shelbys inheritance rights by her actions in 2009 to 2011 she induced Specifically Dorothy to execute alternative wills yet she ultimately acquiesced in the probate of the 2010 Will despite knowledge of later will because she needed Sylvias and Tommys cooperation to carry out scheme to assert claims on behalf of Dorothys estate for her own benefit Sylvia and Adriana thus have received benefit and of substantial of directly indirectly portion Dorothys estate and the appointment of Sylvias husband James Thomas Dorsey Tommy as executor Tommy should be removed as independent executor because he was appointed pursuant to an invalid will procured by Sylvia for the of installing her husband as the executor in purpose order to fraudulently circumvent her release of claims and recognition of the validity of the trust created in 2002 Tommy also should be removed as independent executor because he has material conflict of interests As independent executor he has fiduciary obligation to Dorothy Longorias estate to investigate Sylvias misappropriation of money earmarked for Dorothy and to assert claims as appropriate to recover the misappropriated funds Tommy will not fulfill this fiduciary obligation however because he is manied to Sylvia and benefited from her misappropriation Further Tommy has entered joint prosecution agreement with Adriana Sylvia and Adrianas son Raymond Hart Monte Through the joint prosecution agreement Tommy Sylvia Adriana and Monte have agreed to cooperate in the prosecution of the CLAIMS this litigation and to share any proceeds in accordance with the terms of the agreement no party including that Tommy has the exclusive right to make decisions about the actions or positions to be taken by the other PARTIES or the ATTORNEYS and to use any and LITIGATION their best efforts to reach consensus on all decisions relating to or the prosecution or sefflement of the CLAIMS in this lawsuit Together these provisions render Tommy incapable of properly performing the independent executors fiduciary duties under Texas Probate Code 149C because it means he either will not or cannot effectively pursue repayment of monies owed to the Estate by Sylvia Adriana and Monte Tommys counterclaims lack merit because Shelby did not owe his mother fiduciary duty nor did he breach promise to hold property for her benefit Further in spite of their recent amendment Tommys counterclaims even as amended should be dismissed on forum non conveniens grounds because they relate to Mexican marital property agreement that was entered as judgment of Mexican court Mexican trust holding and owning only Mexican assets that was set up by Mexican citizen living in Mexico and the probate of Mexican will that took place in Mexican court Resolving these claims in Texas would require the translation of Spanish-language documents and interpretation of Spanish-language documents and also face the insuperable obstacle of how to bring Mexican witnesses to court in Texas These are only some of the reasons dismissal on forum non conveniens grounds is appropriate Tommys counterclaims also lack merit because they are outside of the limitations period fail to state legally cognizable claim and are unsupported by the record in this case Adrianas counterclaims also lack merit because Shelby has not tortiously interfered with promise Further Adriana cannot her inheritance or enforceable contractual show rights any 3004728v1/013774 01359 Shelby owed her fiduciary duty or breached any promise let alone legally cognizable one Adriana cannot show the malice and/or fraud enhanced Adrianas to support damages counterclaims also lack merit because they are outside of the limitations period fail to state legally cognizable claim and are unsupported by the record in this case REQUEST FOR DISCLOSURE The amount and any method of calculating economic damages RESPONSE Not applicable REQUEST FOR DISCLOSURE The name address and telephone number of having knowledge of relevant facts persons and brief statement of each identified persons connection with the case RESPONSE Shelby Longoria do Johnny Carter Rick Hess and Kristen Schiemmer Susman Godfrey 1000 Louisiana Ste 5100 Houston Texas 77002 Shelby Longoria is the will contestant and counter-defendant in this case Sylvia Dorsey do James Fisher 500 North Alcard Street Dallas Texas 75201 Sylvia Dorsey applied for the probate of Dorothy Longoria purported 2010 will James Thomas Tommy Dorsey do James Fisher 500 North Akard Street Dallas Texas 75201 Tommy is the purported executor of the will Sylvia Dorsey applied to probate 3004728v1/013774 01360 Eduardo Wayo Longoria Jr 1702 Cresthaven Dr Austin Texas 78704 512 535-0105 Wayo is Sylvia Shelby and Adrianas brother Adriana Longoria 6138 San Felipe Street Houston TX 77057 713 784-0826 Adriana is Sylvia Shelby and Wayos sister Thomas Dorsey Jr Houston Texas 713 816-0881 Thomas Dorsey Jr is the son of the will applicant and executor as well as the business partner of the executor Kristin Dorsey Houston Texas 713 816-0881 Kristin Dorsey is Thomas Dorsey Jr.s wife and the daughter-in-law of the will applicant and executor Elizabeth Fertitta 2706 Eastgrove Lane Houston Texas 77027 Elizabeth Fertitta is the daughter of the will applicant and executor and her husband drafted the will Dorothy Louise Longoria allegedly executed on January 21 2010 Zack Fertitta 2706 Eastgrove Lane Houston Texas 77027 Zack Fertitta is the son-in-law of the will applicant and executor and drafted the will Dorothy Louise Longoria allegedly executed on January 21 2010 Robert Edward Wayo Dorsey 15308 Sunset Blvd Pacific Palisades CA 90272 Wayo Dorsey is the son of the will applicant and executor 3004728v1/013774 01361 Adriana Longoria 6138 San Felipe Street Houston Texas 77057 Adriana Longoria is Dorothy Longorias daughter Sylvia Dorsey and Shelby Longorias sister and Tommys sister-in-law Raymond Hart 5834 Candlewood Lane Houston TX 77057 713 818-2387 Raymond Hart is Adriana Longorias son Forrest Hart 307 Grand Street Apt 1C Brooklyn New York 11211-4446 Forrest Hart is Adriana Longorias son Adiiana Banks 6138 San Felipe Street Houston Texas 77057 Adriana Banks is Adriana Longorias daughter Tita Longoria do Johnny Carter Rick Hess and Kristen Schiemmer Susman Godfrey 1000 Louisiana Ste 5100 Houston Texas 77002 Tita Longoria is Shelby Longorias wife and Dorothy Longorias daughter-in-law Marta Beatriz Montelongo Garza Cerro del Bemal 128 Colonia las Fuentes Cp 88710 Reynosa Tamaulipas Ms Montelongo witnessed Eduardos 2002 will and the 2002 Afirme Trust agreement Saul Garza Molina Real De Cantaro 203 Frace Los Cantaros Reynosa Tamaulipas Mr Garza is the CEO of Grupo Inlosa and had close contact with Eduardo and Dorothy over many years 3004728v1/013774 01362 Imia Campoy Carrillo Haya 108 Fracc Privada Las Ceibas Reynosa Tamaulipas Ms Campoy is the Treasurer for Grupo Inlosa and was in charge of making payments to Sylvia and Adriana under the Acuerdo Privado Patricia Vazquez Playa Hermosa 507 Col Militar Marte Iztacalco Mexico Ms Vasquez was the Treasurer for Grupo Irilosa before Ms Campoy and was responsible for making payments to Sylvia and Adriana under the Acuerdos Privados Marco Tones Sierra Nevada 1208 Col Fuentes Reynosa Tamaulipas Mr Tones was the Administrative Director at Grupo Inlosa for many years and has knowledge of Eduardo and Dorothys wills and estate planning Pedro Ramirez Padre Mier 1504 Monteney N.L Mr RamIrez was the attorney who drafted trust documents and the Acuerdos Privados Celia Guerrero Zaragoza 1300 Sur Monterrey N.L Ms Guerrero works with Mr Ramirez and also assisted Mr Rainirez in the preparation of many documents Mario Gonzalez Mendoza Dr Mier 3113 Zona Centro Nuevo Laredo Tamaulipas Mr Gonzalez Mendoza was Eduardos and Dorothys attorney for approximately 40 and has relevant to their estate planning testamentary wishes and separate years knowledge prqperty agreement Mario Gonzalez Basurto Dr Mier 3113 Zona Centro Nuevo Laredo Tamaulipas Mr Gonzalez Basurto is Mr Longorias attorney in the amparo proceedings in Mexico 3004728v1/013774 01363 Elsa Gonzalez Basurto Dr Mier 3113 Zona Centro Nuevo Laredo Tamaulipas Ms Gonzalez worked on the probate of Eduardos estate Alicia Garcia Dr Mier 3113 Zona Centro Nuevo Laredo Tamaulipas Ms Garcia has been Mr Gonzalez Mendozas assistant for many years and knew Eduardo and Dorothy Carlos Avila Hacienda San Abel 215 Fracc Las Haciendas Reynosa Tamaulipas Mr Avila was the HR Manager for Grupo Inlosa for many years Carlos Gonzalez Hinojosa Libramiento Luis Echevania 630 Reynosa Tamaulipas Mr Gonzalez Hinojosa is an attorney in Reynosa who prepared several wills for Eduardo and Dorothy .Arnulfo Cruz Calle Del Cerro 131 Colonia Cumbres Monteney N.L Mr Cruz is tax consultant who participated on many of the documents and tax planning for Dorothy and Eduardo Virginia Coronel .Azucena 505 Col Puerta Del Hierro Monterrey N.L Ms Coronel is an attorney with intimate knowledge of documents related to Eduardos and Dorothys estate planning and Eduardos and Shelbys business dealings in Mexico 3004728v1/013774 01364 Dr Anselmo Guarneros Calle Independencia 2209 Nuevo Laredo Tamaulipas Dr Guarneros was good friends with Eduardo and Dorothy for many years witnessed Eduardos 2002 will and is about Eduardos medical condition the time he knowledgeable at executed the 2002 will Carlos Lozano Nayarit 3626 Colonia Jardin Nuevo Laredo Tamaulipas Mr Lozano worked for Eduardo for over thirty years Antonio Del Bosque Boulevard Las Torres Del Bosque 705 Nuevo Laredo Tamaulipas Mr Del Basque worked for Eduardo for over thirty years Lie Francisco Gaxiola Basque De Ciruelos 140-505 Mexico D.F Mr Gaxiola is an attorney that drafted documents for the Serfm Trust Nestor Sanchez Calle Perales 750 Colonia Jardin Reynosa Tamaulipas Mr Sanchez served as Administrative Director of 3rupo Inlosa before Marco Tones Lie Adrian Lozano Lozano Hidalgo 234 Pte 40 Piso Zona Centro Monterrey N.L Mr Lozano is an executive at Banca Afirme the trustee of the Afirme Trust Martha Beatriz Garza Hidalgo 234 Pte 40 Piso Zona Centro Monterrey N.L Ms Garza is an executive at Banca Afirme the trustee of the Afirme Trust 3004728v1/013774 01365 Lic Eduardo Marroquin Francisco Madero Pte 218 Monterrey Nuevo Leon Tamaulipas Mr Marroquin is an executive at Banca Afirme the trustee of the Afinne Trust Dr Mario Alberto Perez Coss Madero 1320 Nuevo Laredo Tamaulipas Dr Perez certified Dorothys good health in connection with her 1989 Mexican will Oscar Chapa Gonzalez Guatemala 2802 Col Ferrocarril Nuevo Laredo Tamaulipas 88050 Mr Chapa is knowledgeable about the valuation of properties in connection with Eduardos and Dorothys 1983 Separate Property Agreement Jose Luis Saldafia Avendaflo Carretera Piedras Negras kilometro 19.3 Poniente Nuevo Laredo Tamaulipas Mr Saldafia is knowledgeable about the 1983 Separate Property Agreement and the valuation of interests divided in that agreement REQUEST FOR DISCLOSURE For any testifying expert The experts name address and telephone number The subject matter on which the expert will testify The general substance of the experts mental impressions and opinions and brief summary of the basis for them or if the expert is not retained by you employed by you or otherwise subject to your control documents reflecting such information If the expert is retained by you employed by you or otherwise subject to your control 3004728v1/013774 01366 All documents tangible items reports models or data compilations that have been provided to reviewed by or prepared by or for the expert in anticipation of the experts testimony and The experts current resume and bibliography RESPONSE Experts will designated on the schedule provided by the Court REOUEST FOR DISCLOSURE Any indemnity and insuring agreements described in Rule 192.3f RESPONSE Not applicable REOUEST FOR DISCLOSURE settlement described in Rule 192.3g Any agreements RESPONSE Dorsey signed contract entitled Release Agreement on December 29 2006 Sylvia acknowledging full payment of gifts and inheritances she was owed under the Private Agreement and Wish Letter and releasing her claims against Shelby Longoria REQUEST FOR DISCLOSURE Any witness statements described in Rule 192.3h RESPONSE Not applicable 3004728v1/013774 10 01367 Respectfully submitted SUSMAN GODFRE .L.P By Carter Jc17inny Sfate Bar No 00796312 Richard Hess State Bar No 24046070 Kristen Schiemmer State Bar No 24075029 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713654-6666 Robert Maclntyre Jr MACINTYRE MCCULLOCH STANFIELD YOUNG 2900 Weslayan Suite 150 Houston Texas 77027 Telephone 713 547-5400 Attorneys for Shelby Longoria CERTifICATE OF SERVICE and of the above and This is to certify that on this April 2014 true correct copy the following counsel of record in accordance instrument was properly forwarded to foregoing 21 of the Texas Rules of Civil Procedure as indicated below with Rule Austin Fisher Via Ekctroni Mail James FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Bmail jfisherfisherwelch.com Wesley Holmes THE HOLMES LAW FIRM 1000 North Central Expressway Suite 400 Dallas Texas 75231 Email wes@wesholmes.com and riana Longoria Attorneys for James Thomas Dorsey Syii orse Kr.i ten Schienirner 3004728v1/013774 11 01368 EXHIBIT 01369 VOLUME II ADRIANA LONGORIA 8/26/2014 Page 197 Page 199 what he was doing was improper is trust specifically Trust 194-2 right No did not Witness nods head Okay Let me give you two exhibits at the Youve got to answer audibly same time because ones in English and one is in Yes oh--yes Spanish And when you look at the first page under the Declarations trust Exhibits 102 and 103 are marked you see that it refers to BY MR HESS Exhibit 102 has Private contract being executed with Mr Eduardo Longoria Agreement and Translation at the top Theriot acting as trustor and your brothers Wayo Exhibit 103 says Recuerdo Bravada and Shelby as Trust and Officiaries right 10 Lets start with 103 Ms Longoria and then 10 Yes 11 well 102 11 This agreement also affects you in very go back to 12 because the second clause refers to 12 So 103 is the Spanish language Private real way 13 be paid to you you and your father 13 between right payments to Agreement 14 A. Yes 14 Do you see that 15 15 nods head it is signed by you and signed by your Witness 16 father on the third right 16 Okay The second payment to Adriana page 17 Yes 17 Longoria Kowalski is the will of their father that 18 the amount of U.S $3 million be delivered to his 18 Now lets go to Exhibit 102 which is in 19 19 daughter Adriana Longoria Kowalski English 20 October of you entered into 2002 20 Do you see that So in 21 this with your father Eduardo Longoria 21 Yes agreement 22 the private weve 22 right So this is agreement that 23 nodshead 23 referenced today and also yesterday as the Witness 24 MR FISHER Objection form 24 instrument by which your father expressed his will 25 Yes 25 that you should get $3 million right 198 Page 200 Page Q. BY MR HESS Okay Just so Im clear This is the one we signed at dinnertime It And was his birthday October this is the translation of Exhibit 103 if And you see the first clause it says The theres any issue with the translation you see you the and of the let me know parties recognize validity scope Okay frist Do you see that The paragraph right before And if you dont have time to check you whether or the $3 million to you have capable lawyers who can determine not they have with the translation Uh-huh any problems MR FISHER Pm not capable Okay So back in 2002 in October you say 10 on your fathers birthday you executed an agreement 10 translator however 11 MR HESS Right 11 that affirms the validity and the scope of this BY MR HESS 12 trust referenced document right in the 12 And.Im only using 102 13 because this language this procedure 13 MR FISHER Objection form 14 Thats fine 14 BY MR HESS Your answer not before in 15 Well was able to read it 15 this procedure is taking place 16 it 16 English signed 17 of 102 says Executed by 17 All right Obviously you didnt sign So at the top 18 Exhibit the Theriot and Adriana Longoria Exhibit 102 but you signed 103 18 Eduardo Longoria 19 one II 19 20 Kowalski acceptance with of the respect terms and to the recognition conditions of and Trust 20 Spanish Yes language Im 21 And when you were not able to read 21 No 194-2 say you 22 Do you see that 22 it youre not telling me that youre incapable of 23 23 reading it right YesIseeit 24 the Agreement signed in 24 No was saying it was too brief amount of Okay So Private 25 that there 25 time 2002 by you and your father acknowledges 15 Pages 197 to 200 MERRILL CORPORATION HOUSTON WWW MERRILLCORP COM/LAW 1-888-513-9800 01370 VOLUME II ADRIANA LONGORIA 8/26/2014 Page 201 Page 203 And you didnt have You feel today that enough these pages almost feel that my father at time to read Exhibit 103 before you signed it that time as you can see his signature was quite Yes ill You dont dispute that did it You dont dispute you sign dont dispute that did sign it A.No You dont dispute that you could have had that you signed it and that youve been the opportunity to read it whenever you wanted paid pursuant to this agreement all the way up to No They they were picked up then and 2010 there Letmesaythatldo- 10 see Do you recognize this is the 10 right 11 been 11 know where those came from by which youve -- not agreement paid payments 12 YesIdo 12 were they the same payments from the trust that 13 an allowance -- 13 had been paid for for 50 years monthly 14 YesIdo 14 When got my money got it in my account 15 between 15 like had been for 50 every month every year years prior 16 As had all the years prior in my life 16 Are you going to turn around and give all 17 MR FISHER You didnt let him 17 that money back if this agreement is invalid 18 know what 18 have no money Ive spent it finish the question so you dont even 19 19 Well look at the bottom of page you were answering 20 BY MR HESS You dont even know what 20 MR FISHER Which exhibit 21 was asking 21 MR HESS Exhibit 102 22 No dont am so terribly sony 22 BY MR HESS Where it says The balance 23 Thats 23 to be delivered to Adriana Longoria Kowalski in all right 24 Ill leave here renegade 24 terms of previous paragraph amounts to 2069100 suppose 25 Just try to do better 25 And it carries over onto the second page Page 202 Page 204 will Itruly.. Are you with me Ms Longoria You signed an agreement -- Im looking at this Yes The witness peruses the document -- in 2002 And under the terms of that rm going to see-- lets see-- during allowance monthly can ask you -- or no agreement you have been paid an this questions all way up until October 2010 BY MR HESS If you want to confer with Yes your lawyer because you think you might reveal then Are you claiming that this agreement is something privileged between the two of you somehow invalid yes But.otherwise no 10 No 10 MR HESS Im sorry to interrupt 11 Okay This is valid agreement that you 11 MR FISHER agree with what you 12 signed and which your father signed 12 said.but want to ask you if you understand what 13 Witness nods head 13 he said THE WITNESS No no didnt know 14 MR FISHER Objection form 14 15 BY MR HESS You nodded before Mr Fisher 15 if could make reference to you 16 objected 16 MR FISHER cant coach you how 17 But what out loud 17 to answer or anything like that is your answer anyway 18 What see here on the paper is my signature 18 THE WITNESS Its most-- and my fathers signature 19 MR FISHER Youve just got to 20 20 answer the as best you can While may have some complaints today you question 21 that you wish you had more time to read it you 21 BY MR HESS Right now think the 22 question is Are you reading the same paragraph 22 dont dispute that you signed it and that youve 23 been paid pursuant to this agreement up until 23 am 24 October2010 24 MR FISHER Im not sure she is 25 I.Ididnotknowwhatwaswrittenon 25 The second one -- 16 Pages 201 to 204 MERRILL CORPORATION HOUSTON 1-888-513-9800 WWW MERRILLCORP COM/LW 01371 VOLUNE II ADRIANA LONGORIA 8/26/2014 Page 205 Page 207 MR FISHER If you could identi It was across the street from Sylvias business it again BY MR HESS Sure The bottom of page Do you remember the address carried over to the top of page A.No one Im on Do you remember what unit number your mother Yes thaes the lived in So by the time that you signed this the balance on the $3 million 14-- 140 agreement in 2002 Around what floor did she on you was live that your father wished to give to The 14th floor $2069100 right 10 10 How your mother when she Witness nods head often did you see 11 moved Houston 11 Im pointing to my ear because want to to 12 saw her in the beginning 12 hear your answer very frequently 13 Oh thank you Yes But- 13 When you say very frequently what does 14 As we discussed 14 that mean 15 15 Twice week maylaskyou- 16 And when you in beginning what over ask me the 16 When this deposition is say 17 17 does that mean whatever you want 18 That means Mother lived here around 18 Okay was 19 six years And would say the first three 19 When your father passed away in 2005 think the received 20 or four years 20 there any interruption in payments you 21 in 2005 21 2005 to 2008 you saw her probably two times 22 No 22 week 23 23 And how did that change after 2008 2006 24 and had had little 24 No Well Mother always 25 bit of caustic since was 15 25 2007 relationship 206 Page 208 Page would say And some things didnt change dont remember Do you remember any interruptions in your Was there anything in particular that caused with your monthly allowance in 2008 the caustic aspects of your relationship when mother to resurface after 2008 Those were the period of time dont Oh no It never was put to bed remember much And then after 2008 how often do you think Okay Do you remember any interruption of 2010 you would visit with your mother in person payments in 2009 or dont remember Once week once every ten days During this -- right now And how ong did that last after 2008 We talked about this earlier today but is 10 Till she died 10 your memory starling to fail you because youre 11 At some point in 2009 did your mother 11 getting disturbed about some of the issues that 12 some desire to for her to change her 12 have bothered in the express you you past 13 wifi 13 Perhaps 14 We didnt talk about that much 14 Now in 2005 after your father passed away 15 It sounds like in 2009 she didnt tell you 15 mother moved from Laredo to Houston right your 16 that she had some desire to go and change her will 16 She did 17 Is that right 17 Where did she live 18 AttheBella- 18 No she did not tell me How mental health-wise 19 Do you remember the name of the apartment 19 was your mother doing 20 around that time 20 building where she lived 21 the Bella-something 21 We were neck and neck She was not well It was 22 You were suffering from depression 22 Okay Is that high-rise condominium 23 Iwas 23 building 24 And she was suffering from depression 24 Yes it is 25 Do you remember the address 25 No She was aged ______ 17 Pages 205 to 208 MERRILL CORPOPATION HOUSTON WWW MERRILLCORP COM/ LAW 1-888-513-9800 01372 EXHIBIT 01373 Case Number 414270 IN THE ESTATE OF IN THEPROBATE DOROTHY LOUISE LONGORIA COURT NUMBER ONE DECEASED HARRIS COUNTY TEXAS ___________________________________________________________ Shelby Longorias Responses to Adriana Longorias First Requests for Production of Documents and Things TO Acixiana Longoria Adriana by and through her attorneys of record James Austin Fisher Fisher Welch 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 and Wesley Holmes The Holmes Law Finn 10000 North Central Expressway Suite 400 Dallas Texas 75231 Shelby Longoria Shelby Will Contestant in the above-styled and numbered cause and to Rule 196 of the Texas Rules of Civil Procedure answers the following requests for pursuant of documents separately and fully in writing production GENERAL OBJECTIONS to and all instructions or definitions that would require him to Shelby objects any in manner beyond that required by the Texas Rules of Civil Procedure respond all the requests below as seeking of documents Shelby further objects to production that have already been produced pursuant to requests for production propounded by Sylvia Dorsey Sylvia and James Thomas Dorsey Tommy to and all to the extent that they seek the production of Shelby objects any requests the work- any documents or information protected from disclosure by the attorney-client privilege of privilege law or rule Privileged Information any other applicable doctrine or claim product Information in to the and any Shelby Longoria will not produce Privileged response requests documents should be understood exclude Information by him to Privileged undertaking to produce the to demand the return of any documents that Shelby Longoria specifically reserves right EXHIBT 3285478v1/013774 01374 in his sole that such documents inadvertently may be produced if he determines discretion may constitute or contain Privileged Information Shelby has withheld documents and/or communications covered by privilege including attorney-client privilege and/or work product privilege responsive to Adrianas RFPs 17 18 and 19 Pursuant to TRCP 193.3c Shelby will exclude privileged communications and documents created from the point at which it consulted an attorney with view toward obtaining from the lawyer of claim in this professional legal services in the prosecution specific litigation Shelby Longoria reserves all other objections including without limitation to the relevance admissibility or authenticity of all information or documents provided objections RESPONSES AN OBJECTIONS All documents in which the Private Agreement is mentioned RESPONSE In their requests for production and 23 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria and All documents relating to document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on or about December 17 2002 Subject to the objections listed in the responses to those requests or control that are responsive to those Shelby produced all documents in his possession custody raised in to those Accordingly to the requests Shelby maintains any objections response requests in which the Private is mentioned Shelby has already extent Shelby has documents Agreement documents this on the basis of them Shelby has not withheld any responsive to request produced his previous objections All drafts of the Private whether or not they are entitled Acuerdo Privado Agreement RESPONSE 3285478v1/013774 01375 In their requests for production and 23 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria and All documents relating to document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on or about December 17 2002 Subject to the objections listed in the responses to those requests all documents in his possession custody or control that are responsive to those Shelby produced raised in to those Accordingly to the requests Shelby maintains any objections response requests extent Shelby has drafts of the Private Agreement Shelby has already produced them Shelby has on the basis of his previous any documents not withheld responsive to this request objections All documents in which draft of the Private Agreement is mentioned RESPONSE In their requests for production and 23 Sylvia and Tommy requested respectively All documents or to Adriana Longoria and All documents relating to referring relating document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on or about December 17 2002 Subject to the objections listed in the responses to those requests all documents in his possession custody or control that are responsive to those Shelby produced raised in response to those Accordingly to the requests Shelby maintains any objections requests of the Private is mentioned Shelby has extent Shelby has documents in which draft Agreement them withheld documents to this on the already produced Shelby has not any responsive request basis of his previous objections All documents in which there is reference to payment of money that was made to Adriana pursuant to the Private Agreement RESPONSE In their requests for production and 23 Sylvia and Tommy requested respectively Adriana Longoria and All documents relating to All documents referring or relating to and Eduardo on document entitled Acuerdo Privado and purportedly signed by Adriana Longoria 3285478v1/013774 01376 or about December 17 2002 Subject to the objections listed in the responses to those requests Shelby produced all documents in his possession custody or control that are responsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the extent Shelby has documents in which there is reference to payment of money that was made to Adriana pursuant to the Private Agreement Shelby has already produced them Shelby has however identified an updated statement of account for payments made to Adriana pursuant to the Private Agreement which he will produce Shelby has not withheld any documents responsive to this request on the basis of his previous objections All documents which identify the source of funds used to make payment of money to Adriana pursuant to the Private Agreement RESPONSE In their for production and 23 Sylvia and Tommy requested respectively requests All documents refening or relating to Adriana Longoria and All documents relating to document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on or about December 17 2002 Subject to the objections listed in the responses to those requests documents in his or control that are responsive to those Shelby produced all possession custody Accordingly to the requests Shelby maintains any objections raised in response to those requests the source of funds used to make of money extent Shelby has documents which identify payment to Adriana pursuant to the Private Agreement Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections All written communications to or from Adriana in which the Private Agreement is mentioned RESPONSE In their requests for production and 23 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria All documents relating to 3285478v1/013774 01377 communications between and Adriana Longoria and All documents relating to document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on or about December 17 2002 Subject to the objections listed in the responses to those requests Shelby produced all documents in his possession custody or control that are responsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the in which the Private Shelby has written communications from Adriana extent or is to Agreement mentioned Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections All written communications to or from Adriana in which any payment of money to Adriana is mentioned RESPONSE In their requests for production and Sylvia and Tommy requested All documents referring or relating to Adriana Longoria and All documents relating to communications between and Adriana Longoria Subject to the objections listed in the responses to those requests all documents in his possession custody or control that are responsive to those Shelby produced raised in to those Accordingly to the requests Shelby maintains any objections response requests communications to from Adriana in which any payment of money to extent Shelby has written or Adriana is mentioned Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections All documents which state or purport to state the balance owed to Adriana pursuant to the Private Agreement as of any date RESPONSE In their request for production 23 Sylvia and Tommy requested All documents relating to and Eduardo document entitled Acuerdo Privado and purportedly signed by Adriana Longoria on or about December 17 2002 Subject to the objections listed in the responses to that request 3285478v1/013774 01378 Shelby produced all documents in his possession custody or control that are iesponsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the extent Shelby has documents which state or purport to state the balance owed to Adriana pursuant to the Private Agreement as of any date Shelby has already produced them Shelby has however identified an updated statement of account for payments made to Aciriana pursuant to the Private Agreement which he will produce Shelby has not withheld any documents responsive to this request on the basis of his previous objections All documents which state or purport to state the total amount paid to Adriana pursuant to the Private Agreement as of any date RESPONSE In their request for production 23 Sylvia and Tommy requested All documents relating to document entitled Acuerdo Privado and purportedly signed by Adriana Longoria and Eduardo on or about December 17 2002 Subject to the objections listed in the responses to that request documents in his or control that are responsive to those Shelby produced all possession custody raised in response to those Accordingly to the requests Shelby maintains any objections requests which the amount to Adriana Shelby has documents or purport to state total paid extent state to the Private Agreement as of any date Shelby has already produced them Shelby has pursuant however identified an updated statement of account for payments made to Adriana pursuant to the which he will produce Shelby has not withheld any documents responsive to Private Agreement this request on the basis of his previous objections which to Adriana pursuant the Private 10 All documents list or purport to list payments to Agreement RESPONSE In their request for production 23 Sylvia and Tommy requested All documents relating to and Eduardo document entitled Acuerdo Privado and purportedly signed by Adriana Longoria 3285478v1/013774 01379 on or about December 17 2002 Subject to the objections listed in the responses to that request Shelby produced all documents in his possession custody or control that are responsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the extent Shelby has documents which list or purport to list payments to Adriana pursuant to the Private Agreement Shelby has already produced them Shelby has however identified an updated statement of account for made to Adriana pursuant to the Private Agreement which he payments will produce Shelby has not withheld any documents responsive to this request on the basis of his previous objections which mention Adriana 11 All documents payment of money by Eduardo and/or Dorothy to RESPONSE In their request for production Sylvia and Tommy requested All documents referring or Adriana the in the that relating to Longoria Subject to objections listed responses to request documents in his or control that are responsive to those Shelby produced all possession custody in to those Accordingly to the requests Shelby maintains any objections raised response requests extent Shelby has documents which mention gift of property by Eduardo and/or Dorothy to Aciriana Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections documents which mention of property by Eduardo and/or Dorothy Adriana 12 All gift to RESPONSE In their requests for production 43 and 44 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria All documents evidencing any gift sale or other transfer by Eduardo of any property owned by her at assignment conveyance All documents or other transfer any time and evidencing any assignment conveyance gift sale of any owned by her at any time Subject to the objections listed in the by Dorothy property 3285478v1/013774 01380 responses to those requests Shelby produced all documents in his possession custody or control that are responsive to those requests Shelby maintains objections raised in response to those any requests Accordingly to the extent Shelby has documents which mention gift of property by Eduardo and/or Dorothy to Adriana Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections 13 All written communications to or from Adriana in which any property owned or formerly owned or formerly owned by Eduardo is mentioned RESPONSE In their requests for production and 43 Sylvia and Tommy requested All documents referring or relating to Adriana Longoria All documents relating to communications between and Adriana Longoria and All documents evidencing any assignment conveyance gift sale or other transfer by Eduardo of any property owned by her at any time to the objections listed in the responses to those requests Shelby produced all documents in Subject his possession custody or control that are responsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the extent Shelby has written communications to or from Adriana in which any property owned or formerly owned or formerly owned by Eduardo is mentioned Shelby has abeady produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections 14 All written communications to or from Adriana in which any property owned or formerly owned by Dorothy is mentioned RESPONSE In their requests for production and 44 Sylvia and Tommy requested All documents referring or relating to Adriana Longoria All documents relating to communications between and Adriana Longoria and All documents evidencing any assignment gift sale or other transfer by Dorothy of any property owned by her at any time conveyance 3285478v1/013774 01381 Subject to the objections listed in the responses to those requests Shelby produced all documents in his possession custody or control that are responsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the extent Shelby has written communications to or from Adriana in which any property owned or formerly owned by Dorothy is mentioned Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections 15 All written communications which include an instruction to make payment of money to Adriana RESPONSE In their request for production Sylvia and Tommy requested All documents referring or to Adriana Longoria Subject to the objections listed in the responses to that request relating documents in his or control that are responsive to those Shelby produced all possession custody raised in response to those Accordingly to the requests Shelby maintains any objections requests communications which include an instruction to make payment of extent Shelby has written money to Adriana Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections 16 All written communications which include an instruction not to make payment of money to Adriana RESPONSE In their request for production Sylvia and Tommy requested All documents referring or the in the that relating to Adriana Longoria Subject to objections listed responses to request in his or control that are responsive to those Shelby produced all documents possession custody in response to those Accordingly to the requests Shelby maintains any objections raised requests which include make of extent Shelby has written communications an instruction not to payment documents Adriana Shelby has already produced them Shelby has not withheld any money to 3285478v1/013774 01382 responsive to this request on the basis of his previous objections 17 All documents which characterize or describe your relationship with Adriana at any time after 1978 RESPONSE In their request for production Sylvia and Tommy requested All documents referring or relating to Adriana Longoria Subject to the objections listed in the responses to that request Shelby produced all documents in his possession custody or control that are responsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the extent Shelby has documents which characterize or describe his relationship with Adriana at any time after 1978 Shelby has already produced them Shelby has not withheld any nonprivileged documents responsive to this request on the basis of his previous objections 18 All documents which characterize or describe Eduardos relationship with Adriana at any time after 1978 RESPONSE In their requests for production 11 12 23 63a and 65 Sylvia and Tommy requested All documents referring or relating to Eduardo All documents referring or relating to Adriana All documents communications between and Eduardo Longoria relating to and All documents communications between you and others Longoria Theriot relating to Eduardo Longoria Theriot All documents relating to document entitled Acuerdo regarding Privado purportedly signed by Adriana Longoria and Eduardo on or about December 17 2002 and All written communications in which any one or more of the following is mentioned Eduardo All written communications to or from Eduardo those all Subject to the objections listed in the responses to requests Shelby produced documents in his or control that are responsive to those requests Shelby possession custody raised in response to those Accordingly to the extent Shelby has maintains any objections requests 10 3285478v1/013774 01383 documents which characterize or describe Eduardos relationship with Adriana at any time after 1978 Shelby has already produced them Shelby has not withheld any nonprivileged documents responsive to this request on the basis of his previous objections 19 All documents which characterize or describe Dorothys relationship with Adriana at any time after 1978 RESPONSE In their request for production 10 64a and 66 Sylvia and Tommy requested All documents referring or relating to Dorothy All documents referring or relating to Adriana Longoria All documents relating to communications between you and Dorothy Louise Longoria All documents relating to communications between you and others regarding Dorothy Louise Longoria All written communications in which any one or more of the following is mentioned Dorothy and All written communications to or from Dorothy Subject to the objections listed in the responses to those requests Shelby produced all documents in his custody or control that are responsive to those requests Shelby possession maintains raised in to those Accordingly to the extent Shelby has any objections response requests documents which characterize or describe Dorothys relationship with Adriana at any time after 1978 Shelby has already produced them Shelby has not withheld any nonprivileged documents responsive to this request on the basis of his previous objections 20 All written communications in which Eduardo and/or Dorothy asked or instructed you to Adriana pay money to Adriana or pay money to cause another person or business to to RESPONSE In their requests for production 10 11 and 12 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria All documents relating to communications between you and Dorothy Louise Longoria All documents relating to communications between you and others regarding Dorothy Louise Longoria All documents 3285478v1/013774 11 01384 relating to communications between you and Eduardo Longoria Theriot and All documents relating to communications between you and others regarding Eduardo Longoria Theriot Subject to the objections listed in the responses to those requests Shelby produced all documents in his possession custody or control that are responsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the extent Shelby has written coimnunications in which Eduardo and/or Dorothy asked or instructed Shelby to pay money to Adriana or to cause another person or business to pay money to Adriana Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections 21 All written communications which respond to request or instruction by Eduardo and/or Dorothy that you pay money to Adriana or that you cause another person or business to pay money to Adriana RESPONSE In their requests for production 10 11 and 12 Sylvia and Tommy requested All documents referring or relating to Adriana Longoria All documents relating respectively between and Louise All documents to to communications you Dorothy Longoria relating communications between you and others regarding Dorothy Louise Longoria All documents to communications between you and Eduardo Longoria Theriot and All documents relating to communications between you and others regarding Eduardo Longoria Theriot relating all to the objections listed in the responses to those requests Shelby produced Subject in his or control that are responsive to those requests Shelby documents possession custody raised in response to those Accordingly to the extent Shelby has maintains any objections requests written communications in which Eduardo and/or Dorothy asked or instructed Shelby to pay money money to Adriana Shelby has person or business to Adriana or to cause another to pay already on the basis of them Shelby has not withheld any documents to this produced responsive request 12 3285478v1/013774 01385 his previous objections 22 All documents which mention to request or instruction by Eduardo and/or Dorothy that you pay money to Adriana or that you cause another person or business to pay money to Adriana RESPONSE In their requests for production 10 11 and .12 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria All documents relating to communications between you and Dorothy Louise Longoria All documents relating to communications between you and others regarding Dorothy Louise Longoria All documents relating to communications between you and Eduardo Longoria Theriot and All documents relating to communications between you and others regarding Eduardo Longoria Theriot to the listed in the to those requests Shelby produced all Subject objections responses documents in his custody or control that are responsive to those requests Shelby possession maintains raised in response to those requests Accordingly to the extent Shelby has any objections written communications in which Eduardo and/or Dorothy asked or instructed Shelby to pay money to Adriana or to cause another person or business to pay money to Adriana Shelby has already them Shelby has not withheld documents responsive to this request on the basis of produced any his previous objections Eduardo Dorothy asked or instructed to do 23 All written communications in which and/or you of Adriana or to another or business to do something something for the benefit cause person for the benefit of Adriana RESPONSE In their requests for production 10 11 and 12 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria All documents relating to communications between you and Dorothy Louise Longoria All documents relating to between and others regarding Dorothy Louise Longoria All documents communications you 13 3285478v1/013774 01386 relating to communications between you and Eduardo Longoria Theriot and All documents relating to communications between you and others regarding Eduardo Longoria Theriot Subject to the objections listed in the responses to those requests Shelby produced all documents in his possession custody or control that are responsive to those requests Shelby maintains any objections raised in response to those requests Accordingly to the extent Shelby has written communications in which Eduardo and/or Dorothy asked or instructed you to do something for the benefit of Adriana or to cause another person or business to do something for the benefit of withheld Shelby has already them Shelby any documents has not to Adriana produced responsive this request on the basis of his previous objections 24 All written communications which respond to request or instruction by Eduardo and/or Dorothy that you something for the benefit of Adriana or that you cause another person or business to do something for the benefit of Adriana RESPONSE In their for 10 11 and 12 Sylvia and Tommy requested requests production respectively All documents referring or relating to Adriana Longoria All documents relating to communications between you and Dorothy Louise Longoria All documents relating to communications between you and others regarding Dorothy Louise Longoria All documents relating to communications between you and Eduardo Longoria Theriot and All documents relating to communications between you and others regarding Eduardo Longoria Theriot Subject to the objections listed in the responses to those requests Shelby produced all documents in his or control that are responsive to those requests Shelby possession custody maintains raised in response to those requests Accordingly to the extent Shelby has any objections written communications which respond to request or instruction by Eduardo and/or Dorothy that do person or business that another to something for the benefit of Adriana or you cause you something for the benefit of Adriana Shelby has already produced them Shelby has not withheld 14 3285478v1/013774 01387 any documents responsive to this request on the basis of his previous objections 25 All documents which mention request or instruction by Eduardo and/or Dorothy that you do something for the benefit of Adriana or that you cause another person or business to do something for the benefit of Adriana RESPONSE In their requests for production 10 11 and 12 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria All documents relating to communications between you and Dorothy Louise Longoria All documents relating to communications between you and others regarding Dorothy Louise Longoria All documents relating to communications between you and Eduardo Longoria Theriot and All documents relating to communications between you and others regarding Eduardo Longoria Theriot the in the those all Subject to objections listed responses to requests Shelby produced documents in his custody or control that are responsive to those requests Shelby possession maintains raised in response to those requests Accordingly to the extent Shelby has any objections documents which mention or instruction Eduardo and/or Dorothy that do request by you of Adriana or that you cause another do person or business something to something for the benefit for the benefit of Adriana Shelby has already produced them Shelby has not withheld any documents responsive to this request on the basis of his previous objections 26 All written communications between you and Dorothy in which Adriana is mentioned or referred to RESPONSE In their for production and Sylvia and Tommy requested respectively All requests documents referring or relating to Adriana Longoria and All documents relating to in the Dorothy Louise Longoria between to the objections listed communications you and Subject those all documents in his possession custody or control responses to requests Shelby produced raised in response to those that are responsive to those requests Shelby maintains any objections 3285478v1/013774 15 01388 communications between himself and requests Accordingly to the extent Shelby has written in which Adriana is mentioned or referred to Shelby has already produced them Shelby Dorothy to on the basis of his previous objections any documents has not withheld this request responsive communications between and Eduardo in which Adriana is mentioned or 27 All written you referred to RESPONSE In their requests for production and 11 Sylvia and Tommy requested respectively All documents referring or relating to Adriana Longoria and All documents relating to the Longoria Theriot in communications between and Eduardo Subject to the objections listed you all documents in his possession custody or control to those requests Shelby produced responses raised in response to those that are responsive to those requests Shelby maintains any objections communications between himself and Accordingly to the extent Shelby has written requests Adriana mentioned or referred to Shelby has already produced them Shelby Eduardo in which is not withheld any documents responsive to this request on the basis of his previous objections has Respectfully submitted 4QJ SUSMAN GODFREY LL.P By Jorny.W.Ca Bar No 00796312 Stte joartersusmangodfrcy.com Richard Hess State Bar No 24046070 rhesssusmangodfrey.com Kristen Schiemmer State Bar No 24075029 ksohlemmnersusmangodfreY.c0m 1000 Louisiana Street Suite 5100 16 3285478v1/013774 01389 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713 654-6666 Robert Maclntyre Jr State Bar No 12760700 macintyre@rnmlawtexas.com MACINTYRE MCCULLOCH STANFIELD YouNG 2900 Weslayan Suite 150 Houston Texas 77027 Telephone 713 547-5400 Attorneys for Shelby Longoria CERTIFIcATE OF SE1 VICE and correct of the above and foregoing This is to certilS that on September 12 2014 true copy forwarded the following counsel of record in accordance with Rule 21 instrument was properly to of the Texas Rules of Civil Procedure as indicated below James Austin Fisher Via Email FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Email jfisher@fisherwelch.com Holmes Via Email Wesley THE HOLMES LAW FIRM North Central Suite 400 10000 Expressway Dallas Texas 75231 Email wes@wesholmes.com andAdriana Longoria Attorneys for James Thomas Dorsey Sylvia 17 3285478v1/O1 3774 01390 EXHIBIT 01391 Case Number 414270 IN THE ESTATE OF iN THE PROBATE COURT DOROTHY LOUISE LONGORIA NUMBER ONE OF DECEASED HARRIS COUNTY TEXAS Shelby Longorias Responses to Adrianas First Set of Interrogatories TO Adriana Longoria by and through her attorneys of record James Austin Fisher Fisher Welch 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 and Wes Holmes The Holmes Law Firm 10000 North Central Expressway Suite 400 Dallas Texas 75231 Shelby Longoria Will Contestant and Counter-Defendant in the above-styled and numbered to Rule 197 of the Texas Rules of Civil Procedure answers the cause pursuant following interrogatories separately and fully in writing GENERAL OBJECTIONS to each instruction definition and interrogatory to the Shelby Longoria objects extent that or discovery than or different it purports to impose any requirement obligation greater under the Texas Rules of Civil Procedure and the applicable Rules and Orders of the from those Court objects to each interrogatory that is overly broad unduly Shelby Longoria calculated to lead to the discovery of adnuissible evidence burdensome or not reasonably to each instruction definition and interrogatory to the Shelby Longoria objects seeks documents from disclosure by the attorney-client privilege extent that it protected deliberative privilege attorney work product doctrine or any other applicable privilege process inadvertent and shall not constitute any such disclosure by Shelby Longoria occur is Should it waiver of any privilege set forth above Shelby Longoria incorporates by reference every general objection into each specific response set forth below specific response may repeat general objection EXHIBIT 3285112v1/013774 01392 for emphasis or some other reason The failure to include in any general objection any specific response does not waive any general objection to that request Moreover Shelby Longoria reserves his right to amend his responses below OBJECTIONS RESPONSES TO INTERROGATORIES INTERROGATORY NTJISII3ER what Please state you contend to be the total amount of money that Adriana has been paid pursuant to the Private Agreement RESPONSE The total amount of money that Adriana has been paid pursuant to the Private Agreement is $3168619 as noted in the document attached as Exhibit and bates labeled SLONGORIA 002565-002568 INTERROGATORY NUMBER For each payment of money that has been made to Adriana pursuant to the Private Agreement please state the date on which the payment was sent to Adriana the manner in which the payment was made for example by check or by wire- transfer the full name address and telephone number of the business which actually sent the payment to Adriana address and number of the individual who directed the the full name telephone business described in part to send the payment to Adriana the full name address and telephone number of the owner or each of the owners of more than one of the account from which the money was taken to make the payment to Adriana the number of the account from which the money was taken to make the payment to Adriana and 3285112v1/013774 01393 the full name address and telephone number of the financial institution at which that account was maintained PLEASE PROVIDE THE iNFORMATION DESCRIBED IN PARTS TKROUGH SEPARATELY FOR EACH PAYMENT OF MONEY WHICH YOU CONTEND WAS MADE TO AD1UANA PURSUANT TO THE PRIVATE AGREEMENT RESPONSE to this interrogatory as unduly burdensome and calling for Shelby Longoria objects information that is available to Adriana Longoria or already in Adrianas possession or equally scope of knowledge as she was personally involved in receiving these payments Shelby also scope of his personal to this as seeking information outside the knowledge objects interrogatory further objects to this interrogatory as vague and overbroad because it seeks Shelby Longoria information covering 20-year time period Subject to these objections Shelby Longoria provides to each of the subparts as follows responses The statement of account attached as Exhibit and labeled SLONGORIA 002565- 002568 reflects all dates on which payments were made to Adriana To the best of this statement reflects the dates on which Adriana Shelbys knowledge accurately received payments To the best of Shelbys knowledge Shelby believes payments were made by wire transfer since at least 2008 sent Adriana To the best of Shelbys knowledge no business actually payment to no business sent to Adriana To the best of Shelbys knowledge actually payment To the best of his knowledge Shelby believes his father Eduardo owned the bank account from which Adriana was paid After Eduardos death it is Shelbys that Dorothy owned the bank account understanding 3285112v1/013774 01394 To the best of his knowledge Shelby answers that the most recent bank account number used pay Adriana was 900559-5 to Banco Nacional de Mexico S.A BANAMEX which is located at Guerrero 919 col Centro C.P 88000 Nuevo Laredo Tamaulipas As noted on the banks website the banks phone number is 01867 712 3093 INTERROGATORY NUMBER If contend that to the Private Agreement Adriana ever received property other you pursuant with respect to such property than money please state the following detailed description of the property which you contend was received by Adriana pursuant to the Private Agreement the date on which you contend the property was received by Adriana pursuant to the Private Agreement the manner in which you contend the property was transferred to Adriana for example by delivery of deed pursuant to the Private Agreement the full name address and telephone number of the person or business which you contend owned the property immediately before it was received by Adriana pursuant to the Private Agreement the full name address and telephone number of the individual who directed the owner of the property to transfer it to Adriana and what contend to have been the fair market value of the property at the time you by Adriana Private Agreement when you contend it was received pursuant to PLEASE PROVIDE THE INFORMATION DESCRIBED IN PARTS THROUGH SEPARATELY FOR EACH ITEM OF PROPERTY WHICH YOU CONTEND WAS RECEIVED BY ADRLANA PURSUANT TO THE PRIVATE AGREEMENT RISPONSE to this interrogatory as unduly burdensome and calling for Shelby Longoria objects is available to Adriana Longoria or already in Adrianas possession or information that equally of knowledge as she was personally involved in receiving these payments Shelby also scope 3285112v1/013774 01395 scope of his personal objects to this interrogatory as seeking information outside the knowledge Shelby Longoria further objects to this interrogatory as vague and overbroad because it seeks information covering 20-year time period Subject to these objections Shelby understands that in addition to over $3 million received under the Private Agreement Adriana also received 50% of the shares of CASACO as noted in documents produced by Adrianas co-parties Sylvia and Tommy at DORSEY 01913-01951 Shelbys knowledge of CASACO is limited to the information contained in those documents INTERROGATORY NUMBER For each business which has ever made payment of money to Adriana pursuant to the Private Agreement please state the following the names of the owners of the business at each of the times when it made payment of money to Adriana pursuant to the Private Agreement or title in the business which made payment of money to Adriana your position pursuant to the Private Agreement and or title in any business which was an owner of the business which your position made of money to Adriana pursuant to the Private Agreement payment PLEASE PROVIDE THE INFORMATION DESCRIBED iN PARTS THROUGH SEPARATELY FOR EACH BUSiNESS WHICH YOU CONTEND MADE PAYMENT OF MONEY TO ADRIANA PURSUANT TO THE PRIVATE AGREEMENT RESPONSE To the best of Shelbys knowledge no business made payment to Adriana pursuant to the Private Agreement INTERROGATORY NUMBER For each business which you contend has ever made an assignment conveyance or other of property Adriana pursuant to the Private Agreement please state the transfer of any kind to following 3285112v1/013774 01396 the names of the owners of the business at each of the times when you contend made an assignment or other transfer of any kind of it conveyance property to Adriana pursuant to the Private Agreement your position or title in the business which you contend made the assignment conveyance or other transfer of any kind of property to Adriana pursuant to the Private Agreement and or title in any business which you contend was an owner of the your position business which made the assignment or other transfer of any kind conveyance of property to Adriana pursuant to the Private Agreement PLEASE PROVIDE THE INFORMATION DESCRIBED IN PARTS THROUGH SEPARATELY FOR EACH BUSINESS WHICH YOU CONTEND MADE PAYMENT OF MONEY TO ADRIANA PURSUANT TO THE PRIVATE AGREEMENT RESPONSE Shelby Longoria does not contend that any business made an assignment conveyance or of non-monetary to Adriana to the Private other transfer of any kind property pursuant Agreement Respectfully submitted /QQ SUSMAN GODFREY L.L.P By Cttrtr Jourty Bar No 00796312 Stte jcartersusmangodfrey.com Richard Hess State Bar No 24046070 rhesssusmangodfrey corn Kristen Schiemmer State Bar No 24075029 kschlemmersusmangOdfrey.COm 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 3255112v1/013774 01397 Telephone 713 651-9366 Fax 713 654-6666 Robert Maclntyre Jr State Bar No 12760700 macintyremm1awtexas.com MACINTYRE MCCULLOCH STANFIELD YouliG 2900 Weslayan Suite 150 Houston Texas 77027 Telephone 713 547-5400 Attorneys for SlieThy Longoria 3285112v1/013774 01398 EXHIBIT 32851 12v1/013774 01399 REPORTE No.5 Estado de Cuenta de ALK Pos Saldo Pago do Pago de Total Pago Intereses Saido niciales Mes Inicial Capital Intereses Mensual No Pagodas Final Prime 50% Prime ago-62 3006000 29000 29000 2971000 6.09% 3.00% sep-92 2071 000 4000 4000 2967000 8.00% 3.00% oct-92 2667000 4000 4000 2963000 600% 3.00% nov-92 2963000 4000 4000 2959000 6.00% 3.00% dic-92 2959000 4000 4000 2955000 6.00% 3.00% ene-93 2955000 4000 4000 2951000 6.00% 3.00% feb-93 2951000 4800 4800 2946200 6.00% 3.00% Mzo-93 2946200 8245 8245 2937055 6.00% 3.00% abr-93 2937955 36000 36000 2901955 6.00% 3.00% 10 Myo-93 2901955 15227 15227 2886728 6.00% 3.00% 11 Jun-93 2886720 2875790 6.00% 3.00% i2421b iS421b 12 juI-9 2875790 7138 7138 2568652 6.00% 3.00% 13 ago-9 2868652 7138 7138 2861514 600% 3.00% 14 oep-6 2861514 2937 2937 2858577 6.00% 3.00% 15 oct-9 2858577 5706 5706 2852871 6.00% 3.00% 16 nov-9 2852871 10235 10235 2842636 6.00% 3.00% 17 dic-9 16450 16450 2826186 6.00% 3.00% 2842636 18 ene-94 2626186 7450 7450 2818736 6.0056 3.00% 19 feb-9 2818730 8900 8900 2809836 600% 3.00% 20 Mzo-94 2809836 24900 24900 2784936 6.25% 3.13% 21 8200 6200 2775736 675% 3.38% abr-44 2784936 22 Myo-9 2778736 11200 11200 2767536 7.25% 3.63% 23 20 Peri090 Pages Iniclales jun-9 2767536 8900 U__ 8900 2758636 7.25% 3.63% 6000 2752636 7.25% 3.63% 24 Jul-94 2758836 6000 25 ago-94 2752636 8451 8451 2744185 7.75% 3.88% 26 sep-94 2744185 14500 14500 2729665 7-75% 3.88% oct-94 7000 2722685 7-75% 3.88% 27 2729685 7000 28 nov-94 2722685 9100 9.100 2713585 8.50% 4.25% 29 dic-94 2713586 11365 11365 2702220 8.50% 4.25% ene-95 11715 2690505 8.50% 4.25% 30 2702220 11715 31 feb-95 2690505 9900 9900 2680605 4.50% 32 Mzo-95 2660605 8000 8000 2672605 9.60% 4.50% 33 abr-95 10000 10000 2662605 9.00% 4.50% 2672605 10500 2652105 900% 4.50% 34 Myo-95 2662605 10500 052 1fl 11.500 2640605 9.00% 4.50% 11 35 Jun-95 iii 10300 2630305 8.75% 4.38% 36 jul-95 2640605 10300 2620005 8.75% 4.38% 37 ago-95 2630305 10300 10300 10300 10300 2609705 8.75% 4.38% 38 sep-95 2620005 oct-95 10300 10300 2599405 8.75% 4.36% 39 2609705 9000 2590405 8.75% 4.38% 40 nov-95 2599405 9000 2579405 8.56% 4.25% 41 dic-95 2590.405 11000 11000 42 eno-98 2579.405 13043 13043 2566362 8.50% 425% feb-95 11.500 11500 2554882 8.2556 4.13% 43 2566362 9000 2645862 8.25% 4.13% 44 Mzo-96 2554862 5000 2531562 8.25% 4.13% 45 abr-96 2545662 14000 14000 11000 2520862 8.25% 4.13% 46 Myo-98 2531862 11000 47 im-06 2520862 10 000 5Q0 2510862 9.25% 4.13% 40 P00000 Pagos iniclaies 129743 12.000 2498662 825% 4.13% 48 jul-96 2510862 12000 2486362 8.26% 4.13% 49 ago-96 2496862 12600 12500 2471562 8.25% 413% 50 sep-SO 2468362 14.500 14500 17439 17.439 2454423 8.25% 4.13% 51 oct-96 2471862 11816 2442607 8.25% 4.13% 52 nov-95 2454423 11816 13639 2428968 8.25% 4.13% 53 dio-96 2442607 13639 2417329 6.25% 4.13% 54 ena-97 2428968 11639 11639 feb-97 12284 12284 2405045 825% 4.13% 55 2417329 14.639 2390406 8.50% 4.25% 56 Mzo-97 2405045 14639 2377259 8.50% 4.25% 57 abr-97 2390406 13147 13147 2368364 8.50% 4.25% 58 Myo-97 2377259 5895 8895 860% 425% 59 iue-97 2365.364 _j45 2359719 so l-erlooo ragos iniciaies 15114 151143 8.50% 425% 60 jul-97 2359719 10164 10164 2349555 2349.555 4p.3o 450 2309525 8.50% 4.25% 50.194 tooei 680478 Sub-Total 7045 535 2310050 8.50% 4.25% 8180 390-97 2309526 7645 2306544 8.60% 425% sep-97 2310055 3516 8181 11657 8181 2306065 8.50% 4.25% oct-97 2306544 476 8169 8645 8169 522 5.50% 4.25% nov-97 2306066 7645 7645 230659C 8167 SLONGORIAOO2565 01400 COO CO CO OW CO 3C 03 03 03 03 03 o- .m0a0o 9O 03OOOO0O 03 ao3 00 09 a0o03 _CCC0o 0000000 0330 0NN 00 0N0 CO COW 303 OWO oo3ot0o3 30-410 NC10O -OC C0OC0 WO4WO0 CD001aaao .oapoao 03100 .C400 3003 COOOO aC0- -01000 400-3D t0O-.JC001Ma0000 10 -3P000.-O-00 00000 000000000_J4 iua aoCoCn 30 tocoaa aCa.300flC03000 -.3-0-0 CO CO mm 0C1 0$00O 0003 004 C03O0W 00000 00000 oeooooo000000 oiooob5oŁooo oŁetŁteŁo 0010 aoeoooo8ŁNa booªo CC 00 rii NNN03NIIII31300NNO 3031010 lo 10 00100 MN 00 3000300030 MI 03031003j30.3N000303NN 1000001010 ro 10 jo 33N03NNN3 NO 300K pC00O 3004011 9N30p WC000ON Cl C0o 30 -0-0- -4 001003010 0000000300000 031-00 03 000000IOOIOCCO aaa aaaaaaaa -3 00000 0-0-0- 4501 dic-03 1600529 15317 4.501 19818 1785212 4.00% 3.00% 4463 ene-04 1785212 11565 4463 16028 1773647 4.00% 3.00% 4434 feb-04 1773647 10198 4434 14632 1763449 4.00% 3.00% 4409 mar-04 1763449 11734 4409 16142 1751716 4.00% 3.00% 4379 abr-04 1751716 11239 4379 15618 1740477 4.00% 3.60% 4351 may-04 1740477 17071 4351 21422 1723406 4.00% 3.00% 4309 jun-04 1723406 17526 4309 21834 1705880 4.00% 3.00% 4531 1705886 10.1 00 4.531 14.631 4.25% 3.19% 1695780 lo.Penodo Pago Intereses 53.199 399907 4504 ago-04 1695780 13622 4504 18126 1682158 4.25% 3.19% 4731 sep-04 1682158 13395 4731 18126 1668763 4.50% 3.38% 4954 oct-04 1668763 12664 4954 17618 1656099 4.75% 3.56% 4917 nov-04 1656099 9710 4917 14626 1646390 4-75% 3.56% 5145 dlc-04 1846390 9481 5145 14626 1636908 5.00% 3.75% 5371 ene-05 1636908 11947 5371 17318 1624991 5.25% 3.94% 5332 feb-05 1.624981 9286 5332 14618 1615675 5.25% 3.94% 5554 mar-05 1.615675 9064 5554 14618 1606.611 5.50% 4.13% 5774 abr-05 1606811 13862 5774 19636 1592749 5-75% 4.31% 5724 may-05 1592749 9904 5724 14028 1583844 5.75% 4.31% 6187 jun-05 1583844 13431 6187 19618 1570413 6.25% 4.69% 6134 jul-05 1570413 8494 6134 14628 1.561919 6.25% 4.69% 8o Perlodo Pago Intereses 133861 64327 198188 6101 ago-OS 1561919 12.535 6101 18636 1849384 6.25% 4.69% 6294 sep-05 1549384 11334 6294 17628 1538051 6.50% 4.88% 6489 oct-05 1538051 11139 6489 17628 1826911 6.75% 5.06% 6680 nov-05 1526911 17964 6680 24644 1508948 7.00% 525% 6602 dlo-05 1509948 15035 8602 21636 1493913 7.00% 626% 6536 ene-06 1493913 6082 8536 14618 1485831 7.00% 525% 6733 feb-06 1485831 7885 6733 14618 1477946 7.25% 8.44% 6828 mar-06 1477846 10190 6928 17.118 1467755 7.60% 5.63% 6880 ubr-06 1467755 7738 6880 14618 1460017 750% 5.63% 6844 may-06 1460017 13324 6844 20188 1446693 7.50% 5.63% 7233 jun-06 1446693 9385 7233 16618 1437308 8.00% 8.00% 7411 jul-06 1437308 9207 7411 16818 1428101 8.25% 6.19% 133818 89731 214.549 9o.PeriodoPagointereses 1428101 8265 7364 16.618 1418847 8.25% 6.19% 7364 ago-OS 12302 7316 19.618 1408645 8.25% 6.19% 7316 sep-06 1418847 oct-06 1406545 9366 7252 16618 1397179 8.25% 6.19% 7252 nov-06 24618 1379765 8.25% 6.16% 7204 1397179 17414 7204 7114 dio-06 1379765 5504 7114 12618 1374262 8.26% 6.19% 7086 ene-07 1.374262 17054 7086 24.140 1357208 8.25% 6.19% feb-07 9620 6998 16618 1347586 8.25% 6.19% 6998 1367208 6949 mar-07 1347588 11051 6949 18000 1336537 8.25% 6.19% abr-07 8906 6892 15600 1327628 8.25% 6.19% 6892 1336537 6848 may-07 1327.628 8964 6846 15800 1318674 8.25% 6.16% 6.799 20.800 1304673 8.25% 6.19% 6799 jun-07 1318674 14.001 6727 15800 1296600 8.25% 6.19% 6727 jul-07 1304673 .....9.9.T 100 Periodo Pago Intereses 132.801 84547 217048 6680 18600 1283481 825% 6.16% 8680 ago-Ui 1295600 12120 15800 1274299 825% 6.19% 8618 sep-07 1283481 9182 6618 15800 1264671 7.75% 5.61% 6172 oct-07 1274299 9626 6172 nov-07 1264671 11872 5928 17800 1262769 7.50% 6.63% 5928 1242872 7.50% 5.63% 5872 dlc-07 1252799 9928 5872 15800 1227203 7.25% 6.44% 5602 ene-08 1242872 15668 5632 21300 1198005 6.00% 4.50% 4602 feb-OS 1227203 29198 4602 33000 1183898 6.00% 4.50% 4493 mar-08 1196.005 14.307 4493 18800 abr-08 1183698 16916 3884 20600 1166782 5.25% 3.94% 3684 1154628 5.00% 3.76% 3646 may-08 1166782 12154 3646 15000 22192 3608 1132436 5.00% 3.75% 3608 jun 08 154626 258tO 1120175 5.00% 3.75% 3539 Jul-08 1132436 12261 3539 15800 110 Perlodo Page Intereses 1754 60675 236106 .0 1107876 5.00% 376% 3501 ugo-OB 1120175 12299 3501 15800 l095538 5.00% 3.75% 3462 sep-08 1107876 12338 3462 15800 1078161 5.00% 3.75% 3424 oct-08 1095538 17376 3424 1065057 4.00% 3.00% 2695 nov-08 1078161 13.105 2695 15800 1051920 4.00% 3.00% 2663 dlc-08 1065057 13137 2663 15800 2137 ene-09 1051920 17163 2137 i9300 1034756 3.25% 2.44% feb-09 14699 2102 16800 1020056 325% 244% 2102 1034756 mar-09 2072 18.800 1.003330 3.26% 2.44% 2072 1020058 16728 abr-09 2038 15800 989566 3.25% 2.44% 2038 1003330 13762 15800 975778 325% 2.44% 2010 may-09 989568 13.790 2010 1982 15800 961.960 325% 2.44% 1982 Jun-09 975778 13818 1954 jul-OS 981860 16846 1954 r208 943114 3.26% 2.44% SLONGORIAOO2567 01402 120 Perlodo Pago Intereses 1770611 3003912071001 01 1916 ao-O9 943114 13864 1916 15600 929230 3.25% 244% 1897 sep-09 929230 13913 1887 15800 915317 3.25% 2.44% 1859 oct-09 915317 13941 1859 15800 901377 3.25% 2.44% 1831 nov-09 901 377 33 969 831 35 867408 3.25% 2.44% 1762 dic-09 987408 14038 1762 15900 853369 3.25% 2.44% 1733 eoe-10 853369 14067 1733 15800 839303 325% 2.44% 1705 feb-10 839.303 14085 1705 15.800 825200 3.25% 2.44% 1676 mar-10 825208 14124 1676 15800 811084 3.25% 2.44% 1648 abr-10 811084 14152 1.848 15800 796931 3.25% 2.44% 1619 may-10 798.931 14181 1619 15800 782750 3.25% 2.44% 1590 jun-10 792750 14210 1590 15800 788540 3.25% 2.44% 1561 jul-10 768540 14239 1561 15800 754301 3.25% 2.44% 13o.PertodoPajotntereses 88813 20787 209608 1532 ao-10 754301 14288 1532 15800 740033 3.25% 2.44% 1503 sep-10 740033 14297 1503 15800 725737 3.25% 2.44% 1474 oct-10 725737 1474 727211 3.25% 2.44% nov-10 727211 1477 728688 3.25% 2.44% 1477 1480 730188 3.25% 2.44% 1450 dic-lO 728688 one-Il 1483 731651 3.25% 2.44% 1483 730.168 731651 1486 733137 3.25% 2.44% 1486 feb-11 mar-11 733137 1489 734627 3.25% 2.44% 1489 734627 1492 736119 3.25% 2.44% 1492 abr-11 1495 737814 3.25/ 2.44% 1495 may-li 735119 1498 739112 3.25% 2.44% 1498 jun-11 737614 1501 740614 3.25% 2.44% 1501 jul-tI 739112 14o Periodo Page Intereses 28568 3035 31600 14877 740614 1504 742119 3.25% 2.44% 1504 ago-Il 742118 1507 743625 3.25% 2.44% 1507 sep-Il 1510 745136 3.25% 2.44% 1510 oct-li 743625 nov-li 1514 746646 3.25% 2.44% 1514 745136 746849 1517 748160 3.25% 2.44% 1517 dlc-Il ene-12 1520 749660 3.25% 2.44% 1520 748.166 feb-12 1523 751200 3.25% 2.44% 1523 749.686 1526 752734 3.25% 2.44% 1526 mar-12 751209 1529 754262 3.25% 2.44% 1529 abr-12 752734 1532 755790 3.25% 2.44% 1532 may-12 754263 1535 757331 3.25% 2.44% 1535 jun-12 755796 1538 758860 3.25% 2.44% 1538 jul-12 757331 1541 760411 3.25% 2.44% 1541 ago-12 758889 1545 761950 3.25% 2.44% 1545 sep-12 760411 150 Periodo Irstereses 21 342 Paso Sc .unu.uen 7619531 SLONGORJAOO2568 01403 CERTIFICATE OF SERVICE This that 15 2014 true and correct of the above and foregoing is to certify on September copy instrument was forwarded to the following counsel of record in accordance with Rule properly 21 of the Texas Rules of Civil Procedure as indicated below James Austin Fisher Via Email FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Email jfisher@fisherwelch.com Wesley Holmes Via Email THE HOLMES LAW FIRM 10000 North Central Expressway Suite 400 Dailas Texas 75231 Email wes@wesholmes.com Dirs andAdriana Longoria Attorneys for James Thomas Dorsey Sylvia Kri ten Schiename 32851 12v1/O13774 01404 EXHIBIT 01405 133 Shelby Longoria October 2014 Theres no reference here in your mothers estate is there dont see that Now would you please look at Exhibits 103 and 104 -- excuse me -- 102 and 103 Did give you 103 Yes MR HESS Do you have an extra copy of 103 for me 10 MR FISHER Handing 11 MR HESS Thank you 12 By Mr Fisher Do you recognize Exhibit 103 as 13 the Spanish version of the private agreement between 14 your father your sister Adriana 15 Yes 16 Were you present when it was signed 17 No 18 Did you play any part in the creation or 19 preparation of this document 20 dont recall playing part in the creation 21 of this document 22 Please look at your father signature on the third Was he physically going through difficult 23 page 24 time in Decetber of 2002 25 Well as we spoke earlier he was getting Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01406 134 Shelby Longoria October 2014 older and physically he was -- started to decline Would you agree that his signature here is significantly worse than earlier I. just say that yes he -- physically he was in state and he was declining His goal was going little bit down so -- but that was just aging Was he also depressed dont remember him being depressed in 2002 All right Now if you would please look at 10 the English version Help me out Exhibit 102 11 Did you view this agreement as creating 12 moral obligation but not legal obligation for you 13 Well would just say that generally speaking 14 what my dads wishes were and which they seem to be 15 written down in these documents those are the wishes 16 that tried morally speaking to fulfill or help him to 17 fulfill 18 Please look at the paragraph that begins with 19 the word second toward the bottom of the first page 20 Okay 21 It says Payment to Adriana Longoria 22 Kowa.ski It is the will of their father that the 23 amount of U.S $3 million be delivered to his daughter 24 Adriana Longoria Kowalski from the operating flows 25 generated by the companies represented by the shares Dickiuan Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01407 135 Shelby Longorja October 2014 contributed to the trust or by their subsidiaries and therefore it is the obligation of Eduardo and Shelby Luis Longoria KowaJ.skj in the terms mentioned below end quote What did you understand to be the companies referenced there The companies that we have been talking about Okay And there is reference to trust and that trust is identified as the Afirme above on 10 that page right 11 Yes 12 The Afirme Trust held stock in the Vertice 13 Empresarial and in Inmuebles Terrenos 14 Correct 15 And those two companies in turn owned other 16 companies 17 Correct 18 And this agreement from the language we just 19 read kind of places the payments to Adriana would be 20 made from the operating flows generated by the 21 companies right 22 Correct 23 Not from your personal funds 24 Correct 25 So but you were running the companies Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01408 136 Shelby Longoria October 2014 right Well was participating in running the companies There were other managers involved Well was there anyone with more authority than you Did you report to anyone In 2002 Yes sir To my dad Well he was semi-retired 10 Yes but still he was my moral leader 11 In terms of actual position in the companies 12 you were at the top of the organizational chart werent 13 you C- 14 Probably yes 15 Did you believe that this private agreement 16 created legal obligation for the companies to pay 17 Adriana or was it only moral obligation for them as 18 well 19 HESS Object to form 20 dont make that correlation never 21 thought about that 22 By Mr Fisher Okay You never thought about 23 whether the companies had legal obligation to make 24 payments 25 Well your question is more technical in Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01409 137 Shelby Longoria October 2014 nature so never really thought about that What do you think now Did the companies -- The same thing Ive always thought Which is Which is that and my brother were morally obligated to fulfill my dads wishes But not legally Not legally Okay And think you used the word 10 inheritance earlier to describe what these agreements 11 meant to your sisters 12 They were to be the inheritance that your 13 sisters would receive correct 14 Thats understanding yes 15 But at the same time youre saying that after 16 father died there was no one who was obligated to your 17 make those payments 18 Thats your contention in this lawsuit 19 isnt it will tell you that felt strong 20 Again 21 moral obligation to fulfill my dads wishes for what he 22 wanted my sisters to receive 23 Okay But if after your father died your and that moral 24 darker side took over you suppressed 25 sense you didnt feel like there was any legal Dickman Davenport Inc 214.855.5100 www.dickmandavenport.cOm 800.445.9548 01410 138 Shelby Longoria October 2014 obligation to pay your sisters one cent MR HESS Object to form Well dont recall having darker side And again can only emphasize the strong feeling that had for the love of my father and my family to do the best could to comply with his wishes By Mr Fisher Well in fact in October of 2010 you stopped making the payments to Adriana didnt you 10 The payments stopped in October of 2010 11 And its your contention in this lawsuit 12 theres no legal obligation for those payments to be 13 made right 14 Well she was -- she was paid in full 15 So thats your contention 16 Yes Based on the wish letter and what he had 17 specifically described 18 Okay Now is it your contention in this case 19 that she was paid in full from the operating flows 20 generated by the companies 21 Well that was the only money that money was 22 being generated is from the companies cant think of 23 another place where the money could have been generated 24 No she received gifts from her mother 25 Dorothy and you have taken those against her havent Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01411 139 Shelby Longoria October 2014 you dont have specific recollection of that Youd have to be more specific or show me All right And then go to the statement of account to see if that was charged to her account Do you contend in this case that gifts from Dorothy to Adriana should be counted against the amounts to be paid to her under the private agreement 10 No If my mom owned something by herself 11 separate and she was to give something to one of her 12 daughters that was totally and completely up to her 13 Okay Now the private agreement calls for 14 payments beginning at the bottom of the first page the 15 balance to be delivered to Adriana amounts to 16 $2069100 correct 17 That is correct 18 The next paragraph said that shes to receive 19 an annual amount of $150000 of principal and interest 20 in monthly payments of 12500 each right 21 Right Thats what it says 22 Okay The first month after this was signed 23 was January 2003 correct 24 Yes 25 January 2003 to October 2010 when she was cut Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01412 140 Shelby Longoria October 2014 off thats 91 months MR HESS Object to form dont know By Mr Fisher Seven years through 2009 plus another nine months up to October 2010 91 months Okay And 91 times 12500 is $1137500 You trust me on that Ill trust you on that 10 The balance was $2069100 If all of the 11 monthly payments were made up to October 2010 that 12 would amount to $1137500 leaving unpaid principal 13 amount not including any interest whatsoever of 14 $931600 15 MR HESS Object to form 16 By Mr Fisher Do you disagree with any of 17 that math 18 Well Id have to run the math myself But if 19 you want me to Ill take your word for it 20 Okay So is it your testimony sir that 21 pre-payments were made to Adriana exceeding $930000 22 between January 2003 and October 2010 23 Well the calculation that Im making is based 24 on the wish letter which speaks of $3 million And 25 based on the wish letter it talks about the house in Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01413 14 Shelby Longoria October 2014 Laredo could be used as payment So that was never deducted from the statement of account So if we take the value of the Laredo house which later turned into the Houston condo and we were to subtract 50 percent of that value from the balance of the $3 million havent run the nuibers exactly but it seems to me like she would have been paid in full based on the wish letter Who owned the Laredo house in 1992 10 In 1992 it was owned by Casaco 11 Okay So when the wish letter was signed 12 that Laredo house was owned by Casaco 13 Maybe not No dont recall dont 14 recall who owned it in 1992 15 The Laredo house was not given to Adriana was 16 it 17 Well it was Casaco was formed whatever 18 year that was and it was suggested to my dad that he 19 give the shares to my sisters 20 Okay 21 But still that could subtract it from the 22 statement of account 23 Okay So the Laredo house was transferred to 24 Casaco is that your testimony 25 Yes thats my recollection Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01414 142 Shelby Longoria October 2014 And that definitely happened before December of 2002 didnt it Well dont have the dates so -- if could see some documentation could probably -- Maybe well do that Youre telling me now you dont remember if the Laredo house was conveyed to Casaco before December of 2002 It was probably before 2002 yeah 10 Okay So then we come to December 2002 and 11 your father signs private agreement that says the 12 balance is $2069100 13 Right 14 after the house is conveyed to Casaco 15 right 16 But if you go to the wish letter it says 17 payments may be rendered in kind to which the following 18 properties may be conveyed Laredo house 19 Okay Private agreement caine after the wish 20 letter true 21 Yes 22 And the private agreement says as of December 23 of 2002 balance is $2069100 right 24 Id have to -- if we could see the statement 25 of account that would probably help me Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01415 143 Shelby Longoria October 2014 Sure What are we up to Exhibit 110 marked By Mr Fisher Please look at Exhibit 110 See title Shelby Longorias Responses to Adrianas First Set of Interrogatories Yes Appears to be signed by one of your attorneys on September 15th 2014 less than month ago Correct 10 Have you seen this document before 11 Yes 12 Does it have attached to it statement of 13 accounts for Adriana 14 Yes it does 15 What does it show the balance to be as of 16 January 2003 17 According to this January 2003 2050192 18 Isnt that February 19 Well see ENE 20 Yes 21 Thats January 22 Yeah and it says $2069100 23 No but the balance if you go -- thats the 24 original balance after the payments 25 All right At the beginning of January Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01416 144 Shelby Longoria October 2014 $2069100 Yes It is perfect match to the amount in the private agreement All right MR HESS Jim youve been going for about an hour and 20 minutes MR FISHER Would you like to take break sir 10 THE WITNESS need to go to the 11 restroom 12 MR FISHER Lets take break 13 THE VIDEOGRAPHER The time is 209 p.m 14 We are off the record 15 Short break held 16 THE VIDEOGRAPHER The time is 221 p.m 17 We are back on the record 18 By Mr Fisher We are back on the record Mr 19 Longoria do you understand that 20 Yes 21 We were discussing Exhibit 110 which is 22 entitled your responses to Adrianas first set of 23 interrogatories 24 Did you review these answers before 25 today Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01417 145 Shelby Longoria October 2014 Yes Are they true and correct to the best of your knowledge Yes Please turn to Are we not on 110 Yes sir Yes Page Interrogatory No asks for certain information about each payment of money that has 10 been made to Adriana pursuant to private agreement 11 Do you see that sir 12 Yes 13 Paragraph asked for the nmtiber of the 14 account in which the money is taken to make the payment 15 to Adriana If youll turn back to Page your answer 16 is quote To the best of his knowledge Shelby 17 believes his father Eduardo owned the bank account from 18 which Adriana was paid After Eduardos death it was 19 understanding that Dorothy owned the bank Shelbys 20 account end quote 21 Do you see that 22 Yes 23 Where was the account that Dorothy owned 24 believe it was in Reynosa 25 Was that one of the accounts that was Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01418 146 Shelby Longoria October 2014 identified earlier Im not sure And so is it your understanding that all of the payments made after your father died were made from bank account owned by Dorothy Thats my understanding All right Up until certain point What happened then 10 Well my recollection that at certain 11 point my mom was considered U.S person for tax 12 purposes so dont know if that changed how the 13 payments were made have no cant recall 14 Exhibit 111 marked 15 By Mr Fisher Please look at Exhibit 111 16 This is copy of letter from Carolyn Beckett to 17 Adriana Longoria 18 Yes 19 Have you seen it before 20 Yes have 21 Carolyn Becket was your attorney wasnt she 22 Yes 23 In this letter she writes to Adriana in the 24 second paragraph that in 2008 your mother declared 25 herself U.S resident and ceased to make transfers of Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01419 147 Shelby Longoria October 2014 funds to in her you own name Do you see that sir do see that Was that the event you were describing few minutes ago Yes Do you have any understanding as to why your mother declared herself U.S resident in 2008 Well know there was -- relied on Carolyn 10 Becketts expertise and Adrian Hernandez their support 11 people to make those determinations 12 Okay So it was advice from Adrian Hernandez 13 and Carolyn Beckett was involved 14 Primarily Carolyn Becket who was tax 15 attorney 16 Wliaj was the tax benefit to be derived from 17 your mother declaring herself to be U.S resident 18 4R HESS Object to form 19 Well dont think it was matter about 20 being benefit It was about matter of what doing 21 needed to be done based on her current status 22 By Mr Fisher What was your understanding or 23 what is your understanding as to why that needed to be 24 done 25 Again relying on tax experts to evaluate what Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01420 148 Shelby Longoria October 2014 her tax position is so we can be totally or at least my mom could be totally compliant So the letter continues in the next sentence quote Instead cash payments made in 2009 were made through ITSA pursuant to the private agreement you and your father entered into in 2002 Funds were withdrawn from the operating cash accounts of ITSA and payments were made to your Mexican account to the extent of the corporations available funds These funds were 10 deposited into an account in Mexico titled in your 11 name after which they were available to you to be 12 transferred to your account in the U.S end quote 13 Do you see that 14 Yes do 15 Is ITSA reference to Inmuebles Terrenos 16 Yes 17 That was company that was held in the -- 18 Afiriue Trust 19 -- Afirme Trust 20 Correct 21 Although by 2009 it was no longer the Afirme 22 Trust right it was Bank Santander 23 MR HESS Object to form 24 2009 dont recall specifically 25 By Mr Fisher Did that not change when you Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01421 149 Shelby Longoria October 2014 had your transaction with your brother in 2007 dont believe -- always refer to it as the Afirme Trust. In any event Ininuebles Terrenos was held in trust Correct Of which you were beneficiary was beneficiary So based on this letter was it your 10 understanding that from the time of your fathers death 11 through 2008 the payments to Adriana pursuant to the 12 private agreement were made from an account owned by 13 your mother Dorothy 14 Yes believe so dont know specifically 15 but yes 16 All right 17 Exhibit 112 marked 18 By Mr Fisher If you please look at Exhibit 19 112 sir 20 MR FISHER Would you give one to Mr 21 Hess 22 MR HESS Thanks 23 By Mr Fisher Is this copy of an affidavit 24 that you signed on or about July 29 2013 25 Yes Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01422 1.50 Shelby Longoria October 2014 Now there were many exhibits to this affidavit and they are not included in this exhibit -- this deposition exhibit note for the this record is only your testimony Do you see sir that see that You understood when you signed this that an affidavit is testimony right Yes 10 In fact beginning in the first page it says ii Before me the undersigned authority on this day 12 personally Shelby Longoria who being by me first duly 13 stated the sworn following 14 Right 15 Do you see that 16 Yes do 17 So you understood it was important for this 18 document to be accurate 19 Well yes understand most documents should 20 be accurate 21 Okay Well especially document thats 22 signed under oath 23 Correct 24 Please turn to Page Paragraph 16 refers to 25 private agreements with each of your sisters correct Dickman Davenport Inc 214 .855.5100 www dickmandavenport corn 800 445 9548 01423 151 Shelby Longoria October 2014 Right Let me just begin reading the second sentence there The Mexican Trust the Mexican companies owned by the Mexican Trust and were not parties to those agreements Nevertheless the payments my sisters received were paid from the Mexican companies owned by the Mexican Trust end quote Some of the payments werent made by the Mexican companies were they 10 MR HESS Object to form 11 Well they were paid from the Mexican entity 12 By Mr Fisher Well -- 13 To somehow the money came from the Mexican 14 entity to either my father or my mothers account first 15 and then from there it was paid to my sisters 16 By Mr Fisher You testified just few 17 minutes that from the time your father died in ago 18 January of 2005 through 2008 the payments came from an 19 account owned by your mother Dorothy didnt you 20 Yes and right now just said that either 21 they came the cash flow came from Mexican company while he was alive and after his 22 to my fathers account 23 death then it went into my moms account is my 24 understanding 25 Lets look down at paragraph 18 which reads Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01424 152 Shelby Longoria October 2014 and cpaote Following my fathers death Adriana and Sylvia continued to receive payments under their Acuerdos Privados The Mexican companies owned by the Mexican Trust though not obligated by the terms of the Acuerdos Privados to make these payments treated these payments to my sisters as matter of first priority Once again youre saying that the Mexican companies made the payments arent you MR HESS Object to form 10 What Im saying is that the cash flow from the 11 Mexican companies 12 By Mr Fisher Okay So youre saying the 13 Mexican companies paid Dorothy and then Dorothy paid 14 Adriana 15 Yes 16 But the money belonged to Dorothy once she 17 received it 18 would assume thats the case yes 19 All right mean it wasnt paid to her with 20 some string attached 21 Well dont think so Again had to rely 22 on attorneys and accountants to help with this 23 Also in paragraph 18 we see you saying that 24 the Mexican companies owned by the Mexican Trust were 25 not obligated by the terms of the Acuerdos Privados to Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01425 153 Shelby Longoria October 2014 make these payments dont believe they were Okay thought earlier today you were uncertain about their obligation but -- now youre you clearly saying they were not obligated Well dont believe that they were And you testified that -- that they you werent Yes 10 The reason Im emphasizing that is because 11 want it to be very clear sir that youre saying that 12 the amounts to be paid to Sylvia and Adriana were their 13 inheritance and yet youre also saying at the same time 14 that when your father died there was no one on the fae 15 of the planet who had the legal obligation to make those 16 payments to your sisters 17 Thats your position in this case right 18 MR HESS Object to form 19 What Im saying is that when my father died 20 still felt the moral obligation not just because he was do take effort on my part and also 21 gone to to every 22 on my brothers part to fulfill his desires including 23 my mom which is what her desires were too Thats 24 what Im saying 25 By Mr Fisher Okay Youre using the word Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445 9548 01426 154 Shelby Longoria October 2014 moral obligation thats something different from the legal obligation isnt it Yes it is Okay Exhibit 113 marked By Mr Fisher Would you please look at Exhibit 113 sir This is pleading entitled Shelby Longorias Contest of 2010 Will Do you see that sir 10 do see that 11 And is this pleading that was filed on your 12 behalf by your attorney in this case 13 Yes it was 14 Have you ever read it before 15 Yes have 16 Do you believe it to be true and accurate 17 Ido 18 Please turn to Page and look at paragraph 19 Paragraph says and quote After Eduardo Seniors 20 death in January 2005 Shelby continued to make payments 21 to Adriana and Sylvia as provided by the private 22 agreements end quote 23 So here we have an assertion that you 24 made payments 25 Well look at it more as semantics more than Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01427 155 Shelby Longoria October 2014 anything felt -- continued to feel the obligation Shelby continued to feel the obligation to continue to make the payments to Adriana and Sylvia All right sir But this doesnt say that you continued to feel an obligation It says Shelby continued to make payments to Adriana and Sylvia as provided by the private agreements end quote That just wasnt true was it MR HESS Object to form 10 Well -- 11 By Mr Fisher Did you make the payments 12 13 Did you make the payments 14 MR HESS Lets do one at time Yall 15 are speaking over each other It doesnt give me 16 chance to object think its getting hard for the 17 court reporter to follow Lets do question and answer 18 By Mr Fisher After your father died did you 19 make payments under the private agreement 20 did not personally make payments 21 If we turn to Page Paragraph 11 it says 22 again quote Shelby also continued to send payments to 23 Adriana in accordance with the private agreement between 24 her and Eduardo Senior end quote 25 So fact is you personally did not send Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01428 156 Shelby Longoria October 2014 payments did not personally send payments out of my checking account to be more specific The money sent was not your money and you werent the one who sent the money didnt say that Were you the one who sent the money was the one that was instrumental in getting the money sent in order to comply with my dads wishes 10 Explain how you were instrumental What did 11 you do that was instrumental 12 Well what Ive done all along was to be 13 supportive of my dads wishes and my moms wishes and 14 what they wanted to do regarding my sisters 15 inheritance So thats been the case all along is to 16 give my support and do everything can in my power 17 regardless of what the economy is doing with the Mexican 18 companies make every effort that they get their 19 money Thats what Im saying 20 Did your parents were either of them give 21 gifts to your wife Tita 22 Yes believe they did 23 Did those gifts include stock in the bank 24 My dad -- yes my dad give them gifts of 25 stock Dickman Davenport Inc 214.855.5100 www.dickmandavenport.com 800.445.9548 01429 EXHIBIT 01430 Case Number 414270 IN THE ESTATE OF iN THE PROBATE DOROTHY LOUISE LONGORIA COURT NUMBER ONE DECEASED HARRIS COUNTY TEXAS Shelby Longorias Third Amended Response to Requests for Disclosure TO James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased Sylvia Dorsey and Adriana Lorigoria by and through their attorneys of record James Austin Fisher FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Shelby Longoria Will Contestant and Counter-Defendant in the above-styled and numbered cause to Rule 194 of the Texas Rules of Civil Procedure answers the pursuant following requests for disclosure separately and fully in writing REQUEST FOR DISCLOSURE The correct names of the parties to the lawsuit RESPONSE The parties are correctly named REQUEST FOR DISCLOSURE The name address and telephone number of any potential parties RESPONSE Eduardo Wayo Longoria Jr 1702 Cresthaven Dr EXHIBIT Austin Texas 78704 512535-0105 REQUEST FOR DISCLOSURE _________ of your claims defenses The legal theories and in general the factual bases or RESPONSE The will that Sylvia Longoria Dorsey offered into probate is invalid On January 21 by law to make valid last will and 2010 Dorothy lacked the testamentary capacity required as the result of undue influence exerted testament Further the 2010 Will was executed by Sylvia 3495696v1/013774 01431 over Dorothy The influence effectively operated to subvert or overpower Dorothys mind at the time she executed the instrument in question Dorothy would not have executed the 2010 Will but for the influence exerted by Sylvia Sylvia also tortiously interfered with Shelbys inheritance rights by inducing Dorothy to execute the purported 2010 Will Adriana also tortiously interfered with Shelbys inheritance rights by her actions in 2009 to 2011 she induced Specifically Dorothy to execute alternative wills yet she ultimately acquiesced in the probate of the 2010 Will of later because she needed Sylvias and despite knowledge will Tommys cooperation to carry out scheme to assert claims on behalf of Dorothys estate for her own benefit Sylvia and Adriana thus have received benefit directly and indirectly of substantial of portion Dorothys estate and the appointment of Sylvias husband James Thomas Dorsey Tommy as executor Tommy should be removed as independeit executor because he was appointed pursuant to an invalid will procured by Sylvia for the purpose of installing her husband as the executor in order to fraudulently circumvent her release of claims and recognition of the validity of the trust created in 2002 Tommy also should be removed as independent executor because he has material conflict of interests As independent executor he has fiduciary obligation to Dorothy Longorias estate to investigate Sylvias misappropriation of money earmarked for Dorothy and to assert claims as appropriate to recover the misappropriated funds Tommy will not fulfill this fiduciary obligation however because he is mathed to Sylvia and benefited from her misappropriation Further Tommy has entered joint prosecution agreement with Adriana Sylvia and Adrianas son Raymond Hart Monte Through the joint prosecution agreement Tommy Sylvia Adriana and Monte have agreed to cooperate in the prosecution of the CLAIMS this litigationi and to share any proceeds in accordance with the terms of the agreement that no party including Tommy has the exclusive right to make decisions about the actions or positions to be taken by the other PARTIES or the ATTORNEYS and to use their best efforts to reach consensus on any and all decisions relating to LITIGATION or the prosecution or settlement of the CLAIMS in this lawsuit Together these provisions render Tommy incapable of properly performing the independent executors fiduciary duties under Texas Probate Code 49C because it means he either will not or cannot effectively pursue repayment of monies owed to the Estate by Sylvia Adriana and Monte Tommys counterclaims lack merit because Shelby did not owe his mother fiduciary duty nor did he breach promise to hold property for her benefit Further Tommys counterclaims even as amended should be dismissed on forum non conveniens grounds because relate to Mexican marital property agreement that was entered as judgment of Mexican they court Mexican trust holding and owning only Mexican assets that was set up by Mexican citizen living in Mexico and the probate of Mexican will that took place in Mexican court Resolving these claims in Texas would require the translation of Spanish-language documents and interpretation of Spanish-language documents and also face the insuperable obstacle of how to bring Mexican witnesses to court in Texas These are only some of the reasons dismissal on forum non conveniens grounds is appropriate Tommys counterclaims also lack merit because are outside of the limitations period fail to state legally cognizable claim and are they unsupported by the record in this case Adriana counterclaims also lack merit because Shelby has not tortiously interfered with her inheritance rights or any enforceable contractual promise Further Adriana cannot show 3495696v1/013774 01432 Shelby owed her fiduciary duty or breached promise let alone legally cognizable one any Adriana cannot show the malice and/or fraud to support enhanced damages Adrianas counterclaims also lack merit because they are outside of the limitations period fail to state legally cognizable claim and are unsupported by the record in this case REOUEST FOR DISCLOSURE The amount and any method of calculating economic damages RESPONSE According to the Inventory Appraisement and List of Claims filed by the Estate the Estate is claiming 50% interest in two Mexican companies Vertice Empresarial S.A de C.V and Inmuebles Terrenos S.A de C.V In her April 27 1989 will Dorothy Longoria bequeathed the entirety of her hereditary wealth in the Mexican Republic in equal parts to Shelby Longoria and Eduardo Longoria Jr Under the terms of that will half of any interest by Dorothy Longoria in the Mexican companies would be inherited by Shelby Longoria To the extent that the Estate recovers any interest in the Mexican companies or damages compensating for the loss of interests in Mexico half of that recovery is owed to Shelby Longoria pursuant to the 1989 will This amount will be owed by Sylvia and Adriana as damages for their tortious interference with Shelbys inheritance rights Moreover Adriana and Sylvia will owe contribution to Shelby for any recovery by the Estate as described in Shelbys pleadings REOUEST FOR DISCLOSURE address and telephone number of persons of relevant The name having knowledge facts and brief statement of each identified persons connection with the case RESPONSE Shelby Longoria do Johnny Carter Rick Hess and Kristen Schiemmer Susman Godfrey 1000 Louisiana Ste 5100 Houston Texas 77002 the will contestant and counter-defendant in this case Shelby Longoria is Sylvia Dorsey do James Fisher 500 North Akard Street Dallas Texas 75201 for the probate of Dorothy Longoria purported 2010 will Sylvia Dorsey applied James Thomas Tommy Dorsey 3495696v1/013774 01433 do James Fisher 500 North Akard Street Dallas Texas 75201 Tommy is the purported executor of the will Sylvia Dorsey applied to probate Eduardo Wayo Longoria Jr 1702 Crestliaven Dr Austin Texas 78704 512 535-0105 Wayo is Sylvia Shelby and Adriarias brother Adriana Longoria 6138 San Felipe Street Houston TX 77057 713 784-0826 Adriana is and Sylvia Shelby Wayos sister Thomas Dorsey Jr Houston Texas 713 816-0881 Thomas Dorsey Jr is the son of the will applicant and executor as well as the business partner of the executor Kristin Dorsey Houston Texas 713 816-0881 Kristin Dorsey Thomas Jr.s wife is Dorsey and the daughter-in-law of the will applicant and executor Elizabeth Fertitta 2706 Eastgrove Lane Houston Texas 77027 Elizabeth Fertitta is the of the will applicant daughter and executor and her husband drafted the will Dorothy Louise Longoria allegedly on January executed 21 2010 Zack Fertitta 2706 Eastgrove Lane Houston Texas 77027 Zack Fertitta is the son-in-law of the will applicant and executor and drafted the will Dorothy Louise Longoria allegedly executed on January 21 2010 3495696v1/013774 01434 Robert Edward Wayo Dorsey 15308 Sunset Blvd Pacific Palisades CA 90272 Wayo Dorsey is the son of the will applicant and executor Adriana Longoria 6138 San Felipe Street Houston Texas 77057 Adriana Longoria is Dorothy Longorias daughter Sylvia Dorsey and Shelby Longorias and sister Tommys sister-in-law Raymond Hart 5834 Candlewood Lane Houston TX 77057 713 818-2387 Raymond Hart is Adriana Longorias son Forrest Hart 307 Grand Street 1C Apt Brooklyn New York 11211-4446 Forrest Hart is Adriana Longorias son Adriana Banks 6138 San Felipe Street Houston Texas 77057 Adriana Banks is Adriana Longorias daughter Tita Longoria do Johnny Carter Rick Hess and Kristen Schlemmer Susman Godfrey 1000 Louisiana Ste 5100 Houston Texas 77002 Tita Longoria is Shelby Longorias wife and Dorothy Longorias daughter-in-law Marta Beatriz Garza Montelongo Cerro del Bemal 128 Colonia las Fuentes Cp 88710 Reynosa Tamaulipas Ms Montelongo witnessed Eduardos 2002 will and the 2002 Afirme Trust agreement Saul Garza Molina Real De Cantaro 203 Fracc Los Cantaros 3495696v1/013774 01435 Reynosa Tamaulipas Mr Garza is the CEO of Grupo Inlosa and had close contact with Eduardo and Dorothy over many years Irma Campoy Carrillo Ilaya 108 Frace Privada Las Ceibas Reynosa Tamaulipas Ms Campoy is the Treasurer for Grupo Inlosa and was in charge of making payments to Sylvia and Adriana under the Acuerdo Privado Patricia Vazquez Playa Hermosa 507 Col Militar Marte Iztacalco Mexico Ms Vasquez was the Treasurer for Grupo Inlosa before Ms Campoy and was responsible for making payments to Sylvia and Adriana under the Acuerdos Privados Marco Torres Sierra Nevada 1208 Col Fuentes Reynosa Tamaulipas Mr Torres was the Administrative Director at Grupo Inlosa for many years and has knowledge of Eduardo and Dorothys wills and estate planning Pedro Ramirez Padre Mier 1504 Monterrey N.L Mr RamIrez was the attorney who drafted trust documents and the Acuerdos Privados Celia Guerrero Zaragoza 1300 Sur Monterrey N.L Ms Guerrero works with Mr Ramirez and also assisted Mr RamIrez in the preparation of many documents Mario Gonzalez Mendoza Dr Mier 3113 Zona Centro Nuevo Laredo Tamaulipas for 40 Mr Gonzalez Mendoza was Eduardos and Dorothys attorney approximately to estate wishes and separate and has knowledge relevant their planning testamentary years property agreement 3495696v1/O1 01436 Mario Gonzalez Basurto Dr Mier 3113 Zona Centro Nuevo Laredo Tamaulipas Mr Gonzalez Basurto is Mr Longorias attorney in the amparo proceedings in Mexico Elsa Gonzalez Basurto Dr Mier 3113 Zona Centro Nuevo Laredo Tamaulipas Ms Gonzalez worked on the probate of Eduardos estate Alicia Garcia Dr Mier 3113 Zona Centro Nuevo Laredo Tamaulipas Ms Garcia has been Mr Gonzalez Mendozas assistant for many years and knew Eduardo and Dorothy Carlos Avila Hacienda San Abel 215 Fracc Las Haciendas Reynosa Tarnaulipas Mr Avila was the HR Manager for Grupo Inlosa for many years Carlos Gonzalez Hinojosa Libramiento Luis Echevarria 630 Reynosa Tamaulipas Mr Gonzalez Hinojosa is an attorney in Reynosa who prepared several wills for Eduardo and Dorothy Arnulfo Cruz Calle Del Cerro 131 Colonia Cumbres Monterrey N.L Mr Cruz is tax consultant who participated on many of the documents and tax planning for Dorothy and Eduardo Virginia Coronel Azucena 505 Col Puerta Del Hierro Monterrey NL Eduardos Ms Coronel is an attorney with intimate knowledge of documents related to and Dorothys estate planning and Eduardos and Shelbys business dealings in Mexico 3495696v1/013774 01437 Dr Anselmo Guarneros Calle Independencia 2209 Nuevo Laredo Tamaulipas Dr Guarneros was good friends with Eduardo and Dorothy for many years witnessed Edudos 2002 will and is knowledgeable about Eduardos medical condition at the time he executed the 2002 will Carlos Lozano 3626 Colonia Jardin Nayarit Nuevo Laredo Tamaulipas Mr Lozano worked for Eduardo for over thirty years Antonio Del Bosque Boulevard Las Torres Del Bosque 705 Nuevo Laredo Tamaulipas Mr Del Bosque worked for Eduardo for over thirty years Lic Francisco Gaxiola Bosque De Ciruelos 140-505 Mexico D.F Mr Gaxiola is an attorney that drafted documents for the Serfin Trust Nestor Sanchez Calle Perales 750 Colonia Jardin Reynosa Tamaulipas Mr Sanchez served as Administrative Director of Grupo Inlosa before Marco Torres Lie Adrian Lozano Lozano Hidalgo 234 Pte 40 Piso Zona Centro Monterrey N.L Trust Mr Lozano is an executive at Banca Afinne the trustee of the Afirme Martha Beatriz Garza Hidalgo 234 Pte 40 Piso Zona Centro Monterrey N.L Ms Garza is an executive at Banca Afinne the trustee of the Afirme Trust 3495696v1/013774 01438 Lie Eduardo Marroquin Francisco Madero Pte 218 Monterrey Nuevo Leon Tamaulipas Mr Marroquin is an executive at Banca Afirrne the trustee of the Afirme Trust Dr Mario Alberto Pez Coss Madero 1320 Nuevo Laredo Tamaulipas Dr Perez certified Dorothys good health in connection with her 1989 Mexican will Oscar Chapa Gonzalez Guatemala 2802 Col Ferrocarril Nuevo Laredo Tamaulipas 88050 Mr Chapa is knowledgeable about the valuation of properties in connection with Eduardos and Dorothys 1983 Separate Property Agreement Jose Luis Saldaæa Avendafio Carretera Piedras Negras kilometro 19.3 Poniente Nuevo Laredo Tamauiipas Mr Saldaæa is knowledgeable about the 1983 Separate Property Agreement and the valuation of interests divided in that agreement Mann Espinosa 1801 South 2nd Street McAllen Texas 78503 Mr Espinosa is knowledgeable about the history of Inter National Bank as well as the value over time of shares of Inter National Bank Dr Canlos Cigarroa 702 East Calton Road Laredo TX 78041 956 728-8255 Dr is about Eduardo Longoria Sr.s execution of will in Cigarroa knowledgeable October 2002 including Mr Longorias mental and physical condition at that time REQUEST FOR DISCLOSURE 3495696v1/013774 01439 For any testifying expert The experts name address and telephone number The subject matter on which the expert will testify The general substance of the experts mental impressions and opinions and brief summary of the basis for them or if the expert is not retained by you employed by you or otherwise subject to your control documents reflecting such information If the expert is retained by you employed by you or otherwise subject to your control All documents tangible items reports models or data compilations that have been provided to reviewed by or prepared by or for the expert in anticipation of the experts testimony and The experts current resume and bibliography RESPONSE George Glass M.D P.A 4600 Post Oak Place Drive Suite 307 Houston Texas 77027 Telephone 713 627-3834 Dr Glass may testify regarding Dorothy Longoria overall mental health including but not limited to her mental capacity to execute wills and other legal documents in December 2009 and continuing through the end of her life Specifically Dr Glass may testify that Dorothy Longoria did not possess the mental capacity and was not capable of understanding and meeting the necessary legal requirements to execute wills and other legal documents Dr Glass also may to reasonable of medical certainty that Dorothy Longoria was susceptible to or testify degree submitted to undue influence or psychological domination of her daughters Sylvia Dorsey and/or Adriana Longoria at the time that she executed wills and other legal documents on or after December 2009 the Dr Glass has reviewed the medical records produced in this litigation as well as of the parties Dr Glasss current resume and bibliography have previously been depositions provided Sheila Enriquez CPA JD Briggs Veselka Co 3495696v1/013774 10 01440 Nine Greenway Plaza Suite 1700 Houston Texas 77046 Telephone 713-353-1909 Ms Enriquez may testify concerning Dorothys Longoria finances and expenditures between her move to Houston and her death including an examination of red flags that are indicative of potential theft fraud or mismanagement of Dorothy Longorias assets by her daughter Sylvia Dorsey for the benefit of Sylvia Dorsey Adriana Longoria Tommy Dorsey and others Ms Enriquez has reviewed the bank records and other records containing financial information produced in this litigation as well as the depositions of the parties Ms Enriquezs current resume and bibliography have previously been provided Mario Gonzalez Mendoza Dr Mier 3113 Nuevo Laredo Tamaulipas CP 88000 Mr Gonzalez Mendoza may be called to testify about Eduardo and Dorothy Longorias 1983 agreement to partition all their community property and related proceedings in Mexico The general substance of Mr Gonzalez Mendozas mental impressions and opinions are reflected in his October 2014 deposition Mr Gonzalez Mendoza is of the opinion that the 1983 agreement is valid under Mexican law and operated to partition all the couples existing and future community property so that the couple maintained separate property from 1983 forward Mr Gonzalez Mendozas employment and educational information is contained in his deposition Johnny Carter Rick Hess Susman Godfrey L.L.P 1000 Louisiana St Ste 5100 Houston Texas 77002 Telephone 713 654-6694 Robert Maclntyre Jr Maclntyre McCulloch Stanfleld Young 2900 Weslayan Suite 150 Houston Texas 77027 Telephone 713 547-5400 Mr Carter Mr Hess and Mr Maclntyre may testify as to the reasonable and necessary attorneys fees and expenses incurred by Shelby Longoria due to the above referenced lawsuits Mr Carter and Mr Hess are of the opinion that reasonable fees in this case equal $650 per hour for Mr Carters time $500 per hour for Mr Hesss time $375 per hour for Ms Schiemmers time and $275 per hour for paralegals time multiplied by the number of hours each and do in the and trial of this case and they have spent spend preparation prosecution through its final resolution Mr Maclntyre is of the opinion that reasonable fees in this case 3495696v1/013774 11 01441 equal $500 per hour for Mr Maclntyres time multiplied by the number of hours he has spent and does spend in the preparation prosecution and trial of this and case through its final resolution Mr Carter Mr Hess and Mr Maclntyre have considered the following factors in reaching their opinions fees concerning attorney the time and labor required ii the novelty and difficulty of the questions involved iii the skill required to perform the legal services properly iv the likelihood that involvement in this case precludes other employment the fee in Texas customarily charged Houston for similar legal services vi the amount involved vii time limitations imposed by the circumstances and vii the experience reputation and ability of the attorney the services performing Mr Carters Mr Hesss and Mr Maclntyres opinions will be further based on the agreement between the clients and the the attorneys attorneys education active practice in the state of Texas and their with attorneys fees customarily familiarity charged in Houston Harris County Texas for legal services such as those provided in this matter Mr Carter Mr Hess and Mr Maclntyre will review the engagement letter pleadings documents and all time entries and invoices their prepared by respective firms through the date of trial The resumes of Mr Carter Mr Macintyre and Mr Hess have previously been provided Janet Fenner Masson Forensic Document Examiner 908 Town Country Boulevard Suite 120 Houston Texas 77024 Telephone 713 973-7552 Ms Masson has examined handwriting on documents produced in and this case may testify about the extent to which the on various documents handwriting is consistent with the handwriting of various individuals She also may offer her opinion concerning the authorship of the documents In particular Ms Masson may examine and testify about the handwriting on July 2011 documents to describe the will and purporting last testament of Dorothy Longoria including her opinion concerning the authorship of the documents Ms Massons CV has previously been provided Phil limes Ernest Young LLP Houston Center 3495696v 1/013774 12 01442 Suite 1200 1401 MeKinney Street Houston Texas 77010 Mr limes is Certified Public Accountant CPA licensed in Texas and New York and as CPA has examined accounting records financial statements and related documentation of small family run businesses as well as large international publically traded companies operating domestically and internationally As CPA he has expressed opinions on accounting including retention by the Securities and Exchange Commission He is also certified in valuation of companies as Certified Valuation Analyst CVA and member of the National Association of Certified Valuation Analysts NACVA Over his over 25 years of experience Mr limes has of fraud and misuse of funds and is member of the Association of investigated allegation Certified Fraud Examiners ACFE He has been appointed by the US Attorney for the Southern District of NY as compliance monitor after the companies agreed deferred prosecution agreement alleging fraud Mr limes is currently an Executive Director at Ernst Young BY which is global worldwide leader Mr in assurance limes tax transaction leader and in BYs advisory Fraud services with over 160000 employees is practice Investigation and Services practice based in Houston His current curriculam vitae is submitted with Dispute these disclosures Mr limes is expected to testify about events in the Mexico that negatively influenced in Mexico including operating profitability investment decisions and companies operating obligations denominated in US dollars Mr Times will provide the court his opinions regarding his analysis of pertinent transaction including testimony regarding the structure of the trust assets in this matter and the movement of funds from those trusts to various beneficiaries He will that the activities of the trusts the related companies and that of Shelby Longoria were testify consistent with the wishes expressed by Eduardo Longoria and Dorothy Louise Longoria He will also provide on the sources and use of funds in various transactions such as the sale opinions of real estate assets Mr limes will identify for the court accounting banking and other related financial records produced in this matter supporting his opinions Mr Innes is expected to also testify that the actions of Shelby Longoria complained of by Plaintiffs are not supported by the financial documents produced in this matter Finally Mr limes will also provide rebuttal concerning the and Adriana Longorias quantification of damages In testimony Dorseys reaching his opinions Mr Innes has relied on his analysis of the documents produced in this matter as well as upon his education training and experience Carlos Gabuardi Alejandria 125 Col Roma 64700 Monterrey N.L 64600 MEXICO Mr Gabuardi will testify concerning the legal effect of the separate property agreement business and in Mexico Mexican legal regimes governing the parties transactions contracts other activities subject to Mexican law for example the Adriana Longoria Private Agreement the of domicile under Mexican law and other aspects of Mexican law Some of Mr concept Gabuardis opinions have been provided in affidavits filed with briefs in this matter and Mr 3495696vI/013774 13 01443 Gabuardi may offer additional opinions in connection with summary judgment and other motions to be filed by Shelby Longoria Mr Gabuardi has reviewed documents produced in this matter Mr Gabuardis current CV can be found as an exhibit to his affidavit in support of dismissal of Adriana Longorias claims RESERVATION OF RIGHTS Shelby Longoria cross-designates each and every person designated in the past or in the future by another party to this action to be testifying expert and reserves the right to elicit opinions from those experts on any subject matter for which they were designated to testify for any other party In the event that James Thomas Dorsey Sylvia Dorsey or Adriana Longoria designates one or more expert witnesses Shelby Longoria reserves the right to call one or more experts in same fields to critique and to rebut the expert testimony presented by James Thomas Dorsey Sylvia Dorsey or Adriana Longoria As of the time of this response it has not been decided whether other expert witnesses will be called to testify on Shelby Longorias behalf Shelby Longoria reserves the rights to amend and to supplement this response as may be necessary REQUEST FOR DISCLOSURE Any indemnity and insuring agreements described in Rule 192.3f RESPONSE Not applicable REQUEST FOR DISCLOSURE settlement agreements described in Rule 192.3g Any RESPONSE Sylvia Dorsey signed contract entitled Release Agreement on December 29 2006 acknowledging full payment of gifts and inheritances she was owed under the Private Agreement and Wish Letter and releasing her claims against Shelby Longoria REOUEST FOR DISCLOSURE ii Any witness statements described in Rule 192.3h RESPONSE Not applicable 3495696v1/O1 14 01444 Respectfully submitted SUSMAN GODFRBY L.L.P By Cartof JohprW State Bar No 00796312 Richard Hess State Bar No 24046070 Kristen Schiemmer State Bar No 24075029 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 Telephone 713 651-9366 Fax 713 654-6666 Robert Maclntyre Jr MACINTYRE MCCULLOCH STANFIELD YOUNG 2900 Weslayan Suite 150 Houston Texas 77027 Telephone 713 547-5400 Attorneys for Shelby Longoria CERTIFICATE OF SERVICE This is to certifr that on this January 15 2015 tme and correct copy of the above and foregoing instrument was properly forwarded to the following counsel of record in accordance with Rule 21 of the Texas Rules of Civil Procedure as indicated below James Austin Fisher Via Electronic Mail FISHER WELCH 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 Email jfisherfisherwelch.com Wesley Holmes THE HOLMES LAW FIRM 1000 North Central Expressway Suite 400 Dallas Texas 75231 Email wes@wesholmes.com Attorneys for James Thomas Dorsey Sylvia 1sey and Adriana ongoria CØrter 3495696v1/013774 15 01445 Eis7s Phil Innes is an Executive Director based in Houston Phil has over 25 years of experience in accounting and auditing corporate investigations dispute advisory PhiIipJ Innes services financial advisory services Executive Director valuations financial reporting expert Fraud Investigation Dispute Services witness testimony and case consultancies He has provided professional services to Direct 7137504817 clients in wide variety of industries Fax 8666102299 including recent work in Upstream Oil Gas transportation of hydrocarbons oil phil innes@ey.com field services and manufacturing Houston Center Mr lnnes investigation experience includes 1401 McKinney Street investigating alleged accounting Suite 1200 irregularities including those related to Houston TX 77010 revenue recognition inventory and fixed asset controls purchasing and disbursements The investigations have included understanding complex banking transactions including the tracing of funds both domestic and international He has been retained audit committees by and outside counsel to assist in companies investigating alleged misconduct and present the results of the investigation to boards auditors management corporate and regulators such as the SEC and DOJ The investigations have also focused on allegations of self-dealings anti-bribery law violations and investigation of other fraudulent activities in alleged domestically the United States and abroad All of the investigations have involved analyzing documents bank records company internal controls interviews of company personnel and discussions with auditors management boards and regulators Mr lnnes investigation work has also involved and recommendations for assessing making the purpose of improving companys internal controls and anti-bribery compliance programs Phil has also served monitor as of as compliance part companys deferred prosecution agreement after being selected by the company with agreement from the US Attorneys office This monitor work involved third party provider for instant fund transfers directly from members checking account or credit card to an electronic wallet 01446 UERNsT YOUNG QoiIylo flU gW Do Philip Innes pg Mr Innes has been designated as an expert In Federal and State courts as well as domestic and international arbitrations on matters involving claims requiring the analysis of financial data records records financial statements including accounting banking trading activity business plans and projections vaiuations as weil as market and industry data He has been designated as an expert on accounting finance and valuation matters including the calculation of damages His testimony has been used in various matters including contract disputes post-acquisition disputes fraudulent conveyances anti-trust accounting breach contract valuations of businesses irregularities of mergers and acquisitions and business assets He has also been admitted as an expert and has offered testimony regarding application of accounting and auditing standards including acting as an expert for the Securities and Exchange Commission on such matter He has testified on matters involving oil and gas accounting including matters involving COPAS mineral royalties pipeline transportation hydrocarbon storage and oil field services In addition to services in investigations and litigation his work has been used by companies and lending institutions in their assessment of value and improvements to companys financial performance Phil has advised companies in mergers and acquisitions including identification of syrlergies and development of business plans to developing merger plans achieve and track cost savings He has also assisted companies in their development of operational business plans organization structures accounting systems as well as the identification of weaknesses in their systems of internal controls providing steps and for Improving these controls Phil has performed business valuations including processes of selling prices and purchase terms as well as conducting purchase and sale negotiation due diligence Prior to consulting Phil was the Chief Financial Officer of publicly traded company entering that was non-operator in the Gulf of Mexico as well as gas marketer and prior to that he practiced as public accountant practicing in both the audit and tax fields Case Highlights Provided damages from breach of fiduciary expert testimony concerning resulting alleged alleged breach of non-compete agreement and misappropriation of trade secrets duty damages included breach of contract and diminution in value of Term and Provided expert testimony regarding the accounting for conveyance Perpetual Interests Overriding Royalty Provided expert testimony regarding the application of COPAS Provided companys financial condition and ability to pay expert testimony regarding dividends Testimony included effects of alternative financing on capital structure capital spending and the ability to pay dividends Provided testimony regarding contractual audit clauses and the conduct of an expert auditor their with Generally Accepted Auditing Standards concerning compliance Provided revenue and cost disputes identified in COPAS expert testimony regarding audits Provided regarding accounting and claims related to the operations of expert testimony common carrier oil pipeline Provided regarding accounting and auditing disputes for offshore GOA oil expert testimony and gasjoint venture operations Provided expert testimony regarding compliance with Generally Accepted Accounting Principles and Generally Accepted Auditing Standards 01447 JIERNST YOUNG Qtlilyi Evmythin8 Innes Philip pg Provided expert testimony regarding contract disputes related to insurance contracts Testimony included addressing the accounting treatment for the contracts and damages Provided expert testimony concerning Generally Accepted Accounting Principles specifically related to restatement of financial statements Testimony included reporting on the companys internal controls accounting records financial reporting forecasting and actions taken senior executives earnings projections by Provided testimony and analysis in fraud-related matter including the investigation of existing accounting and bank records in the United States Middle East and Caribbean Reconstructed accounting records Provided testimony regarding solvency Provided testimony regarding damages from alleged infringement of patents Provided expert testimony regarding the financial effect of certain contract clauses including an investigation of the financial activity between the parties operating in the Chemical Industry Also provided testimony regarding damages Provided testimony on reasonably equivalent value in fraudulent conveyance action relating to the transfer of medical practice assets real estate and certain guarantees by fiduciaries Also provided testimony regarding damages Retained by the SEC to provide testimony in an accounting dispute regarding the application of Generally Accepted Accounting Principles Provided analysis and testimony in trade secret matter involving claims for damages due to the loss of customers Provided testimony in trade secret and trade name infringement suit involving computer software Provided trade secret trade dress claims in the telecommunication expert testimony in of reasonable industry including analysis royalty Provided testimony in valuation of pharmaceuticals and bioluminescence expert technology Provided expert testimony on financial performance and accounting for natural gas productionjoint venture and damages due to breach of contract Provided expert testimony on claims for construction costs including opining on the adequacy of internal controls to capture these costs Provided expert testimony on the reasonableness of supporting accounting documentation Provided testimony regarding post acquisition accounting and valuation of net expert assets Forensic and Financial Investigation Experience Retained by counsel for the board of directors of and Upstream Oil and Gas Company to investigate certain activities of its Chief Executive Officers Retained by counsel for home warranty provider to investigate and quantify alleged fraudulent activities Retained counsel for distribution to disbursement activity to by company investigate fraudulent activity and to review certain actions of the companys Chief identify potential Financial Officer Retained service violations of by counsel for an oil field companies regarding alleged export controls service adherence to deferred by Monitor an companys to assist its Retained in oil field prosecution agreement with the DOJ Retained by counsel for drilling company regarding alleged violation of the Foreign Corrupt Practices Act telecommunications to Retained by counsel for the audit committee of wireless company restatement of financial statements investigating accounting for investigate including 01448 ll ERNST YOUNG uaiityh trything Philip Innes pg revenues fixed asset additions E-91 and to services assess managements established internal controls an assessment of tone at the including top Retained by counsel for the audit committee of an International service to company investigate whistle-blower of allegations concerning proper reporting revenues Investigation of alleged insurance fraud and an assessment of senior managements influence over financial reporting Retained by foreign to contracts for government agency investigate gas pipelines refineries fertilizer plant and offshore Caspian region concessions Work included economic analysis of the contracts investigation into related transactions and party analysis of financial reporting Subsequent to initial work was retained by outside counsel to perform transition of financial matters management all involving the governmental agency Retained by foreign governmental and outside counsel to fraud agency investigate allegations accounting irregularities related party transactions and costs involving oil and gas development and exploration activities in central Asia Retained by an International Bank to investigate fraudulent transfers of funds to senior management Retained by lenders to investigate and document financial and operational controls for retailers Work included an assessment of the borrowing base Valuation and Financial Due Diligence Experience Performed acquisition due diligence and structured financing of oil and gas properties and gas gathering systems Performed acquisition due diligence for service and communication companies Performed acquisition due diligence of oil field services company Analysis including breakdown of profitability between the to be acquired service lines including analysis of the drivers of costs and cost sharing between service lines Performed merger and acquisition consulting to accounting fabrication and purchasing departments Work used to define goals and take advantage of synergies Work was also used in development and reporting of synergies to the public markets Performed and testified to the valuation of start-up companies with embryonic technologies Audit Tax and Financial Consulting Approximately ten years ol audft and tax services to clients in wide variety of industries including technology and telecommunications casualty insurance oil and gas energy oil field services medical entertainment construction waste real estate management retail and manufacturing Work included representation of clients in IRS audits independent financial statement audits and reviews SEC reporting and performing special projects such as lnitial Public Offerings and acquisition due diligence Provided interim transition management services for multi-billion dollar foreign oil and for of audits audits gas company responsible financial reporting completion JIB analysis of financial Impact of divestitures and other contracts management of data room on sale of oil and gas concessions hiring of staff and implementation of accounting controls Advised clients on various cost accounting and financial analysis matters including developing and assessing models for allocation of indirect costs assessment of activity based costing procedures analysis of profitability and cost reduction plans Chief Financial Officer responsible for financial reporting due diligence on acquisition and divestitures fund raising activities and negotiation of transactions 01449 .iI ERNST YouNG QvalityIn ie Phi Innes lip pg CertiUications Certified Public Accountant Licensed In Texas and New York Certified Valuation Analyst 01450 EXHIBIT 01451 AFFIDAVIT 01 ILAN ROSENB han Rosenberg hereby declare and state as follows PERSONAL BACKGRoTjl am over the age of 21 and competent to make this affidavit have drafted this affidavit based on my personal iciowiedge unless otherwise stated and having reviewed it can attest that it is true and correct hold Bachelor of Laws degree J.D equivalent awarded by the Escuela Libre de Derecho in Mexico City Mexico as well as Master of Laws LL.M and Master of Comparative Laws LL.C.M from the University degrees of Pennsylvania Law School am an attorney licensed to practice law in every in jurisdiction Mexico as well as in the Commonwealth of Pennsylvania am also licensed to practice before the Supreme Court of the United States the United States Courts of Appeals for the Third and Federal Circuits as well as the United States District Courts for the Eastern and Middle Districts of Pennsylvania Northern District of Illinois and the Eastern District of Wisconsin copy of my Curriculum Vitae is attached as Exhibit to this affidavit In addition to my practice in the United States of America have actively and continuously practiced before Mexican state arid federal courts for more than fifteen years am Partner of the law firm of Gordon Rees in Philadelphia Pennsylvania am also Lecturer at Law at the University of Pennsylvania Law School have been retained James Thomas Executor of the Dorsey Independent Estate of Dorothy Louise Longoria Deceased the Estate and asked to prepare this affidavit as an expert in the field of Mexican law EXHIBIT Ii 01452 QUESTIONS PRESENTED The Estate has asked me to opine on the following questions tinder Mexican law How does the Mexican state of Tamaulipas regulate service of process on individual defendants Would Tamaulipas court have jurisdiction over an action filed by the Estate against Shelby Longoria Does the law of Tamaulipas provide remedy for breach of fiduciary duty or recognize private trusts and informal fiduciary relationships Does the filing of an Amparo lawsuit result in general waiver of jurisdictional defenses in Mexico MATERIALS REVIEWED In formulating the opinions below have relied on my review of Shelby Longorias Amended Contest of 2010 Will the Counterclaims thereto asserted by the Estate Shelby Longoria Motion to Dismiss Counterclaims for Forum Non Conveniens and its supporting Brief the Affidavit of Dr Carlos Gabuardi an August 1983 letter signed by Eduardo Longoria Jr and Shelby Luis Longoria to Dorothy Kowaiski de Longoria as well as and research of Mexican my professional knowledge and experience my independent statutory and case law OPINIONS Determinations Pre1imiiary Statement on Mexican 3urisclictional 10 Mexico like the United States is federal republic comprised of individual states executive and judiciary that have autonomous governments including state legislative branches and federal bodies of laws 11 Thus Mexico has separate state -2- 01453 12 Pursuant to Article 104 Section II of the Mexican Constitution Constitucion Politica de los Estados Unidos Mexicanos and Article 53 Section of the Mexican Federal Judiciary Organizatidn Law Ley Organica del Poder Judicial de Ia Federacion in civil cases Mexican federal courts have subject matter jurisdiction only oyer claims that are governed by which Mexico is These in fedeiai laws or international treaties to party provisions state pertinent part as follows Article 104 The Federal Courts shall adjudicate II All civil commercial controversies or that arise concerning with or application of federal laws or compliance international treaties executed by Mexico The plaintiff may choose when the interests at issue only affect private be heard by the judges and parties that these disputes tribunals of the states Federal district court shall adjudicate Article 53..- judges Those civil controversies that arise concerning compliance with or application of federal laws or international treaties executed by Mexico When those controversies only affect at the option of the private they may be heard interests and tribunals of the states and the plaintiff by the judges Federal District 13 of the 13 Insofar as it concerns civil disputes among private parties Article Mexican Federal Civil Code Codigo Civil Federal or CC sets forth whether they are to be and thus determines whether there is Mexican under Mexican federal or state civil law resolved federal sibject matter jurisdiction over particular dispute law rules relating the 14 Article 13 Section tV ofthe CC sets forth choice of to Section IV provides that formalities for the creation of legal rights Specifically created by the laws of the place be governed where they are formalities of legal acts will forth in this Code when the act is to have to the formalities set However they may be subject effects in the Federal District or throughout the Republic on federal matters 01454 15. Furthermore Article 13 Section of the CC supplies the choice of law rules to determine the law that governs the legal effects of acts and contacts Section provides that to the provisions of the foregoing sections the legal effects of acts and contracts are to be governed by thelaws of the place where they are to be performed unless the parties have validly designated the application of different laws 16 Pursuant to Mexican choice of law rules there is no Mexican federal interest at issue with respect to the disputes between the Estate and Shelby Longoria Thus this analysis is premised on the substantive and procedural laws of the State of Tamaulipas where Shelby certain relevant facts took place Longoria argues II Pursuant to the Laws of the Mexican State of Tamaulipas Service of Process Must Be Effected Personally Upon an Individual Defendant at His Home 17 The Mexican State of where Shelby Longoria claims to have Tamaulipas business interests and contends is the more convenient venue for this action has its own Civil Code the Cod.igo Civil para el Estado de Tamaulipas or CCT as well as its own Code of Civil Procedure the Codigo de Procedirnientos Civiles para el Estado dc Tamaulipas or CPCT law charges the courts and not the with the obligation to 18 Tamaulipas litigants Articles 29 and 30 of the CPCT provide that only court effect service of process Specifically serve defendant with process personnel may original 19 Article 67 in Sections and III of the CPCT provides the rules for effecting of Tamaulipas Those sections provide as original service of process on individuals by the courts follows ARTICLE 67.- Original service of process must be effected in accordance with the following rules If an individual service of process IL defendant is must be made directly person unless the individual to that as then it must be effected upon his/her lacks procedural capacity of process upon an agent is only legal guardian Original service -4 01455 authorized when the agent resides within the seat of the court and the to be served outside that place or is of person intended lives unknown whereabouts or if the agent lives outside the jurisdiction but within the Republic and the person to be served lives abroad and has no known residence or the persons whereabouts are unknown In this case the agent is required to have general or special power of attorney with sufficient authority to answer the complaint and defend the action being served pursuant to the provisions of Article 52 with the need to appoint duly licensed attorneys The agent can only refuse to intervene if he/she that he/she did not accept or has renounced the proves power of attorney UI IV Original service of process must be effected in the place designated by the party so requesting and must be precisely the home of the party to be served with original process if an individual and if corporation in its corporate domicile its offices or principal commercial establishment except principal when with branches with an individual agent authorized to dealing in the action when dealing with business transacted by the appear branches or in which the branches have intervened The serving the must verify that all of this information officer is contained and may be specially authorized to serve process on complaint the individual defendant or agent at their place of regular the employment or wherever they may be found within jurisdiction but in this case may be effected only to the specific individual at issue and the server must note specifically during process the means used the to identify the individual the of attorney verification of authority of an agent power and set forth all relevant information Emphasis supplied have ruled in binding precedent that in 20 The Mexican Federal Courts of Appeal the court official must verify that the location order for original service of process to be effective where the defendant is served is in fact the defendants home Precedent No 162858 ORIGINAL SERVICE OF PROCESS UPON INDIVIDUALS IF THE COURT OFFICIAL SETS FORTH ONLY THAT THE ADDRESS OF THE DEFENDANT IS CORRECT BASED ON TUE NAME OF TIlE STREETS NUMBER NEIGHBORHOOD AN CITY TIE FAII1S TO SATISFY THE ESSENTIAL PROCEDURAL FORMALITIES WHICH VIOLATES THE RULES THAT GOVERN IT LEGISLATION OF THE STATE OF TAMAULIPAS 01456 Articule 67 section III of the Code of Civil Procedure for the State orders that original service of on individuals must be process effected at the address designated by the party so requesting which must coincide with the place where the defendant lives therefore the official when effecting service of process must verify that these circumstances are all met and include in the respective steps taken to so verify certification Therefore if the official does not set forth in the certification that the location where the official appeared to serve original process is the defendants home and instead only states that he verified that the address was correct based on his observation of the correct street names number neighborhood and city such certification fails to satisfy the essential procedural formalities because that information does not provide certainty that the address is where the defendant lives Accordingly that irregularity is violation of the rules that the procedures for sai4 action govern 9th Session Circuit Courts of Appeal Federal Judiciary Reporter and its Gazette Volume XXXIII February of 2011 2044 Emphasis added 21 Thus the laws of Tamaulipas specifically require that original service of process upon an individual be made directly upon the defendant and at the defendants home Otherwise service of process will be ineffective original 22 Article 97 of the CPCT also provides that when official caurt action is to take outside of the Mexico the court will follow the procedures set forth in the international place Mexico In this Mexico is party to the Hague Convention treaties to which is party respect Documents in Civil or Commercial Matters on the Service Abroad of Judicial and Extrajudicial Therefore in order to effect valid and the Inter-American Convention on Letters Rogatory on an individual residing outside of Mexico in an action filed in service of original process service must be effected the individual at their home following the Tamaulipas directly upon or Inter-American Conventions procedures set forth in the Hague 23 Dr Caries Gabuardi proffered by Shelby Longoria as an expert in Mexican law be effected the admits at 16 that the CPCT requires that original service of process at defendants home or the place where they live Dr Gabuardi opines however that the in its is attached as Exhibit true and correct copy of the ptecedent original Spanish -6 01457 provisions of the CPCT are irrelevant based on Mexican Supreme Court opinion finding that service of process may be effected on defendant at his home his place of business or wherever he may be found without regard to any particular order What Dr Gabuardi fails to point out is that the Supreme Court opinion at issue does not deal with Tamaulipas procedure at all but rather with the provisions of the Codes of Civil Procedure of the Mexican states of Jalisco Puebla Chiapas as well as the Federal District Mexico City whose rules for service of are different from those of Tamaulipas Jalisco Puebla Chiapas and original process markedly of process effected defendants the Federal District all provide that original service may be at domicile which their respective civil codes define as includin.g not only the home but also the where defendant transacts business or where the defendant may be located The non place binding Seventh Circuit precedent referenced by Dr Gabuardi at 18 focuses on the Code of Civil Procedure of Veracruz which also in Article 82 that original service of process provides the defendants domicile Tamaulipas in stark contrast to these other must take place at the place where the individual defendant has his or Mexican jurisdictions refers specifically to her home Therefore while the precedent referenced by Dr Gabuardi at 11 16-17 may be similar to those in Jalisco Puebla Chiapas and the binding on all courts applying provisions is in the case of Tamaulipas Similarly the non-binding precedent Federal District it inapposite for effecting from the Seventh Circuit at 18 is of no import as Veracruzs requirements service of process track those of Jalisco Puebla Chiapas and th Federal Diirict but original not their sister state of Tamaulipas Jurisdiction of Tamaulipas Courts Pursuant to Article 172 of the CPCT must be filed before 24 complaint competent judge.2 Under Mexican law competence is synonymous with the United States functionally used to refer to the geographic area concept ofjurisdiction in Mexico jurisdiction is generally Those terms are therefore used interchangeably where governmental actors haye authority herein .7 01458 25 Under Mexican law competence functional synonym of the United States concept of jurisdiction is determined by statute In Tamaulipas the CPCT provides in Article the of the ourts governed by the provisions of this code.3 20 Section III that jurisdiction is 26 Article 173 of the CPCT specifically provides that competence or jurisdiction will and by the by the amount the subject matter the appellate be determined level territory.4 27 Notviithstanding Dr GabuŁ.r opinion at 13 that Shelby Longoria in Mexico maintains sufficient contacts with .. Tamaulipas personal or territorial jurisdiction is not determined by contacts but rather by specifically defined express statutory provisions Contacts with standing alone are of no import with respect to whether specific jurisdiction Mexican ourt has jurisdiction Indeed Dr Gabuardi himself has recognized as much in the article he references at 11 In that article Dr Gabuardi states that in Mexico the bases for Entre by law See Gabuardi Carlos la asserting jurisdiction are limited to those established el Forum Non Convethens Boletin Mexicano cia Derecho Jurisdiccin Ia Competencia nueva serie aflo XLI nilm 121 enero-abril de 0O8 at 89 Thus Dr Gabuardi Comparado law oncompetence establishes detailed rules to determine what types of cases explains Mexican can be heard by particular court Id In Dr Gabuardi own words competence sets forth the rules which must be strictly observed from an operational standpoint to assign specific controversies as between the different courts of country Id Translation is ours According contacts basis for asserting jurisdiction Mexico to Dr Gabuardis own analysis are not are those expressly listed in the 48 that the only bases to assert Id at pointing out jurisdiction operative Codes of Civil Procedure which do not include contacts of the CPCT that the rules of procedure are of public order Notably Article provides and cannot be waived by stipulation of private parties is aldn to personal jurisdiction in the United States Territorial jurisdiction or competence 01459 IV Tamaulipas Courts Do Not Have Original Jurisdiction Over Shelby Longoria Adriana Longoria or Sylvia Dorsey 28 The CPCT provides in Article 195 Section IV that the competent judge is the one located in the domicile of the defendant in actions involving movable property or in personarn or civil status actions unless provided otherwise law.5 29 Pursuant to Article 24 of the CCT i4iyjduals domicile is the place wher he or she lives If the individuals home address is unknown but only then the law will repute as domicile the place where the individual principally conducts his or her business and if this location is also unknown then an individuals domicile is wherever he or she can be found In other words the Civil Code of Tamaulipas reference to an individuals primary place of business or their actual physical location is intended to provide alternative domidiles only in those cases where an individuals actual place of residence is unknown.6 30 As explained in the foregoing sections plaintiff filing suit in Tamaulipas must the home address of the defendant in order to achieve valid original service of process identify 31 According to Article 175 of the CPCT tribunal may refuse to entertain case unless it determines it lacks jurisdiction Lii such cases it must set forth in the order the legal bases supporting its conclusion Emphasis supplied As Dr Gabuardi recognizes the claims asserted by the Estate are inpersonain claims to that do not apply in Tamaulipas the opinions cited In addition to referring provisions by Dr Gabuardi in fj 1648 are of no import to the question of domicile for purposes of Indeed in the cases to which Dr Gabuardi refers the Mexican federal asserting jurisdiction of the term courts including the Court explained that their liberal construction Supreme of service of process only because the primary purpose of service domicile was for purposes of process is to put defendant on notice of an action The court opinions however made clear for purposes of service of process is of no implication to substantive that the ruling on domicile considerations associated with domicile including the ability of the courts to exercise consider in Texas jurisdiction over particular case By way of analogy that original process action can be served on Mexican individual domiciled in Mexico The only implication of the foreign citizen is on notice of the action It does not mean the Texas court has service is that jurisdiction over that individual -9- 01460 32 Thus in Tamaulipas trial courts must review the complaint when filed and make sua sponte determination as to whether they have jurisdiction 33 There is no dispute that Shelby Longoria lives in Texas Indeed his Amended Contest of 2010 Will at avers that Shelby Longoria Shelby is an indiidual domiciled in Hidalgo County Texas 34 Theiefore Thmau.lias court lacks statutory juisdictibn oV tort case against foreign defendant and will aimost certainly dismiss any action filed against Shelby Longoria The same conclusion follows with respect to Adriana Longoria and Sylvia him sua sponte.7 Dorsey as both of them live in Houston Texas 35 dismis8 the complaint for lack of subject matter Moreover court may jurisdiction would have to recognize this Courts jurisdiction over the 36 Tamauiipas court counterclaim where the counterclaim would predate any Tamaulipas Estates particularly 189 of the CPCT that the court before which the principal action.8 Indeed Article provides m4ter over related counterclaims cause of action is pending has exclusive subject jurisdictiorL the 37 Pursuant to Article 177 of the CPCT court that expressly recognizes of another cannot assert jurisdiction jurisdiction Remedy Breach of Fiduciary Duties Tamaulipas Law Does Not Provide for 38 Article 1388 of the CCT provides as follows law When an act causes damages and losses to person and the the perpetrator of that act or on someone else the imposes upon to repair those damages and losses there is civil obligation liability that the defendant has waived do so even if the pleads Tamaulipas court may plaintiff challenge to the courts territorial jurisdiction Courts jurisdiction Shelby Longoria does not challenge this understand -10- 01461 39 Mexican law generally and Tamaulipas law specifically do not impose or recognize fiduciary duty9 on the part of an adult child to business manage affairs of or for the benefit of parent.10 40 Mexican law also does not recognize informal fiduciary relationships or specifically private trusts11 so the August 1983 letter signed by Eduardo Longoria Jr and Shelby Luis Longoria to Dorothy ICowalski de Longoria whereby they agree to hold maintain and manage certain assets for the Decedents benefit does not create fiduciary duty Rather the letter creates only moral obligation or duty which is unenforceable under Tamaulipas law CCT Articles 1028 and 1370 41 Even assuming for the sake of argument only that there were basis to recover in for breach of fiduciary tort duty any such claim is barred under Tamaulipas one-year statute of limitations pursuant to Article 1510 Section III of the CCT 42 Because more than year has elapsed since the death of Dorothy Longoria any claim sounding in under Tamaulipas law tort is barred as matter of law Indeed cause of action for breach of fiduciary of duty regardless its nature would be impossible to plead and prove under Tamaulipas law which to requires plaintiffs provide detailed description of all facts and attach or list all the items of evidence that cause of support action from the outset 247 Articles to 249 of the CPCT Amendments to pleadings are not allowed Moreover Article 330 of the CPCT precludes party from inspecting an opponents general accounting 10 We note that the only duty flowing from children to their parents is statutory obligation under Articles 277 and 282 of the CCT to provide support for food clothing housing and medical care when necessary Mexican law only recognizes trusts created financial through federally-licensed institutions subject to regulatory directive and oversight The Mexican Court Supreme explained that United States-style were adopted trusts partially by the Mexican legislature according to our system even though strictly speaking it structured an institution wholly different than the trust and established it as an exclusive banking operation due to the solvency of banks arid the governments oversight over them See Precedent No 246296 TRUSTS NATURE OF 7th Session Auxiliary Chamber Supreme Court Federal Judiciary Reporter Volume 21 Seventh Section 39 11 01462 VI The Mexican Aniparo Do Not Proceedings Imply Wholesale Submission to .the Jurisdiction of Mexican Courts 43 The United States concepts of minimum contacts general jurisdiction or specific jurisdiction do not exist under Mexican law Mexican courts authority to hear particular case is determined on case-by-case basis as defined by statute i.e the codes of civil procdure Therefore the fact that party has invoked the jurisdiction of Mexican court in particular case does not mean that it will be sul tht sathe Mexican court sjurisdiction in any and every future action 44 Thus the pursuit of an Amparo action in Mexico is inconsequential to whether Mexican court can over Amparo claimants assert jurisdiction or anyone else for that matter in future civil actions Mexicans courts ability to exercise jurisdiction will have to be assessed after the filing of every complaint 45 More importantly the filing of an Amparo action in Mexico cannot be described as Dr Gabuardi does at pp 6-8 as an acknowledgement of the adequacy reliability and better convenience of the Mexican judicial system for the purposes of adjudicating the private party matters pending before this Court 46 In order to understand why the filing of an Amparo action implies none of what Dr Gabuardi suggests we must explain the nature of the Juicio de Amparo 47 An Amparo action which arises under Articles 103 and 107 of the Mexican Constitution is proceeding by which any private person individual or corporate can challenge the constitutionality of the actions of state or federal government actor regardless of whether that actor is member of the executive legislative or judiciary branch In other words the only possible defendants in Amparo actions are Mexican government actors in their official 12 capacities 12 Insofar as the Amparo actions referenced by Dr Gabuardi the only defendant is Tamaulipas court -12- 01463 48 The Mexican Court has interpreted the constitutional guarantee of due Supreme process broadly to include the misapplication of any law whether state or federal within the Court rulings are included in the definitin of official scope of Amparo protection and therefore courts governmental acts any court judgment includingjudgrnents by state state laws is reviewable by federal courts acting under their Amparo jurisdiction interpreting law deemed be violation because an erroneous application of principle of federal or state is to of Constitutional due process 49 When private person is aggrieved by the adjudication of his/her/its rights by the only means seek Mexican court without due process of law Aniparo proceedings provide to redress for that constitutional violation more circumscribed than federal proceeding by 50 Amparo proceedings are far an argument that there which the plaintiff seeks the protection of the federal justice system upon of the Mexican Constitution statutory law due has been inffingeinent of the strict application process of law or other fundamental rights Gabuardi Affidavit at 26 Amparo proceedings available to private for constitutional violations on the provide the only remedy party plaintiffs defendants including the Mexican courts Amparo proceedings part of the Mexican governmexlt are not available to challenge actions on the part of private actors hear system with jurisdiction court to 51 The Mexican federal judiciary is the only of an official Mexican Amparo cases and ultimately adjudicate the Mexican constitutionality an Amparo proceeding cannot be pursued in any governmental act The relief available through other court.3 the Mexican courts have made clear that they lack 13 Notably in the context of an Amparo tribunal jurisdiction to in any way compel action by much less invalidate the acts of foreIgn OF JURISDICTION BY DECLINATION THE See Precedent No 166416 DECLiNATION ORDER THAT DECLARES IT BY FINDING THAT FOREIGN COURT HAS JURISDICTION PUTS AN END TO THE ACTION AND THEREFORE MAY BE FEDERAL DISTRICT CHALLENGED iN DIRECT AMPARO LEGISLATION OF THE -13- 01464 52 Consequently Dr Gabuardis opinion that the filing of an Amparo proceeding is an acknowledgement of the adequacy reliability and better convenience of the Mexican judicial system is incorrect RESERVATION OF RIGHT TO ISSUE SUPPLEMENTAL OPINIONS 53 understand this matter is in its early stages and additional facts may develop have been advised that the Estate may therefore require further opinions cn Mericlaw Accordingly1 reserve the right to amend and/or supplement the opinions expressed herein whether in writing or live testimony as called upon to do so declare under penalty of peijury pursuant to the laws of the Commonwealth of are true and correct Pennsylvania that the foregoing statements Executed in Philadelphia Pennsylvania this 30th day of By 215 665-4621 SUBSCRIBED me on this 30th day of SWORN and before in Philadelphia Pennsylvania September 2013 O-4 Lorraine Costro Notary Public My commission expires COMMONWEALTH PENNSYLVANiA NOTARIAL SEAL LORRAINE COSTRO Notaiy Pubc City of Philadelphia Phita Ceunty My Commission Expires ApdI 222016 and Gazette Volume Court Federal its 9th Session Chamber Supreme 1St Judiciary Reporter XXX September 2009 120 -14- 01465 ILAN ROSENBERG 1123 Coventry Avenue Cheltenham PA 19012 Phone 215-635-2005 Fax 215-701-2021 Email janeandilancomcast.net PROFESSIONAL EXPERIENCE Gordon Rees Philadelphia PA June 2013-Present Partner Concentrating practice in complex insurance coverage and commercial litigation arid international commercial matters and dispute resolution with an emphasis on matteis relathig to Mexico nd Latin America outside advisor to the Mexican of Relations legal Ministry Foreign CozenOConnor Philadelphia PA September 2002-June 2013 Member Concentrated practice in complex domestic and international insurance coverage commercial and civil matters Co-Chair of Latin American Subrogatibn Practice Group Chevez Ruiz Zamarripa Cia S.C Mexico City Mexico September 1999-June 2001 Associate Concentrated practice in tax planning and tax and civil rights litigation Handled trial and appellate matters before Mexican state and federal courts as well as the Mexican Federal Supreme Court Mexican Federal Ministry of Finance Mexico City Mexico January 1998-June 1999 Supervisor of the Legal Consulting Department Advised various branches of the Mexican government concerning public fmance and tax law and developed federal tax rules and regulations EDUCATION University of Pennsylvania Law School Philadelphia PA Master of Comparative Law LL.C.M September 2009-May 2011 Master of Laws LL.M recipient of merit-based scholarship July 2001-May 2002 Escuela Libre de Derecho Mexico City Mexico August 1993-July 1998 Bachelor of Laws S.D Equivalent LEADERSHIP POSITIONS America-Israel Chamber of Commerce Advisory Board Member HIAS and Council Migration Service of Philadelphia Board Vice President Chair Policy Committee HONORS/AWARDS Pennsylvania Super Lawyer Rising Star 20072008 and 2013 Recipient of the National Law Journal Pro Bono Award in 2008 BAR ADMISSIONS Mexico all jurisdictions Pennsylvania United States District Courts Eastern and Middle Districts of Pennsylvania Eastern District of Wisconsin Northern District of Illinois United States Courts of Appeals Third and Federal Circuits United States Supreme Court HIT 01466 TEACING/LECTURING EXPERIENCE University of Pennsylvania Law School Philadelphia PA October 2012-Present Lecturer in Law Comparative law course entitled Common Law Contracts for Civil Lawyers Escuela Libre de Derecho Law School Mexico City September 1999-August 2000 Adjunct Professor Tax Law and Administrative Procedure 01467 Page o12 Tesis Semanario Judicial de la Novena 162 858 Federacin su Gaceta Epoca 5/10 Tribunales Jurisprudencia Colegiados S.J.F su Gaceta PÆg 2044 de Circuito Civil Registro No 162 858 9a Epoca T.C.C S.J.F su Gaceta Torno XXXffl Febrero de2Oil 2044 EMPLAZAMIENTO PERSONAS FfSICAS SI EN LA iZON DEL ACTUARIO SOLO SE1ALA QUE EL DOMICILIO DEL DEMANDADO ES CORRECTO POR ADVERTIRLO DE LAS NOMINCLATURAS DE LAS CALLES N1JMERO COLONTA CIUDAD ELLO NO COLMA LAS FORMALIDADES ESENCTALES DEL PROCEDIMIENTO LO QUE CONSTITUYE IJNA WOLACION LAS REGLAS QIIE LO RIGEN LEGISLACION DEL ESTADO DE TAMAULIPAS El artIculo 67 fraccin ifi del Codigo de Procedimientos Civiles para el Estado ordena que ci emplazamiento las personas fisicas se realice en el domicilio seflalado por la parte que lo pide el cual debe corresponder con el lugar en donde habita el demandado por tanto el actuario al realizarlo debe cerciorarse de que queden satisfechas esas circunstancias asentarlo en ci acta relativa En esas condiciones si en la razOn del actuario no se seflala que en el domicilio en ci que se constituy para practicar el emplazamiento habita ci demandado en cambio solo refiere que se cerciorO de que era correcto por asI advertirlo de las nomenclaturas de las calles nÆmero colonia ciudad correspondilentes con estas expresiones no se colman las forrnalidades esenciales del procedinaiento dada que esa informacin no brinda la seguridad http//ius.scjn.gob.mx/paginasiReportesfReporteDE.aspxidius1 62858Tipol 9/30/2013 01468 Page of de que ese domicilio sea el lugar donde habita el demandado Consecuentemente esa irregularidad constituye una violacin las reglas que rigen el procedimiento de dicha diligencia PRIMER TRIBUNAL COLEGIADO DEL DECIMO NOVENO CIRCTJTTO Amparo en revision 235/2008 15 de octubre .dŁ 2008 Unanimidad de votos Ponente Miguel Mendoza Montes Secretaria Piedad del Carmen HernÆndez Avila Amparo en revision 37/2010 Guadalupe Luis de Leon Zamora 25 de marzo de 2010 Unanimidad de votos Ponente Lucio Antonio Castillo GnzÆlez Secretaria Gina Estela Cecopieri Gmez Amparo en revision 127/20 10 JosØ Portilla Guerra 29 de abril de 2010 Unanimidad de votos Ponente Hector GÆ.lvez TÆnchez Secretaria Julia Soto Valdez Amparo en revision 192/2010 Pedro Hugo Salinas Bravo de julio de 2010 Unanimidad de votos Ponente Lucio Antonio Castillo Gonzalez Secretaria BelØn Alarcn CortØs Amparo en revisiOn 281/2010 Juan Francisco JimØnez Chapa 28 de octubre de 2010 Unanimidad de votos Ponente Lucio Antonio Castillo Gonzalez Secretario Faustino GutiØrrez Perez http//ius.scjn.gob.mx/paginas/Reportes/RePOrteDE.aSPXidiUSl 62858Tipol 9/30/2013 01469 CASE NUMBER 414270 THE ESTATE OF IN PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS OIDER DENYENG ShELBY LONGOmAS MOTION TO DISMISS ADRL4NA LONGOfflAS CLAIMS Now before the Court is Shelby Longorias Motion To Dismiss Adriana Longorias Claims the Motion Afler conducting hearing and considering the Motion the response filed on behalf of Adriana Longoria the evidence properly before the Court the pleadings on file and the arguments of counsel the Court finds that the Motion should be and it hereby is DENIED SO ORDERED on this _______ day of_ 2015 PRESIDING JUDGE PROBATE COURT NUMBER ONE HArtrus COUNTY TEXAS ORDER DENYING SHELBY LONGORTAS MOTION TO DISMISS ADRIANA LONGORIAs CLAIMS Solo Page 01470 CASE NUMBER 414270 THE ESTATE OF PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGOREAS THIRD AMENDED CONTEST OF 2010 WILL TO THE HONORABLE JUDGE OF THIS COURT COMES NOW James Thomas Dorsey in his capacity as Independent Executor of the Estate of Dorothy Louise Longoria Deceased as Counter-Plaintiff and pleads the following counterclaims in response to Shelby Longoria Third Amended Contest of2O 10 Will stating the following causes of action against Shelby Longoria as Counter-Defendant Discovery Level Pursuant to TEX CIV 190 Counter-Plaintiff states that discovery in this case is intended to be conducted under Level of that Rule Overview These counterclaims are brought by citizen of Texas against another citizen of Texas Counter-Plaintiff is the personal representative of an estate pending in this Court and adjudication of these counterclaims is essential to administration of that estate The ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF TI-TIE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01471 Decedent lived in Texas for the last 25 years of her life These counterclaims are based entirely on Texas law None of them is based on any law of the United Mexican States The Parties Counter-Plaintiff James Thomas Dorsey is an individual who is bringing these counterclaims in his the duly appointed capacity as Independent Executor of the Estate of Dorothy Louise Longoria Deceased Counter-Defendant Shelby Longoria is an individual who resides in Hidalgo County Texas Counter-Defendant commenced this action and has appeared through counsel in this action so this pleading maybe served on him through his attorneys of record Jurisdiction Pursuant to Sections 4A 4B and 4F of the Texas Probate Code the Court has jurisdiction over the subject matter of this civil action The Estate of Dorothy Louise Longoria is pending in this Court and this Court is statutory probate court As explained more fully below this action is brought by personal representative on behalf of that estate and this action is related to that estate In addition the exercise of pendent or ancillary jurisdiction over this action is necessary to promote judicial efficiency and economy The Court has in personam jurisdiction over Counter-Defendant Shelby Longoria by virtue of his filing of Shelby Longoria Third Amended Contest of 2010 Will in to which these counterclaims are pleaded In addition general personal response ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOREA DECEASED TO SHELBY LONGOPJAS THIRD AMENDED CONTEST OF 2010 WILL Page 01472 jurisdiction exists because the Counter-Defendant has had continuous and systematic contacts with the State of Texas and exists because specific personal jurisdiction this action arises out of contacts by the Counter-Defendant with the State of Texas as below explained Venue Pursuant to Section 6A of the Texas Probate Code the venue of this action is proper because the Estate of Dorothy Louise Longoria Deceased is pending in this Court and this action is related to that estate as explained more fully below Conditions Precedent All conditions precedent to Counter-Plaintiffs rights to plead and to prosecute these counterclaims and to recover the relief requested herein have occurred or been fulfilled Facts Applicable to All Causes of Action On July 1942 Eduardo Longoria Eduardo and Dorothy Louise Kowaiski Dorothy were married in the City of Laredo in Webb County Texas 10 When they were married Dorothy was citizen of the United States of America and Eduardo was citizen of the United Mexican States Mexico but he had This petition does not recite every fact on which the Counter-Plaintiffs claims are based It is intended only to be short statement of the cause of action sufficient to give fair notice of the claim involved as required by TEx Civ 47 ORIGNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01473 been living in the United States and after the wedding the settled in couple initially McAllen Texas 11 The marriage of Eduardo and Dorothy was subject to the laws of the State of Texas including the law of community property 12 Eduardo and Dorothy had four children all of whom are living Their names are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo Longoria Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All of them reside in Texas 13 Eduardo and Dorothy amassed considerable wealth through variety of business activities and investments 14 Over time Shelby took control over the business and investments owned by Eduardo and Dorothy 15 Shelby managed property and accounts owned by Dorothy and represented to her that he was doing so for her benefit Indeed the account statements were not even sent to Dorothy even though she was identified as the sole owner of the accounts The accounts included but are not limited to the following accounts collectively Dorothys Accounts in Mexico Banamex Account Number 7572369315 Banamex Account Number 7518181565 and OR1GNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY ThDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01474 BanRegio Account Number 75-00454-001-8 16 In addition Shelby expressly agreed to hold in trust for the benefit of Dorothy property that Shelby obtained from Eduardo In letter to Dorothy dated August 1983 for example Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us as long as you live we will hold them as if they were yours and will make the fruits available to you for your direction as to their use These promises were made by Shelby while he was residing in Texas and were set forth in letter that they was sent to Dorothy from an address in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby by Eduardo by concealing from Dorothy material facts about that including value and profitability property its nature extent by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income generated by the property by failing to disclose to Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use 17 Likewise in letter dated October 2007 which Shelby sent to Dorothy at her residence in Houston Texas Shelby made specific promises with respect to large sum of money that Eduardo wished for Dorothy to have upon his death Admitting that he held such funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate to her daughters Shelby promised that within thirty days after Dorothy died he would pay $100000 to Sylvia and $100000 to Adriana UponDorothys death Shelbyrepudiated and ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01475 breached this promise to Dorothy While he did tender check for $100000 to and Sylvia check for $100000 to Adriana he printed on the checks if the checks language that were negotiated would have resulted in release of their rights in Dorothys estate and rights against Shelby self-serving conditions which Shelby had no right to The fact impose that Shelby arbitrarily demanded such releases for his benefit as conditions on his perfonnance of an unconditional duty to pay $100000 to Sylvia and $100000 to Adriana proves that Shelby knew that Dorothy owned valuable claims against him Shelby knew that Dorothy intended to leave her entire estate to Sylvia and Adriana and Shelby knew that Sylvia and Adriana themselves had valuable claims against him all of which he now dishonestly denies 18 Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as trustee of an express trust for the benefit of Dorothy and in addition or in the alternative pursuant to an informal fiduciary relationship with Dorothy 19 In contravention of his fiduciary duty to Dorothy under Texas law Shelby failed to advise Dorothy fully and fairly regarding the nature and extent of her property and his actions with respect to her property and the property he was holding in trust supposedly for her benefit 20 In fact Shelby managed for his own benefit Dorothys property as well as property he was holding in trust supposedly for her benefit He caused income from the ORJGNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01476 property to be paid to him or to others for his benefit and failed to disclose to Dorothy that he had done so 21 Eduardo died on January 26 2005 at the age of 91 He was born on October 25 1913 22 When Eduardo died all of the property in his estate was community property of which one-half was owned by Dorothy under Texas law 23 Eduardo died in Webb County Texas where he and Dorothy had lived for many years 24 After the death of Eduardo Shelby continued to manage Dorothys property and continued to represent to her that he was managing her property for her benefit but he intentionally concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property 25 In fact Shelby managed the property for his own benefit and engaged in self- dealing transactions that he failed to disclose to Dorothy 26 Dorothy died in Harris County Texas on April 62012 at the age of 92 She was born on May4 1919 ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01477 27 By order dated October 2012 this Court admitted to Last probate Dorothys Will and Testament dated 21 2010 and James January appointed Thomas Dorsey Independent Executor of the Estate of Dorothy 28 Letters Testamentary were issued to James Thomas Dorsey on the same day and such Letters Testamentary are force and effect currently in full so he is fully authorized to bring this action 29 Whenever it is alleged herein that Shelby acted or communicated in any fashion then such allegation should be taken to mean That the Shelby himself took such action or made such communication or in the alternative That duly authorized agent of Shelby took such action or made such communication on behalf of Shelby and in the course and scope of the agency in the or alternative That such action or communication was by one having apparent authority to do so on behalf of Shelby or in the alternative That Shelby ratified and adopted such action or communication as his own and thereby became legally responsible for it ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01478 First Cause of Action Demand for Accounting 30 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the avennent is pleaded in the alternative authorized 47 and 48 of the Texas as by Rules Rules of Civil Procedure 31 Pursuant to Section 489B of the Texas Probate Code Section 113.151 of the Texas Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled to and hereby requests that Shelby provide full accounting of all of his activities as an agent for Dorothy all transactions done or caused by him involving property owned in whole or in by Dorothy but not limited to Dorothys Accounts part including in Mexico and all transactions involving property held by him in trust for Dorothy 32 Anticipating that Shelbywill plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inaerentlyundiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01479 he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 33 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Section 113.151 of the Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Second Cause of Action Breaches of Fiduciary Duty 34 Counter-Plaintiff repeats and incorporates by reference all of the foregoing avermerits If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 35 Under Texas law Shelby breached his fiduciary duty to Dorothy by failing to disclose to her fully and fairly all information that might affect her interests in property managed by him including both her community property and property held by Shelby in trust for her with utmost good and fair in the of her failing to act faith dealing management property and property held in trust for her and in his other activities affecting her interests failing to act with undivided loyalty to Dorothy in the management of her property and ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 10 01480 property held by him in trust for her and in his other activities affecting her interests and engaging in transactions were self-dealing that detrimental to her and in addition or in the alternative improperly benefited him 36 The breaches of fiduciary duty by Shelby proximately caused compensable harm to Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law The damages awarded should include all amounts of money which were withdrawn from Dorothys Accounts in Mexico and which Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her fully informed consent 37 The breaches of fiduciary duty by Shelby constituted fraud gross negligence and malice as those terms are defined in Chapter 41 of the Texas Civil Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose to Dorothy all facts that might affect her interests Shelby intentionally or in the alternative with reckless disregard for Dorothys rights concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property Under Texas law Counter- Plaintiff is entitled to and hereby requests entry of judgment against Shelby for exemplary damages in an amount to be determined by the trier of fact in accordance with Texas law ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 11 01481 38 Shelby derived profits by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff entitled to and hereby requests entry of is judgment decreeing that Shelby disgorge all profits received by him or by his wife his children or any other persons designated by him as result of the breaches of his fiduciary duty to Dorothy 39 Shelby acquired property by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment imposing constructive trust on all acquired by Shelby or by his wife his property children or any other persons designated by him by means of the breaches of his fiduciary duty to Dorothy 40 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SIELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 12 01482 he breached his fiduciary duty of full disclosure of facts that all might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to was withheld from her and diverted Dorothy to Shelbys benefit 41 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Section 114.064 of the Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily inculTed in connection with this action Third Cause of Action Breach of Promise To Hold Property for Dorothys Benefit 42 Counter-Plaintiff repeats and incorporates by reference all of the foregoing avennents If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 43 Shelby promised Dorothy that he would hold in trust for Dorothy all of the assets that lEduardo gave to Shelby and Wayo and that he would make the income from such property available to her for her direction as to their use These promises were made by Shelby while he was residing in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby and Wayo by Eduardo by from Dorothy material facts about that including its nature extent concealing property ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 13 01483 value and profitability by failing to hold and maintain that as if property it belonged to Dorothy by paying himself income generated by the property by to disclose to failing Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use 44 These breaches by Shelby proximately caused compensable harm to Dorothy and her estate Based on the doctrines of breach-of-contract promissory estoppel and money-had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law 45 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys ORIGiNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOIUSE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 14 01484 interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 46 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Fourth Cause of Action Breach of Promise To Pay $100000 to Adriana and $100000 to Sylvia 47 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 48 Shelby promised Dorothy that within thirty days of her death he would pay $100000 to Adriana and $100000 to Sylvia These promises were made by Shelby while he was residing in Texas and they were directed to Dorothy at her residence in Houston Texas Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia checks that they could not negotiate without waiving their rights in Dorothys estate and their rights against Shelby self-serving conditions which Shelby had no right to impose ORIGiNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF TI-lB ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 15 01485 49 Based on the doctrines of breach-of-contract promissory estoppel and money- had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment against Shelby for $200000 in accordance with Texas law 50 Anticipating that Shelby will plead the defense of limitations in to this response cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 51 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 16 01486 hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in cormection with this action Fifth Cause of Action Declaration of Invalidity of Donation Agreement dated January 11 2005 52 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 53 On January 2015 Shelby produced for the time of first photocopy document dated January 11 2005 written in Spanish entitled CONTRATO DE DONACION the Donation Agreement The Donation Agreement purports to be signed by Eduardo and Dorothy 54 By order dated January 292014 Shelby was ordered by this Court to produce documents such as the Donation Agreement no later than February 282014 His production of the Donation Agreement on January 2015 was over ten months late 55 On the date of the Donation Agreement Eduardo was dying and on hospice care Fifteen days later Eduardo died The Executor believes and now that on avers January 112005 Eduardo lacked the requisite mental capacity to make legally enforceable contract 56 The Donation Agreement states that it was signed in Reynosa Tamaulipas Eduardo was not in Reynosa on the date of the Donation Agreement ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY IIDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 17 01487 57 In the seven years that Dorothy lived after the date of the Donation Agreement she mentioned never it to either of her daughters both of whom lived near her in Houston or to her son-in-law the Executor whom she saw frequently or in her correspondence which was extensive or in her personal notes where she wrote about extensively her financial situation Indeed during those seven years she made numerous statements both written and oral that are inconsistent with the existence of the Donation Agreement 58 Based on the foregoing facts and others the Executor and therefore believes avers that the Donation Agreement is forgery 59 The Executor believes and now avers that the Donation Agreement is unenforceable for lack of consideration or in the alternative for failure of consideration 60 There exists an actual controversy between the Executor and Shelby as to whether or not the Donation Agreement is valid and enforceable contract 61 Consequently under Chapter 37 of the Texas Civil Practice and Remedies Code the Executor hereby requests entry of judgment declaring that the Donation Agreement is invalid and wholly unenforceable 62 Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code the Executor requests an award of costs and reasonable and necessary attorneys fees as are equitable and just ORIGINAL COUNTERCLAiMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 18 01488 Prayer for Relief WHEREFORE PREMISES CONSIDERED Counter-Plaintiff James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased prays that upon due notice and trial by jury or upon hearing on motion for entry of default judgment or motion for summary judgment the Court renderjudgment for Counter-Plaintiff and against Counter-Defendant Shelby Longoria awarding the following relief under Texas law decree commanding Counter-Defendant Shelby Longoria to render an accounting of all property that was owned in whole or in part by Dorothy Louise Longoria and that was within his possession custody or control and all transactions affecting her property and an accounting of all actions taken by him as her agent or trustee specifically including complete accounting of all monies withdrawn from Dorothys Accounts in Mexico an award of actual damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law but the maximum amount of actual damages currently sought by Counter-Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $43500000 ORTG1NAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 19 01489 an award of exemplary damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law but the maximum amount of exemplary damages currently sought by Counter-Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence uncovered and the whole truth comes is to light is $10000000 an award of attorney fees including litigation expenses reasonably and necessarily incurred by Counter-Plaintiff in connection with each of his causes of actions under Texas law decree commanding Counter-Defendant Shelby Longoria to disgorge all profits received by him or by others for his benefit as result of breach by him of his fiduciary duty to Dorothy Louise Longoria decree imposing constructive trust on all property acquired by Counter- Defendant Shelby Longoria or by others for his benefit by means of breach of fiduciary duty owed to Dorothy Louise Longoria an award of prejudgment interest on all actual damages at the highest rate authorized by law to the date of judgment an award of all costs incurred by Counter-Plaintiff in the course of preparing and prosecuting this civil action ORIGiNAL COUNTERCLAiMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL Page 20 01490 an award of postjudgment interest on all monetary relief at the highest rate authorized by law from the date of judgment until paid 10 judgment declaring that the Donation Agreement dated January 11 2005 is invalid and wholly unenforceable 11 all writs and processes necessary to collect the judgment and 12 all other relief to which Counter-Plaintiff is entitled or which the Court may deem appropriate under the circumstances and the applicable law Any inconsistent allegations or prayers for relief are pleaded in the alternative as expressly authorized by TEx Civ 47 and 48 Reservation of Rights To Amend and To Supplement This Pleading Because Counter-Plaintiff presently does not know all of Counter-Defendants acts and omissions that caused harm to Dorothy Louise Longoria or her estate or all of the relevant circumstances surrounding such acts and omissions Counter-Plaintiff anticipates that it may be necessary to plead additional causes of action after discovery is completed Accordingly Counter-Plaintiff hereby reserves the rights to amend and to supplement this pleading OPJGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 21 01491 VERIFICATION STATE OF TEXAS COU1TTY OF DALLAS BEFORE ME the undersigned authority on this day appeared in person James Austin Fisher and made the following statement under oath My name is James Austin Fisher am one of the attorneys of record for James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased in Case Number 414270 in Probate Court Number One of Harris County Texas and am authorized under Rule 14 of the Texas Rules of Civil Procedure to execute this verification on his behalf have read the averments set forth in paragraphs 53 60 above and through affirm that those avennents are either within my personal knowledge or are supported by evidence of which am aware and are true and correct James Austin Fisher SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority by James Austin Fisher on February 11 2015 Notary Public in and for Texas tyl ws Printed Name of Notary Public My Commission Expires ei ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF TIlE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGOFJAS THIRD AMENDED CONTEST OF 2010 WILL Page 22 01492 DATED February 112015 Respectfully submitted /s/Jwnes Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 email address jfisherfisherwelch.com Shannon L.K Welch State Bar of Texas Number 90001699 email address swelch@fisherwelch.com FISHER WELCH Professional Corporation Ross Tower Suite 2800 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Facsimile 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 email address wes@wesholmes.com THE HOLMES LAW FmM 10000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9266 ATTORNEYS FOR COUNTER-PLAINTIFF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 23 01493 CERTIFICATE OF SERVICE hereby certify that on February 11 2015 true and conect copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schiemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 BY EMAIL TO jcarter@susmangodfrey.com rhess@susrnangodfrey.com and kschleinrnerjsusrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO rnacintyre@rnrnlawtexas corn /s/ James Austin Fisher James Austin Fisher ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WiLL Page 24 01494 NO 414270 IN THE ESTATE OP IN THE PROBATE COURT DOROTHY LOUiSE IONGORIA NUMBER ONE OP DECEASED HARRIS COUNTY TEXAS DOCKET CONTROL ORDER The following Docket Control Order shall apply to this case unless moditled the coutt If dale by no is given below th item is governed by the Texas Rules of Civil Procedure JOINDER All must be added and parties served whether by amendment or third party pivotice by dat ThE PARTY CAUSING ITE IOINDER SHALL FROVLDE this COPY OF THIS DOCKET CONTROL ORDER AT DIE TIME OP SERVICE EXPERT V/ITNESSES DESIGNATION Expcrt witness are and designations required must be towed by the thllowing dales The designation must include the infonnatson listed in Rule 1942fl and Failure to timely respond will be governed by Rule 19.6 /t5 Experts for partica seeking affirmative ralitf 3iI All other experts ALTERNATIVE DISPUTE RESOLUTION Mediation Ii hereby ORDERED and iball be completed by Ibis date ILIJLjj DISCOVERY PERIOD ENDS AU diaoovty must be conducted before the end of the discovery period Parties seeking dtseuvtey must serve Sir in requests sufficiently advance of the end of the that the deadline for discovery period responding wiul be within the dicuvery period Counsel conduct this may discovery beyond deadline by Rule 11 agreement Incomplete discovery will not delay the trial DESPOSIT1VE MOTIONS AND PLEAS Must be heard or act by submission as follows Dispositivr motions or pleas subject to an must be considered interlocutory appeal by this date 9f3Oj5 Suntmary judgment motions not an subject to interlocutory appeal must be considered by this date Cc 813/j5 Rule 166ai motions not be considered before may this date lfIdilS ChALLENGES TO EXPERT TESTIMONY All motions to exclude and testinrony ovideistiary clsnfleisgcs to export testimony must be flied by this date unites extended by leave of court SLILL PLEADINGS AU amendments sod supplements must be this date This order does filed by not preclude prompt filing ofploasJmgs directly responsive to any timely tiled pleadings j21jfl WRITTEN STATEMENTS OF TILE PARTIES CONTENTIONS are to be filed with the Court and exchanged between the counsel thia date parties by AGREED WRITTEN STIPULATIONS axe to be filed with the Court and exchanged between the parties counici by tbi dstn CONTESTED ISSUES OF FACT arc to be filed with the Court and exchanged between parties counsel by this date PROPOSED IURY CILARGE QUESTIONS INSTRUCTIONS AND DEIrINTIONS are to be filed with the Court and exchanged between pasties counsel date by this 01495 MOTIONS LIMINE nittet be filed with the Ccort by this date j/Il6 PIUtTRIAL CONFERENCE Parties shall be prepared to disesss all aspects of trial with the court on this date TIME 3O p.m This mtfer rosy be DISMISSED FOR WANT OF PROSECUTION for fUurs to appear at Pretrial 10 lL TRIAL If not assigned by the second Friday following this date the case will be reset Days Bench lury Panel Sied Judge PARTY Sreby PARTY Counsel Name ts t.u Cctist.ete C- Counsel Name st C. Address O0q LcL a_ans ----- Couneats5 Tdephonei Telecopier 7i3554.666 Email yl Driey Ain L.s.xr0 PARTY .cd%l4f P4ry Counsel Name TsuicsA Fthc Ex Counsel FnrI 1w 4C Firm Address 2fOO N.Akdf.1.4IdS1 2Oi Telephone V4f p4s -tO Telecopier 6L.i Emafl Email 01496 Petition for Writ of Mandamus Conditionally Granted in Part and Denied in Part and Opinion filed July 16 2015 In The intnU nutt uf pid NO 14-1S-00261-CV Thi RE SHELBY LONGORIA Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS Probate Court No Harris County Texas Trial Court Cause No 414270 OPINION On March 25 2015 relator Shelby Longoria filed petition for writ of mandamus in this court See Tex Govt Code Ann 22.22 West 2004 see also Tex App 52 In the petition Shelby asks this court to compel the Honorable Loyd Wright presiding judge of Probate Court No of Harris County to set aside his 18 2015 order denying Shelbys motion to dismiss the claims of real February 01497 party in interest Adriana Longoria based on forum-selection clause We conditionally grant the petition for writ of mandamus in part and deny it in part BACKGROUND Eduardo Longoria Sr Mexican citizen and businessman was the father of Shelby Longoria Adriana Longoria Eduardo Longoria Jr Wayo and Sylvia In 2002 Eduardo transferred shares of his two Mexican holding Dorsey companies Vertice Empresarial S.A de C.V and Inmuebles Terrenos S.A de C.V the Mexican companies to trust administered by Mexican bank Banca Afirme Grupo Financiero Eduardo designated Shelby as 60% beneficiary and Wayo 40% beneficiary of this trust which the parties describe as the Afirme Trust At the same time Eduardo executed new will naming Shelby as executor Eduardo also signed Carta de Voluntad or Wish Letter granting and Adriana each cash be distributed over time by the Sylvia $3000000 in to Afirme Trust In December 2002 Eduardo and Adriana executed an Acuerdo Privado or Private Agreement providing that Adriana would receive $3000000 from the operating cash flow generated by the Mexican companies Eduardo died in 2005 Dorothy Longoria Eduardos wife and the mother of the children died in 2012 On May 2013 Tommy Dorsey Sylvias husband and executor of Dorothys estate sued Shelby for demand for an accounting and breach of duty to Dorothy alleging that Shelby had diverted her fiduciary community property interests to himself Specifically Tommy alleged among other things that Shelby had induced Eduardo into signing the 2002 Afirme which Eduardo of his and Dorothys shares in the Mexican Trust into conveyed all companies and of which he made Shelby and Wayo the beneficiaries and 01498 had induced Eduardo into signing the 2002 will leaving all of Eduardos Shelby remaining property to Shelby and Wayo On June 18 2013 Shelby filed will contest alleging that Sylvia and Adriana had exerted undue influence over Dorothy in connection with her will which divided Dorothys estate equally between Adriana and Sylvia and named the capacity the will Tommy executor and that Dorothy lacked to execute Shelby also sought the removal of Tommy as executor On August 23 2013 Shelby filed third-party petition alleging that Sylvia and Adriana were responsible in contribution for any damages found owing by Shelby to the estate Adriana answered the will contest on December 2013 and filed counterclaims against Shelby on January 2014 Adriana amended her counterclaims on December 11 2014 February 2015 and February 11 2015 Adriana that induced Eduardo into entering the Private Agreement alleged Shelby and into believing that it would be fair allocation of the estate She also counterclaimed for tortious interference with inheritance rights breach of fiduciary tortious inference with the Private Agreement breach of the obligation to duty perform the Private Agreement and breach of the agreement to pay Adriana $100000 Dorothys death and sought declaration that an agreement called upon the Donation is not an enforceable contract.1 Agreement On 14 2015 Shelby filed motion to dismiss Adrianas January counterclaims based on forum-selection clause in the Private Agreement that for exclusive venue in the courts of Reynosa Tamaulipas Mexico provides Adriana does not explain in her third amended what the Donation Agreement is petition the parties to it or identify 01499 In response to the motion to dismiss Adriana contended that the forum- selection clause does not apply to her counterclaims the forum-selection clause is unreasonable and unjust in light of pre-existing fiduciary relationship between Shelby and Adriana where the agreement was made where the parties resided and the of the Mexican forum the forum-selection clause is unacceptability unenforceable because it was procured through fraud and overreaching by Shelby and Shelby waived his right to enforce the forum-selection clause by litigating Adrianas counterclaims in the trial court for year without invoking the clause The trial court held hearing on Shelbys motion to dismiss on February 12 2015 and signed the order denying Shelbys motion on February 18 2015 II MANDAMUS STANDARD OF REVIEW To be entitled to mandamus relief relator must demonstrate the trial court clearly abused its discretion and the relator has no adequate remedy by appeal In re Reece 341 S.W.3d 360 364 Tex 2011 orig proceeding trial court clearly abuses its discretion if it reaches decision so arbitrary and unreasonable as to amount to clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts In re Cerberus Capital Mgmt L.P 164 S.W.3d 379 382 Tex 2005 orig proceeding per curiam trial court abuses its discretion when it fails to properly interpret or apply forum-selection clause In re Lisa Laser USA Inc 310 SW.3d 880 883 Tex 2010 orig proceeding @er curiam An appellate remedy is inadequate when trial court improperly refuses to enforce forum-selection clause because allowing the trial to go forward will vitiate and render illusory the 01500 subject matter of an appeal i.e trial in the proper forum Id Thus mandamus relief is available to enforce an unambiguous forum-selection clause Id HI Scope of the Forum-Selection Clause Shelby argues that most of Adrianas claims fall within the scope of the forum-selection clause in the Private Agreement.2 Forum-selection clauses are generally enforceable and presumptively valid In re Laibe Corp 307 S.W.3d 314 316 Tex 2010 orig proceeding per curiam In re Intl Profit Assocs Inc 274 S.W.3d 672 675 Tex 2009 orig court abuses discretion in enforce proceeding per curiam trial its refusing to forum-selection clause unless the party opposing enforcement meets its heavy burden of showing that enforcement would be unreasonable or unjust the to the forum-selection clause he can enforce Shelby contends that as non-signatory the clause under estoppel principles Even though Adriana has not argued that Shelby cannot enforce the forum-selection clause in the Private Agreement based on the fact that he is not signatory to the Agreement we nonetheless address this issue theories enforce arbitration Equitable estoppel allowing non-signatories to agreements also apply to forum-selection clauses Deep Water Slender Wells Ltd Shell Intl Exploration Prod Inc 234 S.W.3d 679 69394 Tex App.Flouston Dist 2007 pet denied citing Phoenix Network Techs Europe Ltd Neon Sys Inc 177 S.W.3d 605 62224 Tex App.Houston Dist 2005 no pet. person who has agreed to resolve disputes with one party in particular forum may be required in some circumstances to resolve related disputes with other parties in the same forum Smith Kenda Capital LLC 45 S.W.3d 453 458 Tex Dist 2014 no pet. Under the of direct benefits estoppel App.Houston theory enforce forum-selection clause that contains other terms on which the nonsignatory may signatory plaintiff must rely to prosecute Id In re its claims Cornerstone Healthcare Holding Grp Inc 348 S.W.3d 538 54445 Tex AppDallas 2011 orig proceeding Direct benefits estoppel applies when signatorys claim against nonsignatory references or presumes the existence of the written agreement containing the clause Smith 451 S.W.3d at 458 Adrianas claims Shelby clearly reference or presume the existence the agreement containing the against forum-selection clause i.e the Private Agreement Therefore Shelby may enforce the forum- selection clause in the Private Agreement to the extent that it encompasses Adrianas claims 01501 clause is invalid for reasons of fraud or overreaching enforcement would contravene strong public policy of the forum where the suit was brought or the selected forum would be seriously inconvenient for trial Laibe Corp 307 S.W.3d at 316 In re ADMInv Servs Inc 304 S.W.3d 371 375 Tex 2010 orig proceeding The court must first determine whether the claims fall within the scope of the forum-selection clause Deep Water Slender Wells Ltd 234 S.W.3d at 8788 The court bases its determination on the language of the clause and the nature of the claims purportedly subject to the forum-selection clause Id at 688 If the claims fall within the scope the court must determine whether to enforce the clause Id In construing contract we must ascertain and give effect to the parties intentions as expressed in the writing itself Italian Cowboy Partners Ltd Prudential Ins Co of Am 341 S.W.3d 323 333 Tex 2011 If contract is worded so that it can be given certain ordefinite meaning then it is unambiguous and the court will construe it as matter of law El Paso Field Servs L.P MasTec Am Inc 389 S.W.3d 802 806 Tex 2012 if after applying the pertinent rules of contract construction the contract is subject to two or more reasonable interpretations the contract is ambiguous Id The court must enforce an unambiguous contract as matter of law without considering parol evidence DavidJ Sacks P.C Haden 266 S.W.3d 447 450 Tex 2008 per curiam The Private Agreement between Eduardo and Sylvia provides the following in relevant part 01502 First Regarthng TUE TRUST The parties recognize the validity and scope of the TRUST and in this regard they are in agreement with all its terms and conditions and therefore declare that the agreement is the final and definitive will of the parties and therefore they comply with all terms and agree that the shares contributed to it are to be transferred to the designated beneficiaries Second Paymeitt to ADRIANA LONGORIA KOWALSKL It is the will of her father that the amount of $3000000.00 three million U.S dollars be delivered to his daughter ADRIANA LONGORIA KOWALSKI from the operating cash flow generated by the companies represented by the shares contributed to the TRUST or by their subsidiaries and therefore it is the obligation of EDUARDO AND SHELBY LUIS LONGOR1A KOWALSK1 in the terms mentioned below On the date this Agreement is signed the balance to be delivered to ADRIANA LONGORIA KOWALSKI in terms of the preceding paragraph amounts to the sum USD $2069100.00 two million sixty-nine thousand one hundred U.S dollars according the statement of account that is attached hereto By virtue of the foregoing an annual amount of $150000.00 one hundred fifty thousand U.S dollars of principal and interest will be given to ADRIANA LONGORIA KOWALSK1 in monthly installments of $12500 twelve thousand five hundred U.S dollars until the complete payment of the balance referred to above In addition the balance payable shall earn normal interest rate of 75% seventy-five percent of the prime rate published by the Wall Street Journal Third Final and Definitive Will of the Parties The parties state that this Agreement is the final and definitive will of the parties therefore they are in agreement with all its terms further stating that there is no mistake fraud bad faith or any defect of will that might affect their or decision the content understanding regarding 01503 The TRUSTs obligation to deliver the mentioned quantities to ADRIANA LONGORIA KOWALSKI in the terms set forth herein shall continue in effect until full payment acknowledging that after payment of the amounts referred to in this Agreement ADRIANA LONGORIA KOWALSKI shall be satisfied in relation to any present or future obligation charged to the TRUST assets or to those of Messrs EDUARDO and SHELBY LUIS LONGOPJA KOWALSKI Fourth Jurisdiction and Mexican Law This Agreement is established under the jurisdiction and laws of the United Mexican States Therefore the parties exclusively submit to the laws of Mexico thus they expressly waive the application of any law regulation provision or rule of any jurisdiction other than Mexico which might correspond to them due to their residence paternity citizenship domicile kinship or commercial relationship Therefore in the event of any interpretation dispute or any aspect related to this Trust they expressly submit to the court of the city of Reynosa Tamaulipas Mexico Likewise the issuance of any law regulation or provisions in jurisdictions outside the Republic of Mexico or any act performed outside the national territory by any party seeking to impose restrictions on this Agreement or to impose the performance of acts different from the purposes for which it is authorized ii impose taxes duties or tax burdens other than those under Mexican Law iii expropriate limit confiscate seize dispose of freeze or otherwise affect the rights of the Agreement based on federal state or municipal laws outside the jurisdiction of the Republic of Mexico shall not apply to this Agreement in all eases the jurisdiction and laws of the of the United Mexican States being applicable under the Republic terms of the previous paragraph Having seen and read the foregoing the parties sign it in the city of Reynosa Tamaulipas on DECEMBER 17th 2002 The Fourth Clause of the Private Agreement contains two paragraphs that address the choice of forum and choice of law provisions The first paragraph 01504 provides the following with respect to the forum selected by the parties in the event of any interpretation dispute or an aspect related to this Trust they expressly submit to the courts of the city of Reynosa Tamaulipas Mexico.3 Adriana contends that the forum-selection clause does not apply to the Private Agreement because it specifically applies to the Afirme Trust Eduardo created the Afirme into which he placed his and Dorothys shares of the Trust Mexican companies The Third Clause of the Private Agreement expressly states that the source of the payments made to Adriana under the Agreement was the Afirme Trust Adriana specifically alleged that Shelby induced Eduardo into entering various transactions that would increase his own inheritance while decreasing the inheritances of Wayo Sylvia and Adriana and Shelby induced Eduardo into entering the Private Agreement and into believing that this would be fair allocation of his estate Adriana further asserted that Shelby did not make the required payments from the Afirme Trust but from Eduardos funds and then from Dorothys funds after the death of Eduardo Shelby ceased making any payments in October 2010 In the First Clause of the Private Agreement Adriana recognized the scope and of the Afirme Trust and that the Mexican companies held in the Trust validity would be the source of money to make the payments to her under the Private Agreement Adriana acknowledged this in her response to the mandamus petition The Afirme Trust is the designated source of funds to pay Adriana under the Private Agreement Without the Afirme Trust there would be no causes of action against Shelby for interference with inheritance rights tortious interference with Emphasis added 01505 the Private Agreement breach of his contractual obligation to perform the Private breach of related the Agreement or his fiduciary duty to purported trust relationship created by the Private Agreement Adriana contends that even if the forum-selection clause applies to the Private Agreement which she implicitly conceded would encompass her claims for tortious interference with the Private Agreement and breach of the contractual obligation to perform the Private Agreement it still does not apply to her claim for tortious interference with inheritance rights Adriana has focused on the forum- selection clause as applying to the Private Agreement As explained above the forum-selection clause is applicable to Adrianas claims because she would have no grounds for her allegations without the Afirme Trust Moreover courts have consistently held the language any interpretation dispute or any aspect related to is broad See e.g TGI Fridays Inc Great Nw Rests Inc 652 Supp 2d 750 759 N.D Tex 2009 Forum selection clauses cover claims relating to an agreement are broad in scope RSR Corp Siegmund 309 S.W.3d 686 701 Tex App.Dailas 2010 no pet The phrase relates to in particular is recognized as very broad term internal quotes and citations omitted see also Young Valt.X Holdings Inc 336 S.W3d 258 263 Tex App.Austin 2010 pet dismd holding that each fraud breach of fiduciary duty and securities claim arises under or relates to the stock sale was encompassed by the forum-selection clause Adriana and therefore furthermore cannot plead tort claims to avoid the application of the forum- selection clause if those causes of action relate to the Afirme Trust See My CafØ CCC Ltd Lunchstop Inc 107 S.W.3d 860 866 Tex App.Dallas 2003 no 10 01506 pet Pleading alternative noncontractual theories of recovery will not alone aoid forum selection clause if those alternative claims arise out of the contractual relations and implicate the contracts terms. Adriana does not address her claim for breach of the fiduciary duty that allegedly arose prior to the existence of the Private Agreement We nonetheless address whether Adrianas pre-contractual tort claim is subject to the forum- selection clause This court and other courts have held that fraud-in-the- inducement claims can be subject to forum-selection clause because it is dispute involving the parties agreement See e.g Clark Power Ivfktg Direct Inc 192 S.W.3d 796 799800 Tex App.Houston Dist 2006 no pet My CafØ-CCC Ltd 107 S.W.3d at 867 see also Accelerated Christian Educ Inc Oracle Corp 925 S.W.2d 66 73 Tex AppDallas 1996 no writ overruled in part on other grounds by In re Tyco Elecs Power Sys Inc No 05-04-01808- CV 2005 WL 237232 at Tex App.Dallas Feb 2005 orig proceeding denied mem op stating that pre-contractual claims for misrepresentations made before the execution of the contract are not excluded from the scope of the forum-selection clause merely because the conduct took place before the contract came into existence This court however did not address whether forum-selection clause necessarily encompasses all pre-contractual claims Clark 192 SW.3d at 800 As explained above the forum-selection clause is very broad encompassing any interpretation dispute or any aspect related to this Trust When all the claims arise out of the parties contractual relations and implicate the contracts terms the forum selection clause will encompass all the causes of action relating to 11 01507 the agreement My CqfØ-CCC Ltd 107 S.W.3d at 866 Adriana claims that had assumed fiduciary duty to her by making payments to her from the Shelby Mexican companies ten years prior to the execution of the Private Agreement Those then continued from the funds of the Afirme Trust Adrianas payments claim for breach of fiduciary duty implicates the Afirme Trust and pre-contractual is subject to the forum-selection clause There would be no breach of fiduciary duty without the trust Adriana further asserts that the forum-selection clause does not apply to her claim for breach of the promise between Shelby and Dorothy to pay her $100000 Dorothys death Shelby concedes that Adrianas claim for the breach of the upon to her $100000 Dorothys death does not fall within the scope promise pay upon of the forum-selection clause As to her request for declaratory judgment that the January 11 2005 Donation Agreement is unenforceable Adriana first pleaded her request the day before the hearing on Shelbys motion to dismiss Adrianas petition does not explain what the Donation Agreement is no copy of the agreement was attached to the petition and there was no briefing on the applicability of the forum-selection clause to this claim Shelby however contends in his mandamus petition that the agreement bears directly on the manner in which payments would be made under Private the for judgment the Agreement Shelby suggests request declaratory was not before the court and trial court will be able to address the proper venue for this claim the Donation Agreement upon receiving direction from this Court relating to the other claims The trial court stated in its order that it considered the pleadings of the parties and did not carve out any claims that were 12 01508 not being addressed in its ruling on the motion to dismiss We do not have enough information from the mandamus record to determine that the forum-selection clause encompasses Adrianas claim that Shelby breached the Donation Agreement In summary we hold that the forum-selection clause applies to Adrianas claims for tortious interference with inheritance rights breach of fiduciary duty tortious interference with the Private Agreement and breach of the contractual obligation to perform the Private Agreement The forum-selection clause however does not apply to Adrianas claim that Shelby breached the to Adriana $100000 upon Dorothys death and based on this agreement pay record we cannot say that Adrianas claim that Shelby breached the Donation Agreement falls within the scope of the forum-selection clause OBJECTIONS RAISED ADRIANA Adrianas Objections to the Mandamus Record Adriana complains that Shelby cites in his mandamus petition materials that were not presented to the trial court in connection with the motion to dismiss which therefore should not be considered in the mandamus proceeding Adriana refers to most of the items contained in the mandamus record filed by Shelby including pleadings filed by the parties motion to quash the reporters record of the hearing on previously denied motion to dismiss for forum non conveniens and filings related to the motion to dismiss for forum non conveniens The trial court stated in the order that it considered among other things the pleadings on file Moreover relator must file certified or sworn copy of every document that is material to the relators claim for relief and that was filed in any underlying 13 01509 proceeding Tex App 52.7a1 There is nothing improper about the items Shelby included in the mandamus record and we are not aware of any authority for penalizing relator for erring on the side of over-inclusion in connection with mandamus record Therefore we reject Adrianas contention that we cannot consider most of the items in the record in our review of the mandamus petition Objections to Evidence Attached to the Motion to Dismiss Adriana objected to Exhibits and 3A which were the October 15 2002 Banca Afirme Fideicomiso No 194-2 the Afirrne Trust and certified translation of the Afirme Trust respectively Johnny Carter one of Shelbys stated in his affidavit submitted in support of Shelbys motion to attorneys dismiss in relevant part Attached as Exhibit is true and correct copy of document dated October 15 2002 titled Banca Afirme Fideicomiso No 194-2 Attached as Exhibit 3A is true and correct copy of certified translation of Banca Afirme Fideicomiso No 194.2 Adriana argued that Carter did not testify that Exhibit was true and correct copy of the original or that he had personal knowledge of the execution or terms of the original and because Exhibit 3A was translation of Exhibit Exhibit 3A could have no better claim of authenticity than Exhibit Adriana requested that the trial court strike and disregard Exhibits and 3A Shelby asserts that Adriana waived her objections to Exhibits and 3A because she did not obtain ruling from the trial court Shelby contends that Rule 166a standards for summary judgment proceedings govern the motion to dismiss 14 01510 for improper venue See Tex Civ 166a Courts look to cases on arbitration for guidance on forum-selection clauses See e.g Snith 451 S.W.3d at 457 Reference to cases addressing the applicability of arbitration clauses is appropriate when examining whether particular claims or parties fall within forum selection clauses reach In re Boehme 256 S.W.3d 878 884 Tex App.Houston Dist 2008 orig proceeding In deciding whether party has waived forum-selection clause the Supreme Court has repeatedly resorted to cases involving arbitration agreements. In the arbitration context the court conducts to trial summary proceeding determine the applicability of an arbitration clause based on the parties affidavits pleadings discovery and stipulations In re Estate of Guerrero No 14-13-00580- CV S.W.3d 2015 WL 1884068 at Tex App.Houston Dist Apr 23 2015 pet filed en banc The procedure is similar to motion for summary judgment and is subject to the same evidentiary standards Id Under the summary judgment standard copies of documents must be authenticated to constitute competent summary judgment evidence Id at properly sworn affidavit stating that the attached documents are true and correct copies of the original authenticates the copies so they may be considered as summary judgment evidence Id defect in the form of authentication of documents i.e defect in the affidavit attempting to authenticate the attached documents is waived without an objection in and ruling from the trial court Id at see also Hicks Humble Oil Ref Co 970 S.W.2d 90 93 Tex AppHouston Dist 1998 pet denied Appellants objected to Exxons exhibits as not being properly 15 01511 authenticated but did not get ruling of the trial court on any of their objections By failing to secure rulings on their objections to Exxons summary judgment proof appellants have waived any complaint on this appeal as to their admissibility Here Adriana the form of the authentication and into evidence. objected to therefore was required to obtain ruling on her objections Adriana asserts that the trial court implicitly sustained her objections by denying Shelbys motion to dismiss Shelby responds that ruling on the merits of summary judgment motion is not an implicit ruling on evidentiary objections to evidence and the prevailing party cannot avoid waiver of its summary judgment objections by arguing that it received favorable ruling on the merits evidentiary of the motion See Parkway Dental Assocs PA Ho Huang Props L.P 391 S.W.3d 596 604 Tex App.Houston Dist 2012 no pet holding that the trial courts granting of summary judgment is not an implicit ruling on the movants objection to the nonmovants summary-judgment evidence Duncan- Hubert Mitchell 310 S.W.3d 92 100 Tex App.Dallas 2010 pet denied holding that where movant objected to nonmovants evidence it could not be inferred that the trial court sustained movants objections merely by granting summary judgment Even if the summary judgment procedure were not followed in the context of motion to dismiss for forum-selection clause to preserve complaint for appellate review the record must show the complaint was made to the trial court by timely request objection or motion that was sufficiently specific and the trial court ruled on the request objection or motion either expressly or implicitly or refused to rule on the request objection or motion and the complaining party 16 01512 objected to the refusal Tex App 33.1a There is nothing in the record to suggest that the trial court implicitly ruled on Adrianas objections to Shelbys exhibits submitted in support of his motion to dismiss At the hearing there was argument concerning the Afirme Trust but Adriana did not object to the authentication of the Afirme Trust Adriana also objected to Exhibit to the motion dismiss which was the affidavit of Shelbys Mexican law expert Dr Carlos Gabuardi and in particular paragraph subparagraphs and and paragraphs 1i because they contained opinions of the meaning and legal effect of the ordinary terms of contract which are questions of law for the court and the parol evidence rule prohibits the admission of extrinsic evidence that alters the terms of written contract Adriana further objected that the remainder of Gabuardis affidavit was inelevant asked the trial court to sustain her objections and strike and disregard Gabuardi affidavit An objection to defect in the substance of an affidavit may be raised for the first time on appeal Pipkin Kroger Tex L.P 383 S.W.3d 655 670 Tex App.Houston Dist 2012 pet denied The complained of portions of Gabuardis affidavit are mostly his interpretations of the Private Agreement and the forum-selection clause which are questions of law for the court See Akin Santa Clara Land Co Ltd 34 S.W.3d 334 339 Tex App.San Antonio 2000 pet denied Expert testimony regarding the legal interpretation of an unambiguous encroaches the trial courts determine agreement upon province to the correct legal interpretation. No ruling on an objection was required to preserve error on those portions of Gabuardis affidavit because they offered legal 17 01513 conclusions See Rarnirez Transcon Ins Co 881 S.W.2d 818 829 Tex AppHouston Dist 1994 writ denied holding that objection to an affidavit on the grounds that it states only legal conclusion is one that relates to defect of substance which may be raised for the first time on appeal Even though Adriana did not waive her objections to Gabuardis affidavit we need not address her objections in light of the well-settled rules for contract construction We have considered the interpretation of the forum-selection clause as question of law reviewing the trial courts interpretation de novo without considering parol evidence See DavidJ Sacks P.c 266 S.W.3d at 450 VI ADRIANAS DEFENSES TO THE ENFORCEABILITY OF THE FORUM-SELECTION CLAUSE Whether the Forum-Selection Clause is Unreasonable or Procured by Fraud Adriana argues the forum-selection clause in the Private Agreement is unreasonable because it contravenes pre-existing and overarching fiduciary relationship between Shelby and her and it was procured by fraud Adriana claims confidential relationship arose between Shelby and her prior to the execution of the Private Agreement because Shelby had ssumed the obligation to make payments to her from the revenue of the Mexican companies he had been managing for number of years According to Adriana because informal fiduciary relationships are not recognized in Mexico the application of the forum- selection clause and the choice-of-law clause4 would deprive her of rights which The choice-of-law clause was not the subject of Shelbys motion to dismiss 18 01514 had vested prior to the Private Agreements existence Adriana claims that Shelby in his role as fiduciary failed to make her aware of the Private Agreements negating potential cause of action Also based on this claimed fiduciary relationship Adriana asserts that she was fraudulently induced into executing the forum-selection clause No duty of disclosure arises without evidence of confidential relationship Ins Co of Am Morris 981 SW.2d 667 67475 Tex 1998 failure to disclose information may constitute fraud where there is duty to disclose Bradfbrd Vento 48 S.W.3d 749 7545 Tex 2001 Fraudulent inducement to sign an agreement containing dispute resolution agreement such as an arbitration clause or forum-selection clause will not bar enforcement of the clause unless the specific clause was the product of fraud or coercion Lyon Fin Servs Inc 257 S.W.3d 228 232 Tex 2008 orig proceeding per curiam The fraud or in must involve the negotiation of the forum-selection overreaching question clause itself Young 336 S.W.3d at 26667 However party who signs contract is presumed to know its contents and its legal effects Profits Assocs Inc 286 S.W.3d at 923 Mo Pac R.R Co Lely Dev Corp 86 S.W.3d 787 791 Tex App.Austin 2002 pet dismd party cannot avoid contract clause by simply failing to read it In re US Home Corp 236 S.W.3d 761 764 Tex 2007 orig proceeding @er curiam Evidence that party concealed forum-selection clause combined with evidence proving that concealment was part of an intent to defraud party may be sufficient to invalidate the clause Profits Assocs Inc 286 S.W.3d at 923 19 01515 Adriana in her affidavit in support of her response to Shelbys motion to dismiss claimed that Shelby discouraged me from reading the ACUERDO PRIVADO He did not say to me that it contained clause saying that submitted to the courts of the city of Reynosa Tamaulipas Mexico in the event of any interpretation dispute or other aspect of the ACUERDO PRIVADO or words to that effect and have had no such understanding either when signed it or since then Adriana does not claim that Shelby prevented her from reading the forum- selection clause An allegation that Shelby merely discouraged her from reading the Private Agreement before she signed it is not sufficient to establish fraud See Id at 92324 rejecting relators argument that forum-selection clause was procured by fraud or overreaching because relator was not shown the clause US Home Corp 236 S.W.3d at 764 holding there was no evidence of fraud as relators conceded that no one prevented them from reading the back-side of single sheet contract that contained the arbitration clause Moreover Eduardo and Adriana agreed that the Private Agreement was the final and definitive will of the parties and there was no mistake fraud bad faith or any defect of will that might affect their understanding or decision regarding the content See In re Emex Holdings LLC No 13-ll-00145-CV 2013 WL 1683614 at Tex App.Corpus Christi Apr 18 2013 orig proceeding denied mem op en banc noting that the parties stated in the agreement that there was no fraud bad faith injury or any other cause of nullity established by law and holding that the real parties had not clearly shown that the forum-selection clause was the product of fraud or overreaching 20 01516 Here Adrianas claim that she trusted Shelby as fiduciary to tell her that the forum-selection clause would negate potential cause of action for breach of fiduciary duty in Mexico does not render forum-selection clause unenforceable See id holding parties who did not read the forum-selection clause before signing the agreement because they had instructed the attorney to change the clause and trusted him to do so were charged with knowledge of the forum-selection clause Not being able to bring certain causes of action in the designated forum is not reason to avoid enforcement of forum-selection clause Lyon Fin Servs Inc 257 S.W.3d at 234 holding inability to assert claim for usury under Pennsylvania law did not create public policy reason to deny enforcement of the forum- selection clause Moreover Adriana has not shown any evidence that Shelby knew that she would not be able to maintain claims for breach of fiduciary duty based on an informal confidential relationship under Mexican law claim based on the failure to disclose information necessarily that the party with the duty to presumes speak has knowledge of the facts Cf Four Bros Boat Works Inc Tesoro Petroleum Cos 217 S.W.3d 653 670 Tex App.Houston Dist 2006 pet denied stating that the failure to disclose information does not constitute fraud unless there is duty to disclose information Shelby had no duty to disclose facts of which he was not aware See HTM Rests Inc Goldman Sachs Co 797 S.W.2d 326 329 Tex App.Houston Dist 1990 writ denied party cannot be guilty of fraudulently or intentionally concealing facts of which he is not aware Although silence can be form of misrepresentation the duty to speak does nct arise until the silent party is aware of the facts citations omitted 21 01517 Adriana has not shown that Shelby had duty to disclose to her the forum- selection and choice-of-law provisions in the Private Agreement and their consequences Adriana further has not demonstrated that the forum-selection and choice-of-law provisions were procured by fraud or overreaching Whether Reynosa Tamaulipas Mexico is Seriously Inconvenient Forum Adriana further contends that the forum-selection clause is unenforceable as seriously inconvenient such that she will be denied her day in court because the specified forumReynosa Tamaulipas Mexicois one of the most dangerous places in the world When inconvenience in litigating in the chosen forum is foreseeable at the time of contracting the challenger must show that the trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court ADM mv Servs Inc 304 S.W.3d at 375 By entering into an agreement with forum-selection clause the parties effectively represent to each other that the agreed forum is not so inconvenient that enforcing the clause will deprive either party of its day in court whether for cost or other reasons Intl Profit Assocs Inc 274 S.W.3d at 680 Adriana agrees that financial difficulties and inconvenience to the witnesses are not sufficient to avoid application of the forum-selection clause but asserts that the dangerous conditions in Reynosa render the forum seriously inconvenient See Lyon Fin Servs Inc 257 S.W.3d at 254 In re Zotec Partners LLC 353 S.W.3d 533 537 Tex App.San Antonio 2011 orig proceeding Relying on forum-non-conveniens cases Shelby contends that purported dangerous conditions are not sufficient to avoid enforcement of forum-selection 22 01518 clause in the absence of evidence that such conditions have an adverse impact on the operation of the judiciary.5 Shelby presented uncontroverted evidence that Adriana Sylvia and Tommy have hired attorneys and filed claims against him in Tamaulipas Adrianas Mexican law expert has handled litigation in Tamaulipas and Reynosa has fuiiy functioning court system Adriana responds that forum non conveniens cases are not applicable in the forum-selection clause analysis We disagree There is no reason not to consider forum non conveniens cases which have addressed whether political unrest or other conditions render the alternative forum inadequate See e.g Paoliceiii Ford Motor Co 289 Fed Appx 387 391 11th Cir 2008 absent evidence the political unrest has affected the Colurnbian judicial system or would affect litigation of this case this fact is not sufficient to outweigh the other factors that weigh in favor of dismissal Rustal Trading US Inc Makki 17 Fed Appx 331 337 6th Cir 2001 holding political unrest in foreign jurisdiction did not render the forum inadequate absent some showing that the unrest had had an adverse effect on the judicial system there Transunion Corp PepsiCo Inc 811 F.2d 127 129 2d Cir 1987 holding there had been no showing that political unrest in the Philippines had an adverse impact on the judicial system Miralda Tidewater Inc Civ No 11-1170 2012 WL 3637845 at ED La Aug 23 2012 observing that several federal appellate courts had uniformly concluded that political unrest of the alternative forum had not per se rendered the forum inadequate in the forum non conveniens context absent some showing that this unrest negatively affected the judicial system of the country or the litigation at issue Morales Ford Motor Co 313 Supp 2d 672 682 S.D Tex 2004 rejecting contention that political situation in Venezuela would make trial in U.S more convenient because of paucity of evidence and information submitted to the court on the issue In re Bridgestone/Firestone Inc Tires Prods Liability Litig 190 Supp 2d 1125 114344 S.D md 2002 considering physical threats to litigants and witnesses arising from then current volatile political situation in Columbiaof particular interest the fact that in the recent past judicial officers have been the targets of guerilla violationto be factor weighing in favor of retaining jurisdiction In re BPZ Res Inc 359 S.W.3d 866 879 Tex App.Houston Dist 2012 orig proceeding denied holding that political unrest alone was insufficient to establish that Peru was an inconvenient forum 23 01519 Under these circumstances Adriana has not shown that litigating in Reynosa is so gravely difficult and inconvenient that she will for all practical purposes be deprived of her day in court Waiver of the Right to Enforce the Forum-Selection Clause Adriana asserts that Shelby has waived his right to enforce the forum- selection clause Adriana pleaded four of her six counterclaims on January 2014 and added two claims in her amended pleadings on December 11 2014 February 2015 and February 11 2015 Shelby litigated those four original causes of action for year including pleading affirmative defenses based on Texas law before seeking dismissal of Adrianas claims pursuant to the forum-selection clause party may waive the right to enforce forum-selection clause Boehme 256 S.W.3d at 884 In determining waiver of forum-selection clause the court may look to arbitration cases for guidance Id The test for waiver of an arbitration clause is whether the party seeking arbitration has substantially invoked the judicial process and the party resisting arbitration suffered actual prejudice as result Id Waiver is primarily function of intent and requires either the intentional relinquishment of known right or intentional conduct inconsistent with claiming that right Crosstex Energy Servs L.P Pro Plus Inc 430 S.W.3d 384 39394 Tex 2014 Whether party has substantially invoked the judicial process depends on the totality of the circumstances Richmont Holdings Inc Superior Recharge Sys L.L.C 445 S.W.3d 573 575 Tex 2015 per curiam 24 01520 Adriana contends that Shelby substantially invoked the judicial process by deposing her and serving her with written discovery requests and by having his own deposition taken and responding to Adrianas discovery requests These limited actions do not establish that Shelby substantially invoked the judicial process such that he waived his right to enforce the forum-selection clause See In re Vesta Ins Grp Inc 192 S.W.3d 759 76364 Tex 2006 orig proceeding per curiarn holding the relators did not substantially invoke the judicial process by serving requests for disclosure noticing four depositions and sending request for production In re AIU Ins Co 148 S.W.3d 109 121 Tex 2004 orig proceeding holding the relator did not waive enforcement of the forum-selection clause by filing answer requesting jury and paying the jury fee Boehme 256 S.W.3d at 885 holding that deposing three witnesses producing two witnesses for deposition exchanging documents and participating in temporary injunction hearing did not constitute waiver of forum-selection clause Adriana also asserts that she has been prejudiced by Shelbys delay in seeking to enforce the forum-selection clause Mere delay in moving to enforce the forum-selection clause does not constitute waiver Cf Richinont Holdings Inc 455 S.W.3d at 576 holding that moving to compel arbitration nineteen months after lawsuit was filed was not waiver of right to arbitrate Vesta Ins Grp Inc 192 S.W.3d at 76364 holding that moving to compel arbitration two years after lawsuit was filed was not waiver of right to arbitrate Adriana contends that Shelby gained an advantage in this litigation by questioning her at her deposition about the Private Agreement and payments made pursuant to it Shelby responds that he had been seeking to take Adrianas 25 01521 deposition since June 2013 several months prior to Adriana filing her counterclaims Shelbys counsel questioned Adriana about the Private Agreement because Adriana had initiated changes to Dorothys will due to her dissatisfaction with the payments she received pursuant to the Private Agreement Adriana cannot show prejudice from any discovery requests to which she responded as she chose to litigate in forum not agreed to by the parties See In re Automated Collection Techs Inc 156 S.W.3d557 560 Tex 2004 orig proceeding per curiam holding that real party in interest could not show prejudice from any duplication of time or efforts in litigating case where it had initiated proceedings in forum other that the one to which it had contractually agreed Adriana further that she suffered prejudice by Shelbys delay in argues invoking the forum-selection clause because the one-year statute of limitations in Mexico will limit her recovery of damages Shelby points out that because the last payment Adriana received under the Private Agreement was in October 2010 the delay from January 2014 to January 2015 is immaterial for limitations purposes in Mexico Moreover Adriana is complaining of the choice-of-law provision in the Private Agreement which is not the subject matter of the trial courts order or this original proceeding Adriana has not shown that she has been prejudiced by Shelbys delay in seeking to enforce the forum-selection clause Therefore Adriana has not established that Shelby waived his right to enforce the forum selection clause VII CONCLUSION We hold that Adrianas claims for tortious interference with inheritance rights breach of fiduciary duty tortious interference with the Private Agreement 26 01522 and breach of the contractual obligation to perform the Private Agreement fall within the scope of the forum-selection clause but Adrianas claims for breach of the agreement to pay her $100000 upon Dorothys death and breach of the Donation Agreement do not We further hold that Adriana has not established that the forum-selection clause was procured as result of overreaching or fraud that Reynosa Taumalipas is seriously inconvenient forum or that Shelby waived his right to enforce the clause Thus the trial court abused its discretion by denying Shelbys motion to dismiss based on the forum-selection clause contained in the Private Agreement as to Adrianas claims for tortious interference with inheritance rights breach of fiduciary duty tortious interference with the Private Agreement and breach of the contractual obligation to perform the Private Agreement and Shelby does not have an adequate remedy by appeal The trial court did not abuse its discretion by denying Shelbys motion to dismiss as to Adrianas claims for breach of the agreement to pay her $100000 upon Dorothys death and breach of the Donation Agreement Accordingly we conditionally grant the petition for writ of mandamus in and direct the court to vacate its 18 2015 order to the extent part trial February that it denies Shelbys motion to dismiss as to Adrianas claims for tortious interference with inheritance rights breach of fiduciary duty tortious interference with the Private Agreement and breach of the contractual obligation to perform the Private Agreement and dismiss those claims We deny the remainder of the petition as to Adrianas claims for breach of the agreement to pay her $100000 27 01523 upon Dorothys death and breach of the Donation Agreement The writ will issue only if the trial court fails to act in accordance with this opinion Is Tracy Christopher Justice Panel consists of Justices Christopher Donovan and Brown 28 01524 CASE NUMBER 414270 IN THE ESTATE OF IN PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARPJS COUNTY TEXAS FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL TO THE HONORABLE JUDGE OF THIS COURT COMES NOW James Thomas Dorsey in his capacity as Independent Executor of the Estate of Dorothy Louise Longoria Deceased as Counter-Plaintiff and pleads the following counterclaims in response to Shelby Longoria Third Amended Contest of2O 10 Will or any pleading subsequently filed by Shelby Longoria stating the following causes of action as Counter-Defendant against Shelby Longoria Discovery Level Pursuant to TEx Civ 190 Counter-Plaintiff states that discovery in this case is intended to be conducted under Level of that Rule Overview These counterclaims are brought by citizen of Texas against another citizen ofTexas Counter-Plaintiff is the personal representative of an estate pending FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01525 in this Court and adjudication of these counterclaims is essential to administration of that estate The Decedent lived in Texas for the last 25 years of her life These counterclaims are based entirely on Texas law None of them is based on any law of the United Mexican States The Parties Counter-Plaintiff James Thomas Dorsey is an individual who is bringing these counterclaims in his capacity as the duly appointed Independent Executor of the Estate of Dorothy Louise Longoria Deceased Counter-Defendant Shelby Longoria is an individual who resides in Hidalgo County Texas Counter-Defendant commenced this action and has appeared through counsel in this action so this pleading may be served on him through his attorneys of record Jurisdiction Pursuant to Sections Sections 32.001 32.002 and 32.005 of the Texas Estates Code the Court has jurisdiction over the subject matter of this civil action The Estate of Dorothy Louise Longoria is pending in this Court and this Court is statutory probate court As explained more fully below this action is brought by personal representative on behalf of that estate and this action is related to that estate FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01526 In addition the exercise of pendent or ancillary jurisdiction over this action is necessary to promote judicial efficiency and economy The Court has inpersonam jurisdiction over Counter-Defendant Shelby Longoria by virtue of his filing of Shelby Longoria Third Amended Contest of2O 10 Will in response to which these counterclaims are pleaded In addition general personal jurisdiction exists because the Counter-Defendant has had continuous and systematic contacts with the State of Texas and specific personal jurisdiction exists because this action arises out of contacts by the Counter-Defendant with the State of Texas as explained below Venue Pursuant to Sections 33.00 and 33.002 of the Texas Estates Code the venue of this action is proper because the Estate of Dorothy Louise Longoria Deceased is pending in this Court and this action is related to that estate as explained more fully below Conditions Precedent All conditions precedent to Counter-Plaintiffs rights to plead and to prosecute these counterclaims and to recover the relief requested herein have occurred or been fulfilled FIRSTAMENDED COU1TTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01527 Facts Applicable to All Causes of Action On July 1942 Eduardo Longoria Eduardo and Dorothy Louise Kowaiski Dorothy were married in the City of Laredo in Webb County Texas 10 When they were married Dorothy was citizen of the United States of America and Eduardo was citizen of the United Mexican States Mexico but he had been living in the United States and after the wedding the couple initially settled in McAllen Texas 11 The marriage of Eduardo and Dorothy was subject to the laws of the State of Texas including the law of community property 12 Eduardo and Dorothy had four children all of whom are living Their names are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo Longoria Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All of them reside in Texas 13 Eduardo and Dorothy amassed considerable wealth through variety of business activities and investments This petition does not recite fact on which the Counter-Plaintiffs claims are every based It is intended only to be short statement of the cause of action sufficient to give fair notice of the claim involved as required by TEx Civ 47 FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01528 14 Overtime Shelby took control over the business and investments owned by Eduardo and Dorothy 15 Shelby managed property and accounts owned by Dorothy and represented to her that he was doing so for her benefit Indeed the account statements were not even sent to Dorothy even though she was identified as the sole owner of the accounts The accounts included but are not limited to the following accounts collectively Dorothys Accounts in Mexico Banamex Account Number 7572369315 Banamex Account Number 7518181565 and BanRegio Account Number 75-00454-001-8 16 In addition Shelby expressly agreed to hold in trust for the benefit of Dorothy property that Shelby obtained from Eduardo In letter to Dorothy dated August 1983 for example Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us as we will hold them long as you live as if they were yours and will make the fruits available to you for your direction as to their use These promises were made by Shelby while he was residing in Texas and they were set forth in letter that was sent to Dorothy from an address in Texas Shelby breached these promises to Dorothy by failing to account for the that was property FIRSTAMENDED COUNTERCLAiMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORJA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01529 given to Shelby by Eduardo by concealing from Dorothy material facts about that property including its nature extent value and profitability by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income generated by the property by failing to disclose to Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use 17 Likewise in letter dated October 2007 which Shelby sent to Dorothy at her residence in Houston Texas Shelby made specific promises with respect to large sum of money that Eduardo wished for Dorothy to have upon his death Admitting that he held such funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate to her daughters Shelby promised that within thirty days after Dorothy died he would pay $100000 to Sylvia and $100000 to Adriana Upon Dorothys death Shelby repudiated and breached this promise to Dorothy While he did tender check for $100000 to Sylvia and check for $100000 to Adriana he printed on the checks language that if the checks were negotiated would have resulted in release of their rights in Dorothys estate and rights against Shelby self-serving conditions which Shelby had no right to impose The fact that Shelby arbitrarily demanded such releases for his benefit as conditions on his performance of an unconditional duty to pay $100000 to Sylvia and $100000 FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01530 to Adriana proves that Shelby knew that Dorothy owned valuable claims against him Shelby knew that Dorothy intended to leave her entire estate to Sylvia and Adriana and Shelby knew that Sylvia and Adriana themselves had valuable claims against him all of which he now dishonestly denies 18 Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as trustee of an express trust for the benefit of Dorothy and in addition or in the alternative pursuant to an informal fiduciary relationship with Dorothy 19 In contravention of his fiduciary duty to Dorothy under Texas law Shelby failed to advise Dorothy fully and fairly regarding the nature and extent of her property and his actions with respect to her property and the property he was holding in trust supposedly for her benefit 20 In fact Shelby managed for his own benefit Dorothys property as well as property he was holding in trust supposedly for her benefit He caused income from the property to be paid to him or to others for his benefit and failed to disclose to Dorothy that he had done so 21 Eduardo died on January 26 2005 at the age of 91 He was born on October25 1913 FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONUORIA DECEASED TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL Page 01531 22 When Eduardo died all of the property in his estate was community property of which one-half was owned by Dorothy under Texas law 23 Eduardo died in Webb County Texas where he and Dorothy had lived for many years 24 After the death of Eduardo Shelby continued to manage Dorothys property and continued to represent to her that he was managing her property for her benefit but he intentionally concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property 25 In fact Shelby managed the property for his own benefit and engaged in self-dealing transactions that he failed to disclose to Dorothy 26 Dorothy died in Harris County Texas on April 2012 at the age of 92 She was born on May 1919 27 By order dated October 2012 this Court admitted to probate Dorothys Last Will and Testament dated January 21 2010 and appointed James Thomas Dorsey Independent Executor of the Estate of Dorothy FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONUORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01532 28 Letters Testamentary were issued to James Thomas Dorsey on the same day and such Letters Testamentary are currently in full force and effect so he is frilly authorized to bring this action 29 Whenever it is alleged herein that Shelby acted or communicated in any fashion then such allegation should be taken to mean That the Shelby himself took such action or made such communication or in the alternative That duly authorized agent of Shelby took such action or made such communication on behalf of Shelby and in the course and scope of the agency or in the alternative That such action or communication was by one having apparent authority to do so on behalf of Shelby or in the alternative That Shelby ratified and adopted such action or communication as his own and thereby became legally responsible for it FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THiRD AMENDED CONTEST OF 2010 WILL Page 01533 First Cause of Action Demand for Accounting 30 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 31 Pursuant to Section 489B of the Texas Probate Code Section 113.15 of the Texas Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled to and hereby requests that Shelby provide full accounting of1 all of his activities as an agent for Dorothy all transactions done or caused by him involving property owned in whole or in part by Dorothy including but not limited to Dorothys Accounts in Mexico and all transactions involving property held by him in trust for Dorothy 32 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 10 01534 had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 33 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Section 113.151 of the Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Second Cause of Action Breaches of Fiduciary Duty 34 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY NDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 11 01535 35 Under Texas law Shelby breached his fiduciary duty to Dorothy by failing to disclose to her fully and fairly all information that might affect her interests in property managed by him including both her community property and property held by Shelby in trust for her failing to act with utmost good faith and fair dealing in the management of her property and property held in trust for her and in his other activities her interests affecting failing to act with undivided loyalty to Dorothy in the management of her property and property held by him in trust for her and in his other activities affecting her interests and engaging in self-dealing transactions that were detrimental to her and in addition or in the alternative improperly benefited him 36 The breaches of fiduciary duty by Shelby proximately caused compensable harm to Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law The damages awarded should include all amounts of money which were withdrawn from Dorothys Accounts in Mexico and which Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her fully informed consent In the alternative the damages awarded should at minimum include all amounts of FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 12 01536 money which were withdrawn from Dorothys Accounts in Mexico and used to make payments to her daughters Adriana and Sylvia based on the alleged contract dated January 11 2005 written in Spanish entitled CONTRATO DE DONACION the Donation Agreement which is forgery and unenforceable for the reasons set forth in the Fifth Cause of Action herein 37 The breaches of fiduciary duty by Shelby constituted fraud gross negligence and malice as those terms are defined in Chapter 41 of the Texas Civil Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose to Dorothy all facts that might affect her interests Shelby intentionally or in the alternative with reckless disregard for Dorothys rights concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment against Shelby for exemplary damages in an amount to be determined by the trier of fact in accordance with Texas law 38 Shelby derived profits by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment decreeing that Shelby disgorge all profits received by him or by his wife FRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 13 01537 his children or other persons result of the breaches of his any designated by him as fiduciary duty to Dorothy 39 Shelby acquired property by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment imposing constructive trust on all property acquired by Shelby his his children or or by wife any other persons designated by him by means of the breaches of his fiduciary duty to Dorothy 40 Anticipating that Shelbywill plead the defense of limitations in response to this cause of action Counter-Plaintiffpleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 14 01538 Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 41 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Section 114.064 of the Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Third Cause of Action Breach of Promise To Hold Property for Dorothys Benefit 42 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 43 Shelby promised Dorothy that he would hold in trust for Dorothy all of the assets that Eduardo gave to Shelby and Wayo and that he would make the income from such property available to her for her direction as to their use These promises were made by Shelby while he was residing in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby and Wayo by Eduardo by concealing from Dorothy material facts about that property FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOPJA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 15 01539 including its nature extent value and profitability by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income generated by the property by failing to disclose to Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use 44 These breaches by Shelby proximately caused compensable harm to Dorothy and her estate Based on the doctrines of breach-of-contract promissory estoppel and money-had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law The damages awarded should include all amounts of money which were withdrawn from Dorothys Accounts in Mexico and which Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her fully informed consent In the alternative the damages awarded should at minimum include all amounts of money which were withdrawn from Dorothys Accounts in Mexico and used to make payments to her daughters Adriana and Sylvia based on the alleged contract dated January 11 2005 written in Spanish entitled CONTRATO DE DONACION the Donation Agreement which is forgery and unenforceable for the reasons set forth in the Fifth Cause of Action herein FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 16 01540 45 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiffpleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 46 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action FIRSTAMENDED COUNTERCLAiMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOPJA DECEASED TO SHELBY LONGOEJAS THIRD AMENDED CONTEST OF 2010 WELL Page 17 01541 Fourth Cause of Action Breach of Promise To Pay $100000 to Adriana and $100000 to Sylvia 47 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 48 Shelby promised Dorothy that within thirty days of her death he would pay $100000 to Adriana and $100000 to Sylvia These promises were made by Shelby while he was residing in Texas and they were directed to Dorothy at her residence in Houston Texas Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia checks that they could not negotiate without waiving their rights in Dorothys estate and their rights against Shelby self-serving conditions which Shelby had no right to impose 49 Based on the doctrines of breach-of-contract promissory estoppel and money-had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment against Shelby for $200000 in accordance with Texas law 50 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 ofthe Texas Civil FiRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIIAS THIRD AMENDED CONTEST OF 2010 WILL Page 18 01542 Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 51 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action FIRST AMENDED COUNTERCLAMS OF JAMES THOMAS DORSEY EDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 19 01543 Fifth Cause of Action Declaration of Invalidity of Donation Agreement dated January 11 2005 52 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 53 On January 2015 Shelby produced for the first time photocopy of document dated January 11 2005 written in Spanish entitled CONTRATO DE DONACION the Donation Agreement The Donation Agreement purports to be signed by Eduardo and Dorothy 54 By order dated January 29 2014 Shelby was ordered by this Court to produce documents such as the Donation Agreement no later than February 282014 His production of the Donation Agreement on January 2015 was over ten months late 55 On the date of the Donation Agreement Eduardo was dying and on hospice care Fifteen days later Eduardo died The Executor believes and now avers that on January 112005 Eduardo lacked the requisite mental capacity to make legally enforceable contract FIRST AMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL Page 20 01544 56 The Donation Agreement states that it was signed in Reynosa Tamaulipas Eduardo was not in Reynosa on the date of the Donation Agreement 57 In the seven years that Dorothy lived after the date of the Donation Agreement she never mentioned it to either of her daughters both of whom lived near her in Houston or to her son-in-law the Executor whom she saw frequently or in her correspondence which was extensive or in her personal notes where she wrote extensively about her financial situation Indeed during those seven years she made numerous statements both written and oral that are inconsistent with the existence of the Donation Agreement 58 Based on the foregoing facts and others the Executor believes and therefore avers that the Donation Agreement is forgery 59 The Executor believes and now avers that the Donation Agreement is unenforceable for lack of consideration or in the alternative for failure of consideration 60 There exists an actual controversy between the Executor and Shelby as to whether or not the Donation Agreement is valid and enforceable contract FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 21 01545 61 Consequently under Chapter 37 of the Texas Civil Practice and Remedies Code the Executor hereby requests entry ofajudgment declaring that the Donation Agreement is invalid and wholly unenforceable 62 Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code the Executor requests an award of costs and reasonable and necessary attorneys fees as are equitable and just Prayer for Relief WHEREFORE PREMISES CONSIDERED Counter-Plaintiff James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased prays that upon due notice and trial by jury or upon hearing on motion for entry of default judgment or motion for summary judgment the Court render judgment for Counter-Plaintiff and against Counter-Defendant Shelby Longoria awarding the following relief under Texas law decree commanding Counter-Defendant Shelby Longoria to render an accounting of all property that was owned in whole or in part by Dorothy Louise Longoria and that was within his possession custody or control and all transactions affecting her property and an accounting of all actions taken by him as her agent or FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 22 01546 trustee specifically including complete accounting of all monies withdrawn from Dorothys Accounts in Mexico an award of actual damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law but the maximum amount of actual damages currently sought by Counter- Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $43500000 an award of exemplary damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law but the maximum amount of exemplary damages currently sought by Counter-Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $10000000 an award of attorney fees including litigation expenses reasonably and necessarily incurred by Counter-Plaintiff in connection with each of his causes of actions under Texas law FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 23 01547 decree commanding Counter-Defendant Shelby Longoria to disgorge all profits received by him or by others for his benefit as result of breach by him of his fiduciary duty to Dorothy Louise Longoria decree imposing constructive on all acquired trust property by Counter-Defendant Shelby Longoria or by others for his benefit by means of breach of fiduciary duty owed to Dorothy Louise Longoria an award of prejudgment interest on all actual damages at the highest rate authorized by law to the date of judgment an award of all costs incurred by Counter-Plaintiff in the course of preparing and prosecuting this civil action an award of postjudgment interest on all monetary relief at the highest rate authorized by law from the date ofjudgment until paid 10 judgment declaring that the Donation Agreement dated January 11 2005 is invalid and wholly unenforceable 11 all writs and processes necessary to collect the judgment and 12 all other relief to which Counter-Plaintiff is entitled or which the Court may deem appropriate under the circumstances and the applicable law FIRSTAMENDED COTJNTERCLAJMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 24 01548 Any inconsistent allegations or prayers for relief are pleaded in the alternative as expressly authorized by TEx Civ P.47 and 48 Reservation of Rights To Amend and To Supplement This Pleading Because Counter-Plaintiff presently does not know all of Counter-Defendants acts and omissions that caused harm to Dorothy Louise Longoria or her estate or all of the relevant circumstances surrounding such acts and omissions Counter-Plaintiff anticipates that it may be necessary to plead additional causes of action after discovery is completed Accordingly Counter-Plaintiff hereby reserves the rights to amend and to supplement this pleading FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 25 01549 VERIFICATION STATE OF TEXAS COUNTY OF DALLAS BEFORE ME the undersigned authority on this day appeared in person James Austin Fisher and made the following statement under oath My name is James Austin Fisher am one of the attorneys of record for James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased in Case Number 414270 in Probate Court Number One of Harris County Texas and am authorized under Rule 14 of the Texas Rules of Civil Procedure to execute this verification on his behalf have read the averments set forth in paragraphs 53 through 60 above and affirm that those averments are either within my personal knowledge or are supported by evidence of which am aware and are true and correct James Austin Fisher SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority by James Austin Fisher on August 2015 A-n lCtI cvl r.i Printd Name of Notary Public My Commission Expires Lp FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 26 01550 DATED August 2015 Respectfully submitted /s/ James Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 email address jfisherfisherwelch.com Shannon L.K Welch State Bar of Texas Number 90001699 email address swelch@fisherwelch corn FISHER WELCH Professional Corporation Ross Tower Suite 2800 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Facsimile 214.661.9404 ATTORNEYS FOR COUNTER- PLAINTIFF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 27 01551 CERTIFICATEOF SERVICE hereby certify that on August 2015 true and correct copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schlemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 YEMAIL TOjcartersusmangodfrey corn rhesssusrnangodfrey corn and kschlernmersusrnangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 2900 Weslayan Suite 150 Houston Texas 77027 BY EMAIL TO rnacintyrernrnlawtexas corn /s/ James Austin Fisher James Austin Fisher FIRSTAMENDED COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 28 01552 Dv PROBATE COURT FILED 8/27/2015 94018 PM Stan Stanart Clerk County Harris County CASE NUMBER 414270 IN THE ESTATE OF INTHE PROBATE DOROTHY LOUISE LONGORIA COURT NUMBER ONE DECEASED HARRIS COUNTY TEXAS Shelby Longorias Motion to Dismiss the Estates Counterclaims Relating to Dorothy Longorias Banamex Accounts Shelby Longoria Shelby moves to dismiss the Estates counterclaims arising out of Dorothy Longorias Dorothy Banamex bank accounts Mexican Bank Accounts The Estate first asserted its theory of bank account misappropriation in an amended petition filed on February 11 2015 fifteen days before Shelby filed his summary-judgment motion.1 In amended disclosure responses served on June 2015 the Estate purported to calculate its damages based on this theory The bulk of the damages related to withdrawals from two Banamex bank accounts On December 12 1999 Dorothy opened Banamex US Dollars Checking Account no On February 10 2005 Dorothy opened Banamex Mexican pesos Checking Account no Dorothy passed away on April 2012 On April 18 2012 both the Banamex Mexican pesos account and the Banamex Dollars account were closed.4 After Dorothy died Sylvia offered one of her mothers purported wills to probate Sylvias husband James Thomas Dorsey Tommy was appointed executor of Dorothys estate As the Estates executor Tommy sued Shelby Shelby filed will contest and claims against Sylvia and Adriana and Sylvia and Adriana each raised additional counterclaims against Shelby 1Exh 1at4-5 Exh This document contains sensitive data Per TRCP 21c all sensitive data has been redacted an unredacted copy will be maintained during the pendency of this case and any appeal 3Exh.3 4EXh Further Attached as Exh 103 the First Amended Disclosures of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria the Estates attachments show that the last transaction of the Banamex Dollars checking account occurred on December 20 2010 at 78 and the last transaction for the Banamex Mexican pesos checking account occurred on April 16 2012 at 51 3801298v11013774 01553 Beginning in February 2015 the Estate alleged that Shelby was liable to the Estate for all amounts of money which were withdrawn from Dorothys Accounts in Mexico and which Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her fully formed consent.5 These claims must be dismissed under the terms of the Banamex plain Agreement forum-selection clause II The Banamex Accounts Are Subject to Forum-Selection Clauses In Mexico to determine the terms and conditions in force in contract with bank it is not enough to examine the language of the original contract Because banks can unilaterally change the terms and conditions by notifying the customer of the changes necessary to also it is examine all versions of the agreement through the duration of the contract for any changes Attached as Exhibit to this motion is the Affidavit of Carlos Gabuardi respected Mexican lawyer and academic Professor Gabuardi explains that Mexican law allows for banks to unilaterally change the terms of contracts in accordance with their notification clauses.6 For this reason banks make the contents of their contracts public in the Registry of Adhesive Contracts RECA.7 In this system the terms and conditions in force are those currently registered and not the terms established at the time of execution.8 If an account the terms and conditions is closed in force are those that are established at the time the bank account closed.9 For the Banamex Dollars Dorothy signed an application with language that incorporates separate document containing the terms and conditions Similarly the language Exh at 36 the Estate Sylvia and Adrian all raise other counterclaims that are not subject to this motion 6Exh atJj 14 71d at 16 81d at 9-10 91d at1jJ 14 Exh Id at translated in Exhibit 2A 3801298v1/013774 01554 above the signature in the application to the Banamex Mexican Account12 pesos incorporates separate document containing terms and conditions.3 Attached as Exhibit 6A are the terms and conditions that were in effect on April 18 2012 the date when the accounts were closed Thus the terms and conditions in Exhibit 6A apply to both Banamex Accounts III The Estates Claims Must Be Dismissed Pursuant to the Mexican Banks Respective Forum-Selection Clauses In construing forum-selection clause our primary goal is to give effect to the written expression of the parties agreement We must read the provision in its entirety striving to give meaning to every sentence clause and word to avoid rendering any portion inoperative Phoenix Network Techs Europe Ltd Neon Sys Inc 177 S.W.3d 605 615 Tex App Houston Dist 2005 no pet Southwest Inc Hotel Networks quoting Intelecom Corp 997 S.W.2d 322 324 Tex App Austin 1999 pet denied The Plain Language of the Forum-Selection Clause Encompasses the Estates Claims The Banamex forum selection clause provides provides for Mexican venue for any dispute relating to the peso and Dollars accounts CLAUSE XIII.17 JURISDICTION The present Contract will be governed by the laws of Mexico the parties shall the jurisdiction of the expressly accept courts of Mexico other them under City waiving any that may correspond to whatever circumstance.14 12 Exhibit 13 Id at translated in Exhibit 3A Exhibit at 20 XIII.17 Translated in Exhibit 6A 3801298v1/013774 01555 As Dorothys representative the forum-selection clause applies to the Executor and Executors claims on the Estates behalf The Forum-Selection Clauses Provides for Exclusive Jurisdiction in Mexico By agreeing that the contract is governed by the laws of Mexico the parties shall expressly accept the jurisdiction of the courts of Mexico City waiving other that any may correspond to them under whatever circumstance the parties established Mexico as the exclusive forum for resolution of disputes in the Banamex accounts See In re Automated Collection Techs Inc 156 S.W.3d 557 558 Tex 2004 directing dismissal of Texas case where the parties had consented to the exclusive jurisdiction of the courts of Montgomery County Pennsylvania. The Estate has run afoul of the forum-selection clauses of both Banamex bank account agreements by filing this lawsuit in Texas under Texas law Where as here the parties agree to submit to venue in one jurisdiction while waiving venue in other locations they have made selection of an exclusive forum for S.W.3d resolving claims In re Fisher 433 523 532 Tex 2014 finding that forum-selection clause was mandatory even when the selected jurisdiction was non-exclusive when the contract stated that party agrees not to bring any proceeding arising out of or relating to this Agreement in any other court In re Emex Holdings L.L.C 2013 WL 1683614 at Tex App Corpus Christi Apr 18 2013 orig proceeding finding that the following clause was enforceable and exclusive The parties agree that for the construction and compliance herewith submit themselves to the Jurisdiction and they expressly Competence of the Common Affairs Laws and Courts seated in Mexico waiving to any other that may correspond to them due to their present or future domiciles Dixon TSE Intl Inc 330 F.3d 396 397 5th Cir 2003 finding that the following clause was enforceable and 3801298v1/013774 01556 exclusive The Courts of Texas U.S.A shall have jurisdiction over all controversies with to the execution or of and waive respect interpretation performance this Agreement the parties any other venue to which they may be entitled by virtue of domicile or otherwise Export Import Bank of the US Hi-Films S.A de 2010 WL 3743826 at S.D.N.Y Sep 24 2010 forum-selection clauses are mandatory even though they do not expressly use the word exclusive because the parties waived other jurisdictions The Result Is the Same Under Mexican Law When contract contains choice-of-law clause the Court must apply the law chosen by the parties to determine the scope of the forum-selection clause Hooks Indus Inc Fairmont Supply Co 2001 WL 395341 at Tex App.Houston Dist Apr 19 2001 no pet Martinez Bloomberg LP 740 F.3d 211 224 2d Cir 2014 Albemarle Corp AstraZeneca UK Ltd 628 F.3d 643 651 4th Cir 2010 Yavuz 61 MM Ltd 465 F.3d 418 428 10th Cir 2006 Here the parties to the Banamex bank agreements chose the application of Mexican law In his Affidavit Professor Gabuardi explains that Mexican law recognizes forum-selection clauses15 and that the forum-selection clause here written to is express the parties intent that lawsuits concerning the respective Bank Accounts will be brought in Mexico.16 The Court Must Enforce the Forum-Selection Clause and Dismiss trial court must presume that mandatory forum-selection clause is valid and enforceable In re Boehme 256 S.W.3d 878 881 Tex App.Houston Dist 2008 orig proceeding emphasis in original The trial court gives full effect to forum selection clause absent strong showing by the resisting party that the court should set aside the clause because 5Exh atJ 15 16Id.atjJj 16 3801298v1/013774 01557 the clause is invalid based on reasons such as fraud undue influence or overweening bargaining power or enforcement would be unreasonable and unjust Smith Kenda Capital LLC 2014 WL 5783581 at Tex App.Houston Dist Oct 21 2014 no pet quoting Deep Water Slender Wells Ltd Shell Intl Explor Prod Inc 234 S.W.3d 679 692 Tex App.Houston Dist 2007 pet denied Enforcement can be avoided only in extreme circumstances that courts cannot presently anticipate or foresee In re ADM Investor Servs Inc 304 S.W.3d 371 376 Tex 2010 Because the forum-selection clause that both Banamex accounts governs is mandatory and there is no reason not to enforce it this Court must dismiss the Estates counterclaims based on the Bank agreements forum-selection clause See Deep Water Slender Wells Ltd Shell Intl Explor Prod Inc 234 S.W.3d 679 687 Tex App.Houston Dist 2007 pet denied motion to dismiss is the mechanism for forum-selection clause proper procedural enforcing that party to the agreement has violated in filing suit. Conclusion The Court should enter the proposed order submitted with this motion and dismiss the Estates claims arising out of Dorothys Banamex bank accounts Respectfully submitted SUSMAN GODFREY L.L.P By/s/ Mateo Fisher Johnny Carter State Bar No 00796312 jcartersusmangodfrey.com Richard Hess State Bar No 24046070 3801298v1/013774 01558 rhesssusmangodfrey.corn Kristen Schiemmer State Bar No 24075029 kschlemmersusmangodfrey .com Mateo Fisher State Bar No 24077692 mfishersusmangodfrey.com 1000 Louisiana Street Suite 5100 Houston Texas 77002-5 096 Telephone 713 651-9366 Fax 713 654-6666 Robert Maclntyre Jr State Bar No 12760700 macintyre@mmlawtexas.com Maclntyre McCulloch Stanfield Young 2900 Weslayan Suite 150 Houston Texas 77027 Telephone 713 547-5400 Attorneys for Shelby Longoria 3801298v1/013774 01559 CERTIFICATE OF CONFERENCE Counsel for Shelby Longoria has conferred with counsel for James Thomas Dorsey on August 25 2015 in good faith effort to resolve the matters raised by this motion and counsel for Plaintiff is opposed to the disposition of the matters raised in this motion /s/ Mateo Fisher Mateo Fisher CERTIFICATE OF SERVICE This is to certify that on August 27 2015 true and correct of the above and copy foregoing instrument was properly forwarded to the following counsel of record in accordance with Rule 21 of the Texas Rules of Civil Procedure as indicated below James Austin Fisher Via E-Service Fisher Welch Ross Tower Suite 2800 500 North Akard Street Dallas Texas 75201 Email jfisher@fisherwelch.com Attorneys for James Thomas Dorsey Sylvia Dorsey and Adriana Longoria /s/Mateo Fisher Mateo Fisher 3801298v1/013774 01560 01561 Case Number 414270 IN THE ESTATE OF IN THE PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS Affidavit of Mateo Fisher Mateo Fisher declare as follows My name is Mateo Fisher am over the age of twenty-one 21 years am to to the matters stated herein have personal knowledge of the facts and competent testify statements in this declaration and each of the facts and statements is true and correct am an attorney in the law firm of Susman Godfrey L.L.P am licensed to law in the state of Texas and before this Court represent Shelby Longoria in the above practice Motion to Dismiss referenced litigation provide this affidavit in support of Shelby Longorias the Estates Counterclaims Relating to Dorothy Longorias Banamex Accounts Attached as Exhibit true and correct of the Original Counterclaims of is copy James Thomas Independent Executor of the Estate of Dorothy Louise Longoria Dorsey Deceased To Shelby Longorias Third Amended Contest of 2010 Will of February Il 2015 Attached as Exhibit is true and correct copy of document produced by Longoria bates-labelled SLONGORIAOO3O85 consisting of signed bank account Shelby application for Banamex Dollars Checking Account dated December 12 1999 Attached as Exhibit 2A is true and correct certified partial translation of Exhibit document produced by Shelby Longoria bates-labelled SLONGORIAOO3O85 consisting of 01562 signed bank account application for Banamex Dollars Checking Account dated December 12 1999 Attached as Exhibit is true and correct copy of document produced by Longoria bates-labelled SLONGORIAOO274O consisting of signed bank account Shelby application for Banamex Mexican pesos Checking Account dated February 10 2005 Attached as Exhibit 3A is true and correct certified partial translation of document produced by Shelby Longoria bates-labelled SLONGORIAOO274O consisting of Banamex Mexican Account dated signed bank account application for pesos checking February 10 2005 Attached as Exhibit is true and correct copy of Banamex Bank document that the Banamex Dollars checking account no and the Banamex Mexican showing pesos checking account no were both closed on April 18 2012 Attached as Exhibit is true and correct copy of the Affidavit of Dr Carlos Gabuardi 10 Attached as Exhibit is true and correct copy of document produced by bates-labelled SLONGORIAOO2934 consisting of the terms and conditions for Shelby Longoria Banamex checking accounts 11 Attached as Exhibit 6A true and correct copy of document produced by Shelby of terms and for Longoria bates-labelled SLONGORIAOO2934 consisting the conditions Banamex checking accounts 12 Attached as Exhibit 103 is true and correct redacted copy of the First Amended Disclosures of James Thomas Independent Executor of the Estate of Dorothy Louise Dorsey Longoria of June 2015 01563 FURTHER AFFIANT SAITH NOT 3k Mateo Fisher SUBSCRIBED AND SWORN TO BEFORE ME Notary Public by Mateo Fisher on this 27th day of August 2015 to certify which witness my official hand and seal of office ii ALLEN Notai y/Public in and for the State of Texas Pubhc State ol Texas Notary Commission Expires 0622 2018 crnniission My Fpii es _______________________ 01564 01565 EXHIBIT 01566 CASE NUMBER 414270 IN THE ESTATE OF IN PROBATE COURT NUMBER ONE DOROTHY LOUISE LONGORIA DECEASED HARRIS COUNTY TEXAS O1UGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL TO THE HONORABLE JUDGE OF THIS COURT COMES NOW James Thomas Dorsey in his capacity as Independent Executor of the Estate of Dorothy Louise Longoria Deceased as Counter-Plaintiff andpleads the following counterclaims in response to Shelby Longoria Third Amended Contest of2O 10 Will stating the following causes of action against Shelby Longoria as Counter-Defendant Discovery Level Pursuant to TEx CIV 190 Counter-Plaintiff states that discovery in this case is intended to be conducted under Level of that Rule Overview These counterclaims are brought by citizen of Texas against another citizen of Texas Counter-Plaintiff is the personal representative of an estate pending in this Court and adjudication of these counterclaims is essential to administration of that estate The ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED TO SHELBY LONGORTIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01567 Decedent lived in Texas for the last 25 years of her life These counterclaims are based entirely on Texas law None of them is based on any law of the United Mexican States The Parties Counter-Plaintiff James Thomas Dorsey is an individual who is bringing these counterclaims in his capacity as the duly appointed Independent Executor of the Estate of Dorothy Louise Longoria Deceased Counter-Defendant Shelby Longoria is an individual who resides in Hidalgo County Texas Counter-Defendant commenced this action and has appeared through counsel in this action so this pleading maybe served on him through his attorneys of record Jurisdiction Pursuant to Sections 4A 4B and 4F of the Texas Probate Code the Court has jurisdiction over the subject matter of this civil action The Estate of Dorothy Louise Longoria is pending in this Court and this Court is statutory probate court As explained more fully below this action is brought by personal representative on behalf of that estate and this action is related to that estate In addition the exercise of pendent or ancillary jurisdiction over this action is necessary to promote judicial efficiency and economy The Court has in personam jurisdiction over Counter-Defendant Shelby Longoria by virtue of his filing of Shelby Longorias Third Amended Contest of 2010 Will in response to which these counterclaims are pleaded In addition general personal ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01568 jurisdiction exists because the Counter-Defendant has had continuous and systematic contacts with the State of Texas and specific personal jurisdiction exists because this action arises out of contacts by the Counter-Defendant with the State of Texas as explained below Venue Pursuant to Section 6A of the Texas Probate Code the venue of this action is proper because the Estate of Dorothy Louise Longoria Deceased is pending in this Court and this action is related to that estate as explained more fully below Conditions Precedent All conditions precedent to Counter-Plaintiffs rights to plead and to prosecute these counterclaims and to recover the relief requested herein have occurred or been fulfilled Facts Applicable to All Causes of Action OnJuly3 1942 Eduardo LongoriaEduardo andDorothyLouiseKowalski Dorothy were married in the City of Laredo in Webb County Texas 10 When they were married Dorothy was citizen of the United States of America and Eduardo was citizen of the United Mexican States Mexico but he had This petition does not recite every fact on which the Counter-Plaintiffs claims are based It is intended only to be short statement of the cause of action sufficient to give fair notice of the claim involved as required by TEx CIV 47 ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORTAS THIRD AMENDED CONTEST OF 2010 WILL Page 01569 been living in the United States and after the wedding the couple initially settled in McAllen Texas 11 The marriage of Eduardo and Dorothy was subject to the laws of the State of Texas including the law of community property 12 Eduardo and Dorothy had four children all of whom are living Their names are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo Longoria Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All of them reside in Texas 13 Eduardo and Dorothy amassed considerable wealth through variety of business activities and investments 14 Over time Shelby took control over the business and investments owned by Eduardo and Dorothy 15 Shelby managed property and accounts owned by Dorothy and represented to her that he was doing so for her benefit Indeed the account statements were not even sent to Dorothy even though she was identified as the sole owner of the accounts The accounts included but are not limited to the following accounts collectively Dorothys Accounts in Mexico Banamex Account Number 7572369315 Banamex Account Number 7518181565 and ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01570 BanRegio Account Number 75-00454-001-8 16 In addition Shelby expressly agreed to hold in trust for the benefit of Dorothy property that Shelby obtained from Eduardo In letter to Dorothy dated August 1983 for example Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us as long as you live we will hold them as if they were yours and will make the fruits available to you for your direction as to their use These promises were made by Shelby while he was residing in Texas and they were set forth in letter that was sent to Dorothy from an address in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby by Eduardo by concealing from Dorothy material facts about that property including its nature extent value and profitability by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income generated by the property by failing to disclose to Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use 17 Likewise in letter dated October 2007 which Shelby sent to Dorothy at her residence in Houston Texas Shelby made specific promises with respect to large sum of money that Eduardo wished for Dorothy to have upon his death Admitting that he held such funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate to her daughters Shelby promised that within thirty days after Dorothy died he would pay $100000 to Sylvia and $100000 to Adriana Upon Dorothys death Shelby repudiated and ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORTA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01571 breached this promise to Dorothy While he did tender check for $100000 to Sylvia and check for $100000 to Adriana he printed on the checks language that if the checks were negotiated would have resulted in release of their rights in Dorothys estate and rights against Shelby self-serving conditions which Shelby had no right to impose The fact that Shelby arbitrarily demanded such releases for his benefit as conditions on his performance of an unconditional duty to pay $100000 to and $100000 to Sylvia Adriana proves that Shelby knew that Dorothy owned valuable claims against him Shelby knew that Dorothy intended to leave her entire estate to Sylvia and Adriana and Shelby knew that Sylvia and Adriana themselves had valuable claims against him all of which he now dishonestly denies 18 Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as trustee of an express trust for the benefit of Dorothy and in addition or in the alternative pursuant to an informal fiduciary relationship with Dorothy 19 In contravention of his fiduciary duty to Dorothy under Texas law Shelby failed to advise Dorothy fully and fairly regarding the nature and extent of her property and his actions with respect to her property and the property he was holding in trust supposedly for her benefit 20 In fact Shelby managed for his own benefit Dorothys property as well as property he was holding in trust supposedly for her benefit He caused income from the ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THiRD AMENDED CONTEST OF 2010 WL Page 01572 property to be paid to him or to others for his benefit and failed to disclose to Dorothy that he had done so 21 Eduardo died on January26 2005 at the age of9l He was born on October 25 1913 22 When Eduardo died all of the property in his estate was community property of which one-half was owned by Dorothy under Texas law 23 Eduardo died in Webb County Texas where he and Dorothy had lived for many years 24 After the death of Eduardo Shelby continued to manage Dorothys property and continued to represent to her that he was managing her property for her benefit but he intentionally concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property 25 In fact Shelby managed the property for his own benefit and engaged in self- dealing transactions that he failed to disclose to Dorothy 26 Dorothy died in Harris County Texas on April 62012 at the age of 92 She was born on May 1919 ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOPJA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01573 27 By order dated October 2012 this Court admitted to probate Dorothys Last Will and Testament dated January 21 2010 and appointed James Thomas Dorsey Independent Executor of the Estate of Dorothy 28 Letters Testamentary were issued to James Thomas Dorsey on the same day and such Letters Testamentary are currently in full force and effect so he is fully authorized to bring this action 29 Whenever it is alleged herein that Shelby acted or communicated in any fashion then such allegation should be taken to mean That the Shelby himself took such action or made such communication or in the alternative That duly authorized agent of Shelby took such action or made such communication on behalf of Shelby and in the course and scope of the agency or in the alternative That such action or communication was by one having apparent authority to do so on behalf of Shelby or in the alternative That Shelby ratified and adopted such action or communication as his own and thereby became legally responsible for it ORIGINAL COUNTERCLAiMS OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01574 First Cause of Action Demand for Accounting 30 Counter-Plaintiff repeats and incorporates by reference all of the foregoing avennents If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 31 Pursuant to Section 489B of the Texas Probate Code Section 113.151 of the Texas Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled to and hereby requests that Shelby provide full accounting of1 all of his activities as an agent for Dorothy all transactions done or caused by him involving property owned in whole or in part by Dorothy including but not limited to Dorothys Accounts in Mexico and all transactions involving property held by him in trust for Dorothy 32 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because ORIGiNAL COUNTERCLATMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOIJTSE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 01575 he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 33 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Section 113.151 of the Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Second Cause of Action Breaches of Fiduciary Duty 34 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 35 Under Texas law Shelby breached his fiduciary duty to Dorothy by failing to disclose to her fully and fairly all information that might affect her interests in property managed by him including both her community property and property held by Shelby in trust for her failing to act with utmost good faith and fair dealing in the management of her property and property held in trust for her and in his other activities affecting her interests failing to act with undivided loyalty to Dorothy in the management of her property and ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORJAS THIRD AMENDED CONTEST OF 2010 WTLL Page 10 01576 property held by him in trust for her and in his other activities affecting her interests and engaging in self-dealing transactions that were detrimental to her and in addition or in the alternative improperly benefited him 36 The breaches of fiduciary duty by Shelby proximately caused compensable harm to Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law The damages awarded should include all amounts of money which were withdrawn from Dorothys Accounts in Mexico and which Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her fully informed consent 37 The breaches of fiduciary duty by Shelby constituted fraud gross negligence and malice as those terms are defined in Chapter 41 of the Texas Civil Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose to Dorothy all facts that might affect her interests Shelby intentionally the alternative or in with reckless disregard for Dorothys rights concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property Under Texas law Counter- Plaintiff is entitled to and hereby requests entry of judgment against Shelby for exemplary damages in an amount to be determined by the trier of fact in accordance with Texas law ORIGiNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY Th4DEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 11 01577 38 Shelby derived profits by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment decreeing that Shelby disgorge all profits received by him or by his wife his children or any other persons designated by him as result of the breaches of his fiduciary duty to Dorothy 39 Shelby acquired property by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment imposing constructive trust on all by Shelby or by his property acquired wife his children or any other persons designated by him by means of the breaches of his fiduciary duty to Dorothy 40 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 12 01578 he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to was withheld from her and diverted Dorothy to Shelbys benefit 41 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Section 114.064 of the Texas Trust Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily mculTed in connection with this action Third Cause of Action Breach of Promise To Hold Property for Dorothys Benefit 42 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the avennent is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 43 Shelby promised Dorothy that he would hold in trust for Dorothy all of the assets that Eduardo gave to Shelby and Wayo and that he would make the income from such property available to her for her direction as to their use These promises were made by Shelby while he was residing in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby and Wayo by Eduardo by concealing from Dorothy material facts about that property including its nature extent ORIGINALCOUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGOPJAS THIRD AMENDED CONTEST OF 2010 WiLL Page 13 01579 value and profitability by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income generated by the property by failing to disclose to Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use 44 These breaches by Shelby proximately caused compensable harm to Dorothy and her estate Based on the doctrines of breach-of-contract promissory estoppel and money-had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law 45 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 14 01580 interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 46 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Fourth Cause of Action Breach of Promise To Pay $100000 to Adriana and $100000 to Sylvia 47 Counter-Plaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 48 Shelby promised Dorothy that within thirty days of her death he would pay $100000 to Adriana and $100000 to Sylvia These promises were made by Shelby while he was residing in Texas and they were directed to Dorothy at her residence in Houston Texas Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia checks that they could not negotiate without waiving their rights in Dorothys estate and their rights against Shelby self-serving conditions which Shelby had no right to impose OFJGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 15 01581 49 Based on the doctrines of breach-of-contract promissory estoppel and money- had-and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment against Shelby for $200000 in accordance with Texas law 50 Anticipating that Shelby will plead the defense of limitations in response to this cause of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit 51 It was both reasonable and necessary for Counter-Plaintiff to retain attorneys to prepare and to prosecute this action Pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Counter-Plaintiff is entitled to and ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY ThUJEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 16 01582 hereby requests an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action Fifth Cause of Action Declaration of Invalidity of Donation Agreement dated January 11 2005 52 CounterPlaintiff repeats and incorporates by reference all of the foregoing averments If any averment is inconsistent with this cause of action the averment is pleaded in the alternative as authorized by Rules 47 and 48 of the Texas Rules of Civil Procedure 53 On January 2015 Shelby produced for the first time photocopy of document dated January 11 2005 written in Spanish entitled CONTRATO DE DONACION the Donation Agreement The Donation Agreement purports to be signed by Eduardo and Dorothy 54 By order dated January 292014 Shelby was ordered by this Court to produce documents such as the Donation Agreement no later than February 282014 His production of the Donation Agreement on January 2015 was over ten months late 55 On the date of the Donation Agreement Eduardo was dying and on hospice care Fifteen days later Eduardo died The Executor believes and now avers that on January 11 2005 Eduardo lacked the requisite mental capacity to make legally enforceable contract 56 The Donation Agreement states that it was signed in Reynosa Tamaulipas Eduardo was not in Reynosa on the date of the Donation Agreement ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 17 01583 57 In the seven years that Dorothy lived after the date of the Donation Agreement she never mentioned it to either of her daughters both of whom lived near her in Houston or to her son-in-law the Executor whom she saw frequently or in her correspondence which was extensive or in her personal notes where she wrote extensively about her financial situation Indeed during those seven years she made numerous statements both written and oral that are inconsistent with the existence of the Donation Agreement 58 Based on the foregoing facts and others the Executor believes and therefore avers that the Donation Agreement is forgery 59 The Executor believes and now avers that the Donation Agreement is unenforceable for lack of consideration in the alternative for of consideration or failure 60 There exists an actual controversy between the Executor and Shelby as to whether or not the Donation Agreement is valid and enforceable contract 61 Consequently under Chapter 37 of the Texas Civil Practice and Remedies Code the Executor hereby requests entry of judgment declaring that the Donation Agreement is invalid and wholly unenforceable 62 Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code the Executor requests an award of costs and reasonable and necessary attorneys fees as are equitable and just ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 18 01584 Prayer for Relief WHEREFORE PREMISES CONSIDERED Counter-Plaintiff James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased prays that upon due notice and trial by jury or upon hearing on motion for entry of default judgment or motion for summary judgment the Court renderjudgment for Counter-Plaintiff and against Counter-Defendant Shelby Longoria awarding the following relief under Texas law decree commanding Counter-Defendant Shelby Longoria to render an accounting of all property that was owned in whole or in part by Dorothy Louise Longoria and that was within his possession custody or control and all transactions affecting her property and an accounting of all actions taken by him as her agent or trustee specifically including complete accounting of all monies withdrawn from Dorothys Accounts in Mexico an award of actual damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law but the maximum amount of actual damages currently sought by Counter-Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $43500000 ORIGiNAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGOEJA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 19 01585 an award of exemplary damages from and against Counter-Defendant Shelby Longoria in amounts to be determined by the trier of fact in accordance with Texas law but the maximum amount of exemplary damages currently sought by Counter-Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $10000000 an award of attorney fees including litigation expenses reasonably and necessarily incurred by Counter-Plaintiff in connection with each of his causes of actions under Texas law decree commanding Counter-Defendant Shelby Longoria to disgorge all profits received by him or by others for his benefit as result of breach by him of his fiduciary duty to Dorothy Louise Longoria decree constructive on imposing trust all property acquired by Counter- Defendant Shelby Longoria or by others for his benefit by means of breach of fiduciary duty owed to Dorothy Louise Longoria an award of prejudgment interest on all actual damages at the highest rate authorized by law to the date of judgment an award of all costs incurred by Counter-Plaintiff in the course of preparing and prosecuting this civil action ORIGNAL COUNTERCLAJMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THWD AMENDED CONTEST OF 2010 WILL Page 20 01586 an award of postjudgment interest on all monetary relief at the highest rate authorized by law from the date of judgment until paid 10 judgment declaring that the Donation Agreement dated January 11 2005 is invalid and wholly unenforceable 11 all writs and processes necessary to collect the judgment and 12 all other relief to which Counter-Plaintiff is entitled or which the Court may deem appropriate under the circumstances and the applicable law Any inconsistent allegations or prayers for relief are pleaded in the alternative as expressly authorized by TEx Civ P.47 and 48 Reservation of Rights To Amend and To Supplement This Pleading Because Counter-Plaintiff presently does not know all of Counter-Defendants acts and omissions that caused hanu to Dorothy Louise Longoria or her estate or all of the relevant circumstances surrounding such acts and omissions Counter-Plaintiff anticipates that it may be necessary to plead additional causes of action after discovery is completed Accordingly Counter-Plaintiff hereby reserves the rights to amend and to supplement this pleading ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORJA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 21 01587 VERIFICATION STATE OF TEXAS COUNTY OF DALLAS BEFORE ME the undersigned authority on this day appeared in person James Austin Fisher and made the following statement under oath My name is James Austin Fisher am one of the attorneys of record for James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased in Case Number 414270 in Probate Court Number One of Harris County Texas and am authorized under Rule 14 of the Texas Rules of Civil Procedure to execute this verification on his behalf have read the averments set forth in paragraphs 53 through 60 above and affirm those that averments are either within my personal knowledge or are supported by evidence of which am aware and are true and correct James Austin Fisher SUBSCRIBED AND SWORN TO BEFORE ME the undersigned authority by James Austin Fisher on February 11 2015 Notary Public in and for thtatei.1f Texas I2M PrintØd Name of Notary Public My Commission Expires ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 22 01588 DATED February 11 2015 Respectfully submitted /s/ James Austin Fisher James Austin Fisher State Bar of Texas Number 07051650 email address jfisherfisherwe1ch.com Shannon L.K Welch State Bar of Texas Number 90001699 email address swelch@fisherwelch.com FISHER WELCH Professional Corporation Ross Tower Suite 2800 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Facsimile 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 email address wes@wesholmes.com THE HOLMES LAW FrnM 10000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9266 ATTORNEYS FOR COUNTER-PLAINTIFF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 23 01589 CERTIFICATE OF SERVICE hereby certify that on February 11 2015 true and correct copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schiemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 BY EMAIL TO jcartersusinangodfrey.corn rhess@susmangodfrey.com and kschlernrnersusinangodfrey corn Robert Maclntyre Jr Maclntyre McCulloch Stanfield Young 3900 Essex Lane Suite 220 Houston Texas 77027 BY EMAIL TO rnacintyre@rnrnlawtexas.com /s/ James Austin Fisher James Austin Fisher ORIGINAL COUNTERCLAIMS OF JAMES THOMAS DORSEY I11DEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED TO SHELBY LONGORIAS THIRD AMENDED CONTEST OF 2010 WILL Page 24 01590 01591 EXHIBIT Banamex -J SUCUISL 4ZLDUS FYMC1S NUM 935 FECH1 /121 SOLIcrUD pfp A1JT0fATTZD X1FESA HO.1 1/3 DATC oENErca.Es OEL. 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01605 ANFO DF 3OWANDCONFFCIAO na ex 000029945350 C39553 00156 VThTAk IIOJA lIE INOA AYEWDO NOMPS III EUCVRSAL 3231461 UAEU 4761 WTE NEtcrE CTMCNTRkTO EA TVEA AGBS/DIA 2945360 DOROThY KOWALK1 LO1OOR1A 7123693lI 1105 tOll ID IOMOEE -l POACENThJ6 SHELlIY LONGORIA KOWALK1 11110A 100 1IIA DO NAIIMTh2QTO ILP OOMKIUO D5L DONOICIAAIO rO Cc CLJ6NTE BANrn NACONAL DE MOCO SA lI I3RANTE DELGRUPQ1NA14C1ERO 11ANAMEX ESTk INPORAL4CION ES lIE USO 111TRRNO CONPLDb4CIAL ALBM7O GNZA1E2WMF GEENTE 39-jO SLONGORIAOO2744 01606 AUTORi1AON PARA MANJD DE CiJENTA DE CHEQUES LU0$R 0A MES A1O L1 L.1 1Jtiflrflfl flC 01 ItMTA SUR 4161 PRIJSDObE LIPRE$EWrE LEE PARt1tP0 6M0$ Q4JE CON ESTA FECNA HE MOE PJJFORIZAOOA LA PERSONA OhiO NaMERS FIRA4A CONST CALCE FJAOUE HAGA OhSPOSIChONES 0$ LAS SUk4AS OEPONTAOA$ EN Nt$tRA CUENTA GE CHEQUES ARRiBA ChIAGA EN LOS TEJWINO$ DEl ARTICLLO 57 tIE LA LAY 0$ INSTflWONES 0$ CID4TQ ASh CONO PARA ENOOSAR PARA M0$0 EN CL$HTA CUALQUER CLASS 0$ TtrULOS CREDrID MI PAVC6 0$ CUERD0 CON LA 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IE REONA CUVO NOMOPS Off PAS11CIPO MOSALTOSZAEOA LA PS SRMA CONSTAR AL CALCE PARA OLE IIAGA OI5ffCSICIONE Off 1.55 SUMAS OEPOTMAS EN MI NUESTRA ELENrA Off CHEQUES ARRISA crtAOA EN LOS 7EN1MINOS DEL AR1ICULO 57 LA LE Off 1NSThUCIOIEE CREDIlO 551 COMO PARA ENOOSAS PARA ASONO EN CUENrA OJALOURCLASE CE TFWLOS CE CR50170 Ml PAR CS 55IJERDO COIL IA OISPOSIOONCOIJ1BEDA ENEL ARTICULO FRACCION CE LA LEYGENERAL 7LOSYERACIORES Off CRSOITO MERE DEL CLIEWTE BANOOACIOILRI.D MEXIQO.SA 4f W41GIWITE EEL GRUPO 1114A4C1550 RAiASX DOROThY LOUISE NOWALSI1 OS LONGORIA F1RA DEL CliENTS I4CUBRE RENA DEL EiEOJrrLO d7oGoN41ÆLozANo GERENTE 39-70 SLO NG0R1A002746 01608 Banamex AUTORZAC1O CUETA PARA DE MANEJO CHQU OiIAljT MANEJO CIA RENOSATAMP5 OD12 lOSUR47E1 ESTE4ADO$ SES POR EtA ff1EZENTE 1ES PR1CIPO OS CUE CHESTA FECHA HE QlO$ lNAZXA LA PERECHA cuyo NOMBRE REMA ALCL PMA QUA sAGA ONFO$JCENES ON LAS UMAS OEPGSIrAONS EN Ml 4USSTMA CIJEffA CE CHEQUES RRIBA CnCk EN LO$ RMOS GM AR11CULO CE l.A LEY ON INST CIGNES GE CRENITO AM COLIC PARA 900SARPARA ASONO EN CUEHTA CUAJ.CUIER CLftSE tIE TYWLCS GE CREPITO FAVCH 15 ACUEPOO CON IA ARlicIILo TN Thi rlA YREN flMTN TN oisosciol 1sNlLEN II El NONBREOEL1UENSE EAMtIO ON ETEGIWTE DEL GRIJPG FIIW1O4ERO SARAREX IIcINOWY WUISEKOWM.LSXt ON LONGORIA NOUBSE AERTOaONZUZWJTO 39-70 QR-E-14fl EQSZ Uhks LA EtErEt ETN 9MIlErO El dAllcO SLONGORIAOO2747 01609 Ban amex DE CUE4TA bE CHEQUES _W _________ _____________ DA EIES ARO S1AMPS _______ 00 SR478 ES1IALNDOS SERORE POL4Wc 0AcESrELES PPR11c.PO 3IOS QJE CO4E WI4 IOS M041ZO0 ALA RSO$ACJYO NO BNE oNST C.SLCE PAQUE HAA sCAEs LAS WMAS DEOSTADA5 EN .S SJESTRA CUEWFA OEQLOS ARRJSA CADA EN LOS TERMINOS DEL RTCJLO 57 05 LA LEY N5TrtUCOWES OS CREDt0 ASI COLO PARA ENOOSAR PARk ASONO EN OJENTA CUPLQU CLASS 05 ItTULOS CREDT0 AVOS ACUERDO CO4 DSPOSIC CPEt50A EN EL AREICULD PRACcJtS 10 LA LEYGEERAL 0rITuOS OPERACIONES DE CRO1T0 044E1R5 DEl CIJEN7E EANCO DELRUPO FThACIERO EAN4SEx DOROThY OWAiSX1 05 LONDORIA psAocuENCE NQLRIRE FUtk DEL EJECUTNO v4W N0SREYFRS-AUTOElZAOQ ALBEPJI GONZALEZ LOZWO GEtENTE PATRJCZA SLO NG0R1A002748 01610 01611 EXHIBIT 3A 01612 HAVE RECEIVED AND READ THE CONTRACTS AGREEMENTS AND APPENDICES AS SINGLE CONTRACT FOR INDIVIDUAL PERSONS CHECKING ACCOUNT FEES MN BANAMEX INDIVIDUAL PERSONS FORMS AND AGREE WITH ITS TERMS AND CONDITIONS AND ACCEPT THAT THIS APPLICATION IS INTEGRAL TO THEM 01613 ii TRANSPERFECT City of New York State of New York County of New York Alitasha Younger hereby certif that the document Banamex Peso Account Clause to the best of is my knowledge and belief true and accurate translation from Spanish into English Alitashaunge Sworn to before me this August 27 2015 Pu lic 1KUflJ ulfd Comm$S0fl In KiNG CO dI12O19 Stamp Notary Public .5 THREE PARK AVENUE 39TH FLOOR NEW YORK NY 10016 212.689.5555 212.689.1059 WWW.TRANSPERFECT.COM OFflCES IN 90 CITiES WORLDWIDE 01614 01615 EXHIBIT 01616 01617 01618 01619 EXHIBIT 01620 Case Number 414270 IN THE ESTATE OF IN THE PROBATE COURT DOROTHY LOUISE LONGORIA NUMBER ONE DECEASED HARRIS COUNTY TEXAS Affidavit of Dr Carlos Gabuardi STATE OF NUEVO LEON MONTERREY MEXICO BEFORE ME Jorge Luis Trevino Trevino the undersigned Notario Publico on this day personally appeared Carlos Alberto JosØ Enrique Lorenzo Gabuardi Arreola who being by me first duly sworn stated the following My name is Dr Carlos Alberto Enrique JosØ Lorenzo Gabuardi Arreola PhD am over twenty-one of sound years age of mind and qualified to make this affidavit have knowledge of the and personal facts stated herein am competent to testify thereto have been retained by counsel for Shelby Longoria as consultant and witness on Mexican law in the above-titled expert action In connection with this have been engagement requested to address several legal questions under the context of contracts entered into with Mexican Bank Banco Nacional de Mexico S.A Banamex in reference to the following checking accounts Banamex US Dollars Checking Account for Client No 7518181565 opened by Ms Dorothy Kowalsky Longoria on December 12 1999 and Banamex Mexican No pesos Checking Account for Client No opened by Ms Dorothy Kowalsky Longoria on February 10 2005 Based on review of documents my and my expertise in Mexican law have the following opinions 01621 In Mexico all contracts for mass transactions Mexican banking that banks conduct with the public including checking accounts are documented using Standard Contractual Forms Unilateral Adhesion Contracts that each bank amend from may unilaterally time to time The terms and conditions set forth in the Standard Contractual Forms are binding for all the of that particular parties banking transaction either acting as the financial institution or as customers The to amend Standard Contractual Form process given are set forth in each of the contracts concerned All of the Standard Contractual Forms the documenting checking accounts referred to in point above and the amendments thereto are valid and enforceable under Mexican Law The Jurisdiction and Mexican Law clauses in the Standard Contractual Forms documenting the checking accounts referred to in point are valid and enforceable contractual clauses under Mexican law The fact that the parties to these contracts did execute the actually Standard Contractual Forms referred to means that above they expressly and voluntarily submitted themselves to the exclusive jurisdiction of both Mexican law and the Mexican that Judiciary is to the courts located in Mexico City or Monterrey Banamex waiving any other venue whatsoever BACKGROUND have studied practiced and law in Mexico and the United taught States for over 30 years received License in from Universidad de Jurisprudence Monterrey in 1981 Master of Laws LL.M with distinction from Tulane 01622 University in 2001 and Doctorate of Laws Ph.D from Tulane University in 2007 and true correct copy of my resume is attached to this Affidavit as Exhibit have taught law in various law schools in Mexico and the United States Since 1983 have held research and teaching positions at several other universities in Mexico and the United For example States was member of the National Researchers System of Mexico from 2008 until 2014 served as Professor of Law and researcher at the Instituto Tecnologico de Estudios Superiores de Monterrey in Mexico 1998-2011 acted as the Head of the Law Department and served as Professor of Law at the Universidad de Monterrey Mexico in 1990-1993 was Professor of Law St Visiting at Marys University School of Law in San Antonio Texas 1993-1994 and held Professor of Law Adjunct positions at both The of Washington College Law American University Washington D.C Summer 1994 and Universidad Regiomontana in Monterrey Mexico 1983-1985 As professor have courses on taught Comparative International Law Private International Law Public International Law International Business Transactions and the Legal Framework of Doing Business in Mexico among others have maintained law practice since 1980 in various companies and law firms law at Gabuardi currently practice Abogados in Monterrey Mexico since 2004 have also worked lawyer the as in legal department of the World Bank in Washington D.C 1994-1996 and as both and the Corporate Legal Manager Assistant Secretary of the Board of Directors of Grupo Gamesa Mexican manufacturing company 1980-1985 My law practice focuses on Corporate Law Contracts Business Transactions Private International Law as well as in International and Domestic Litigation 01623 had been member of several legal professional organizations in both Mexico and internationally the Barra Mexicana de including Abogados Colegio de Abogados CapItulo Nuevo Leon the Mexican Bar Association Nuevo Leon Inn where was the Chair of the International and Law the Comparative Committee Colegio de Abogados de Monterrey the Monterrey Bar Association the Academia Nuevo Leonesa de Derecho Mercantil the Nuevo Leon Academy of Commercial Law the Asosiacion Nacional de Abogados de Empresa the National Association of Corporate Lawyers the External Advisory Board of NAFTA the Law and Business Review of the Americas the Mexican of Private and Academy International Comparative Law Academia MØxicana de Derecho Internacional Privado Comparado the Mexican Association of Private International Law Professors the Asociacin Mexicana de Profesores de Derecho Internacional and the Privado International Academy of Comparative Law also was part of the group that founded the US-Mexico Bar Association and later on served as its Mexican co-chair of the Legal Education Committee Further have served on the Regional Board of the Centre Advisory for Conciliation and Arbitration of St Marys School of San University Law Antonio Texas also co-planned and administered program titled Joint Venture Transnational Study and Training Program for U.S and Mexican Business Lawyers held at the St Marys University School of Law and Universidad de Monterrey During my academic career have published more than 20 academic articles and two books in both Mexico and abroad on topics including Commercial Law and Business Transactions Private International Law and Comparative Law Most recently the Puerto Rico Supreme Court cited my article on 01624 forum non conveniens titled Entre Ia jurisdiccin Ia forum non competencia el conveniens originally published in the BoletIn Mexicano de Derecho Comparado in 2008 in its opinion deciding whether to incorporate the common-law doctrine of forum non conveniens in Puerto Rico II OPINIONS In Mexico all contracts for mass transactions Mexican banking that banks conduct with the public including checking are documented accounts using Standard Contractual Forms Adhesion each Unilateral Contracts that bank may unilaterally amend from time to time The use of Standard Contractual Forms Adhesion Unilateral Contracts for mass banking transactions including checking accounts is governed by the Statute for the Protection and Defense of Users of Financial Services Ley de Proteccin Defensa al Usuario de Servicios the Statute for Financieros and Order in Transparency Financial Services Ley para Ia Transparencia Ordenamiento de los Servicios and the Sole of the Financieros Regulation Commission for the Protection and Defense of Users of Financial Services Applicable to Financial Entities Disposicin Unica de Ia Condusef las Entidades aplicable Financieras and the Agency for the Protection of Consumer Federal ProcuradurIa del Consumidor Standard Contractual Forms Unilateral Adhesion for mass Contracts banking transactions are defined as non-negotiable documents unilaterally prepared by Financial Entities setting forth in standard forms the terms and conditions applicable to the banking transactions entered into with their customers.1 Art 56 2nd paragraph of the Statute for the Protection and Defense of Users of Financial Services Art section of the Statute for and Order Transparency in Financial Services and Art section iv of the Sole of the Commission for Regulation the Protection and Defense of Users of Financial Services to Financial Applicable Entities 01625 10 The terms and conditions set forth in the Standard Contractual Forms are binding for all the of that particular either parties banking transaction acting as the financial institution or as customers.2 11 In the Banarnex Standard Contract Form have reviewed OR-8-1401 03-08 and OR-8-1401 08-11 there is clause for the exclusive providing jurisdiction of Mexican Law and the Courts located in Mexico City for all matters concerning such contract.3 12 am of the opinion that the clauses providing for the exclusive jurisdiction of Mexican Law and the Courts located in Mexico City for all matters concerning the Banamex Standard Contract Forms OR-8-1401 03-08 and OR-8-1401 08-11 that is the original version of the contract at the time when the account was opened and the latst version of the contract in effect at the time when the account was closed are the same The clause on exclusive jurisdiction did not change over the years and remained unchanged until the account was closed on April 18 2012 13 Under the authority of Article 11 section IV of the Statute for Transparency and Order in Financial Services4 and Article paragraph of the Sole Regulation of the Commission for the Protection and Defense of Users of Financial Services Applicable to Financial Entities5 the Standard Contractual Forms used by the banking institution shall include the procedure for customer to amendments accept to such Standard Contractual Forms Article 78 of the Code of Commerce In commercial contracts each bound party is to the contract under the terms and conditions in the the of contract validity commercial transaction does not depend on observing formalities any predetermined or requirements Clause All controversies derived from this Standard Contract shall be governed by Mexican law and the jurisdiction of the competent courts in Mexico City waiving to any other jurisdiction with the parties may have by reason of their current or future domicile Article 11 section IV Contractual Standard Fomis shall include the following The notification process as well as the basis for the customers to accept amendments to the Contractual Standard Forms with which the entered into contractual relation with the banking institution Article paragraph The Contractual Standard Forms used by banking institutions shall include at least the conditions and procedures to amend the Contractual Standard Forms 01626 14 The Banamex contracts provide that this banking institution may unilaterally amend its own Standard Contractual Forms providing notice for such amendments through reasonable means of notice established in those contracts If an account is closed the terms and conditions that the govern contract are those that are established at the time the bank account closed 15 have no knowledge and have not seen any evidence showing me that Ms Dorothy Kowalsky Longoria challenged or amendments opposed to any to the contracts under scrutiny while maintaining her Banamex Accounts 16 Furthermore under the of Article authority 11 section VIII second paragraph of the Statute for Transparency and Order in Financial Services the Commission for the Protection and Defense of Users of Financial Services shall maintain Registry for the Standard Contractual Forms used by financial institutions to the of publicity and purpose making these contracts available to the public.6 17 All of the Standard Contractual Forms that have reviewed in this document concerning the checking accounts referred to in this documents and the amendments thereto are valid and enforceable contractual clauses under Mexican Law 18 All versions of the Standard Forms Contractual used by Banamex during the time in which Ms Dorothy Kowalsky Longoria maintained her Banamex accounts consistently set forth that the the parties to same expressly and voluntarily submitted themselves to the exclusive jurisdiction of both Mexican law and the Mexican Judiciary that is the courts located to in Mexico City Banamex waiving any other venue whatsoever 19 The fact that the parties to these contracts actually did execute the Standard Contractual Forms refened to in this Affidavit means that they expressly and voluntarily submitted themselves the exclusive to jurisdiction of both Mexican law and the Mexican that Judiciary is to the courts located in Mexico City Banamex waiving any other venue whatsoever Article 11 section VIII second paragraph of the Statute for and Order Transparency in Financial Services Financial Entities shall send to the Commission for the Protection and Defense of Users of Financial the Standard Services Contractual Forms to publish this in Registry of Standard Contractual Forms that could be consulted the by general public at large 01627 20 It is important to emphasize that in any and all cases all of the Standard Contractual Forms under review always point towards the laws of Mexico and to the jurisdiction of Mexican courts which venue is always located in the of country Mexico declare under of penalty perjury under the laws of the United States of America that the foregoing is true and correct FURTHER AFFIANT SAYETH NOT 01628 01629 01630 01631 EXHIBIT 01632 nn ex CONTRATO UNICO DE CAPTACION PARA PERSONAS FISICAS CONTRATO UNICO DE CAPTACION PARA PERSONAS FSICAS QUE EN LOS TERMINOS DE LA SOLJCITUD ASI COMO DE LAS DECLARACIONES LAS CLAUSULAS QUE APARECEN CONTINUACIN CELEBRAN POR UNA PARTE BANCO NACIONAL DE MEXICO S.A INTEGRANTE DEL GRUPO FINANCIERO BANAMEX EN LO SUCESIVO DENOMINADO COMO BANAMEX POR LA OTRA PARTE LA PERSONA CUYOS DATOS APARECEN EN LA SOLICITUD DEL PRESENTE CONTRATO EN ADELANTE REFERIDO COMO EL CLIENTE DEC LARAC ION ES Declara Banamex pot conducto de sus funcionarlos autorizados que Es una sociedad legalmente constituida conforme las eyes de Mexico encontrÆndose debidamente autorizada como instituciOn de banca mOltiple Designa al Centro de Atencin TelefOnica como su enlace con el Cliente para efectos de consultas de saldo aclaraciones movimientos cuyo nmero de telØfono en Ia Ciudad de Mexico es 12-26-26-39 BANAMEX 22-62-63-91 BANAMEX desde Guadalajara Monterrey 12-26-26-39 BANAMEX ada sin costo 01 -800-021-2345 aquellos nOmeros telefnicos que se encuentren al reverso de Ia Tarjeta de DØbito El Contrato se encuentra debidamente inscrito en el Registro de Contratos de Adhesion de Condusef bajo los siguientes nOmeros de acuerdo al Producto contratado Cuenta de Cheques M.N Banamex Personas Fisicas 0300-436-000550/09-13189-0811 ii Cuenta Productiva MN Personas Banamex Fisicas 0300-436-000552/09-13190-0811 iii Cuenta Maestra Opcin Banamex 0300-436- 000553/09-13191-0811 iv Cuenta Maestra Banamex 0300-436-000554/09-13192-0811 Cuenta Perfiles Banamex 0300-436- 000556/09-13193-0811 vi Cuenta BØsica Banamex 0300-003-000633/09-13194-0811 vii Mi Cuenta Banamex 0300-003-000632/09- 13195-0811 viii InvermOtico Pumas 0300-003-000631/09-13196-0811 Integral Banamex ix Inversion para Personas Fisicas 0300-003- 000634/09-13197-0811 InversiOn Perfiles Banamex 0300-003-000666/09-13198-0811 xi DepOsito de Dinero Plazo Fijo Moneda Nacional para Personas Fisicas 0300-003-000667/10-13199-0811 xii Cuenta de Cheques DOlares Banamex Personas Fisicas 0300- 003-000672/09-1 3200-0811 xiii Cuenta Prod uctiva DOlares Banamex Personas Fisicas 0300-003-000673/09-13201-0811 xiv nvermOtico Estados 0300-003-000695/09-13202-0811 xv DØbito FOtbol 0300-003-000696/09-13203-0811 xvi PagarØ Personas Fisicas 0300-429-000694/09-13204-0811 xvii Inversion Inteligente 0300-429-001619/08-13205-0811 II Declara el Cliente qua Tiene capacidad legal suficiente para celebrar el presente Contrato reconoce como suyos los datos asentados en Ia Solicitud todo 10 cual acredita con Ia informaciOn que proporcionO Banamex en Ia entrevista que Øste le efectuO en esta misma fecha previo Ia suscripcin de este instrumento con los documentos que so anexan al Contrato los cuales fueron debidamente contra cotejados su original aceptando que Banamex en cualquier momento podrO verificar Ia autenticidad de los datos ahi asentados en consecuencia actualizarlos en su expediente Asimismo se obliga entregar Banamex los documentos que Øste le solicite en cualquier momento El dinero que serÆ abonado Ia Cuenta as de su propiedad derivado del desarrollo de actividades manifestando conoce licitas qua entiende plenamente las disposiciones relativas realizadas con recursos de las operaciones procedencia ilicita sus consecuencias En el evento de quo el dinero que abone Cuenta sea propiedad cie un tercero se obliga notificar tal situaciOn Banamex asi como identificar al tercero por cuenta del cual actOe Autoriza Banamex proporcionar los datos documentos relativos su identificaciOn las demOs entidades integrantes del Grupo Financiero Banamex S.A de C.V asi como sus subsidiarias controladoras afiliadas con las qua pretenda esteblecer una relacin comercial con Ia finalidad de que dichas sociedades integren un solo expediente de identificaciOn Desea celebrar Operaciones con Banamex realizOndolas entre otras medio de Instrucciones travØs de los Medios ElectrOnicos por qua Banamex ponga su disposicin por cual reconoce acepta qua Ia Firma ElectrOnica le identifica le autentica cumpliendo las disposiciones legales aplicables de conformidad con los tØrminos condiciones alcances que en el presante Contrato se establecen Es de su conocimiento qua Banamex no es una sucursal de Citigroup Inc de ninguna de sus afiliadas subsidiarias asi como quo las obligaciones de Banamex derivadas del presente Contrato saran Onica exclusivamente cargo de Banamex en tØrminos de las eyes aplicables incluyendo cualquier decreto regulaciOn orden accin gubernamental Manifiesta expresamente su consentimiento para ajustarse las politicas internas de Banamex Banamex le proporcion los siguientes datos de Ia Condusef Centro de AtenciOn TelefOnica 0155 53-400-999 lada sin costo 01- 800-999-8080 ii direcciOn de Internet www.condusef.gob.mx Hi correo electrOnico webmaster@condusef.gobmx Sabe qua en cualquier momento padre revocar Ia autorizaciOn que en su caso confiriO Banamex utilice su informaciOn para que pare cualquier fin incluyendo Ia comercializaciOn de otros productos servicios lo cual podrO efectuar entregando en de las cualquiera sucursales Banamex el formato que Øste ponga su disposicion para tales efectos Con base en Ia anterior las partes convienen las siguientes CL SULAS ____ CAPITULO PRIMERO DEFINICIONES CLAUSULA .1.- CONCEPTOS DEFINIDOS Para efectos del presente Contrato los siguientes tØrminos escritos con mayOscula inicial tendrOn los significados se expresan continuaciOn igualmente aplicables en qua singular plural Algoritmo especial significa fOrmula matemOtica que genera las Instrucciones seguir por Banamex fin de que el Cliente en los opero sistemas Banamox el Sarvicio ElectrOnico do Pagos Archivo Global de Pagos significa el archivo electrnico qua Cliente envia BuzOn Electrnico de Red do Datos el al Ia que debate ester contenido en alguno do los formatos de los Documentos ElectrOnicos quo contandrO los datos da los Proveedores las cantidades abonar entregar en sucursal en su caso las Cuentas de los Proveedores eI nOmero do sucursal qua corresponda 01633 Atencin TolefOnica significa el servicio teletOnico establecido par Banamex para recibir las solicitudes del Cliente que deban hacerse par esta via asi como pare brindar apoyo inmediato las necesidades del Cliente que se derivan del usa de Ia Banca Electrnica cualquier otro producto operaciOn yb servicio de atencin clientes que Banamex Ilegue poner disposiciÆn del Cliente AudiomÆtico signiuica el Medlo Electrnico propiedad de Banamex el cual es accesible par el Clionte travØs del uso del telØfono como medlo de comunicacin Guys utilizacin le permite convenir con Banamex determinados Servicios mediante Instrucciones eligiendo las opciones habilitadas en el Media ElectrOnico utilizando Firmas Electrnicas coma medio de expresin de Ia voluntad del Cliente ALltenticacin eI de tØcnicas utilizados verificar Ia identidad de significs conjunto procedimientos para un Cliente express su consentimiento para realizer operaciones recibir instrucciones travØs de los Medios de ComunicaciOn ja significa cualquier lnstruccin realizada electrnicamente para canceler revocar un Alta cualquier otra operacin denaminada coma tal en cualquiera de los Medios de Comunicacin Banca ElectrOnics significa el conjunto de Servicios operaciones bancarias que Banamex realize con sus Clientes travØs do Medios Electrnicos Su utilizaciOn le permite al Cliente con su Firma Electrnica como media de expresiOn de Ia voluntad convenir con Banamex los Servicios mediante Instrucciones eligiendo las opciones habilitadas Banca MOvif BancaNet Mvil Banamex MOvil significa indistintamente 01 serviclo de acceso los Servicios travØs de un Dispositivo de Acceso celular inalOmbrico de radiofrecuencia cuyo nUmero de linea se encuentre asociado al Servicio Banca Telefnica Audio Respuesta servicio de Banca Electrnica mediante el cual Banamex recibe instrucciones del Cliente travØs de un sistoma telefOnico interactOa con el Cliente mediante de voz tonos mecanismos de reconocimiento de proplo grabaciones voz incluyendo los sistemas de respuesta intaractiva do voz Banca TelefOnica Voz Voz significa el servicia de Banca ElectrOnica mediante el cual el Cliente instruye via telefOnica travØs de un representante de Ia institucin debidamente autorizado por Œsta con funciones especIficas 01 cual padre operar en un contro do atencin telefOnica realizer determinadas operaciones nombre del propio Cliento BitOcora significa 01 registro asiento efectuado en forma electrnica de todas cads una de las Oporaciones travØs de los cuales se podra conocer de manors enunciativa mÆs no limitativa datos do acceso al Medio ElectrOnico asi como de Is OperaciOn instruida el par Cliente Blogueo do Factores do AutonticaciOn significa 01 proceso por el cual Banamex inhabilita temporalmente el uso de un Factor de AutenticaciOn Buzn Electrnico significa el area de almacenamiento eloctrÆnico quo Banamox ofrece yb tiene contratado donde se almacena virtualmente Ia informaciOn que es onviada recibida por Banamex yb ol Cliente al quo tendrØ acceso el Cliente mediante 01 uso de su Firma ElectrOnics Caiero AutomØtico significa el Dispositivo de Acceso de autoservicio quo le permite al Cliente realizer consultas Operaciones diversas tales coma Ia disposicin de dinero en efectivo al cual el Cliente accede mediante una tarjeta cuonta bancaria pars utilizar el servicio de Banca ElectrOnics CarØtula significa el documento que contiene as principales caractoristicas do Ia operaciOn que el Cliente celebrarÆ al amparo del Contrato quo forms parte del mismo Cargos Programados significan las Instrucciones por escrito travØs de otros medios do comunicaciOn autorizados que el Cliente instruye para que Banamex le cargue una mas de sus Cuentas ciertas sumas de dinero con Ia periodicidad que asimismo especifique las abone Ia Cuenta de Abono del Cliente benoficiario de las mismas Certificado Diqital significa el registro electrnico que genera Banamex Un tercero por Øste designado respecto do Ia confirmacin de identidad del Cliente los datos de creaciOn de su firma electrOnica avanzada Dicho Certificado contiene datos do Ia omisin do dave llave pOblica privada del Cliente el nombro do Cliente ii un nOmero de serie asignado por Banamex el Tercera it fecha do vencimiento iv Ia dave pQblica del Cliente El Cliente podrÆ utilizer el Certificado Digital pars transmitir mensajos de datos firmando con su dave privada Cheque significa el documenta que reOna los requisitos que seOala Ia Ley General do Titulos Operaciones do CrØdito pare ser considerado coma tal Chequera signiuica el talonario quo cantiene los esqueletos do Cheques quo en su caso Banamex proporcionarÆ al Clionte do acuerdo con lo dispuesto en el presente Contrato Cifrado significa el mecanismo Utilizado par Banamex pars proteger Ia confidencislidad do los Mensajes do Datos informacin mediante mØtodos criptogrØficos basado en una evaluacin de riesgos que determinarØ Ia complejidad del Algoritmo do encripcin utilizado Ia longitud de sus claves Ilaves respectivas criptogrÆficss Clavo DinØmica es parte do Ia Firms ElectrOnica consiste en un esquema de identificaciOn del Cliente basado en el control del acceso Ia Banca ElectrOnica mediante el usa conjuntamente con otros elementos de una cadena do caracteres generados automØticamente travØs de un dispositivo fisico Cads Clave DinÆmica genorada da acceso Onicarnente una SesiOn Ia realizaciOn de una OperaciOn InstrucciOn ConcentraciOn do Fondos significa Ia recepdiOn de depositas con referendas pare abono una Cuenta Concentradora Los dopOsitos podrØn ser recibidos en sucursales corresponsales Banca ElectrOnics Las referencias pueden ser numØricas do haste 10 posiciones alfanumØricas de hasta 20 caracteres ambos tipos de conformidad con las reglas establecidas par Banamex Condusef significa Ia ComisiOn Nacional para Ia ProtecciOn Defense de los Usuarios de Servicios Financieros Constancia de Dopsito significa Ia constancia nominative no negociable emitida par Banamex pars documentar el DepOsito Plazo que ofectOe 01 Cliente en tØrminos del Sexto Las Constancias de no son titulos de crOdito Capitulo DopOsito Contrato significs conjuntamonte Ia Solicitud Ia CarÆtula el presente instrumento sus anexos cualquier convenlo quo lo modifique adicione ContreseOa NOrnoro de.IdenlificsciOn Personalo Clave Confidencial significa Is cadena estOtica sea numØrica alfanumØrica gonerada par el Cliente para Is utilizaciOn de los Servicios travØs do los Modios ElectrOnicos dobiendo activarso en cualquiera do as sucursales de Banamox en los propios Medios ElectrOnicos travØs de cualquiora do los medios quo Banamex determine para tales efectos Correo Electrnico significa Is ubicaciOn direcciOn en Internet indicada par el Cliente en cualquiora de los documentos que forman parto del Contrato mediante comunicado posterior quo ol Cliente entregue Banamex travØs del cual ol Cliente puedo envier recibir comunicaciones Cuenta significa Ia cuonta bancaria quo en su caso Banamex abrirO al Cliento on tØrminos de Ia dispuosto en Is ClÆusula 11.1 del Contrata 01634 Cuenta Concentradora signitica una Cuenta Propia que serÆ utilizada para Ilevar cabo ConcentraciOn do Fondos Østa puede ser una cuenta virtual con sucursal 870 bien alguna cuenta existente en cuyo caso so denominarÆ Cuenta Regionalizada Cuenta de Abono significa Is Cuenta Incorporada en Ia cual se acreditarÆn en forms global los depOsitos derivados del Servicio Electrnico do Pagos del Serviclo do Domiciliscin del Servicio de Cobranza Referenciada Banamex en Ia cual se cargarÆn las comisiones quo se deriven de dichos Servicios Cuenta de Cargo Global significa cualquier Cuenta Propia que ha sido incorporada respecto do Ia cual Banamex so encuentra autorizado por el Cliento pars realizar cargos en relacin con el Servicic denominado TEF Cuentas de Proveedores significan as cuentas en las que so harÆn los abonos contenidos en un Archivo Global de Pagos enviado al Buzn ElectrOnico Cuenta do Terceros significa cualquier cuenta dada de sits en Ia que el Cliente solamente podia realizar depsitos cuyo titular sea un tercero quo tenga alguna relaciOn con el Cliente Cuenta Incorporada significa cualquier Cuenta cuyo titular sea el Cliente un tercero las cuales tiene acceso el Cliente travØs de cualesquiera de los Medios de Comunicacin para conocer los saldos realizar operaciones monetarias otras quo pormita cada Medio de Comunicacin en virtud de haber sido dada do Alta Cuenta Propia significa una Cuenta Incorporada cuyo titular es el Cliente Depsito significa el depOsito bancario de dinero que se efectUe Ia Cuenta bien constitucin incremonto del Depsito Plazo del Pagare modiante Ia entrega Banamex do cantidades determinadas de dinero do acuerdo con lo estipulado en el presente Contrato Depsito Plazo significa el depsito bancario de dinero plaza fijo que efect0e el Cliente en los tØrminos condiciones referidos en el Capitulo Sexto del Contrato Desblogueo de Factores de Autenticacin significa el proceso por el cual Banamex habilita el uso de un Factor de Autenticacin quo so encuentre bloqueado Desembolso significa Ia disposicin do Ia Lines de CrØdito efectuada en tØrminos de lo estipulado en Ia ClÆusula Xll.2 Dia HØbil significa cualquier dia del aæo que no sea sÆbado ni domingo en que las instituciones do crØdito estØri autorizadas para celebrar operaciones con el pblico Dispositivo de Acceso significa el equipo media que permite un Cliente accedor los Servicio de Banca Electrnica Divisa significa los DÆlares asi coma cualquier otra moneda extranjera hbremente transferible convertible do inrnediato Dlares Documentos Electrnicos significa toda aquella informacin generada enviada recibida archivada comunicada travØs do medios electrOnicos pticos do cualquier otra tocnologia denominado Monsajo do Datos utilizado entre atros para Ia prestacin do los Servicios DOlares significa Ia moneda de curso legal en los Estados Unidos de America Eguipo de Cmputo significa el oquipo conformado par computadora un modem acceso inalOmbrico red quo tenga instalado algCin Programa do Computo para que travØs de una linea tolefnica cualquier otro media autorizado se conecte Internet Intranet transmits sus Instrucciones Estada de Cuenta significa el documento elaborado par Banamox quo se refiere Ia ClÆusula X.1 del Contrato Factor de AutenticaciOn significa el mecanismo tangible intangible basado en las caracteristicas fisicas del Cliente en dispositivos infarmaciOn quo solo el Cliente posea conazca pudiendo ser do manera enunciativa mÆs no limitativa Inforrnacin quo el Cliento conozca que Banamex valide mediante cuestionarios practicados par los operadores del contra de atencin telefOnica ii Informacin que Onicamente eI Cliente conozca pudiendo ser contraseæas nCimeros de identificaciOn personal estØtica iii lnformacin generada par dispositivos generadores do Contraseæas dinØmicas do un solo uso dinØmicos OTP iv informacin derivada de las caracteristicas flsicas biometrias del Cliente do AutenjJgciOn NOmero Con8denciMPPIN Passwoid Claves deAcceso Clove Confidericial Numero do ldentiflcaciÆn Personal Firma ElectrOqica Ayanzada a_ggjguier otra cue so agreque degiendo gjcadas do nanera ipfl Id Iocofl fjaeritecuaIqiiera do oiij significa los datos en forma electronics utilizados par el Cliente para identificarse con Banamex con terceros por ØI autorizados aceptar Ia atribucin do las lnstrucciones enviadas al propio Banamex consignados en un Mensaje do Datos transmitido La Firma ElectrOnics tiene los mismos efectos juridicos quo Ia firma autOgrafa conforme Is Iegislacion siendo admisible coma prueba en juicia GAT significa ganancia anual total nets exprosads en tØrminos porcerituales anuales que pars fines informativos de comparacion incorpara los interosos nominales capitalizables quo en su caso genere ol Producto contratado por 01 Cliento menos los costos relacionados con ol mismo incluidos los do apertura Horario Bancaria 1-lorarlo de Servicio significa en Dias HØbiles el horario comprendido do las 900 harass las 1600 horas hors del centro de Mexico El Harario Bancarlo podia ser modificada en cualquier momenta par Banamex sin necosidad do previa aviso En caso de recibirse lnstrucciones en dias inhÆbiles fuera del Horaria do Servicio las mismas se ejecutaran al Dia HÆbil siguiente doritro del Horario de Servicio lnstruccin significa cada una de las Operaciones solicitadas par el Cliente Banamex travØs de los Medios ElectrOnicos utilizando una Firma Electrnica para abtener Servicios on relaciOn con algunas Cuentas nOmera do cliente en su caso Internet significa el media de comunicaciOn masivo travØs del cual un Dispositiva do Accesa incluyonda un dispositivo celular inalÆmbrico quo reUna un minima do caracteristicas puede onviar recibir datos voz video demÆs informaciOn travØs do redes tolefOnicas locales internacionales via cable transmisin do ondas incluyondo via satØlite demØs redes pOblicas do comunicacin IPAB significa el Instituta para ProtecciOn al Ahorro Bancario Linea Banamex Digitem significa el Programs do COmputo instalado en el Equipo do Computa del Clionto quo Øste podrÆ utilizar pars tenor occeso los Servicios establecidos en Ia ClOusula VIII.5 do este Contrato Linea do CrØdito significa el crØdito en cuonta corriente quo so rofiere Ia ClOusula XII.1 Medios Eloctrnicos significa cualesqulora do los equipos electrnicos pticos cuslqulor atra tecnologia utilizados medianto el usa do Ia Firma Electrnica puestas disposiciri del Cliente par parte de Banamex incluyonda Micrositios do terceros relacionadas aprobados por Banamox pars su acceso fin do quo el Cliente puoda Ilevar cabo 01 envio do las Instrucciones su ejecucin tanto en Ia relativo Servicios solicitud de informaciOn asi como respecto do Ia actualizaciOn modificacin do representantes legales porfiles de operaciOn de las mismos Dichos Dispositivos de Acceso san enunciativa no limitativamente Banamox MOvil AudiomÆtico Operador TelefOnico Portal do Internet de Servicias do Banca ElectrOnics do Cash Management Lines Banamox Digitem Cajeros AutomOticos Terminales Punto de Vonta Telefonia MOvil pudiendo Banamex en cualquior momenta sin mediar notificaciOn alguna incorporar eliminar cualquiera do sIlas 01635 Mensaje de Dabs significa Is informacin generada transmitida archivads braves de los Medios Electrnicos en los cuales se contienen las Instrucciones pars Ia ejecucin de Operaciones Mensajes Cortos de Texto SMS significa el servicio de mensaje corto el cual estÆ disponible en redes de telefonia mOvil permitiendo envier recibir mensajes de texto TelØfonos Mviles via el centro de mensajes de un operador de red Mexico significa los Estados Unidos Mexicanos Negocios Afiliados significan los proveedores de hienes servicios efectivo que se encuentren afiliados Is marca de Ia Tarjets de DØbito cualquier otro medjo de disposicin determinado por Banamex P01 lo tanto scepten los mismos como instrumento de pago media do disposicion del dinero depositado en Ia Cuenta NOmero de Cliente significa Is idenbificaciOn numerics alfsnumØrica que genera Bsnsmex pars cads Cliente yb pars cads relacin juridica establecida segOn sea el caso misma que es dada conocer al Cliente pars que Øste pueda tener acceso conjuntamente con otros elementos algunos de los Medlos de Comunicacin quo conforman Banca Electronics NOmero do InstrucciOn NOmero de Autorizacin significa Ia identificacin numØrica que hace Is Benca ElectrOnica en relacin con cads OperaciOn del Cliente sea en Is solicitud de un Servicio en especifico do Ia ejecuciOn que realizarÆ Banamex respecto de Ia lnstruccin Ests ldentificaciOn es tamblØn aplicable para el caso do cambio do Clave Confidencial consulta de saldos no le serØ aplicable lo anterior Operaciones significa cuslquiera do las trsnsacciones fisicas de Banca Electronics quo celebre el Cliente con Banamex al amparo del Contrato ssociada los Servicios OperacjOn Monetaria significa Ia transferencia retiro de recursos dinerarios las cuales podrÆn ser micro pagos operaciones quo equivalen on Pesos 70 UDIS de baja cuantia que equivale hasta un monto en Pesos do 250 UDIS diaries iii do medians cuantia operaciones que equivalen 1500 UDIS diaries iv por montos superiores al oquivalente en Pesos 1500 UDIS diarias El importe de las Operaciones Monetarias podrÆ variar de acuerdo con 10 que establozcan las disposiciones legales aplicablos Operador Telefnico significa el Media ElectrOnico accesiblo por el Cliente travØs del uso del telØfono coma medlo do comunicacin cuya utilizaciOn le permito convenir con Banamex los Servicios mediante Instrucciones verbales un operador eligiendo las opciones habilitadas PaparØ significa el titulo de credito denominado PagarØ con Rendimiento Liquidable Vencimiento quo emitirÆ Banamex para documentar el prØstamo que le otorgue el Cliente de conformidad con Ia dispuesto en el Capitulo Sexto del Contrato Pago Mvil significa el Medio Electrnico accesible pars 01 Cliente travØs del uso del TelØfono MOvil cuyo nOmero Onico do identificaciOn se encuentra asociado una cuenta pudiendo el Cliente realizar entre otras las siguientes Operaciones consulta de saldo ii Operaciones Monetarias limitadas pagos transferencias do recursos dinorarios hasta por el monto establecido en las disposiciones legales aplicables con cargo las tarjetas cuentas bancarias que se tengan asociadas este media asi como iii administraciOn del servicio Personas Autorizadas significan las personas fisicas que sean autorizadas por el Cliente para hacer disposiciones de dinero con cargo Ia Cuenta Ia Linea de CrØdito bastando para ello Ia inclusiOn de sus nombres firmas en Ia Solicitud bien mediante autorizacin posterior que proporcione el Cliente Banamex travØs do los formatos quo Øste determine para tales efectos Banamex padrÆ negar Ia autorizacin seæalads anteriormente cuando el Cliente no le proporcione todos los documentos que el primero le solicite pars cerciorarse de Is identidad de las personas fisicas que el Cliente pretends autorizar Pesos significa Ia moneda de curso legal en Mexico Portal Banamex significa Ia diroccin electrnica de Banamex dentro do Ia red mundial conocida como Internet identificada coma www.banamex.com cualquier otra quo Banamex 10 determine al Cliente mediante un aviso enviado braves de cualquiera do los medios soæalados on Ia ClOusula Xlll.8 Producto significa el nombre comercial travØs del cual el Cliente podrO identificar el tipa de Operacin que celobrarÆ con Banamex al del Contrato amparo Programa de COmputo Software significa cualquier aplicaciOn instalada en el Equipo de Camputo del Cliento para quo Oste pueda recibir determinados Servicios entre otros Programas de Cmputo se encuentran los denominados Linoa Banamex Digitem TEF Restablecimiento de contrasoæas procedimiento par el cual el Cliente podra definir una nueva contrasoæa NOmero de Identificacin Personal Servicios significa cualosquiera do los siguientes transferencia do fondos oritre cuentas propias cuentas do terceros cargos las cuentas propias pare depositos en tarjetas do crØdito Banamox otros adoudas con Banamex con cualquier tercero cargos las cuontas propias respectivas pars depOsitos par concepto do servicios depOsitos Terceros cargos las cuentas de cargo para depOsitos de nOmina empleados funcionarios del Cliente do sus subsidiarias afiliadas cargos las cuentas propias para roalizar ordenes de pago transferencias de fondos do las cuentas propias pars realizer inversiones vista plaza con previo aviso compra yenta de acciones de sociedados do inversiOn cargos las cuentas propias para compraventa de divisas para abono cuentas propias cambio do Clave Confidencial consultas do saldos movimientos estados de cuonta consults do estado do cheques librados operaciones pars protecciOn do cheques en caso de robos oxtravios solicitud do talonarios de chequeras de las cuentas propias de las que el Clionte es titular altas de cuentas do tercoros bajas de cuontas propias cuontas do terceras altos bojas do Firmas Electrnicas administracin do facultades cualesquiera otros sorvicios que Banamex presto Ilegue prestar en un futuro travØs de los Medios ElectrOnicos Servicio do Domiciliacin significa el servicio ofrecido por Banamex quo permite al Cliento realizar cargos automØticos tarito rocurrentes coma oventuales las cuentas do sus propios clientes pars el pago do bienes yb sorvicios Servicio ElectrOnico de Pagos os el sorvicia que presta Banamex el cual cansiste en Ia aceptsciOn de pagos mediante Ia rocepciOn do dopositos do terceros SesiOn significa el periodo do tiompa sin interrupcin on eI cual 01 Clienie padre Ilovar cabo consultas Operaciones Manetarias cualquior otro tipo de transacciOn bancaria do Servicios una vez que haya ingresado con su correspandiento Firma Electrnica algOn Media do ComunicaciOn hasta quo so hubiere desconectado Solicitud significa Ia pOgina de datos gonerales del Contrato en Ia cual se hace constar entre otros Ia informaciOn general del Cliente Sucursal significa el establocimiento de Banamex cuya dave nombro se espocifica on Ia Solicitud Tarleta do DØbito significa Ia tarjeta de plÆstico con bands magnØtica quo en su caso Banamex entreguo al Cliente de conformidad con lo en ol Contrato Ia cual sorÆ utilizada 01 coma un media de disposicin del dinero depositado en Cuenta dispuosto por Tarjetahabiento Ia instrumento do paga asociado Ia misma Tarietahabionte significa eI Cliente Ia Persona Autorizada cuyo favor expodirO Banamex Ia Tarjeta de DØbita do acuerdo con Ia dispuesto en ol Contrato 01636 Telftfono MOvil significa el dispositivo electrnico do comunicacin celular radiofrecuencia inalftmbrico propiodad en uso del Cliente el cual tione un nOmero inico de identificacin permito realizer actividades comerciales compras de baja cuantia Terminal Punto de Venta significa el Medlo Electrnico consistente en terminales de cmputo telØfonos mviles programas de cmputo operados por terceros para instruir el pago de bienes servicios con cargo Ia Tarjeta de DØbito Ia Cuenta Transforencia Electrnica de Fondos TEE significa el servicio ofrecido por Banamex pare establecer instrucciones do cargo Cuentas al cual puede acceder el Cliente mediante Software instalado por Banamex en el Equipo de Computo del Cliente ii travØs do Internet ulilizando BancaNet de acuerdo las disposiciones establecidas en Ia ClÆusula VIlI7 do este Contrato 1JDIS significa las unidades do inversion quo se refiere el Decreto por el que se establecen as obligaciones que podrOn denominarse en Unidades do InversiOn reforma adiciona divorsas disposiciones del COdigo Fiscal do FederaciOn do Ia Ley del Impuesto Sobre Ia Renta publicado en el Diana Oficial do Ia Federacin eli do abril de 1995 Unidad Especializada significa Ia unidad especializada de atenciOn usuarios do Banamex cuyo objeto es atender cualquier queja reclamaciÆn del Cliente ubicada en 16 de Septiembre nOmero 71 piso colonia Centro DelegaciOn CuauhtØmoc 06000 Mexico Distrito Federal Ia cual cuenta con los siguientes telØfonos en Ia Ciudad de Mexico 1226-2639 2262-6391 lade sin costo 01-800-021-2345 lada sin costo desde Estados Unidos de America Canada 1-800-226-2639 su correo electrOnico es aclaracionesbmx23@banamex.com Diclia Unidad Especializada cuenta con personal en cada Estado de Ia RepOblica Mexicana cuyos datos podrOn ser obtenidos pun el Cliente on cualquier sucursal de Banamex CAPITULO SEGUNDO DEL DEPOSITO BANCARIO DE DINERO LA VISTA CLAUSULA 11.1.- CUENTA En caso de que el Cliente asi Ia solicite Banarnex procederO abrirle una cuenta bancaria identificada con el nUmero seæalado en Ia Solicitud en Ia cual el Cliente podrØ efectuar DepOsitos retiros de dinero en los tØrminos condiciones que mÆs adelante se seæalan En virtud de los Depositos el Cliente transfiere Ia propiedad del dinero Banamex obligendose este Oltimo restituir Ia suma depositada en Ia misma especie de conformidad con Ia estipulado en el Contrato En Cuenta se saldo de cual se compondrØ de interoses en su caso devenguen mismos roflejarO el dinero el los DepOsitos que los menos los retiros efectuados comisiones gastos demOs cargos Al amparo del presente Contrato previa autorizaciOn de Banamex el Cliente podrO solicitar Ia asignacin de nOmeros de cuenta adicionales Ia cual le permitirO dividir entre ellas el saldo total de los Depsitos Las distintas Cuentas abiertas al amparo del Contrato se identificarOn con el mismo nUmero do Cliente contenido en Ia Solicitud Las distintas Cuentas deberOn ser salicitadas por el Cliente travOs de los medios formatos quo Banamex determine para tales efectos incluso mediante Ia utilizaciOn do Banca ElectrOnica todas las Cuentas les serOn aplicables las clOusulas contenidas en el presente instrumento por Ia que el tØrmino Cuenta se entenderO referido todas las Cuentas abiertas al amparo del Cantrato Ambas partos reconocen aceptan quo las Personas Autorizadas estarOn facultadas para disponer do los recursos depositados en tadas cada una do las Cuentas salvo quo ol Cliente determine expresamente lo contrario Banamex Asimisma las partes convienen en quo las persanas designadas par el Cliente en tØrminos de Ia estipulado en Ia ClAusula XllI.6 serOn beneficiarios de todas las Cuentas abientas en virtud del presente Contrato menos de que el Cliente expresamente designe personas distintas como beneficiarios de cada una de las citadas Cuentas lo cual deberO efectuar travØs de los formatos que Banamex le proparcione para tales efectas CLAUSULA 11.2.- FECHA DE CORTE Banamex determinarO Ia fecha do code mensual do Ia Cuenta Ia cual podrO ser consultada par eI Cliente en el Estado de Cuenta dicha fecha de carte padre ser modificada par Banamex previa aviso par escnito quo envie al Cliente travØs do cualquiera de los medios seæalados en ClÆusula XIII.8 CLAUSULA 11.3.- RENDIMIENTOS Dependiendo 01 tipo de Producto contratado el saldo de dinero favor del Cliente registrado en Ia Cuenta podrO rendimientos los cuales serÆn brutos se computarÆn mensualmente se pagarÆn mediante abono Cuenta generar Ia mÆs tardar el Dia HObil siguiente Ia fecha do corte Si el Producto contratado genera rendimientos en Ia CarOtula se seæalarÆ Ia tasa do inheres anual aplicable en su caso Ia GAT correspondiente Los citados rendimientos so calcularOn sobre el promedio do saldos diarios que et Cliente mantenga depositado en Ia Cuenta dividiendo Ia tasa do inheres anual determinada par Banamex entre 360 trescientos sesenta multiplicando el resultado asi obtenido por el ncimero de dIas efectivamente transcurridos durante el perlodo en el cual se devenguen los rondimientos Ia tasa correspondiente Los clculos so efectuarÆn corrindose centØsimas Banamex se reserva el dorecho de revisar ajustar diariamente Ia tasa do interØs seæalada on los pÆrrafos anteriores el promedio de saldos diarios vigentes quo los so aplicarÆ Østa Asimismo Banamex en cualquier momento podrO determiner los Productos quo dejarÆn de generar rendimientos El tratamiento fiscal de los rendimiontos estarÆ sujeto las disposiciones logalos aplicables CLAUSULA SALDO MINIMO 11.4.- El Cliente acepta que Banamex tiene Ia facultad do determinar en su casa madificar el salda minima do dinero que el Cliente debonO mantener depasitado en Ia Cuenta do acuerda at tipo de Producto contratada En el supuesta do quo Banamex incremente el salda seæalado en et parrafa anterior deberO proceden notificanla al Cliente mediante comunicado que le envle con al menos 30 treinta dies naturales do anticipaciOn que surta efectos Ia citada modificaciOn travOs do cualquiera do las medios seæaladas on Ia ClOusula XIII.8 Si en Ia fecha de celebraciOn del presente instrumenta el Producta contratada requiere de un manto do aperture de un salda minima dichos conceptos el imparte de las mismas saran determinados par Banamex en at anexo de comisiones referido en Ia ClOusula lxi CLAUSULA 11.5.- DEPOSITOS LA CUENTA El Cliente cualquier tencera padnÆn efectuar DepOsitos pare sen abanados Ia Cuenta los cuales deberOn realizar en Pesos excepta par Ia dispuesta en el Capitulo Tercero Las citados Depsitos podrOn efectuanse en efectiva con Cheque mediante transferencia electrOnica do dinena travOs de cualquier otro media que Banamox autarice pare tales efectos on el entendido do que Banamex en cualquier momenta padre modificar limitar rostningir Ia farma en quo necibirO las citadas DepOsitos Dichas DepOsitas serOn acreditados en Ia Cuenta do Ia siguiente forma 01637 TratÆndose de en efectivo ci serd acreditado en Ia misma fecha en que so efectien cuando sean recibidos DepOsitos importe siempre por Banamex en Dias Hbiies dentro del Horario Bancario en caso contrario los Dopsitos serÆn acreditados el Dia HÆbil siguiente En el supuesto de que los Depsitos so realicen con Cheque este ltimo ser recibido por Banamex salvo buen cobro por lo tanto el importe que ampere ci mismo ser acreditado una vez que el Cheque sea cubierto por el obligado al pago Cuando por cualquier causa Banamex no pueda cobrar ci Cheque Ia devolverÆ su tenedor pudiendo Banamex negarse recibir nuevamente ci Cheque devuelto El Cliente reconoce acepta quo Banamex estar facultado pare retener cuaiquier Cheque quo juicio de este Ultimo no cumpla con los requerimientos minimos do seguridad que establezcan las disposiciones legales aphcables sus politicas internas En caso de IJepsitos reahzados roediante transferencias electrnicas de dinero Ia cantidad respectiva se acreditarÆ en Ia fecha en que Banamex efectivamente reciba dichos DepOsitos Banamex tiene Ia facultad de determinar ci monto mÆximo de los Depsitos ser recibidos en cada Operacin cuando Østa no se ajuste las sanas practices bancarias CLAUSULA 11.6.- OPERACIONES ILCITAS Cuando los ljepsitos sean considerados como derivados de una operaciOn ilicita juicio de cusiquier autoridad competente Østa requiera Banamex reversidn del abono ci Chente autoriza Banamex cargar de inmediato ci importe correspondiente asi como ci de las penalizaciones gastos de defensa haciØndose directamente responsable de as consecuencias legalos que en su caso procedan Asimismo Banamex tendrÆ Ia facultad do negarse recibir Depasitos Cuenta cuando considere necesario pare prevenir ci encubrimiento Ia realizaciOn de operaciones con recursos do procedencia ilicita bien en cumplimiento sus politicas internas CLAUSULA 11.7.- FORMA DE EFECTUAR RETIROS El Cliente las Personas Autorizadas siempre quo cumplen con las medidas do seguridad que determine Banamex podran hacer retiros do dinero con cargo al saldo de Ia Cuenta travØs de cualquiera de las siguientes formas Disposicin de dinero en efectivo en las sucursales de Banamex en los estabiecimientos de los Negocios Afiliados comisionistas de Banamex que se encuentren autorizados para tales efectos travØs del libramiento de Cheques de Ia presentacin de Ia Tarjeta do DØbito Cargos travØs del libramiento do Cheques para ser abonados en otras cuentas do depsito bancario de dinero abiertas en Banamex en otras instituciones de crØdito Disposicin de efectivo travØs de Cajeros AutomØticos en los cuales sea aceptada Ia Tarjeta de DØbito cualquier otro modlo determinado por Banamex Adquisicion de bienes Ia contratacin de servicios en los Negocios Afiliados mediante Ia utilizacin de Tarjeta de DØbito cualquior otro media determinado por Banamex en Termineles Punto do Vonta Ordenes de compra do bienes de contratacin de servicios celebrados con los Negocios Afiliados mediante Ia transmisin do Ia informacin de Ia Tarjeta de DØbito cualquier otro medio determinado por Banamex travØs de redes de telecomunicaciones por alguna via electrnica Optica do cualquier otra tecnologia Transferencias de dinero mediante Ia utilizacin do Banca Electrnica Banamex padre determinar otras formas para realizer retiros do dinero con cargo al saldo disponible de Ia Cuenta asimismo 01 Cliente reconoce acopta quo Banamox estarÆ facultado para establecer en cualquier momenta ci monto mÆximo de dinero que se podrÆ retirar do Ia Cuenta dopondiondo forma travØs de Ia cual so efecte oi citado retiro CLAUSULA 11.8.- FORMALIZACION DE RETIROS Los retiros do dinero de Ia Cuenta serØn documentados oloccin de Banamex travØs de alguno do los sigulontos medios Ia suscripcion autografa electrnica por parte del Cliente do las Porsonas Autarizadas de recibos pagarØs vouchers cualesquiera otras constancias fisicas olectrnicas ii Ia expedicin do comprabantes fisicos electrnicos que omita Banamex sus comisionistas los Negocios Afiliedos otras instituciones bancarias iii los rogistros contables que so generen en los sistomas do Banamox de sus comisionistas de los Negocios Afiliados do otras institucionos bancarias CLAUSULA 11.9.- SOBREGIRO El Cliente se oblige quo Ia suma do todos los retiros do dinero en ningUn momento excoda ci saido disponible on Ia Cuenta par 10 que serØ su rosponsabilidad Ilevar en forma personal ci control sobro ci mismo evitando cualquier sobregiro Pare cubrir posibles sobregiros en Ia Cuenta con 01 objeto de quo no se dejon de pager documentos suscritos par ci Cliente las Porsonas Autorizadas Banamex padre otorger al Clionte un crØdito haste por ci monto plazo de disposicin que Banamox determine El Cliente manifiosta oxpresamonto su voluntad disponor dol crØdito en ci momento en quo so prosento cualquier sobregira en Ia Cuente pare quo abone instruyendo Banamex Ia citada Cuonta Ia cantidad de dinero suficiente pare cubrir ci referido sobrogiro en 01 entondido do quo Banamex ostarÆ facultado en todo momento pare restringir las disposiciones 01 importe del crØdita El Cliente se obliga pagar Ia totahdad do las disposiciones del crØdito quo ofecte en tØrminas do Ia presente ClÆusula mØs tardar al die siguiente en quo realico Ia misma mediante abono Ia Cuenta en caso de que no sea posiblo efectuar dicho abono haciondo 01 pago en cualquiore de las sucursales de Banemex El Cliento desde esto momenta autoriza Banamex pare cargarle el monto do Ia disposicin efectuada en tØrminos de presento ClÆusula cualquier atra cuenta do depOsito bancario do dinero quo ci Chente tenga abierta con Banamex Ambas partes reconocen acepten quo 01 crØdito canforido en tØrminos de Ia prosente ClÆusula es distinto Ia Linea do CrØdita seæalada en DØcimo del Contrato ci CapItulo Segundo CLAUSULA 11.10.- CARGOS LA CUENTA Banamex padre cargar Cuenta ci importo do los pagos quo el Cliento deba realizar pravoedores do bienos servicias quo utilicen este mecanismo de pago siempre cuendo cuente con Ia autorizacin del Clionte bien ii 01 Cliente autorice los cargos por media del proveedor Øste travØs de Ia instituciÆn de crØdita quo Ic ofrezca el servicio do cobra respectivo instruya Banamox realizar ci cargo correspondiento en cuyo casa Ia eutorizacin del Chento podrØ quedar en poder del citado provoodor en ambos supuestas Ia Cuonta deberÆ mantener saldo disponible suficiente pare realizer el cargo El Cliente sin roquisito edicianal alguno en cualquier momenta padre solicitar Banamex Ia cancoiacin de las cargos que so ofecten en tØrminos del parrafa anterior sin que so roquiere do Ia previa autorizacin de las respectivas proveedores do bienes servicios Ia cual surtirØ ofoctos mÆs tardar las 10 dioz Dies HØbiles siguientes aquel en que Banemox reciba Ia instruccin correspondiente El Cliente reconoce acopta quo Banamex no tondrØ responsabilidad alguna derivada de Ia citada cancelacin 01638 Las autorizaciones instrucciones qua se refiere Is presente ClÆusula podrn Ilevarse cabo 01 escrito con firma autgrafa mediante utilizacin cle Banca ElectrÆnica travØs de otros medios electrnicos Opticos de cualquier otra tecnologia que Banamex determine para tales efectos El Cliente reconoce acepta que Banamex no tendrÆ responsabilidad alguna derivada de los cargos que etectCie en cumplimiento lo dispuesto en Ia presente ClÆusula ni por Ia imposibilidad de efectuar los mismos en caso de que Ia Cuenta no mantonga saldo disponible cut iciente CLAUSULA 11.11.- COMPENSACION El Cliente en este acto autoriza de manera irrevocable Banamex para compensar bien para pagar con recursos provenientes de Ia Cuenia cualquier adeudo de dinero cargo del Cliente favor de Banamex asi coma las operaciones que en su caso celebren ambas partes al amparo de Øste otros contratos cualquier comisin interØs gasto derivado del Contrato CAPITULO TERCERO DEL DEPOSITO EN DIVISAS CLAUSULA 111.1.- REQUISITOS El Cliente podra efectuar Depsitos de dinero en Divisas siempre cuando cumpla con cualquiera de los siguientes supuesios Se encuentre domiciliado en poblaciones localizadas en una franja de 20 veinte kilmetros paralela linea divisoria internacianal node del Pals en los Estados de Baja California Baja California Sur bien Si es ciudadano extranjero presta sus servicios en representaciones oficiales do gobiernos extranjeros organismos internacionales instituciones anÆlogas SI es corresponsal extranjero en cualquier caso el Cliente deberÆ estar acreditado en Mexico ante las autoridades correspondientes Banamex requerirØ al Cliente Ia documentacin que su juicia demuestre que cumple con alguno de los supuestos anteriormente seflalados obligÆndose el Cliente notificar Banamex cuando deja de cumplir con cualquiera de dichos Supuestos CLAUSULA III.2.-DEPSITOS EN DIVISAS Los Depsitos en Divisas solo podrOn ser constituidos incrementados mediante traspasos do fondos de depsitos bancarios denominados pagaderos en Divisas ii Ia entrega de documentos Ia vista denominados en Divisas pagaderos sobre el exterior ii cuando Banamex asi autorice Ia entrega de Divisas Dichos Depsitos serÆn acreditados en Ia Cuenta do Ia siguiente forma En caso de Depsitos realizados mediante traspasos cantidad respectiva se acreditarO en Ia fecha en quo Banamex efectivamente reciba dichos Depsitos En el supuesto do que los DepOsitos se realicen mediante Ia entrega de documentos Is vista estos Oltimos serÆn recibidos por Banamex salvo buen cobro por lo tanto el importe que amparen los mismos serÆ acreditado una vez que el documento sea cubierto por el obligado al pago TratÆndose de entrega de Divisas el importe serO acreditado en Ia misma fecha en que Osta so efecte siempre cuando sean recibidas por Banamex en DIas HObiles dentro del Horario Bancarlo en caso contrario los Depsitos serOn acreditados el Dia HÆbil siguiente Banamex en cualquier momento podia modificar adicionar limitar restringir Ia forma en quo Se podrØn constituir incrementar los DepOsitos en Divisas CLAUSULA 111.3.- FORMA DE EFECTUAR RETIROS DE DIVISAS El Cliente las Persanas Autorizadas siempre que cumplan con las rnedidas de seguridad que determine Banamex podrÆn hacer retiros de Divisas con cargo aI saldo disponible de Ia Cuenta travØs de cualquiera de las siguientes formas Situaciones do fondas en cuentas de depositos bancarios denominados pagaderos en Divisas La entrega do dacumentas Ia vista denaminados en Divisas pagaderos sabre el exterior La entrega de Ia Divisa respectiva Ia cual estarO en todo momenta condicianada Ia disponibilidad do billetes monedas metÆlicas de Ia Divisa carrespondiente par parte de Ia sucursal en Is que el Cliente Ia Persona Autorizada el beneficiario pretenda efectuar el retiro do quo se trate Mediante el libramiento de Cheques con cargo las sucursales que Banamex tenga establecidas en las poblaciones que se refiere el inciso de Ia ClOusula 111.1 cuanda eI Cliente se ubique en el supuesto senalado en dicho inciso ii en todo Mexico cuando el Cliente cumpla con eI supuesto referido en el inciso de Ia citada ClOusula El pago de los Cheques se efectuar eleccin del beneficiarlo respectivo mediante alguna de las formas previstas en las incisos que anteceden En su caso mediante Ia utilizacin do Tarjetas do DØbito Banamex podr determinar otras formas para realizar retiros de Divisas asimismo el Cliente recanoce acepta que Banamex estarO facultado pars establecer en cualquier momenta el monto mØximo do Divisas que podrØ retirar de Ia Cuenta dependiendo Ia forma travØs de Ia cual se efect0e el citado retira Banamex se obliga pager los recursos abonados en Ia Cuenta mediante entrega al Cliente de Ia misma Divisa quo Øste le hubiese depositado excepta par lo dispuesto en el segundo pOrrafo de Ia ClÆusula XlIl.13 en cuyo caso el Cliente desde este momenta acepta expresamente quo Banamex le entregue Pesos CLAUSULA 111.4.- CONCEPTOS APLICABLES los DepOsitos en Divisas los serÆ aplicable Ia estipulada en el Capitulo anterior excepta par 10 en las ClOusulas 11.5 11.7 dispuesta CAPITULO CUARTO DE LA TARJETA DE DEBITO CLAUSULA tv_I.- TARJETA Dependienda el tipa do Producta cantratado por el Cliente Banamex padrÆ proporcionarle una Tarjeta do DØbito en casa de que el Cliente asi lo salicite Banamex podrO tambiØn praporcionarle Tarjetas de DØbito adicionales pare las Personas Autorizadas Asimismo Banamex praparcionarØ al Cliente una Clave Canfidencial El Cliente reconoce acopta que Banamex padre restringir emisin de Tarjetas do DØbito adicianales Banamex asignarØ cada Tarjeta de DØbito Un nOmero Onico el coal se encontrarÆ impreso en el anverso do Ia misma Las Tarjetas do DØbita serÆn intransferibles deberØn ser firmadas par el Tarjetahabiente en el panel de firma que se encuentra al reverso de las mismas Todas las Tarjetas de DØbito serØn prapiedad do Banamex por 10 que el Cliente se obliga par ØI par los demÆs Tarjetahabientes devolverlasaBanamexen Ia fecha do encimientode asrnismasoalaterminaciOndeesteContrato ____ 01639 El Cliente manifiesta expresamente su consentimiento para que Banamex en caso do que asi 10 considere conveniente hove cabo los actos necesarios prepagada en nmero tendientes que ha tarjeta que su caso el primero hubiese adquirido cuyo se incluye en Ia Solicitud evolucione Tarjela de DØbito con Ia finahidad de que el Cliente puoda utihizarla pare disponer de dinero con Ia Cuenta cargo En el supuesto anterior ambas partes convienen en dejar sin efeclos los tØrminos condiciones de ha tarjota prepagada correspondiente instruyendo el Chiente Banamex pare que traspase Ia Cuenta el saldo de dinero que en su caso tenga disponible en Ia citada tarjeta prepagada CLAUSULA V.2.- UTILIZACION DE LA CLAVE CONFIDENCIAL Ambas partes aceptan quo Ia utilizacin de Ia Clave Confidencial sustituirÆ Ia firma autografa del Tarjetahabiente por una de carÆcter electrnico por 10 que las constancias documentales tØcnicas en donde aparezca producirÆn los mismos efectos que las leyes otorguen los documentos suscritos en consecuencia tendrÆn valor igual probatorio El Cliente reconoce el carØcter intransferible do Clave cual personal Ia Confidencial Ia quedarÆ bajo custodia control cuidado del Tarjetahabiente por 10 que serÆ de Ia exclusiva responsabilidad del Cliente cualquier daæo perjuicio que pudiese sufrir como consecuencia del uso indebido de Ia misma La Clave Confidencial podrØ ser modificada por el Tarjetahabiente travØs de los medios que Banamex disponga para tales efectos CLAUSULA lV.3- ENTREGA DE TARJETA Las Tarjetas de DØbito se entregarÆn al Chiente de acuerdo con el procedimiento Banamex quo determine en entendido de que Banamex estarØ facultado mismas pare tales efectos oh para entregar las Ia persona que se encuentre en el domicilio del Chiente Is persona fisica que este Øhtimo autorice tal fin Es responsabilidad exclusive del Chiente de las para Is ontrega Tarjetas de DØbito adicionales sus respecthvos Tarjetahabientes Banamex entrogarØ desactivadas las Tarjetas de DØbito los Tarjotahabientes deberÆn seguir las indicaciones Banamex les dØ at momento quo de Ia para activarhas do esta manera poder efectuar retiros disposiciones con las mismas entrea Una vez ontregadas las Tarjetas do DØbito el Chiente serÆ 01 Unico responsable do todos los retiros disposiciones que con ellas se efectien por Io que este Ultimo reconoce acepta que Banamex no tendrÆ ninguna responsabilidad derivada del mal uso que se haga de as Tarjetas de DØbito por culpa negligencia do los Tarjetahabientes CLAUSULA lV.4- MEDIO DE DISPOSICION La Tarjeta de DØbito sÆlo representa un medio de disposiciOn de los Depsitos efectuados por 10 quo travØs de ha utilizacin de Ia misma el Tarjetahabiente podia efectuar nicamente retiros disposiciones do dinero hasta el limite por del sabdo disponible do ha Cuenta No obstante 10 anterior cuando Banamex lo autorice el Cliente podrÆ solicitar por escrito un himite menor para cualquiera de las Tarjetas de DØbito CLAUSULA 1V5.- UTILIZACIN DE LA TARJETA Medhante Ia utilizacin de Ia de DØbito ha marcacin de Clave Confidencial Ia Tarjeta Ia suscripcin de los documentos que Banamex determine el Tarjetahabiente podrÆ efectuar retires disposiciones do dinoro con cargo Ia Cuenta consultar el saldo de Ia misma travØs de los medios que Banamex autorico para tales efectos entre los cuales so podrØn incluir los siguientes los Cajeros AutomÆticos de Banamox do otras instituciones bancarias con los quo Banamex Ia marca do ha Tarjeta do DØbito celebrados acuerdos de do tengan ii as sucursales Banamex iii los ostabbecimientos los comisionistas autorizados por Banamex iv las sucursales do otras institucionos bancarias con las que Banamex mares de Ia Tarjeta do DØbito tengan celebrados acuerdos bien los Negocios Afihiados El Cliente reconoce acepta que el saldo de Ia Cuenta que le proporcione Banamex haves de cualquiora do los modbos seæalados en 01 pÆrrafo anterior podrÆ no estar actualizado en razÆn do encontrarse pendiente do aplicar algØn cargo abono efectuado Ia misma CLAUSULA IV.6.- IDENTIFICACIN PARA USO DE TARJETA Baaamox sus comisionistas otras instituciones bancarias los Negocios Afiliados podrØn requerir al Tarjetahabionte se identifique debidamente provio que Østo efecte un retiro disposicin de dinero mediante Ia utilizacin de Ia Tarjeta do DØbito CLAUSULA V.7.- RETIROS DE DINERO Los retiros do dinero quo efectØe el Tarjetahabiente mediante Is utilizacin do Tarjeta de DØbito on Cajeros AutomØticos estarØn sujetos Is disponibilidad de efectivo quo oxista on eI Cajero AutomÆtico al memento do intontar efectuar el retire ii los limites mØximos de disposiciÆn diana establecidos por Banamex otras instituciones bancarias segn sea el caso CLAUSULA lV.8.- ROBO EXTRAVO DE LA TARJETA El Cliente se obliga por por Øl los demÆs Tarjetahabientes avisar do manera inmediata Banamex travØs de medios su disposicin los quo este Ultimo ponga para estos efectos el robo extravio do cualquier Tarjeta do DØbito asi como su retencin en Cajeros AutomÆticos en el entondido de que Banamex no tendrÆ rosponsabilidad alguna por los retiros disposiciones que en su caso so hubiesen efectuado mediante Ia utilizacin de Ia Tarjeta do DØbito con antorioridad dicho aviso Una voz ofectuado el aviso seæalado en el prrafo anterior Banamex procederÆ bloquear Ia Tarjeta de DØbito partir do lo cual cesarª Ia rosponsabilidad del Cliente por el uso do Ia misma Banamex proporcionarª al Cliente una dave quo Øste deborÆ conservar para futuras aclaraciones Al momento de ser bloqueada Ia Tarjeta do DØbito Banamex procedera expedir una nueva Tarjeta de DØbito que al Cliente entregarÆ en tØrminos do lo dispuesto en Ia Clusula IV.3 Si el Cliente los domÆs Tarjetahabiontos recobrasen Ia Tarjeta do IJØbito despuØs de haber notificado su robo extravio retencin deberØn abstenorse de usarla entregarla do inmediato Banamex CLAUSULA IV.9.- RETENCIN Banamex estarØ facultado pare retener bloquear canceler sustituir en cualquier momonto as Tarjotas de DØbito por cualquiera do las cuestiones que de manera enunciativa mØs no limitativa se seæalan continuaciOn por haberse terminado 01 presente Contrato ii por haber cambiado el tipo do Tarjeta de DØbito iii pars perrnitir el uso internacional de Ia Tarjeta do DØbito en case do inicialmente solo fuese vØhida do de quo en territorio nacional iv por motives soguridad derivado su robe oxtravio vi por Ia implementacin de nuevas tecnologias vii por ha implemontacion do nuovas marcas on su caso viii porque el Cliente cumpha mayonia de odad on osto Itimo caso el Chiente se obliga acudir cualquier sucursal de Banamex con Ia finalidad do sustituir is do DØbito Tarjeta correspondionte CLAUSULA lV.1O.- NO RESPONSABILIDAD Banamex no asumirO responsabihidad ahguna Si cuahquiera do los Nogocios Afiliados comisionistas do Banamex no admite al Tarjetahabiente Ia Tarjeta de DObito Si el Tarjotahabionto no puede efectuar retiros por Ia suspension de servicios on las sucursales do Banamex on los Cajoros AutomØticos 01640 Si el Tarjetahabiente no puede utilizar Tarjeta de DØbito por daæos en Ia banda magnØtica de Ia misma Por Ia cantidad calidaci cualquier otra caracteristica de las mercancias servicios adquiridos par el Tarjetahabiente mediente utilizacin de Ia Tarjeta de DØbito asi como de Is entrega ejecucin de los mismos obligØndose ci Cliente presentar cualquier tipo de reclamacibn por los conceptos antes mencionados exciusivamente ante ci Negocio Afiliado de que se trate CLAUSULA VII.- TIPO DE CAMBIO Cuando el Tarjetahabiente utilice Is Tarjeta de DØbito para realizar disposiciones de dinero en Divisas bien para etectuar de bienes servicios en Divisas ci monto de disposicin pago siempre se cargar Ia Cuonta en Pesos en pagos su caso en Ia Divisa en que se encuentre denominada Ia Cuenta tratØndose de los Depsitos en Divisas que se refiere el Capitulo Tercero El tipo de cambio que so utilice para calcular equivalencia del Peso en relacion con el DOlar no podra oxceder de Ia cantidad que resulte de multiplicar por 1.01 uno punto cero uno el tipo de camblo que el Banco de Mexico determine el dia de presentacin de los documentos de cobro respectivos de conformidad con lo senalado en las Disposiciones aplicables Ia determinacin del tipo de cambio para solventar obligaciones denominadas en moneda extraniera pagaderas en Ia RepØblica Mexicana que publique en el Diario Oficial de Federacin ci Dia HÆbil siguiente CLAUSULA V.12.- CARGOS PRESUNTAMENTE FRAUDULENTOS Banamex podrÆ restituir at Cliente el monto de los retiros disposiciones que Banamex determine que fueron presuntamente efectuados mediante et uso fraudulento de Ia Tarjeta de DØbito an cuando Ia misma no hubiese sido robada extraviada obligandose el Cliente colaborar en todo momonto con Banamex debiendo entregarle toda Ia documontacin que Banamex le requiera para que este Ciltimo se encuentre en condiciones de lievar cabo Ia investigaciOn correspondiente En caso de que el resultado de Ia investigacin efectuada por Banamex concluya que los retiros disposiciones no fueron efectuados de manera fraudulenta el Cliente autoriza Banamex para cargar Ia Cuenta el monto que Øste le hubiese restituido en tØrminos de to dispuesto en el pÆrrafo anterior CAPiTULO QUINTO DELACHEQUERA CLAUSULA V.1.- CHEQUERA Dependiendo ci tipo de Producto contratado por el Cliente Banamex podrÆ proporcionarle una mØs Chequeras mediante las cuales el Cliente las Personas Autorizadas en su caso podrØn efectuar retiros disposiciones do dinero con cargo al saldo registrado en Ia Cuenta favor del Cliente travØs del libramiento de Cheques El Cliente no podrØ utilizar esqueletos de Cheques distintos los quo Banamex le proporcione en Ia citada Chequera salvo aquellos casos en que previa solicitud por escrito Banamex autorice al Cliente ci usa de formas esqueletos de Cheques especiales los cuales deberÆn cumplir con las especificaciones bancarias aplicables El Cliente reconoce que los Cheques especiales podrØn ser rechazados cuando no cumplan con las citadas especificaciones bancarias por Ia que desde este momenta acepta que Banamex no sore responsable de los danos perjuicias quo el Cliente cualquier tercero pudiesen sufrir como consecuencia de Ia falta de pago del Cheque rechazado aUn cuando existan fondos suficientes en Ia Cuenta CLAUSULA V.2.- RETIROS CON CHEQUE Los retiros que se realicon travØs del libramiento do Cheques serØn cargados Cuenta en ci momenta en quo so presenten Banamex para su cobro CLAUSULA V.3.- ENTREGA DE LA CHEQUERA Banamex entregarØ Ia Chequera en Ia Sucursal en cualquier otro lugar que Banamex determine previo acuse de recibo del Cliente ode Ia fisica ci Cliente autorice par escrito persona quo partir de Ia fecha del acuso do recibo respectivo ci Cliente serÆ el Ønico responsable do Ia guarda custodia uso de is Chequera estando exento Banamex do cuaiquier rosponsabilidad derivada del mal uso quo so haga de los esqueletos do Cheques contenidos en Ia misma par cuipa negligencia del Cliente do sus representantes de las Personas Autorizadas CLAUSULA V.4.- CHEQUES ROBADOS EXTRAVIADOS El Cliente no tendrÆ accin legal para reclamar Banamex indemnizacin por el pago de Cheques extraviados robados cuando el primero no hubiere dada aviso do ello Banamex por escrito travØs de cualquier medio que Banamex ponga disposicion del Cliente para ese efocto Dicho aviso tendrÆ quo presentarse do manera previa quo se efecte el pago del Cheque correspondiente Una vez efectuado el aviso seæalado en el pÆrrafo anterior Banamex procederÆ bloquear los Cheques extraviados robados partir de to cual cesarØ Ia responsabilidad del Cliente por el usa do los mismos Banamex proporcionarÆ at Cliente una dave quo Øste deberÆ conservar para futuras aclaraciones El Cliente solo tendrÆ acciOn para reclamar Banamex el pago de Cheques alterados falsificados cuando Ia alteracin Ia falsificacin fueren notorias juidio de Banamex CLAUSULA V.5.- REVOCACION DE CHEQUES El Clionto las Personas Autorizadas no podrÆn revocar los Cheques librados ni oponerse su pago sino dospuØs de quo transcurra el plaza do presentacin quo establezcan las disposicionos legalos aplicabios Transcurrido dicho plaza ci Cliente podrØ revocar los Cheques so padre oponer su pago mediante notificacin quo entregue par escrito Banamex CAPITULO SEXTO DEL DEPSITO PLAZO DE LOS PAGARES CLAUSULA Vl.1.- FORMALIZACION El Cliente podrØ instruir Banamox por escrito mediante Banca Electronics travØs do los medios quo Banamex determine para tales ofectos fin de quo con cargo al saido disponible en Ia Cuenta so invierta ci dinero que ci propio Cliente determine en Depsitos Plaza en prØstamos instrumentados medianto PagarØs bien travØs de otros pasivos cargo de Banamex tales como depOsitos bancariqs do dinero do cuaiquier tipo quo Banamox so encuentre operando ofrezca sus clientes Asimismo cuando Banamox asi Jo autorice as DepOsitos Piazo los Pagares podrØn ser constituidos sin Ia necesidad do quo ci Clionte mantenga una Cuenta En ci supuosto senalado on ci pOrrafo anterior Ia constitucin incremento do los DepOsitos Plaza do los PagarØs deborØn ser formalizados por ci Cliente mediante Dopsitos los cuales les serO aplicable 10 estipulado en Ia CiÆusuia 11.5 del presente Contrato asimismo ci Chente podrØ efectuar retiros travØs do cuaiquiora de las forrnas seæaiadas en los incisos do Ia ClÆusula 11.7 cuaiquior otra quo Banamox determine para tales efectos Banarnex determinarO hbremente los montos piazos partir de las cuales estarO dispuesto recibir DepOsitos Plazo prØstamos documentados en PagarOs 01641 CLAUSULA Vl.2.- DOCUMENTACION Cada DepOsito Plazo prØstamo celebrado en los tØrminos del presente Capitulo se documentarÆn mediante is emisiÆn de Constancias de Depsito de PagarØs respectivamente los cuales Banamex recibirØ del Cliente en depsito para su guards administracidn acreditÆndose dicho depOsito con el comprobante de Operacin quo Banamex emita para tales efectos ci cual desde este rnomento ci Cliente reconoce que no es un titulo de crØdito Las Operaciones seæaladas en el pØrrafo anterior no podrØn vencerse anticipadamente por 10 que ci Cliente reconoce acepta que inicamento podia retirar los recursos invertidos en dichas Operaciones at vencimiento del plazo de las mismas CLAUSULA VL3.- INTERESES Banamex pagara al Cliente intereses sobre las sumas que Øste Ic entregue en Depsito Piazo en prØstamo Ia tasa anual pactada entre las partes Ia cual padre corresponder Ia tasa de interØs que para dichas operaciones dØ conocer Banamex en lugares abiertos al piiblico en sus oficirias Los intereses referidos en ci pÆrrafo anterior se causarØn partir del dia en que se constituya ci Depsita Piazo se otorgue el prØstamo hasta ci dia anterior al de Ia conclusiOn del plazo correspandiente los cuales se caIcularÆn dividendo Ia tasa de interOs anual aplicable entre 360 trescientos sesenta multiplicando el resultado asi obtenido por ci nmero do dias efectivamente transcurridos durante ci perlodo en ei cual se devonguen los intereses tasa correspondiente Los cÆiculos se efectuarÆn cerrÆndose centØsimas Los intereses que devenguen las Operaciones antes senaiadas serØn brutos se pagarÆn al vencimiento de las mismas tratndose de DepOsitos Plazo los intereses podrØn pagarse en las fechas quo ambas partos doterminen al momento do pactar Ia Operacion El tratamiento fiscal de los rendimientos estarÆ sujeto las disposiciones legales aplicables En Ia CarÆtula se seæala Ia tasa de interØs anual aplicable iThicamente en fecha de celebracin del Contrato Ia GAT del Depsito Plazo del Pagare segn corresponda CLAUSULA Vl.4.- PLAZO Al constituirse ci Depsito Plaza al expedirse ci Pagare que documente el prOstamo las partes pactarÆn ci plaza de los mismos en dias naturales no debiendo ser menor un dia serØ forzoso para ambas partes Banamex podrO determinar ci periodo minima respecta dcl cual estarØ dispuesto celebrar este tipo de Operaciones Cuando ci vencimiento del Depsito Plaza del Pagare ocurra en un dia inhÆbil ci pago se efectuarÆ el Dia HÆbil inmediato siguiento en ci entendido de que los intereses continuarÆn devengandose conforme se establece en Ia ClOusula anterior Is tasa do interØs originalmente pactada CLAUSULA Vl.5.- RENOVACIN DEL DEPOSITO PLAZO Banamex padrÆ renovar los Depsitos Plazo en forma automØtica su vencimiento quedando sujeta Ia citada renovaciOn Ia aceptaciOn do Banamex En caso de ser proccdcntc Ia rcnovacin del DepOsito Plaza ci mismo se cntenderÆ constituida al mismo plazo que el anterior siendo aplicabie Ia tasa de interOs que Banamex hays dada conocer al pØbilco en general pars esa misma ciase de Operacion ci Dia HObil correspondiente al do Ia renovacin Cuando ci vencimiento del Depsito Piazo fuere en dia inhÆbil Ia Operacin serÆ renovada precisamente en dicha dia inhØbil at apilcando efecto Ia ass do interØs que Banamex hubiesc dada conocer el Dia HØbii inmediata anterior En este supuesto si el Cliente so prescntara el Dia 1-lObil inmediato siguiente al de Ia renovaciOn padre retirar ci monto total del Depsito Plazo CLAUSULA VI.6.- REINVERSION DEL PAGARE El Cliente instruye Banamex para quo ci monto derivado do Ia amartizaciªn del Pagare so invierta en otro PagarØ par un piazo iguai al anterior aplicØndole Ia tasa do interOs que Banamex hays dada conacer al pØblico en general para eSa misma clase de Operacin ci Dia I-IÆbii correspondiente al do reinversin En ado caso Ia reinversin antes seæalada queda sujeta Ia aceptaciOn de Banarnex Cuando ci vencimienta del Pagare fuere en dia inhÆbil Ia reinversiOn sore efoctuada el Dia HØbil posterior El Cliente las Personas Autorizadas en cuaiquier momenta podrÆn instruir Banamex pars que no proceda efectuar Ia reinversin seæalada en Ia presente ClÆusula CLAUSULA VI.7.- ABONO LA CUENTA Cuando no proceda Ia renovacin del DepOsita Plaza Ia reinversin del Pagare Banamex pondrØ disposicion del Cliente el manta derivado de Ia hquidacion total parcial dci primera bien do Ia amartizaciOn del Segundo mediante abano Ia Cuenta de Ia cantidad de dinero que corresponds en caso do que ci Cliente no mantenga una Cuenta Banamex pandrØ dispasiciOn del Cliente ci importe respectivo en efectivo Cheque cualquier otra farms quo Banamex determine CLAUSULA VI.8.- OPERACIONES EN UDIS Las partes podrØn pactar quo las Operaciones que so refiere ci presente Capitulo sean denominadas en UDIS en cuya caso el plaza do las mismas no padre ser inferior tres meses CAPITULO SEPTIMO DE LAS DIVERSAS CLASES DE PRODUCTOS CLAUSULA Vll.1.- SOLICITUD DE PRODUCTOS Previa autorizacin de Banamex ci Cliento padrÆ soiicitar cualquiera do las Productas incluidos en el Portal Banamex en el presente Capitulo pars Ia cual deberÆ cumplir can las caracteristicas requisitas que sean determinadas par Banamex para Ia cantrataciOn de los mismos El Cliente recanoce acepta quo Banamex estarØ facuitado para madificar las caracteristicas del Producta cantratado par ci Cliente inclusa cambiaria otro Praducto bastanda pars ella un aviso par escrito dada al Cliente can 30 treinta dias do anticipaciOn Ia fecha en quo Ia madificacin ci cambia cntrc on vigor raves de cualesquiera de los medias seæalados en is ClÆusuia XIII.8 Durante dicho plaza ci Cliente tendrÆ derecho dar par terminada ci Contrato sin quo Banamex pueda cobrarle cantidad adicionat alguna por este hecho con oxcepcion do las adeudas que ya se hubieren generado Ia fecha en quo ci Cliente natifique Banamex Ia terminacin anies referida SECCIN ii INVERSION INTEGRAL BANAMEX ii CLAUSULA VII.2.- DESCRIPCION InversiOn Integral Banamex es un depOsito de dinero Ia vista en Pesos quo genera rendimientos diarios El Cliente en cualquier rnomento podrÆ instruir Banamex par escrito mediante Ia utilizacin do Banca ElectrOnica travØs de los medios que Banamox determine pars tales efectos para que este ltimo transfiera de Ia cuenta eje los recursos que eI Cliente desee depositarenesteProductooviceversa 4o14l 13 zm4ac3n5I eLM Jc pR1Ai099434 01642 El Cliente reconoce acepta que transferencia quo Se refiere el pÆrrafo anterior nicamente se podrÆ efectuar en Dias Hbilos dentro de un horario de las 900 as 1500 horas hora del centro de Mexico en caso do el Cliente instruya Ia citada que transferencia fuora de los dias horario antes seæalado Østa se aplicar hasta el Dia HÆbil siguiente Los rendimientos quo genere el dinero registrado en Inversion Integral Banamex serOn brutos se calcularn sobre el saldo diario que el Cliente mantenga dopositado en dicho Producto dividiendo Ia tasa de interØs anual detorminada por Banamex entre 360 trescientos sesenta Los cOlculos se efectuarÆn cerrÆndose centØsimas La tasa do interØs anual aplicable Ia GAT de InversiOn Integral se seæalan en Ia Cartula Banamex se reserva el derecho do revisar ajustar diariamente Ia citada tasa de interØs SECCIN II INVERSION PERFILES BANAMEX CLAUSULA Vll.3.- DESCRIPCIN Inversion Perfiles Banamex es un depOsito de dinero Ia vista en Pesos quo genera rendimientos diarios El Cliente en cualquier momento podrO instruir Banamex por escrito mediante Ia utilizaciOn de Banca Electrnica travØs de los medios que Banamex determine para tales efectos para quo este Oltimo transfiera do Ia cuenta eje los recursos que el Cliente dosee depositar en este Producto viceversa El Cliente reconoce acepta que Ia transferencia que se refiere el parrafo anterior Onicamente so podrÆ efectuar en Dias HÆbiles dentro de un horarlo de las 900 las 1500 horas hora del centro de Mexico en caso de quo el Cliente instruya Ia citada transferencia fuera do los dias horario antes seæalado Østa se aplicarÆ haste el Die HÆbil siguiente Los rendimiontos que genere el dinero registrado en InversiOn Perfiles Banamex serÆn brutos se calcularÆn sobre 01 saldo diaric quo 01 Cllente mantenga depositado en dicho Producto dividiendo Ia tasa de interØs anual determinada por Banamex entre 360 trescientos sosenta Los cÆlculos se efectuarOn cerrÆndose centØsimas La tasa do interØs anual aplicable Ia GAT do InversiOn Integral se seæalan en Ia CarÆtula Banamex se reserva el derecho do revisar ajustar diariamonto Ia citada tasa de interØs SECCION Ill INVERSION INTELIGENTE BANAMEX CLAUSULA Vll.4.- DESCRIPCION InversiOn Inteligente Banamex es un Depsito Plazo cuyo rendimiento se determine en funciOn do las variaciones que se observen en los precios de un subyacente los cuales pueden ser indices de precios sobre accionos coticen en una que boise de valores Pesos Divisas UDIS Hi indices do precios referidos Is inflacion bien Hi tasas de interØs nominales reales sobretasas en las cuales quedan comprendidos cualquier titulo de deuda En todo caso el Cliente reconoce acepta que este instrumento de inversiOn podrO no rendimientos estos ser inferiores los generar existentes en el mercado pero en ningn caso al vencimionto de Ia OperaciOn se podrO liquidar un importe nominal inferior al principal invertido CLAUSULA VII.5.- CONCEPTOS APLICABLES los DepOsitos Plazo descritos en Ia prosente Seccin les serÆn aplicables todas las estipulaciones contenidas en el presente Contrato relatives Depsito Plazo asi como lo dispuesto en el documento denominado TØrminos condiciones generales el cual se adjuntare oste instrumento inicamente en caso de que el Cliente desee celebrar este tipo de Operaciones CAPITULO OCTAVO DE LA BANCA ELECTRONICA CLAUSULA VIlt.1.- DE LOS MEDIOS ELECTRONICOS Ambas partes manifiestan expresamente su voluntad de pactar Oparaciones travØs de Instrucciones quo el Clionte elija de las opciones habilitadas utilizando su Firma ElectrOnica Las Operaciones pactadas travOs de los Medios ElectrOnicos podrOn estar asociadas contratos relacionados con operaciones activas pasivas de servicios celebrados entre el Cliente Banamex supuesto en el cual los tØrminos condiciones de dichos contratos quedarOn intactos seguirÆn surtiendo sus efectos con los alcances en ellos convenidos siendo que el presente Capitulo regularO Onicamente Ia forma en Ia cue las partes convendrØn las referidas Operaciones Asimismo eI Cliente podrÆ dar de alta su niimero de PIN mediante AudiomOtico siendo Østa de un solo uso toda vez que una vez dentro del Medio ElectrOnico so le pedirO Cliente quo digite otro nOmero Banamex manifiesta que en cualquier momento posterior al de Ia formalizacin de este Contrato el Cliente tiene derecho solicitarle Ia activaciOn de aquellos Servicios que no hubiere habilitado inicialmente modificar las condiciones de los previamente pactados debiendo manifostar su consentimiento expreso medante los medios que senale Banamex pare tel fin asi como Ia instalacin del Software en su Equipo de Cmputo para Ia recepciOn do los Servicios que asi lo requieran en el entendido quo dicha solicitud se deberO realizar mediante identficaciOn plena satisfacciOn de Banamex do conformidad con los tØrminos condiciones establecidos en este documento de Ia legislaciOn El Cliente reconoce quo Ia Banca Electronics estO conformada por diversos Medios do ComunicaciOn que cada uno do ellos estÆ programado pare prestar determinados Servicios Ia totaidad de los mismos por lo que reconoce quo solamente podrO recibir los Servicios que correspondan al Medio do Comunicacin do que se trate La Banca Electronics estO programada pare que el Cliente pueda dar Instruccionos sujeto los Horarios de Serviclo publicados en los mismos medios limitaciones especificaciones que correspondan en cada caso El Cliente se oblige seguir las Instrucciones que le indique el Medio de ComunicaciOn para poder toner acceso los Servicios que correspondan El Cliente cuando eel lo requiera podrÆ bajo su estricta responsabilidad cancelar Instrucciones previamente realizadas siempre que se operen en el mismo dia en que las Instrucciones fueron efectuadas En todos los casos so requerira de Ia confirmaciOn aceptaciOn por parte de Banamex respecto de Ia lnstruccin de Ia cancelaciOn fin de que sea vlida misma El Cliente manifiesta estÆ de acuerdo en que las Instrucciones canceladas no aparecerOn en sus estados de cuenta El Cliente estO de acuordo que Ia moneda ye sean Pesos DOlares de las Cuentas las que se hagan cargos doberÆn coincidir con Ia moneda do las Cuentas las quo se hagan abonos salvo que el Cliente opte por Ilevar cabo una operaciOn de compraventa de divisas en el entendido que el Cliente acepta quo el tipo de cambio aplicable dicha operaciOn sea el tipo de cambio que determina discrecionalmente Bananiex mismo quo le serO notificado travØs de los Medios de Comunicacin al momento en que Ia lnstruccin respective sea procesada es responsab frenteChente de los so efectenaotras cuentas ya sean cuentasenBanarnexoen traspasosoabonos_quo 01643 otros bencos por lo que respecta al tipo de cuenta ni Ia relacin causal que exista pudiere existir ontre eI Clionte los titulares de dichas cuentas as que se hagan traspasos abonos con cargos las Cuentas Incorporadas considerando que en ningOn caso Banemex asumirO obligaciOn responsabilidad alguna que derive de operaciones que desconozca el Cliente al haber entre otras causes comprometido su Firma ElectrOnica por no seguir las recomendaciones de seguridad quo se publican en el Portal Banamex El Cliente Onicamente podrÆ pactar las Operaciones que los Medios Electrnicos antes seæalados le pormitan manifestando expresamente saber que el acuerdo de voluntades relacionado con cada OperaciOn pactada travOs de los mismos se tendr perfeccionado todos por pars los efoctos legales que hays luger al momento en que 01 Medio ElectrOnico utilizado le proporcione el NOmero do AutorizaciOn Banamex podrÆ restringir limitar los Medios ElectrOnicos antes seOalados asi como determinar olros adicionales travØs de los cuales el Cliente podrO efectuar Operaciones asimismo Cliente deberO Banamex as direcciones do Internet el otorgar para facilitarle el servicio do Banca Electrnica ad como el nOmero telefnico do Ia lines de TelØfono MOvil pare los servicios do Pago Mvil Banca Mvil El Cliente reconoce podrØ contratar modificar canceler do Servicios Banamox quo yb cualquiera los que ponga su disposicin modianto Ia Banca Electrnica dobiendo utilizar el Factor do AutenticaciOn corrospondiento CLAUSULA VIIL2.- OPERACIONES Do conformidad con lo dispuesto en Ia Ley do Institucionos de CrØdito ambas partes convienen que Banamox podrØ suspender cancelar las lnstrucciones do las operaciones yb Servicios que el Cliente protonda realizar utilizer mediante los Modios do Comunicacin Banca Electronics BancaNet Banamex MOvil Pago MOvil Blink GssNet cualquier otro Banamox que ponge disposiciÆn del Cliento siempre cuando Banamex cuente con elementos suficientes pare presumir quo Autonticacin del Cliente su Certificado Digital Clave Confidencial Clave DinÆmica Firma Electronics Clave de NOmoro do ldentificacin Accoso NIP Personal Password Token NetKey NOmero Confidencial FIEL Firma Electrnica Avanzada ha sido comprometida utilizados en forms indebida bion cuando so detecte algUn error en Ia nstruccin respectiva Pars ol acceso los distintos servicios do Ia Banca Electrnica Banamex le proporcionarÆ el Cliente distintos medios de autenticacin pare ol acceso Ostos En caso de no contar con ellos ol Cliento no podrÆ utilizar los Servicios que se describen en el prosonte Contrato considerando quo Banamex podrÆ bloquear el serviclo do Banca Electrnica en caso de que ol Clionte introduzca su Firma Electrnica en diversas ocasiones situaciOn por Ia que deberO acudir Ia sucursal Banamex pars desbloquear el sorvicio deberO otorgar otro nOmero pars restablecer el sorvicio Cuando Banamex hubiese recibido recursos mediante alguno de los Modios do ComunicaciOn cuente con elementos suficientes para prosumir que los medios de AutenticaciOn del Cliente han sido utilizados en forma indobida podrO rostringir hasta por 15 quince Dies HObiles Ia disposicin de tales recursos fin de Ilevar cabo las investigaciones las consultas seen necesarias con otras que instituciones do crØdito relacionadas con Ia operaciOn de que se trate Banamex podrÆ prorrogar discrecionalmente ol plazo anies referido hasta por 10 diez Dies HÆbilos mOs siempro quo se hays dado vista Ia autoridad compotonte sobre probables hechos ilicitos cometidos en virtud do Ia lnstrucciOn respoctiva En los casos en que por motivo do las investigacionos referidas en el inciso anterior Banamex tenga ovidencia do Ia que para formalizaciOn del Contrato so con informacin documentaciOn medios de presente proveyO falsa bien quo los autenticacin del Cliento para Ia emisin de las instrucciones de quo so traten fueron utilizados en forms indobida podrO bajo su responsabilidad Ia cargar Cuenta sea Concentradora do Abono de Cargo Global do Proveedores de terceros Eje Incorporada Propia el importe respoctivo con el propsito do que se abone en Ia Cuonta de Ia que procodieron los recursos correspondientes En caso de que Banamex hubiese abonado por error dinero una Cuenta eI Cliente desde este momento faculta Banamex pars cargar el importe respectivo Ia referida Cuenta con el propsito do corregir el error cometido El Cliente reconoce expresamente el derocho quo so reserva Banamex suspender una mØs funcionalidades del Servicio en caso do quo las Cuontas hayan sido canceladas bloquoadas so encuentron en algOn estatus que impida reslizar algOn abono asi como cargo cualquier otra cause vinculada con Ia licitud do los fondos relacionada con Ia identificsciOn del Cliente Banamox pondrÆ disposicin del Cliente los medios altornos para recibir Ia prostaciOn do los Servicios quo on su caso requiera Los tØrminos condiciones bajo los cuales se regirØn los medios altornos serÆn los dados conocer aI Cliente en las sucursales do Banamox medianto los Medios do Comunicacin quo correspondan En caso do robo extravio del Dispositivo do Accoso los Medios ElectrOnicos el Cliente doberO do notificarlo Banamex debiØndoso comunicar al Centro do AtenciOn TelefOnica pars solicitar Ia cancelacin podrO solicitarlo on linea medio del Administrador de por Seguridad El Cliente deberØ do acudir sucursal Banamex pars quo posteriormento Ia notificacin indicada on prosonto clÆusula Ilene el formato correspondionto para que se le haga entrega del nuovo dispositivo de seguridad aqui referido CLAUSULA VlIl.3.- FIRMA ELECTRONICA Las Panes otorgan su consentimionto en que Ia Firma ElectrOnica sustituirÆ para todos los efectos legales quo haya lugar Ia firma autgrafa del Cliente do su representante legal con plonas facultades produciendo los niismos efoctos que las leyes otorgan Ia firma autografa de su representante legal con plenas facultades incluyendo el valor probatorlo de Østa El Cliente manifiesta conoce el alcance en Contrato Se Firma Electrnica que que el presente le atribuye Ia por 10 quo su uso digitacion en los Medios Electrnicos es bajo su estricta responsabilidad asi como el hecho do quo su uso sea realizado por represontantos legales del Cliente quo cuenten con plenas facultades pars convenir los Servicios El Clionte en de sus protecciOn propios intereses deberÆ mantener Ia Firma Electrnica como confidencial prevenir sus representantes quo lo reconozcan dicho carÆcter toda vez que el uso de dicha Firma ElectrOnica pare todos los efoctos legales que hays lugar en todo caso serÆ atribuido al Cliento aUn cuando medie caso fortuito fuorza mayor Las partes convienen en que serÆn aplicables en su momento los tØrminos del Cdigo de Comercio cualquier otra disposicin aplicable respecto de Ia identidad expresion do consentimiento de las mismas por medios electrnicos ptico do otra cualquier tocnologIa mediante el uso do Ia firma electrnica avanzada fin de quo los Mensajos de Datos sean comunicados entre las partes do manera segura en su identificacin autØnticos integros on su contonido no ropudiables respecto do emisor receptor El Cliente reconoce ser 01 tnico exclusivo responsable del use quo so haga de las Firmas Electrnicas el para accoso operacin manejo de los Servicios conviene on sacar en paz salvo Banamex de cualquier responsabilidad que pudiere Ilegar generarse su cargo por el uso indebido quo le diera las Firmas Electrnicas El Cliente se oblige modificar peridicamente Ia Clavo Confidencial con Ia finalidad do mantener en confidencialidad las Firmas Electrnicas seguir estrictamente las 01644 El Cliente manifiesta conocer el riesgo existente en el uso do los Medios de ComunicaciOn el alcance legal quo Ia legislacin aplicable atribuye las Firmas Electrnicas por lo quo su uso en cualquiera de los Medios de Comunicacin yb Ia Banca Electrnica es bajo su estricta responsabilidad independientemente de Ia persona que las use por 10 que Banamex no serÆ responsable de los daæos perjuicios que el uso indebido do las Firmas Electrnicas le pudiere causar al Cliente aCm cuando exista caso fortuito fuerza mayor La responsabilidad del Cliente cesarÆ por defunciOn robo extravio hechos ilicitos partir de que Østos sean notificados Banamex Es responsabihdad del Cliento habilitar Ia Firma Electrnica por cualquiera do los Medios de Comunicacin que asi lo requiera inmediatamente despuØs do que Ia reciba siguiendo el procedimiento que Banamex hubiera instruido al Cliente para tales efectos El Cliente reconoce quo al momento de recibir por primora vez Is dave Confidenciat so encontrarÆ salvo indicacin expresa vencida inactiva no podrÆ ser utilizada para recibir los Servicios salvo para tenor acceso inicial algCn Medlo de Comunicacin modificar su vez Ia Clave Confidencial Una vez modificada Ia Clave Confidencial por ende Ia Firma ElectrOnica el Cliente podrÆ recibir los Servicios travØs de Ia Banca Electrnica En caso do que con anterioridad Ia fecha de ejecucin del presente el Cliente ya hubiora tenido acceso alguno de los Medios de ComunicaciOn con base en algn otro contrato celebrado entre el Cliente Banamex caso en el quo Banamex no entregara al Cliente una Firma ElectrOnica adicional por lo quo el Cliente continuarÆ utilizando las Firmas ElectrOnicas quo le hubieran sido dadas de Alta en los Medios de Comunicacin CLAUSULA VIII.4.- EQUIPO PROGRAMAS DE COMPUTO El Cliente expresamente conviene en obligarse de conformidad con las disposiciones de esta ClÆusula respecto al Equipo de Cmputo allos Programas de Cmputo que sean instalados en el Equipo de COmputo del Cliente su uso como parte de los Medios de Comunicacin P01 lo que El Equipo de Cmputo ser utilizado pars instalacin del los Programas de Cmputo serÆ suministrado exclusivamente por el Cliente deberÆ reunir el minimo de caracteristicas que Banamex el tercero autorizado 01 Banamex determine como necesarias para que dichos Programas de Cmputo funcionen adecuadamente Cliente serÆ responsable de todos necesarios dar mantenimiento mismo de que estØ El los gastos para reparacin al fin siempre en buenas condiciones pars su uso El Cliente reconoce que Banamex es el nico exclusivo titular de los derechos do autor sobre los Programas de Computo en su caso quo Banamex cuenta con los derechos para el uso explotacin licenciamiento de dichos Programas de Cmputo Todos los derechos de patentes propiedad intelectual derechos de autor marcas secretos industriales relacionados con los Servicios los Programas de Cmputo relacionados con los Medios de Comunicacin son propiedad nica exclusiva de Banamex tiene derecho al uso do los mismos par Ia que el Cliente no podrÆ por ningn motivo de ninguna forms copiar modificar suprimir alterar los Programas de Cmputo indicados El Cliente serØ el Unico responsable del mal uso que pudiera darse los Programas de Cmputo que estØn instalados en su Equipo de COmputo Banamex otorga al Cliente una licencia limitada intransferible sin exclusividad para que utilice el los Programas de Cmputo que Øste requiera para tener acceso los Servicios sujeto que el Cliente utilice el los Programa de Cmputo en los tØrminos bajo las condiciones del presente Contrato ii los Programas de Cmputo sean utilizados exclusivamente pars los fines aqui establecidos en el curso ordinario de los negocios del Clients El Cliente se obliga tratar do manera confidencial el los Programas de Cmputo no divulgar ninguna persona el contenido formato caracteristicas do los mismos El Cliente so obliga indemnizar Banamex de los daæos perjuicios que le IlegarØ causar el incumplimiento do Ia obligacion do confidencialidad pactada en este inciso Banamex no serØ responsable par los daæos perjuicios causados al Clients cualquier persons por las fallas do los Programas de COmputo de Ia Banca ElectrOnica en el Equipo do Cmputo cuando dichas fallas no sean imputables directamente Banamex CLAUSIJLA VIlI.5- SERV1CIOS TRAVES DEL PORTAL BANAMEX BANCANET BANCA MOVIL AUDIOMATICO OPERADOR TELEFONICO travØs de los Medios de Comunicacin cualquier otro disponible en Ia fecha de celebracin de este Contrato en eI futuro el Cliente padre recibir los Servicios habilitados en el Medio quo corresponda El Clients podrØ obtener algunos do los Servicios autenticØndose dando las Instrucciones que en cads caso sean necesarias para Ia obtencin de dichos Servicios en el entendido de que los mismos estÆn sujetos las limitaciones condiciones horarios montos demÆs reglas aplicables quo se detallan en cads Medio do Comunicacin que se refiere esta ClÆusula El Clients so obliga cumplir con los procesos reglas que Banamex establezca travØs de los Medios de Comunicacin para poder recibir los Servicios Una Sesin inactiva par el tiempo que determine Banamex serÆ suspendida Banamex padre en toda mamento adicionar nuevos Servicios para ser prestados travØs de cualesquier Medios de Comunicacin el Cliente que doses utilizar dichos nuevos Servicios estarØ sujeto las limitaciones condiciones horarios montas demÆs reglas aplicables que se detallen en cada Medio de Comunicacin quo corresponda Asimisma Banamex podrÆ en tado momenta adicionar nuevos Medios de Comunicacin pars que los Clientes puedan recibir las Servicios Banamex podrÆ ofrecer de conformidad con Ia IegislaciOn vigente Ia presentacin de los estados de cuenta resimenes de movimientos de los distintos Productos Servicios ye sea que Østos sean enviados electrnicamente al Cliente quo residan en los sistemas de Banamex fin do quo el propia Cliente acceda elba pars su consults El Clients padre utilizer coma cantingencia los Medios de Comunicacin Lines Banamex Digitem TEF asi coma recibir algunos do los Servicios en las sucursales de Banamex en las que el Cliente tenga establecidas Cuentas de las cuales Øl sea el titular Las partes convienen en que dentro del Media de Comunicacin se ofrece en cumplimienta de las disposiciones Iegales procedimientos para establecer limites los montos individuales agregados diarios que en caso de no ser definidas por el Cliente serÆn sugeridos par Banamex En el eventa de que se afrezcan servicios de entidades relacionadas con Banamex de terceros mediante enlaces electrnicos Banamex en cumplimiento do disposiciones legales cerrarØ Ia Sesin establecida una vez que ingrese aquella otra cuya seguridad no depende ni es responsabilidad de Banamex travØs de Ia Lines Banamex Digitem el Cliente padre entre otros consultar saldas mavimientos estados de cuenta de las Cuentas Incorparadas ii realizar traspasos do fondos de una Cuenta Incorporada otra Cuenta lncorparada una Cuenta de terceros iii expedir rdenes de pago pars ser cubiertas en efectivo en otras plazas en sucursabes de Banamex iv realizar depsitos par concopto de servicios impuestos federales con fondos de Cuentas Incorparadas enviar recibir correos electrOnicos Banamex otros Clientes de Banamex vi realizar pagos interbancarios baja las reglasy condiciones que tongs pactados Banamex con atros bancos vii dar de Alta Cuentas baja cualesquiera Cuentas Incorparadas Cuentas de terceros Ox dar de AftayBajaFirmas 01645 ElectrÆnicas administrar sus facultades carnbio de Clove Confidencial xi consults do ostado do choquos librados oporaciones pars protoccin do choquos on caso do robos oxtravios xii solicitud do talonarios do chequoras de las Cuontas lncorporadas do as que el Clionto es titular xiii los domÆs Sorvicios quo en su momonto puedan efectuarso mediante Ia digitacin do las Instrucciones correspondientes on el Programs do COmputo denominado Linea Banamox Digitem El Cliento reconoco estÆ do acuordo en que Banamex podr libromente sin Iirnitacin alguna realizer todas las modificaciones tØcnicas fisicas mecÆnicas do cualquier otra naturaleza quo sean necesarias para mejorar actualizar suprimir algunas de las funciones de los Medios ElectrOnicos inclusivo Is eliminacin de algunas Operaciones Ia oliminacin total do algunos do los Medios Eloctrnicos sogUn Banamox 10 considere necesario Asimismo el Cliente reconoce quo Banamex podrÆ ojocutar las Operaciones en lines hacer los cargos abonos correspondiontes con posterioridad al momento on quo el Clionto envie las Instrucciones travØs de los Medios Eloctrnicos Banamox no serÆ responsable frente al Cliente do cualesquiera daæos perjuicios quo se le pudieren ocasionar este Ultimo en virtud do las modificaciones quo Banamex efecte en los Medios Electrnicos El Clionte reconoco expresamento quo Banamox no serÆ responsablo de los danos perjuicios quo Ilegaren causÆrsele per Ia no disponibilidad do los Medios Electrnicos No obstanto ello Banamex podrÆ poner disposiciOn del Cliente en sus sucursales los medios alternos Operaciones pars pactar Banamex no responde por las fallas en los Medios Electrnicos cuando Østos sean motivados por case fortuito causas de fuerza mayor CLAUSULA VllL6 SERVICIOS DE BANCA MOVIL PAGO MOVL El Cliente que tongs contratado activado serviclo do Banamex Mvil podr acceder mediante su TelØfono Mvil los Servicios que Banamex proporcione per esta via pudiendo realizar entre otras las siguientes operaciones de consulta do saldos movimiontos transferencias pagos cuentas page de servicios compra de tiempo aire Todas las operaciones previamonte descritas aquellas que en un futuro so adhieran al presente servicio pars el conocimiento del cliente serØn notificadas via mensaje de texto SMS CLAUSULA VIJl.7.- SERVJCOS TRAVES DE TEF travØs del serviclo de TEF el Cliente podrØ entre otros realizar depositos modianlo Instrucciones Banamex pars que cargue en Ia Cuenta do Cargo Global del Cliente el monto Global en alguna de las Cuentas Incorporadas come Propias deposite cualquier Cuenta cuyo titular sea un tercero ii realizar cobros mediante Instrucciones Banamex pars que cargue ciertas sumas las Cuentas lncorporadas cuyos titulares sean terceros cuyas Cuentas hayan side incorporadas mediante autorizacin por escrito del tercero page de contraprestaciones laborales sociales mercantiles de cualquier naturaleza sujeto las condiciones tØrminos que en su memento determine informe Banamex iv los demØs Servicios que en su memento puedan efectuarse mediente Ia digitacion de las lnstrucciones correspondientes trevØs del Serviclo de TEF Cuando el Servicio implique Ia aplicacion de un archivo de pages el Cliente se oblige proveer fondos suficientes Cuenta de Cargo Global per el monto Global con anticipacin Ia fecha en que Banamex deba realizer Ia aplicacion de los cargos conforme los convenios establecidos con los demØs bancos para pagOs interbancarios sujetos Ia regulacion jurldica vigente CLAUSULA VIIL8.- SERVICIO DE DOMICILIACIN El Cliente tenga contratado un Medio de Comunicacin podrÆ realizer que cargos automÆticos las cuentas do sus propios Clientes para el pago do un bien servicio do conformidad con las siguientes disposiciones El Cliente deberÆ firmer entregar de acuerdo sus necesidades el documento autorizado que contendrÆ al menos las especificeciones de periodicidad de Cargos Programados los montos minimos mØximos sin limite de dichos cargos sal como Is Cuenta de Abono en Ia que Banamex acreditarØ los Cargos Programados Para quo los terceros autoricen Banamex realizer Cargos Programados deberØn en sucursal firmar entregar el formato de autorizaciOn travØs de Ia Banca EloctrOnica el Cliente podrÆ efectuar sus Cargos Programados travØs de algn Medio de ComunicaciÆn Esta alternativa solo podrO ser utilizada por aquØllos terceros quo tengan contratado el Servicio de Banca ElectrOnics El NOmero de Autorizacin que se asigne dicha operacin sore utilizado cualquier aclaraciOn posterior pars Banamex entregarO al Cliente un archive electrOnice en los Dias HÆbiles que contendrO el listado do los terceros que hayan autorizade el alta baja modificacin do Cargos Programados ii un archive con los cargos que se pudieron no realizar iii un archivo que contieno los reversos El Cliente libera Banamex de cualquier incenformidad quo so presente por porte del Torcero con Ia limitacin de monies mØximos estipulados El Cliente reconoce que los terceros quo hayan autorizado Banamex Ia realizacin de cargos automÆticos programados podrOn revocar dichas Instrucciones cuando sal lo deseon sin ningCn costo siguiendo las disposiciones legales aplicables El Clionto libera Banamex do los daæos perjuicios no se harÆ responsable al no poder realizer el cobro do los Cargos Programados cuando las Cuentas de los terceros tengan fondos insuficientes hayan sido canceladas por cualquier causa quo imposibilite Banamex realizer los cargos El Cliente autoriza Banamex cargarle en su Cuenta el monto acumuledo de los reversos dontro del plazo legal los cargos no reconocidos de los cuales no se entrogue Ia carta autorizaciOn del tercero en los siguientes 10 diez dies su solicitud teniendo Ia pesibilidad de al no encontrer fondos en Ia Cuenta utilizer de manera discrecional su elecciOn los sistemas de bsqueda do fondos de cualquier Cuenta que se encuentre el nornbre del Cliente dicho cobro El no del derecho antes mencionado no limits su elimina su baja para ejerciclo aplicacin ejecucin Toda eclaraciOn deberª efectuarse por escrito entre el Cliente Banamex dentro del plazo legal Si el Cliente no responde Ia solicitud de aclaraciOn Banamex cargarO Ia Cuenta do Abono el importe sujeto Ia aclaraciOn No obstante Ia anterior el Cliente podrO cancelar en cualquier memento el servicio antes descrito sin perjuicio caste alguno CLAUSULA Vlll.9.- SERVICIOS BMICARIOS FINANCIEROS INPORMATIVOS OPERADOS TRAVES GE YERCEROS Banamex podrO prosier alguno algunos do los Servicios travØs de terceros autorizedos en ol entendido que en determinedas operaciones so realizarÆn utilizando los niveles de seguridad necesarios para Ia transmisiOn do Mensajes do Gatos sujeto entre otras las siguientes condiciones tØrminos El Cliente queda en libertad de determinar si desea recibir Servicios de dar Instrucciones Banamex trevØs do dichos terceros en el entendido de que cuando asi Ia hega el Cliente estÆ de acuerdo en que Benamex transmita informaciOn sobre canfirmaciones rechazas devoluciones del Cliente por conducto do dichos terceros Los Servicios Financieros Oporados travØs do terceros se canforman de Mensajes do Datos quo lnstruyen Banamox para realizer cargos en Cuentas Incorporedas del Cliente pare su abono otras Cuentas tanto del Cliente como de otras torcoros Cuentas quo oonotrasistItucionesnancieras igaje aem 01646 El Cliente reconoce que tratÆndose do Instrucciones sobre abonos Cuentas quo no sean de Banamex dichas Instrucciones se realizarÆn conforme os convenios establecidos con dichas Instituciones para pagos interbancarios estarÆn sujetas regulacion juridica vigente P01 Jo el Cliente so obliga revisal Ia aplicacin de las Instruccionos efecto de confirmar lnstruccin ha sjdo rechazada que si alguna 01 otras instituciones financieras En el caso do que prestacion de los Servicios Financieros Operados travØs de terceros se Ileve cabo con Certificados dicha Digitales prestacin estÆ sujeta que Banamex active 01 Cortificado Digital Banamex tondrÆ el derecho no activar et Certificado Digital cancelar el mismo en cuslquier momento en caso do que los datos quo el Cliente hays proporcionado al solicitarlo no concuerden con informacin que Banamex tonga al respecto En tal caso el Cliente podrÆ acudir cualquiera do las sucursales Banamex efecto do proporcionar los datos correctos solicitar nuevamente emisin del Certificado Digital conforme los procodimientos ostablecidos por Banamex Banamex notificarÆ al Cliente Is cancelacin del Certificado Digital en base los dabs proporcionados en el mismo El Cliente asume cualquier responsabilidad sobre el uso do su Certificado tendrÆ libertad de determinar el Digital quien Ia si usa Certificado Servicios Financieros travØs do terceros Digital para rocibir los Operados Los Terceros quo preston por Banamex servicios informativos do comercio electrnico se sujetarØn las politicas de soguridad transparencia identificacin quo determine discrecionalmente Banamex Cuando travØs de los Medios Electrnicos se convengan los Servicios tales como cargos cuentas propias titular sea persona cuyo distinta al Cliente Øste deberØ entregar en cualquiera de las sucursales do Banamex en las que el Cliente tenga aperturadas cuentas de las Øste que sea titular Ia autorizacin 01 escrito firmada por el tercero que es titular de Ia cuenta que se doses incorporar coma cuenta propia su representante que cumpla con las disposiciones legales quo sean aplicables los requisitos quo Banamex establezca La omisin en Ia realizacin de los actos seæalados no obligarØ Banamex prestar los Servicios antes precisados sin quo P01 ello asuma responsabilidad alguna frente al Cliente Los Servicios de alta baja de cuentas autorizadas podrÆn ser convenidos travØs de sucursales BancaNet aquellos Medios Electrnicos que Banamex estipule en un futuro en cumplimiento las indicaciones prevenciones que se nluestren en el cuadro de diÆlogo quo aparezca en el mdulo denominado Alta/Baja de Cuentas BancaNet por coda alta de cuentas autorizadas generarØ un NØmero do Autorizacin no obstante no se realice afectacin las estados contablos de Banamex El Cliente podrÆ optar por instruir alta baja de cuentas autorizadas en las sucursales en as Øste cuentas de sea cual quo tenga aperturadas incorporadas las que propietario supuesto en el dichas instrucciones surtirØn sus efectos transcurridos ireinta dias de Ia fecha en quo Banamex haya recibido en sus sucursales as Instrucciones correspondientes Jo anterior sin perjuicio de quo Banamex las ejecute en cualquiertiempo comprendido dontro de dicho plaza Cuando travØs de los Medios Electrnicos so realicen aperaciones quo tengan objeto el terceros do bienes servicios por pago las relaciones del Cliente dichos terceros se convenios celebrado dichos regirØn par los propios que hayan para efectos por Jo quo Banamox no asumirØ responsabilidad alguna derivada de esas relaciones juridicas ya sea por el pago par Ia insuficiencia en prestaciªn de los bienes servicios por lo que el Cliente se obliga indemnizar sacar en paz salvo Banamex do cualquier reclamacin quo se relacione con Ia anterior Banamex solo tendrO obligacion do prestar los Servicios relacionados transferencias do fondos en el evento do en cuentas quo las propias cuenten con los fondos que sean suficientos para dar cumplimiento dichas transferencias Par Ia que Banamex no asumirÆ responsabilidad alguna derivado de Ia anterior Asimismo el Cliente reconoce que Banamex podrÆ prestar los Servicios inmediatamente con pasterioridad al momento en que el Cliente envie las Instrucciones en Banca Electrnica efecto de Jo anterior Banamex informarØ mediante Ia presentacin de una ventana que contenga informacin rolativa Ia operaciOn habiendo sido ejecutada se incluirO un nOmero de autorizacin un nOmero do rocepcin si Ia misma so ejecutarO posteriormente Adicionalmente Ia notificacin que se realice en el media do comunicacin utilizada se natificarO al correo electrnica seflalado 01 el Cliente CLAUSULA VIlIlO.- LA BITACORA ESTADOS DE CUENTA La Banca ElectrOnica una BitOcora de guarda las operaciones realizadas misma quo podrO ser consultada impresa el Cliente do conformidad con Instrucciones Medio de CamunicaciOn de par las del que Se trate El Cliente es respansable do verificar que las Instruccianes operadas hayan quedado debidamente registradas en Ia BitÆcora Dicha BitØcora contendrfl Ia fecha hora hhmmss nØmero do cuenta origen destino demÆs informacin quo permita identificar el mayor nØmero do elementos involucrados en los accesos los Medios do ComunicaciOn los datos de las cansultas oporaciones incluyendo on su caso las direcciones do los protacalos de Internet similares El Cliente podrÆ consultar Ia informacin sobre Instrucciones se hayan en relacin con Cuentas las quo aperado las Incarporadas tanto en Ia Banca Electrnica coma en las sucursales obtener estados do cuenta travØs de algunos de las Medios de ComunicaciOn Asimisma el Cliente podrO pragramar quo Ie sean enviados ostados do cuentas travØs de los Medios do ComunicaciOn cuando estos Ia permitan La BitOcara tendrØ validez legal cuando se cumplan las requerimientos de Ia Iegislacion vigente Banamex padre ofrecer de conformidad con Ia legislaciOn vigento Ia presentacin de las estados de cuenta resimenes de movimiontos do las distintas Productas Servicios ya sea que Ostas sean enviados electrnicamente al cliente que residan en las sistemas de Banamex fin de quo el prapio Cliente acceda ellos pars su consulta partir del momenta en que estØn dispasiciOn del Cliente dichas estados do Cuenta correrAn los plazos establecidas par Ley pars Ia presentaciOn do aclaracianes transcurrido el cual el Cliente manifiesta exprosamente su aceptacin las operaciones ahi contenidas Los estados de cuenta los quo el Cliente tiene acceso travØs do as Medios do Comunicacin no so consideran efectos comprobantes pars fiscales tendrÆ carOcter nicamente informativo salvo que en virtud de las dispasiciones Iegales aplicables Banamex establezca Ia validez contractual legal yb fiscal de dichos estados do cuenta CLAUSULA Villil.- CONCESIONES Pars efectos do prevenir una cantroversia futura las partes convienen en atargarse las siguientos reciprocas concesiones El usa de Ia Firma ElectrOnics tendrO pars tados los efectos Iogales que hays lugar las mismos efectos implicacianes do Ia firma autOgrafa autOntica dentra do los cuales de manera enunciativa mOs no limitativa se seæalan Ia do representar el acuerdo do voluntades entre el Cliente Banamex sustentada en facultades suficientes pars abligarles en los tØrminas candicianes do las canvenios relativas las Operacianes El Cliente express manifiesta acepta Operaciones Instrucciones realice medianto usa do Firma quo las quo el Ia Electronics Ia identifican plenamente ante Banamex par Ia que Ia expresin de su cansentimiento otorgada por estos medios respecto de las Operacianes sorOn absalutamente vÆlidos no pudiendo ser desconocidos revocadas ropudiados rechazadas por el Cliente tanto respectodedichaidentificacian coma de Ia ejecumon de Operaciones que Se hubiosen reahzado 01647 as Operaciones le son aplicables todos los tØrminos condiciones establecidos en el presente Capitulo en los contratos que en su caso se asocien Østas 01 aquellos que se establezcan en los cuadros de dilogos de los propios Medios ElectrOnicos por los efectos que el uso de los Medios Electrnicos convencin de as Operaciones tengan sobre los contratos asociados Østos Los asientos contables efectuados por Banamex Is BitÆcora los estados de cuenta el Nmero de Autorizacin as uichas documentos de las asi como las demÆs constancias documentales tØcnicas que se generen con motivo ejecucin de Operaciones derivadas del uso de los Medios Electrnicos harØn prueba plena de Ia existencia validez de las Operaciones pactadas travØs de ellos Las Operaciones pactadas travØs de los Medios Electrnicos mediante el uso de Ia Firma Electrnica represents el acuerdo de voluntades entre el Clients Banamex cuyo perfeccionamiento se rigs por as reglas de los convenios celebrados entre presentes CLAUSULA VIIl.12.- MICRO PAGOS Banamex podrØ no requerir Ia Clave Confidencial firma autografa del Cliente cuando Øste instruya travØs del TelØfono Mvil de Terminales Punto de Venta Operaciones por un importe determinado en las disposiciones legales aplicables En este supuesto Banamex asumirØ los riesgos por In tanto los costos de tales Operaciones que no sean reconocidas por el Cliente obligandose abonar en Cuenta el importe de Ia OperaciÆn no reconocida mÆs tardar 48 cuarenta ocho horas postoriores que el Cliente hubiese presentado reclamaciOn correspondiente CAPITULO NOVENO CO MIS ION ES CLAUSULA DE LAS COMISIONES IX.1.- El Clients se obliga pagar Banamex las cantidades que se deriven do las comisiones que se describen endocumento el que como anexo se adjunta al presente Contrato el cual se considerar para todos los efectos legales haya lugar como parte integrante del mismo quo Al monto do las comisiones se les adicionarÆ el lmpuesto al Valor Agregado l.V.A. El Cliente podr consultar las comisiones vigentes en cualquier sucursal Banamex en el Portal Banamex Banamex podrÆ incrementar el imports de las comisiones anteriormente selialadas asi como establecer nuevas comisiones previo aviso que publique en el Portal Banamex en lugaros abiertos al ptblico en sus oficinas bien previa notificacin enviada al Clients travØs de cualquiera de los medios seæalados en Ia ClÆusula XllI.8 cualquiera de ellos con al menos 30 treinta dias de anticipacin que surtari efectos las mismas El Cliente que no estØ de acuerdo con el incremento con las nuevas comisiones podrÆ solicitar Ia terminacin del Contrato dentro de los 30 treinta dIas posteriores al aviso arriba seæalado sin responsabilidad alguna su cargo tras lo cual Banamex Is deberÆ entregar el saldo disponible do La Cuenta sin aplicar comisin adicional alguna con excepcin do los adeudos que ya se hubieren generado Ia fecha en que el Cliente retire el citado saldo CLAUSULA lX.2.- COBRO DE COMISIONES El Cliente autoriza expresamente Banamex pars cobrar las comisiones seæaladas en el presents Capitulo mediante cargo Cuenta en el entendido de que si por cualquier causa Banamex no efecta el cargo respectivo el Cliente no quedarÆ eximido de cumplir con sus obligaciones de pago CLAUSULA IX.3.- FALTA DE PAGO El Clients manifiesta estar de acuerdo en que Banamex bloqueØ su acceso los Medios ElectrOnicos en caso de el primero no cubra Banamex en tiempo forma las comisiones anteriormente pactadas La falta do ejecucin del derecho quo antes indicado no limits elimina modifica el mismo CAPiTULO DECIMO ESTADO DE CUENTA CLAUSULA X.1.-DEL ESTADO DE CUENTA Banamex estarÆ obligado enviar al Cliente dentro de los primeros 10 diez dias siguientes Ia fecha de code un Estado de Cuenta con Ia relaciOn de todos los movimientos efectuados en Ia Cuonta durante el periodo al que corresponds el mismo Se entenderÆ pars todos los efectos legales que haya lugar quo Banamex ha enviado el Estado de Cuenta al Cliente en cualquiera de los siguientes supuestos pactados en Ia Solicitud en el formato que Banamex determine pars tal fin Banamex envia ltimo domicilio determinado Cliente al Correo Electrnico Cliente Si In al por el pars recibir correspondencia quo el haya proporcionado Banamex bien Si Banamex lo pone disposiciOn del Cliente para su consults en Ia Sucursal travØs de Medios Electrnicos El Cliente en este acto acepta expresamente que cualquier comunicado que le sea dado conocer por Banamex travØs de los Estados de Cuenta surtirÆ plenos efectos legalos como si Ia notificaciOn hubiese sido realizada en forma personal CLAUSULA X.2.- SUSPENSION DE ENV1O Cuando Ia Cuenta no presente ninglin tipo de movimiento en el transcurso de 30 treinta dias consecutivos Banamex estarÆ facultado para suspender el envio del Estado do Cuenta con Is periodicidad pactada en Ia ClÆusla anterior obligandose enviar dicho Estado de Cuenta cuando menos una vez cads seis meses De existir un movimiento posterior Ia suspension Banamex deberO reanudar el envio del Estado de Cuenta No obstante In anterior el Cliente podra en todo momento consultar el saldo de Ia Cuenta en caso de que mantenga saldo disponible podrO solicitar Banamex que reanude el envio del Estado de Cuenta correspondiente CLAUSULA X.3.- CONSULTA DE SALDO El Clients podra consultar el saldo de Ia Cuenta asi como una relaciOn de los movimientos del periodo en cualquier sucursal de Banamex travØs de Banca ElectrOnics en su caso travØs de los Cajeros AutomOticos El Clients podrÆ solicitar Banamex en cualquiera de sus sucursales travØs do los formatos quo Øste ponga su disposiciOn para tales efectos una relaciOn de los saldos movimientos presentados en Ia Cuenta en otros periodos Ia cual le serÆ entregada por Banamex denim de los 15 quince dias siguientos Ia fecha en que sea recibida su solicitud CAPITULO DECIMO PRIMERO ACLARAC ION ES CLAUSULA XI.1.- DEL PROCEDIMIENTO ACLARATORIO De coriformidad con lo dispuesto en el articulo 23 de Ia Ley para Ia Transparoncia Ordenamiento de los Servicios Financieros cuando el Cliente no estØ do acuerdo con alguno de los movimientos que aparezcan en el Estado de Cuenta podrÆ solicitar Banamex Ia aclaracin correspondiente Ia cual deberÆ presentar por escrito en Ia Sucursal en Ia Unidad Especializada travØs de cualquier otro medio que Banamex ponga su disposicin para tales 01648 efectos dentro de los 90 noventa dias siguientes contados partir do fecha do corte La solicitud deberÆ contener de forma detallada los movimientos con los cuales no estØ do acuerdo asi como Ia direccin donde so le pude enviar Is respuesta en su caso copia do su identificacin Una vez recibida Ia solicitud de aclaraciOn Banamox tendrÆ un plazo de 45 cuarenta cinco dias para entregar at Cliente el dictamen correspondiente En caso de aclaraciones rolativas Operaciones realizadas en el extranjero el plazo previsto on este pÆrrafo serÆ hasta do 180 ciento ochenta dias Banamex dentro del plazo senalado en el pÆrrafo anterior entregarÆ at Cliente ol dictamen travØs del Servicio Postal Mexicano cualquier servicio de mensajeria que el primero determine si transcurrido el plazo estipulado el Cliente no ha recibido respuesta Øste podrØ acudir Ia Unidad Especializada Ia sucursal donde present su reclamacin para que pueda recoger el dictamen correspondiente Asimismo dentro del plazo de 45 cuarenta cinco dias contado partir de Ia entrega del dictamen que se refiere pÆrrafo anterior Banamex pondrÆ disposicin del Cliente en Ia Sucursal bien en Ia Unidad Especializada el expediente generado con motivo de Ia solicitud de acaracin CLAUSULA Xl.2.- SUSPENSION DEL PROCEDIMIENTO El procedimiento previsto en Ia ClÆusula anterior quedarØ sin efectos partir de que el Clionte presente su demanda ante autoridad jurisdiccional conduzca su reclamacin en tØrminos do Ia Ley de Proteccin Defensa al Usuario de Servicios Financieros CLAUSULA Xl.3.- COMISION MERCANTIL PARA ACLARACIONES En este acto el Cliente otorga Banamex una comisiOn mercantil para que este Ultimo en su caso 10 represente ante cualquier tercero hubiese participado en transacciOn movimiento Cliente no que Ia que eI reconozca en virtud del cual jnicjO el procedimiento aclaratorio referido en Ia ClÆusula Xl.1 anterior CAPITULO DECIMO SEGUNDO DEL CREDICHEQUE CLAUSULA Xll.1.- AUTORIZACION SUSCRIPCIN DE CONTRATO Sujeto as autorizaciones de crØdito correspondientes posterior celebracin del Contrato de Apertura de CrØdito Banamex podra otorgar at Cliente un crØdito en Pesos bajo Ia forms do apertura de crØdito en cuenta corriente hasta por una cantidad igual Ia consignada en Ia comunicacin que Banamex dirija al Cliente por escrito bastando pars ello con anotacin correspondiente que se haga en ol estado de cuenta que mØs adelante se hace mencin En el supuesto de que Banamex otorgue al Cliente Ia Linea de CrØdito referida en el pÆrrafo anterior ambas partes deberÆn suscribir el Contrato de Apertura de CrØdito correspondiente travØs del cual estipularÆn los tØrminos condiciones quo regularØn Ia Lines de CrØdito CLAUSULA XII.2.- DISPOSICIONES Una vez suscrito el Contrato de Apertura de CrØdito el Cliente las Personas Autorizadas en su caso podrØn efectuar disposiciones con cargo Ia Lines do CrØdito travØs do cualquiora de los siguientes medios Por Banca ElectrÆnica por via telefnica en el Centro de Atencin Telefnica debiendo el Cliente utilizar el nmero confidencial le que serØ proporcionado por Banamex do conformidad con lo quo disponga el Contrato do Apertura de CrØdito Los servicios quo presto el Centro de Atencin Telefnica Banca Electronics ostarØn disponibles dentro del horario que Banamex comunique do tiempo en tiempo al Cliente Mediante el libramiento de Cheques denominados CrediCheque Las disposicionos do Ia Lines do CrØdito se formalizarØn mediante abonos de dinero quo Banamex efectuarÆ on Ia Cuenta mismos quo estarOn sujetos los dias horarios que Oste determine Banamex podrO ofrecer al Cliente las Personas Autorizadas en su caso acceso Ia Linea do CrØdito travØs do otros canalos mecanismos previa notificacin por lo quo Ia utilizaciOn por parte del Cliente de dichos canales mocanismos constituirÆ aceptaciOn los tØrminos do los mismos CLAUSULA XII.3.- DEL CREDICHEQUE En Ia Chequera proporcionada at Cliente de acuerdo con lo estipulado en ClOusula Banamex V.1 podrO incluir esqueletos de Cheque quo denominarÆ CrodiCheque travØs de los cuales el Clionte las Porsonas Autorizadas en su caso podrOn realizar Desembolsos Con Ia finalidad do que el Cliente puoda distinguir el titulo do crØdito seæalado en 01 pÆrrafo anterior en el mismo so incluirÆ Ia leyenda CrediChoquo sore do un color distinto los demOs esquolotos incluidos on Ia Chequora CLAUSULA XII.4.- NATURALEZA DEL CREDICHEQUE Ambas partes reconocen aceptan quo Ia naturaleza juridica del CrediCheque es Is de un Cheque toda vez que reOne las caractoristicas legales necosarias pars ser considerado como tal For Io anterior al CrediCheque le sorOn aplicables todas las estipulaciones contenidas en el prosento Contrato relativas al Cheque Ia Chequera en general CLAUSULA XII.5.- USO En el supuosto de quo ol Cllento tenga autorizada una Lines do CrOdito hubiese suscrito el Contrato do Apertura do CrOdito correspondiente Osto acopta expresamente que travØs del Iibramionto de los Cheques denominados CrediChoque hare uso do Ia citada Linea do CrOdito aOn cuando mantenga saldo disponible en Is Cuonta El monto do los Desembolsos solicitados por el Clionto per las Porsonas Autorizadas on su caso travOs del libramiento de Cheques donominados CrediChoque serOn acroditados por Banamex Ia Cuenta El Cliente reconoce acepta quo pars pocler disponer do Is Linea de CrØdito en los tØrminos antes seæalados es necesario quo Is misma estØ vigento saldo disponible suficiento cubrir el importo del CrediCheque se encuentro corriento en sus on caso mantenga para al pagos contrario el importe del CrediChequo sore cubierto con rocursos provenientes del saldo disponible on Ia Cuenta CAPTULO DECIMO TERCERO DISPOSICIONES GENERALES CLAUSULA XlII.1.- CUENTA EJE Ambas partos ostOn de acuordo en que Is Cuonta pueda sor eje do cualquior otro producto que el Cliento tenga contratado con Banamex siempro cuando Østo asl lo autorice CLAUSULA XIII.2.- TRAMITE DE OPERACIONES De conformidad con 10 dispuesto en Ia Loy do Institucionos do CrØdito ambas partes convienen quo Banamex padre suspender cancelar el trOmito do Operaciones quo ol Cliento pretends realizar mediante el usc do equipos medios electrnicos Opticos de cualquier otra tocnologIa sistomas automatizados do procesamiento do datos redes do telecomunicaciones ya 01649 sean privados pblicos incluyendo Banca Electrnica siempre cuando Banamex cuente con elementos suficientes pare presumir que los medios de identificacin pactados pars tal efecto han sido utilizados en forms indebida bien cuando Banarnex detecte algn error en Ia instruccin respectiva Cuando Banamex hubiese recibido recursos mediante alguno de los equipos medios seæaiados en inciso anterior cuente con elementos suuicientes para presumir que los medios de identificacin pactados para tel efecto han sido utilizados en forma indebida podrÆ restringir hasta por 15 quince Dies l-lÆbiles Ia disposicin de tales recursos fin de lever cabo las investigaciones las consultas que sean necesarias con otras instituciones de crØdito relacionadas con Operacin de qua se irate Banamex podrÆ prorrogar el plazo antes referido haste por 10 thee Dias HØbiles mØs siempre que se haya dado vista autoridad competente sabre probables hechos iUcitos cometidos en virtud de Ia Operacin respective En los casos en qua por motivo de las investigaciones referidas en el inciso anterior Banamex tenga evidencia de que el presente Contrato fue celebrado con informacin documentacin falsa bien que los medios de identificaciOn pactados pars Ia realizaciOn de Ia Operacion de que se irate fueron utilizados en forms indebida podra bajo su responsabilidad cargar Ia Cuenta el importe respectivo con el propsito de que se ebone en Ia cuenta de Ia que procedieron los recursos correspondientes En caso de que Banamex hubiese abonado par error dinero Ia Cuenta el Cliente desde este momenta faculta Banamex para cargar el importe respectivo Ia referida Cuenta con el propsito de corregir el error cometido Banamex notificarØ al Cliente travØs de cualquiera de los medios senaledos en ClÆusula XIll.8 Is realizaciOn de las ecciones qua hubiese llevedo cabo de conformidad con Ia previsto en los incisos anteriores Asimismo el Cliente reconoce acepta que Banamex podrÆ bloquear Ia Cuenta en cualquier momento por motivos de seguridad CLAUSULA XtiI.3.- AUTORIZACION BANCA ELECTRONICA El Cliente reconoce que en el Contrato se encuentran comprendidos los servicios de Banca Electrnica cuyos tØrminos condiciones acepta expresamente CLAUSULA XIlt.4.- GARANTIA IPAB Banamex hace del conocimiento del Cliente que nicamente estÆn garantizados por el IPAB los depsitos bancarios de dinero Ia vista retirables en dies preestablecidos de ahorro plaza con previo aviso asi como los prØstamos crØditos que acepte Banamex haste por el equivalente 400000 cuatrocientas mil UDIS por persona cualquiera que sea el nimero tipo clase de dichas obligaciones su favor cargo do Banamex CLAUSULA XUL5.- CONTRATO INDIVIDUAL Las partes convienen expresamente que el Contrato es individual par lo que el Cliente serØ el nico titular de los derechos obligationes derivados del mismo En virtud de que el Cliente es el mica titular del Contrato Øste tendrÆ derecho al pago del saldo de las obligaciones garantizadas de acuerdo con lo estipulado en Ia ClÆusula anterior par 10 tanto desde este momento es seæalado expresamente coma titular garantizado ante el IPAB CLAUSULA XUI.6.- BENEFICIARIOS Conforme lo dispuesto en Ia Ley de lnstituciones de CrØdito el Cliente seæala coma beneficiarios del saldo de los Operaciones las personas mencionadas en Ia Solicitud en el formato que Banamex le proporcione pars tales efectos el cual debidamente firmado par el Cliente ontregado Banamex pasarØ formar pane integrante del Contrato dichos beneficierios tendrÆn derecho recibir cuando acrediten fehacientemente satisfaccin de Banamex el fallecimiento del Clients su identidad el importe correspondiente del saldo disponible de cads OperaciÆn Si fueran verbs los beneficiarios designados Banamex les entregarØ Ia pane proporcional determinada por el Cliente si flO se hubiere establecido Ia proporciOn qua cada uno de ellos le corresponds es entregarØ par partes iguales el saldo que tengan derecho de acuerdo lo estipulado en presente Clthusula En cualquier momento el Cliente podrÆ adicionar nuevos beneficiarios bien sustituir retirar los previamente designados 10 cual deberÆ efectuar mediante el formato que Banamex le proporcione en cualquier sucursal travØs de los medios qua Banamex determine para tales efectos En caso de que el Cliente no hubiese designado ningn beneficiario de conformidad con Ia seæalado anteriormente Banamex devolverØ el saldo de las Operaciones los derechohabientes de las mismas determinados do acuerdo con Ia legislacion comin Una vez acreditado el fallecimiento del Cliente Banamex procederÆ bloquear Ia Tarjeta de DØbito que en su caso le hubiese entregado de conformided con Ia dispuesto en el Contrato partir de 10 cual cesarØ Ia responsabilidad del Cliente par el uso de misma Banamex proporcionarØ Is persona que acredite eI fallecimiento del Cliente una dave que Østa deberØ conservar para futuras aclaraciones CLAUSULA XIIl.7.- TERMINACIN La duracin del Contrato es indefinida pudiendo cualquiera de las partes darlo por terminado en forms inmediata de acuerdo con 10 siguiente En caso de que Banamex pretenda terminar el Contrato deberÆ informar tel situacin al Cliente por escrito entregado en cualquiera de las sucursales de Banamex bien travØs de un comunicado enviado al Cliente travØs de cualquiera de los medios estipulados en Ia ClÆusula XIIL8 del Contrato deberÆ saldo de Cuenta dentro de los fecha en que terminaclØn El Clients retirar el Ia cinco dIas siguientes Ia surta efectos Is del Contrato de to contrario Banamex podrÆ contabilizarlos disposicin del Cliente en Ia forma que el primero determine TratÆndose de Depsitos Plazo PagarØs el Cliente deberÆ retirar el saldo de dichas Operaciones al vencimiento de las mismas Por su parte el Clients podrÆ dar por terminado el Gontrato mediante solicitud por escrito que presents en cualquier sucursal de Banamex debiendo acompaæar dicha solicitud los medios de disposicin vinculados Ia Cuenta una manifestacin por escrito bajo protesta de decir verdad de que fueron destruidos que no cuenta con ellos Banamex estarÆ facultado para establecer otros medios travØs de los cuales el Cliente podrØ notificarle su voluntad de dar por terminado el Contrato Una vez quo Banamex se cerciore de Ia identidad del Cliente proporcionarÆ Øste un acuse de recibo dave de confirmacion folio quo el Cliente deberª conservar pars futuras aclaraciones La terminacin solicitada por el Cliente surtirØ efectos al momento en que Øste retire el saldo disponible que mantenga su favor en su caso cubra los adeudos comisiones devengados esa fecha de acuerdo to establecido en el Contrato El Cliente contarÆ con un periodo de 10 diez Dias Hbiles posteriores Ia firma del Contrato para terminar Øste sin responsabilidad alguna de su parte en cuyo caso Banamex no podrÆ cobrar comisin alguna siempre cuando el Cliente no hubieseutilizadouoperadoninurmodeosProductos ________ sLp 01650 El Clionte podrÆ solicitar por escrito Ia terminacin del Contrato por conducto do otra entidad financiera autorizada para captar recursos del ptiblico Ia que so denominarÆ receptora Ia cual deberª abrir una cuenta nombre del Cliente remitir Banamex los documentos originales en los que conste manifestacin de Ia voluntad de dar por terminada Ia relacin contractual fin de quo Banamex transfiera el saldo disponible do Ia Cuenta Ia receptora quien llevar los trÆmites respectivos bajo su exciusiva responsabilidad Una vez presentada Ia solicitud para terminar eI Contrato Banamex deberÆ cancelar los medios do disposicin vinculados Ia Cuenta ii rechazar cualquier disposicin quo protenda ofectuarse con postorioridad Ia cancelaciOn do los modios de disposicin por lo quo no se podran hacer nuevos cargos adicionales partir del momento en quo se roalico Ia cancelacin oxcepto los ya gonorados iii cancolar sin su responsabilidad los servicios de domiciliacin on Ia fecha do Ia solicitud do terminaciOn con indopendencia do quien conserve Ia autorizacin de los cargos correspondientes iv abstenerse de condicionar Ia terminacin Ia devolucin del Contrato quo obre en poder del Cliente abstenerse do cobrar al Cliente comisin ponalizacin por terminacin del Contrato CLAUSULA Xlll8.- NOTIFICACIONES El Cliente reconoce acepta quo cuslquier aviso Banamex le tenga dar conocer quo que relacionado con el Contrato Øste podrÆ hacerlo haves de un comunicado por escrito enviado al domicilio del Cliente entregado en cualquier sucursal Banamex ii un mensaje contenido en el Estado de Cuenta iii un mensaje enviado al Correo Electrnico al TelØfono MOvil del Cliente bien iv un mensaje dado conocer travØs del Portal Banamex de Banca Electrnica del Cajero AutomØtico Los avisos cualquier otra comunicacin del Cliente Banamex deberØn ser por escrito entregados en Ia Sucursal salvo que en el Contrato so ostipule que deban ser presentados travØs de otro media CLAUSULA XIII.9.- DOMICILIOS Para efectos del Contrato Banamex seæala coma su domicilio el ubicado en Isabella Catlica nUmero 44 Colonia Centro Delegacion CuauhtØmoc 06000 Mexico Distrito Federal eI Cliente el indicado en Ia Solicitud El Cliente deberÆ notificar Banamex cualquier cambio de domicillo de Correo Electrnico mediante escrito entregado en Ia Sucursal debiendo adjuntar los documentos que Banamex le solicite para tales efectos en el entendido de que dicha notificaciOn surtirC efectos mÆs tardar los tres Dias HØbiles siguientes quo Østa se hubiese recibido El cambio de domicilio de Banamex podrÆ ser notificado Cliente mediante un aviso enviado travØs de cualquiera do los medios contenidos en Ia ClØusula anterior En caso do que no sea notificado por las partes el camblo do domicillo en los tØrminos pactados en el Contrato las notificaciones que se realicen en los domicilios previamente seæalados surtirØn penos ofectos legales para las partes CLAUSULA XIII.10.- MODIFICACIONES AL CONTRATO El Cliente reconoce expresamente el derecho do Banamex de modificar 01 Contrato en cualquier tiempo bastando para ello un aviso por escrito dado al Cliente con 30 treinta dias de anticipacin Ia fecha en que las modificaciones entren en vigor travØs de cualesquiera de los medios seflalados en Ia ClÆusula XIII.8 mediante publicaciones en poriodicos de amplla circulacin En el evento do que el Cliento no ostØ de acuerdo con las modificaciones al Contrato Øste podrÆ solicitar Banamex Ia terminaciOn del mismo de conformidad con 10 dispuosto en Ia ClÆusula XIII.7 sin responsabilidad alguna su cargo para Ia cual contarÆ con un plazo de hasta 30 treinta dias posteriores al aviso arriba soæalado bajo las condiciones anteriores Ia modificacin en el entendido do quo las modificaciones al Contrato entrarÆn en vigor en el plazo referido en el pÆrrafo precedente Se entenderÆ quo el Cliente acepta las modificaciones efectuadas al Contrato si Øste celebra cuslquier Operacin en fecha posterior que tales modificaciones entren en vigor manteniendo vigente su derecha dar por terminado el Contrato en tØrminos do 10 seæalado en el parrafo anterior Ambas partes reconocen aceptan que cualquier adecuacin las comisiones seæaladas en el CapItulo Noveno incluso Ia determinacin de nuevas comisiones no se entendern como modificacin al Contrato por lo que en dichos supuestos no serØ aplicable lo dispuesto en 01 primer pÆrrafo de Ia presente ClÆusula CLAUSULA XIII.11.- IMPUESTOS En caso de que las disposiciones fiscales asi 10 estoblezcan Banamex retendrØ enterarØ las autoridades fiscales correspondientes cualquier impuesto cargo del Cliente quo se genere en virtud del Contrato CLAUSULA Xlll.12.- INCUMPLIMIENTO El Cliente reconoce acepta que Banamex no responderØ por los daæos perjuicios que en su caso se le causen par el incumplimiento do las obligaciones cargo do Banamex derivado de caso fortuito por causas de fuerza mayor CLAUSULA XIII.13 CUENTA GLOBAL El Cliente reconoce que Banamex le informO que de acuerdo con lo dispuesto en Ley do Instituciones de CrØdito el principal los intereses depositados en Ia Cuenta en su caso do las Operaciones celebradas al amparo del Contrato quo no tengan fecha do vencimiento bien quo teniØndola se ronueven reinviertan en forma automØtica asi coma las transferencias do dinero las inversiones vencidas no reclamadas que en el transcurso de tres aæos no hayan tenido movimiento par Depsitos retiros despuØs do quo se haya dado aviso par escrito en el domicilio del Cliente que conste en eI expediente respectivo con noventa dIas do antelacin serØn abonados en una cuenta global quo IlevarØ Banamex para estos efectos El dinero aportado dicha cuenta Cinicamente generarØ un inheres mensual oquivalente at aumento en el Indice Nacional do Precios al Consumidor en el periodo respectivo Ambas partes convienen estØn de acuerdo en quo las Operaciones denominadas en Divisas podran ser convertidas Pesos par Banamex el DIa HÆbil anterior que Østas sean abonadas en Ia cuenta global referida en el pØrrafo quo antecede para lo cual Banamex deberØ utilizar el de cambio solventar denominadas en moneda en Mexicana Tipo para obligaciones extranjera pagaderas Ia Rep6blica que publique el Banco de Mexico en el Diario Oficial de Ia Federacin el die de Ia conversiOn Cuando el Cliente se presente para realizar un depOsito retiro reclamar Ia transferencia inversiOn Banamex deberO retirar de Ia cuenta global eI importe total efecto de abonarlo Ia Cuenta entrogOrsolo al Cliente Los derechos derivados de los DepOsitos inversiones sus intereses que se refiere esta ClÆusula sin movimientos en el transcurso de tres aæos contados partir do que estos Oltimos so depositen en Ia cuenta global cuyo importe no exceda por cuenta al equivalento 300 trescientos dias do salario minima general vigente en ol Distrito Federal prescribirOn favor del patrimonio de Ia boneficencia pblica lo par quo Banamex estarØ obligado entregarle dichos recursos El Cliente renuncia ejercer cualquior accin que pudiese derivarse en contra do Banamex en razOn del cumplimiento lo dispuesto en Ia presente ClÆusula CLAUSULA Xlll.14.- SEGUROS El Cliente autoriza Banamex para que lo incluya sin costa alguno en Is colectividad asegurada correspondiente Ia pliza do seguro que en su caso Øste contrate para titularos do los Productos determinados par Banamex lo el par que Clientedesde este omento instruyea Banarnox para que proporone sus datosala cornpania aseguradora con Ia cual contrate Ia cftada 01651 pliza La anterior en el entendido do quo Banamex no estarØ obligado incluir maritener al Cliente en colectividad asegurada en cuestin Este beneficio estarÆ sujeto los tØrminos condicianes exciusiones consignados en Ia pOliza vigente para todos los efectos legales que hays lugar el Cliente d.esde este momento designs coma beneficiarlos del seguro Iss mismas personas designadas coma beneficiarios do acuerdo con lo estipulado en Ia ClÆusula XlIl.6 El Certificado del Seguro que en su caso le corresponda al Cliente Se encontrarØ disposicin de Øste partir de los 45 cuarenta cinco dies posteriores Is contratacin de cualquiera de los productos senalados en el pÆrrafo anterior obligndose el Cliente solicitar el mismo al telØfono 1226-8222 en el Distrito Federal 01-800-888-8432 pars todo Mexico El Cliente reconoce acepta que Banamex so reserva el derecho unilateral do terminar anticipadamente Is pliza de seguro seOalada en el primer pØrrafo que antecede bien de no renovarla ii incluir excluir Productos de citada pliza do seguro iii modificar el tipo do seguro contratada bastando para ello un aviso por escrito enviado al Cliente travØs do cualquiera de os medios seæalados en Ia ClÆusule XllI.8 anterior con cuando menos 3D treinta dies de anticipacin CLAUSULA XIIi.15.- BENEFICIOS El Cliente autoriza Banamex pars que lo incluya sin costo alguno en cualquier programa de beneficios cresdo por Banamex favor de sus clientes travØs de los cuales Banamex podrØ de manera enunciativa mÆs no limitativa cubrir reembolsos compensaciones comisiones al Cliente asi coma incluir Øste en sorteos programas de lealtad de recomendaciOn rio puntos de cualquier otro tipo Lo anterior en el entendido de quo dichos beneficios programas podrØn ser modificados suspendidos cancelados en cualquier momento par Banamex sin causa do responsabilidad CLAUSULA XIILI6.- CESION El Cliente no podrØ ceder delegar transferir negaciar enajenar transmitir en forms alguna los derechos las obligaciones que asume en virtud del presents Contrato sin Ia autorizacin previa par escrito do Banamex CLAUSULA XIIt.17. JURISDICCION El presente Contrato so rogirÆ por las leyes do Mexico sometiØndose las partes expresamente Ia jurisdiccin de los tribunales de Ia Ciudad de Mexico Distrito Federal renunciando cualquier otro fuero que par cualquier motivo les pudiere corresponder CLAUSULA XIILI8.- AVISO DE PRIVACIDAD En cumplimienta lo dispuesto en Ia Ley Federal de ProtecciOn do Datos Personales en Posesin de los Particulares Banamex informs sI Cliente quo los dabs obtenidos en virtud do Ia celebrecin del Contrato serØn tratados de manors confidencial travØs do los sistemas provistos pars tales efectos serÆn usados para Ia operacion registro de los productos que el Clients hubiese contratado asi coma para ofrecerle en su caso otros productos bancarios financieros de Banamex de cualquiera do sus afiliadas subsidiarias controladoras asocisdas comisionistas sociedades integrantes del Grupo Financiero Banamex promociones de otros bienes servicios relacionados con los citados bancarios productos El Clients padre consultar eI aviso de privacidad en direccin do Internet completo Ia siguiente www.banamex.com/avisodeprivacidad Banamex notificarØ al Clients cualquier modificacin al aviso de privacidad mediante un comunicado par escrito enviado travØs de cuatesquiera de los medios seæalados en Ia ClÆusula XIII.8 bien travØs do mensajes publicados on las sucursales de Banamox CLAUSULA XIILI9.- TITULO DE LAS CLAUSULAS Ambas partes estØn do acuerdo en quo el objeto de los tItulos de as ClÆusulas es meramente informativo por que el contenido de dichos titulos no tiene efecto vinculatorio alguno Leido que fue par as partes el presente Contrato enteradas de su contenido alcanco juridico lo firman en el espacio correspondiente de Is Solicitud par duplicado quedando un ejemplar en poder de cada una de ellas 01652 O1653 EXHIBIT 6A 01654 CLAUSE XIII 17 JURISDICTION The present Contract will be governed by the laws of Mexico the parties shall expressly accept the jurisdiction of the courts of Mexico City waiving any other that may correspond to them under whatever circumstance 01655 TRANSPERFECT City of New York State of New York County of New York Alitasha Younger document Banamex Clause hereby certify that the Jurisdiction is to the best of my knowledge and belief true and accurate translation from Spanish into English Alitasha Youn Sworn to before me this August 27 2015 Th2 Signaureryy Public res 13 CommIssion Stamp Notary Public THREE PARK AVENUE 39TH FLOOR NEW YORK NY 10016 212 689.5555 212689.1059 WWW.TRANSPERFECT.COM OFFCES 90 OTES WORLDWIDE 01656 01657 EXHIBIT 103 01658 CASE NUMBER 14.270 IN THE ESTATE OF IN PROBATE COURT NO ONE DOROTHY LOUISE LONGORTA DECEASED HARRIS COUNTY TEXAS FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA TO PLAINTIFF SHELBY LONGORIA by and through his attorneys of record James Thomas Dorsey as Independent Executor of the Estate of Dorothy Louise Longoria Deceased the Executor hereby timely amends his responses to the Requests for Disclosure served on him by Shelby Longoria The correct names of the parties to the lawsuit RESPONSE Contestant/Counter-Defendant Shelby Longoria Defendants/Counter-Plaintiffs James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased Sylvia Rene Dorsey Adriana Longoria the name address and telephone number of any potentiaJ parties RESPONSE Eduardo Wayo Longoria Jr 1702 Cresthaven Drive Austin Texas 78704 telephone 512-535-0105 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 01659 the legal theories and in general the factual bases of the responding partys claims or defenses RESPON SE The Executor generally denies the allegations of Shelby Longorias Third Amended Contest of 2010 Will and any subsequently filed pleading in which the same or similar allegations are made and demands strict proof thereof in accordance with Texas law The Executor pleads the following additional defense in response to Shelby Longorias Third Amended Contest of 2010 Will and any subsequently filed pleading in which the same or similar allegations are made but he does not assume the burden of proof with respect to this defense except to the extent required by law Shelby Longoria lacks standing to maintain an action for removal of James Thomas as the duly appointed Independent Executor of the Estate of Dorothy Louise Dorsey Longoria Deceased James Thomas Dorsey is the Independent Executor of the Estate of Dorothy Louise Longoria Deceased and he is defending in good faith and with just cause the Last Will and Testament of Dorothy Louise Longoria dated January 21 2010 which this Court admitted to probate on October 2012 Consequently pursuant to Section 352.052 of the Texas Estates Code and other applicable law James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased is entitled to and hereby requests allowance out of the Estate of Dorothy Louise Longoria Deceased of his necessary expenses and disbursements including reasonable attorneys fees in these proceedings The Executor has pleaded as counterclaims the following claims against Shelby Longoria On July 1942 Eduardo Longoria Eduardo and Dorothy Louise Kowalski Dorothy were married in the City of Laredo in Webb County Texas When they were married Dorothy was citizen of the United States of America and Eduardo was citizen of the United Mexican States Mexico but he had been living in the United States and after the wedding the couple initially settled in McAllen Texas The marriage of Eduardo and Dorothy was subject to the laws of the State of Texas including the law of community property Eduardo and Dorothy had four children all of whom are living Their names are Adriana Louise Longoria Adriana Eduardo Longoria Jr also known as Wayo Longoria FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 01660 Wayo Sylvia Rene Dorsey Sylvia and Shelby Longoria Shelby All of them reside in Texas Eduardo and Dorothy amassed considerable wealth through variety of business activities and investments Over time Shelby took control over the business and investments owned by Eduardo and Dorothy Shelby managed property and accounts owned by Dorothy and represented to her that he was doing so for her benefit Indeed the account statements were not even sent to Dorothy even though she was identified as the sole owner of the accounts The accounts included but are not limited to the following accounts collectively Dorothys Accounts in Mexico Banarnex Account Number Banamex Account Number BanRegio Account Number In addition Shelby expressly agreed to hold in trust for the benefit of Dorothy property that Shelby obtained from Eduardo In letter to Dorothy dated August 1983 for example Shelby and Wayo promised Dorothy that the assets that Daddy has willed to us as long as you live we will hold them as if they were yours and we will make the fruits available to you for your direction as to their use These promises were made by Shelby while he was in Texas and they were set forth in letter that was sent to Dorothy from an address residing in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby by Eduardo by concealing from Dorothy material facts about that property including its nature extent value and profitability by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income generated by the by failing to disclose to Dorothy that he had done so and by failing generally to property make the fruit of that property available to her for her use Likewise in letter dated October 2007 which Shelby sent to Dorothy at her residence in Houston Texas Shelby made specific promises with respect to large sum of money that Eduardo wished for Dorothy to have upon his death Admitting that beheld such funds in trust for Dorothy and in recognition that Dorothy intended to leave her estate to her daughters Shelby promised that within thirty days after Dorothy died he would pay $100000 to Sylvia and $100000 to Adriana Upon Dorothys death Shelby repudiated and breached this promise to Dorothy While he did tender check for $100000 to Sylvia and check for $100000 to Adriana he printed on the checks language that if the checks were negotiated would have resulted in release of their rights in Dorothys estate and rights against Shelby self-serving conditions which Shelby had no right to impose The fact that FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 01661 demanded such releases for his benefit as conditions on his performance Shelby arbitrarily that of an unconditional duty to pay $100000 to Sylvia and $100000 to Adriana proves Shelby knew that Dorothy owned valuable claims against him Shelby knew that Dorothy intended to leave her entire estate to and Adriana and Shelby knew that Sylvia and Sylvia Adriana themselves had valuable claims against him all of which he now dishonestly denies Shelby owed fiduciary duty to Dorothy as an agent for Dorothy as trustee of an express trust for the benefit of Dorothy and in addition or in the alternative pursuant to an informal fiduciary relationship with Dorothy In contravention of his fiduciary duty to Dorothy under Texas law Shelby failed to advise Dorothy fully and fairly regarding the nature and extent of her property and his actions her property and was for her with respect to the property he holding in trust supposedly benefit In fact Shelby managed for his own benefit Dorothys property as well as property he was holding in trust supposedly for her benefit He caused income from the property to be paid to him or to others for his benefit and failed to disclose to Dorothy that he had done so Eduardo died on January 26 2005 at the age of 91 He was born on October 25 1913 When Eduardo died all of the property in his estate was community property of which one-half was owned by Dorothy under Texas law Eduardo died in Webb County Texas where he and Dorothy had lived for many years After the death of Eduardo Shelby continued to manage Dorothys property and continued to to her that he was managing her property for her benefit but he represent intentionally concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property In fact Shelby managed the property for his own benefit and engaged in self-dealing transactions that he failed to disclose to Dorothy Dorothy died in Harris County Texas on April 2012 at the age of 92 She was born on May 1919 order dated October 2012 Court admitted Dorothys Last Will By this to probate and Testament dated January 21 2010 and appointed James Thomas Dorsey Independent Executor of the Estate of Dorothy Letters Testamentary were issued to James Thomas Dorsey on the same day and such Letters Testamentary are currently in full force and effect FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 01662 First Cause of Action Demand for Accounting Pursuant to Section 489B of the Texas Probate Code Section 113.15 of the Texas Trust Code and the common law of the State of Texas Counter-Plaintiff is entitled to and hereby requests that Shelby provide full accounting of1 all of his activities as an agent for Dorothy all transactions done or caused by him involving property owned in whole or in part by Dorothy including but not limited to Dorothys Accounts in Mexico and all transactions involving property held by him in trust for Dorothy In connection with this claim the Executor is entitled to and is seeking herein an award of fees reasonably and incurred in attorney including litigation expenses necessarily connection with this action as permitted by Section 113.151 of the Texas Trust Code and other applicable Texas law Second Cause of Action Breaches of Fiduciary Duty Under Texas law Shelby breached his fiduciary duty to Dorothy by failing to disclose to her fully and fairly all information that might affect her interests in property managed by him including both her community property and property held by Shelby in trust for to act with utmost good faith and fair dealing in the management of her her failing activities her interests property and property held in trust for her and in his other affecting failing to act with undivided loyalty to Dorothy in the management of her property and her interests and property held by him in trust for her and in his other activities affecting in self-dealing transactions that were detrimental to her and in addition or in the engaging alternative improperly benefitted him The breaches of fiduciary duty by Shelby proximately caused compensable harm to Dorothy and her estate Under Texas law Counter-Plaintiff is entitled to and hereby ofjudgment against Shelby for actual damages in an amount to be determined requests entry by the trier of fact in accordance with Texas law The damages awarded should include all amounts of money which were withdrawn from Dorothys Accounts in Mexico and which Shelby cannot show specifically to have been withdrawn for Dorothys benefit or with her fully informed consent The breaches of fiduciary duty by Shelby constituted fraud gross negligence and malice as those terms are defined in Chapter 41 of the Texas Civil Practice and Remedies Code Despite his fiduciary duty under Texas law to disclose to Dorothy all facts that might affect her interests Shelby intentionally or in the alternative with reckless disregard for Dorothys rights concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONOOBJA DECEASED Page 01663 otherwise derived from the property Under Texas law Counter-Plaintiff is entitled to and hereby requests entry ofjudgment against Shelby for exemplary damages in an amount to be determined by the trier of fact in accordance with Texas law Shelby derived profits by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment decreeing that Shelby jlisgorge all profits received by him or by his wife his children or any other persons designtdby him as result of the breaches of his fiduciary duty to Dorothy Shelby acquired property by means of the breaches of his fiduciary duty to Dorothy Under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment imposing constructive trust on all property acquired by Shelby or by his wife his children or any other persons designated by him by means of the breaches of his fiduciary duty to Dorothy In connection with this claim the Executor is entitled to and is seeking herein an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action as permitted by Section 114.064 of the Texas Trust Code Third Cause of Action Breach of Promise To Hold Property for Dorothys Benefit Shelby promised Dorothy that he would hold in trust for Dorothy all of the assets that Eduardo gave to Shelby and Wayo and that he would make the income from such property available to her for her direction as to their use These promises were made by Shelby while he was residing in Texas Shelby breached these promises to Dorothy by failing to account for the property that was given to Shelby and Wayo by Eduardo by concealing from Dorothy material facts about that property including its nature extent value and profitability by failing to hold and maintain that property as if it belonged to Dorothy by paying himself income generated by the property by failing to disclose to Dorothy that he had done so and by failing generally to make the fruit of that property available to her for her use These breaches by Shelby proximately caused compensable harm to Dorothy and her estate Based on the doctrines of breach-of-contract promissory estoppel and money-had- and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment against Shelby for actual damages in an amount to be determined by the trier of fact in accordance with Texas law In connection with this cause of action the Executor is entitled to and is seeking herein an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action as permitted Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 01664 Fourth Cause of Action Breach of Promise To Pay $100000 to Adriana and $100000 to Sylvia Shelby promised Dorothy that within thirty days ofher death he would pay $100000 to Adriana and $100000 to Sylvia These promises were made by Shelby while he was residing in Texas and they were directed to Dorothy at her residence in Houston Texas Shelby breached these promises to Dorothy by tendering to Adriana and Sylvia checks that they could not negotiate without waiving their rights in Dorothys estate and their rights against Shelby self-serving conditions which Shelby had no right to impose Based on the doctrines of breach-of-contract promissory estoppel and money-had and-received under Texas law Counter-Plaintiff is entitled to and hereby requests entry of judgment against Shelby for $200000 in accordance with Texas law In connection with this claim the Executor is entitled to and is seeking herein an award of attorney fees including litigation expenses reasonably and necessarily incurred in connection with this action as permitted by Chapter 38 of the Texas Civil Practice and Remedies Code and other applicable Texas law Fifth Cause of Action Declaration of Invalidity of Donation Agreement dated January 11 2005 On January 2015 Shelby produced for the first time photocopy of document dated January 11 2005 written in Spanish entitled CONTRATO DE DONAC1ON the Donation Agreement The Donation Agreement purports to be signed by Eduardo and Dorothy By order dated January 29 2014 Shelby was ordered by this Court to produce documents such as the Donation Agreement no later than February 28 2014 His production of the Donation Agreement on January 2015 was over ten months late On the date of the Donation Agreement Eduardo was dying and on hospice care Fifteen days later Eduardo died The Executor believes and now avers that on January 11 2005 Eduardo lacked the requisite mental capacity to make legally enforceable contract The Donation Agreement states that it was signed in Reynosa Tamaulipas Eduardo was not in Reynosa on the date of the Donation Agreement In the seven that Dorothy lived after the date of the Donation Agreement she years never mentioned it to either of her daughters both of whom lived near her in Houston or to her son-in-law the Executor whom she saw frequently or in her correspondence which FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY iNDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 01665 was extensive or in her personal notes where she wrote extensively about her financial situation Indeed during those seven she made numerous statements both written and years oral that are inconsistent with the existence of the Donation Agreement Based on the foregoing facts and others the Executor believes and therefore avers that the Donation Agreement is forgery The Executor believes and avers that the Donation Agreement is unenforceable for lack of consideration or in the alternative for failure of consideration There exists an actual controversy between the Executor and Shelby as to whether or not the Donation Agreement is valid and enforceable contract Consequently under Chapter 37 of the Texas Civil Practice and Remedies Code the Executor hereby requests entry of judgment declaring that the Donation Agreement is invalid and wholly unenforceable Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code the Executor is seeking an award of costs and reasonable and necessary attorneys fees as are equitable and just in connection with this cause of action Anticipating that Shelby will plead the defense of limitations in response to some or all of the aforementioned causes of action Counter-Plaintiff pleads that Section 16.069 of the Texas Civil Practice and Remedies Code is applicable and precludes application of any statute of limitations In addition Counter-Plaintiff pleads under Texas law the discovery rule and fraudulent concealment by Shelby Despite his fiduciary duty of full disclosure Shelby concealed from Dorothy the nature extent and value of her property what he had done with her property over the years and how much money he had been paid or otherwise derived from the property The nature of the injuries to Dorothy and her estate were inherently undiscoverable because of the relationship of trust and confidence between Dorothy and Shelby and because he breached his fiduciary duty of full disclosure of all facts that might affect Dorothys interests The injuries to Dorothy and her estate are objectively verifiable because money that should have been paid to Dorothy was withheld from her and diverted to Shelbys benefit Based on the foregoing causes of action the Executor is seeking the following relief under Texas law decree commanding CounterDefendant Shelby to render an Longoria accounting of all property that was owned in whole or in part by Dorothy Louise Longoria and that was within his possession custody or control and all transactions affecting her property and an accounting of all actions taken by him as her agent or trustee specifically FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 01666 including complete accounting of all monies withdrawn from Dorothys Accounts in Mexico an award of actual damages from and against Counter-Defendant Shelby amounts be determined by the of fact accordance with Texas law but Longoria in to trier in the maximum amount of actual damages currently sought by Counter-Plaintiff while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $43500000 an award of exemplary damages from and against Counter-Defendant Shelby in amounts to be determined by the of fact in accordance with Texas law but Longoria trier the maximum amount of exemplary damages currently sought by Counter-Plaintiff-- while reserving his right under Texas law to amend this pleading to request greater or lesser amount as more evidence is uncovered and the whole truth comes to light is $10000000 an award of attorney fees including litigation expenses reasonably and incurred by Counter-Plaintiff in connection with each of his causes of actions necessarily under Texas law decree commanding Counter-Defendant Shelby Longoria to disgorge all profits received by him or by others for his benefit as result of breach by him of his fiduciary duty to Dorothy Louise Longoria decree constructive trust on all acquired by Counter- imposing property Defend ant Shelby Longoria or by others for his benefit by means of breach of fiduciary duty owed to Dorothy Louise Longoria an award of prejudgment interest on all actual damages at the highest rate authorized by law to the date ofjudgment an award of all costs incurred by Counter-Plaintiff in the course of preparing and prosccuting this civil action an award of postjudgment interest on all monetary relief at the highest rate by law from the date authorized ofjudgment until paid 10 judgment declaring that the Donation Agreement dated January 112005 is invalid and wholly unenforceable 11 all writs and processes necessary to collect the judgment and FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 01667 12 al other relief to which Counter-Plaintiff is entitled or which the Court may deem appropriate under the circumstances and the applicable law The amount and any method of calculating economic damages RESPONSE Shelby Longoria Shelby managed property and accounts owned Dorothy Longoria Dorothy and represented to her that he was doing so for her benefit These accounts included but are not limited to Dorothys Accounts in Mexico Dorothys Accounts in Mexico are more specifically identified as follows Banamex Account Number Banamex Account Number BanRegio Account Numbe Shelby made or caused to be made withdrawals from these accounts without Dorothys knowledge or consent Thus the Executor seeks to recover the amounts wrongfully withdrawn from Dorothys Accounts in Mexico The total amount of wrongful withdrawals sought by the Executor based on the information currently available to the Executor is $28878274.54 This amount was calculated by adding the amount of withdrawals made in each of Dorothys Accounts in Mexico as reflected on the account statements produced by Shelby Because some of the statements reflect transactions in pesos each such withdrawal was converted from pesos to dollars The exchange rates used in these calculations were from xe.com for transactions after November 2001 and from oanda.com for transactions prior to November 2001 Both of these websites are identified by the Internal Revenue Service as credible sources for exchange rates The attached spreadsheets reflect these calculations Because Shelby owed fiduciary duty to Dorothy with respect to Dorothys Accounts in Mexico which were owned by her Shelby has the duty to account to the Executor of Dorothys estate for all withdrawals from the accounts and the burden to prove that all such withdrawals were fully disclosed to Dorothy and properly made for her benefit and not for Shelbys benefit Shelby has failed and refused to provide such accounting or such proof with regard to any of the withdrawals listed in the attached spreadsheets so Shelby is personally Some of the monthly bank statements for each of Dorothys Accounts in Mexico have not produced including the bank statements for Banamex Account Number for any month during the years 2011 and 2012 The Executor reserves the right to amend this calculation once all of the bank statements have been produced FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 10 01668 liable to pay as damages the full amount of such withdrawals In the event that Shelby demonstrates with credible evidence that particular withdrawal was merely transfer to another account that was owned by Dorothy and disclosed to her or was used to pay living or medical expenses actually incurred by Dorothy the Executor will withdraw his expenses claim for damages to the extent of that withdrawal The Executor also seeks $25000000 which is an estimate based on information that the businesses that Shelby managed or was supposed to manage for the benefit of Dorothy made profits of approximately $10000000 per year Assuming but without admitting that it was reasonable for the businesses to retain one-half of that amount then Shelby should have distributed to Dorothy as the beneficiary of the fiduciary relationship at least one-half of the remaining amount or $2500000 per year Over period of ten years the total amount that should have been distributed is $25000000 The Executor is also requesting an award of prejudgment interest on all amounts that should have been distributed to Dorothy Shelby made an unconditional promise to Dorothy in letter dated October 2007 that he would pay $100000 to Sylvia Dorsey and $100000 to Adriana Longoria Shelby did not fulfill his promise The Executor also seeks recovery of the $200000 that is the subject of his promise to Dorothy The name address and telephone number of persons having knowledge of relevant facts and brief statement of each identified persons connection with the case The following individuals have knowledge of relevant facts Alejandra Arguindegui granddaughter ofDecedent 315 Stratford Lane Laredo Texas 78041 telephone 956-206-7773 Silvia Auila RN nurse who cared for Eduardo Longoria Laredo Home Health 1700 Hendricks 2nd Floor Laredo Texas 78040 telephone 956-796-3266 Adriana Banks daughter ofAdriana Longoria 6138 San Felipe Street Houston Texas 77057 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY ThDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 11 01669 Carolyn Beckett provided legal services to Beckett Tackett Jetel PLLC Decedent Shelby and Wayo 7800 North Mopac Expressway Suite 210 Austin Texas 78759 telephone 512-436-9102 Cardenas LBSW social worker who evaluated Eduardo Longoria Laredo Home Health 1700 Hendricks 2nd Floor Laredo Texas 78040 telephone 956-796-3266 Johnny Carter attorney for Shelby Longoria Susinan Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 telephone 713.653.7818 Leonides Cigarroa Jr M.D physician who treated Eduardo Longoria Laredo Cigarroa Heart Vascular Institute 1710 Saunders St Tower 5th Floor Laredo Texas 78041 telephone 956-725-0833 Cynthia Coffrnan nurse who cared for Decedent 931 West 23rd Street Unit Houston Texas 77008 telephone 713-304-1353 Cherry amianoff acquaintance ofDecedent 23 Journeys End The Woodlands Texas 77381 telephone 713-303-1216 Juannic Rodriguez de Chavez provided care to Eduardo Longoria 516 Prescott Loop Laredo Texas 78046 telephone 956-652-8661 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 12 01670 Cezar Dc Los Rios nurse who cared for Decedent 6722 Sylmar Road Houston Texas 77074 telephone 713-240-4081 Teauie Dielyn RN nurse who cczred for Eduardo Longoria Laredo Home Health 1700 Hendricks 2nd Floor Laredo Texas 78040 telephone 956-796-3266 Marilyn Doherty acquaintance ofDecedent Montebello Condominiums 1100 Uptown Park Boulevard Houston Texas 77056 telephone 713-993-1100 James Thomas Dorsey Independent Executor of the Estate do James Fisher ofDorothy Louise Longoria Deceased Fisher Welch Respondent and Counter-Plaintiff herein 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 telephone 214-661-9400 Robert Edward Wayo Dorsey son of Applicant and Executor 15308 Sunset Blvd Pacific Palisades California 90272 Sylvia Dorsey daughter of Decedent do James Fisher Defendant and Counter-Plaintiff herein Fisher Welch 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 telephone 214-661-9400 Ali Fazel witness to will signing The Law Offices of Scardino Fazel 1004 Congress Street Third Floor Houston Texas 77002 telephone 713-229-9292 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 13 01671 Elizabeth Dorsey Fertitta granddaughter of Decedent 2706 Eastgrove Lane Houston Texas 77027 Zachary Fertitta attorney for Dorothy Louise Longoria The Fertitta Law Firm 1004 Congress Street Houston Texas 77002 telephone 713-228-5900 James Fisher attorney for Sylvia Dorsey Adriana Longoria and Fisher Welch James Thomas Dorsey Independent Executor 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 telephone 214-661-9400 Pedro Frommer M.D physician who treated Dorothy Longoria 10023 Main Street Suite C9 Houston Texas 77025 telephone 713-791-1633 Rafael Dc Jesus Carbajal Galindo signatory on the Mexican Heroes 121 bank accounts in Dorothys name Rio Bravo Mexico 88900 telephone 899-909-0350 Neal Oittleman prosthodontist who saw Dorothy 50 Briar Hollow Lane Suite 150 West Houston Texas 77027 telephone 713-993-0003 Micki Grimland psychologist who treated Decedent Southwest Psychotherapy Associates .A 2500 Wilcrest Drive Suite 300 Houston Texas 77042 telephone 713-954-4851 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 14 01672 Dan Hancock acquaintance ofDecedent Montebello Condominiums 1100 Uptown Park Boulcvard Houston Texas 77056 telephone 713-993-1100 Raymond Hart grandson ofDecedent 5834 Candlewood Lane Houston Texas 77057 telephone 713-818-2387 Adrian Hernandez Decedent and Contestants Adrian Hcrnandez Associates PC accountant 9543 Bissonnct St Houston Texas 77036 telephone 713-961-0262 Richard Hess attorney for Shelby Longoria Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 telephone 713.653.7818 Carlos Gonzalez Hinojosa attorney that prepared several wills for Decedent Libramiento Luis Echevarria 630 Reynosa Tamaulipas Holly Holmes M.D physician who treated Decedent MD Anderson Cancer Center 1515 Holcombe Boulevard Houston Texas 77030 telephone 877-632-6789 Wesley Holmes attorney for Sylvia Dorsey Adriana Longoria and The Holmes Law Firm James Thomas Dorsey Independent Executor 10000 North Central Expressway Suite 400 Dallas Texas 75231 telephone 214-890-9266 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 15 01673 Carlos Hornedo III D.O physician who treated Eduardo Longoria Laredo Home Health 1700 Hendricks 2nd Floor Laredo Texas 78040 telephone 956-796-3266 czar Iliescu M.D physician who treated Decedent MD Anderson Cancer Center 1515 Holcombe Boulevard Unit Number 1451 Houston Texas 77030 telephone 877-632-6789 Karen Ledbetter acquaintance of Decedent Montebello Condominiums 1100 Uptown Park Boulevard Houston Texas 77056 telephone 713-993-1100 Philippe Licause Decedents hairdresser 3614 Montrose Blvd 206 Houston Texas telephone 214-794-2149 Adriana Longoria daughter of Decedent do James Fisher Defendant and Counter-Plaintiff herein Fisher Welch 2800 Lincoln Plaza 500 North Akard Street Dallas Texas 75201 telephone 214-661-9400 Eduardo Wayo Longoria Jr son of Decedent 1702 Cresthaven Drive Austin Texas 78704 telephone 512-535-0105 Enriqueta Chapa Longoria wife of Shelby Longoria c/o Shelby Jordan Jordan Hyden Womble Cuibreth Hoizer P.C 500 North Shoreline Boulevard Suite 900 Corpus Christi Texas 78401 361-884-5678 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 16 01674 Shelby Longoria Contestant and Counter-Defendant do Johnny Carter Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002-5096 telephone 713-651-9366 Shelby Longoria Jr son of Shelby Longoria do Shelby Jordan Jordan Hyden Womble Cuibreth Holzcr P.C 500 North Shoreline Boulevard Suite 900 Corpus Christi Texas 78401 telephone 361-884-5678 Lynne Meiers acquaintance of Decedent 115 Munger Street Pasadena Texas 77505 telephone 713-304-1592 Mario Gonzalez Mendoza notary to several documents Dr Mier 3113 signed in Mexico Nuevo Laredo Tamaulipas CP 88000 Elizabeth Morgan Wayo Longoria lawyer Elizabeth Morgan Associates LLP 5150 Tarniami Trail Suite 207 Naples Florida Telephone 512-370-2750 Domnica Portillo Dorothy Longoria housekeeper 7206 Rising Brook Drive in Houston for /2 years Cypress Texas 77433 Telephone 832-293-0392 Sandra Ramirez LVN nurse who cared for Eduardo Longoria Laredo Home Health 1700 Hendricks 2nd Floor Laredo Texas 78040 telephone 956-796-3266 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 17 01675 Sofia Rodriguez CNA who provided care to Eduardo Longoria 9013 Seller Loop Laredo Texas 78045 telephone 956-319-0414 Anna Rubjo director of Laredo Home Health Laredo Home Health 1700 Hendricks 2nd Floor Laredo Texas 78040 telephone 956-796-3266 will Anthony Scardino witness to signing The Law Offices of Scardino Fazel 1004 Congress Street Third Floor Houston Texas 77002 telephone 713-229-9292 Carlos Solis acquaintance ofDecedent Montebello Condominiums 1100 Uptown Park Boulevard Houston Texas 77056 telephone 281-777-4892 Crispin Soto chaplain who provided spiritual Laredo Home Health support to Eduardo Longoria 1700 Hendricks 2nd Floor Laredo Texas 78040 telephone 956-796-3266 Marco Torres administrative director of Grupo Inlosa Sierra Nevada 1208 Col Fuentes Reynosa Tamaulipas Patricia Vasquez treasurer for Grupo Inlosa Playa Hcrmosa 507 Col Militar Marte Iztacalco Mexico Randall Weber M.D physician who treated Decedent MD Anderson Cancer Center 1515 Holcombe Boulevard Unit Number 1445 Houston Texas 77030 telephone 713-745-0497 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONOORIA DECEASED Page 18 01676 Maria Del Carmen Torres Zamarron signatory on Mexican Sierra Negra 301 bank accounts in Dorothys name Reynosa Mexico 88700 telephone 899-909-0350 custodian of records of MD Anderson Cancer Center 1515 Holcombe Boulevard Houston Texas 77030 telephone 877-632-6789 custodian of records of Laredo Home Health Laredo Home Health 1700 Hendricks 2nd Floor Laredo Texas 78040 telephone 956-796-3266 custodian of records of Montebello ondominiums Montebello Condominiums 1100 Uptown Park Boulevard Houston Texas 77056 telephone 281-777-4892 The Executor Sylvia and Adriana incorporate herein by reference all of the disclosures by other parties to this case of persons who may have knowledge of relevant facts In so doing the Executor Sylvia and Adriana do not admit that any individual does in fact have of relevant fact particular knowledge For any testifying expert the experts name address and telephone number the subject matter on which the expert will testify the general substance of the mental and experts impressions opinions and brief summary of the basis for them or if the expert is not retained by employed by or otherwise subject to the control of the responding party documents such reflecting information if the expert is retained by employed by or otherwise subject to control of the responding party FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 19 01677 all documents tangible things reports models or data compilations that have been provided to reviewed by or prepared by or for the expert in anticipation of the experts testimony and the experts current resume and bibliography First Designated Expert Witness Mario Gonzalez Mendoza Mario Gonzalez Mendoza Dr Mier 3113 Nuevo Laredo Tamaulipas CP 88000 The subject matter ofthe testimony ofMr Gonzalez is the agreement allegedly signed by Dorothy and Eduardo in 1983 with respect to certain community property owned them Tamaulipas Mexico by and the judicial proceedings in with regard to that agreement The general substance ofthe mental impressions and opinions ofMr Gonzalez as reflected in his deposition testimony given on October 2014 in connection with this case is that the alleged agreement between Dorothy and Eduardo and the related proceedings did not affect any community property that was not specifically identified in the agreement and all such property continued to be community property In other words under the laws of Tamaulipas Dorothy retained her community interest in any property that is not specifically mentioned in the agreement and related proceedings The basis of these mental impressions and opinions is Mr Gonzalezs education and extensive experience as an attorney and notario publico in Tamaulipas Mexico which education and experience is described in his deposition testimony To the extent consistent with this disclosure the deposition testimony of Mr Gonzalez is incorporated by reference into this disclosure Mr Gonzalez was not retained by employed by or otherwise subject to the control of the Executor FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 20 01678 Second Designated Expert Witness James Austin Fisher James Austin Fisher Fisher Welch Professional Corporation Ross Tower Suite 2800 500 North Akard Street Dallas Texas 75201 214-661-9400 The subject matter of Mr Fishers expert testimony will be the necessity and reasonableness of legal services rendered and litigation expenses incurred in this case The general substance of Mr Fishers mental impressions and opinions is as follows The legal services rendered to the Executor have been necessary and the amounts of time expended in rendering those legal services have been reasonable For the legal services rendered by the attorneys for the Executor in connection with this case an hourly rate of $500 is reasonable given their experience and qualifications and such rate is within the range of what is customary in Harris County Texas In addition for purposes of an determining an appropriate award of attorneys fees under Texas law an enhancement of at least 100 percent should be added to this rate because the attorneys for the Executor are in fact working for contingent fees rather than fees based on hourly rates and billed currently and such enhancement is reasonable in light of the circumstances and demands of the litigation the complexity of the issues the amounts at stake the characteristics of the parties and the disparity of resources between the parties The litigation expenses incurred by counsel for the Executor in connection with this civil action are reasonable and were necessary Some of the legal services rendered to Shelby Longoria were unnecessary and unreasonable including but not limited to asserting meritless claim against Adriana for tortious interference with inheritance rights and ii presenting to the Probate Court meritless motion to dismiss for forum non conveniens and presenting to the Court FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 21 01679 of Appeals and the Supreme Court of Texas meritless petitions for writ of mandamus Mr Fisher may be asked to render an opinion as to total amount that would be reasonable attorneys fee for the legal services rendered to the Executor for the prosecution of the claims asserted by her The total amount however cannot be determined until the time of trial Mr Fisher also may be asked to consider and to opine as to the validity of the expert testimony if any offered by Shelby Longoria in this civil action with regard to legal services rendered or litigation expenses incurred including legal services rendered or litigation expenses incurred on behalf of Shelby Longoria To date Shelby Longoria has not made proper disclosure of the expert testimony if any that Shelby Longoria is planning to offer in this case brief of the basis of these mental impressions and opinions as summary is follows the timing and content of the documents filed and/or served in the course of this proceeding Mr Fishers experience practicing law in Harris County Texas and elsewhere his knowledge of rates customarily charged by attorneys in Harris County Texas and elsewhere for the same or similar services and application of the factors listed in Texas Disciplinary Rule of Professional Conduct .04b Mr Fisher generates time records reflecting the specific amounts of time expended the services rendered and the litigation expenses incurred The billing records may contain privileged information but it will be redacted prior to production in this case Mr Fisher is not relying on the redacted information as basis for any of his opinions The redacted billing records will be produced at least 30 days before trial or by such other date as may be ordered by the Court or as the parties may agree Mr Fisher is an attorney who has been engaged to represent the Executor Sylvia and Adriana in this case Mr Fisher has not been retained by the Executor Sylvia and Adriana to serve as an expert witness and he is not employed by or subject to the control of the Executor Sylvia or Adriana Third Designated Expert Witness Wesley Holmes Wesley Holmes The Holmes Law Firm 10000 North Central Expressway Suite 400 Dallas Texas 75231 214.890.9266 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 22 01680 The subject matter ofMr Holmess expert testimony will be the necessity and reasonableness of legal services rendered and litigation incurred in expenses this case The general substance of Mr Holmess mental impressions and opinions is as follows The legal services rendered to the Executor Sylvia and Adriana have been necessary and the amounts of time expended in rendering those legal services have been reasonable For the legal services rendered by the attorneys for the Executor Sylvia and Adriana in connection with this case an hourly rate of $500 is reasonable given their experience and qualifications and such rate is within the of what is customary in 1-larris County Texas In range addition for purposes of an determining an appropriate award of attorneys fees under Texas law an enhancement of at least 100 percent should be added to this rate because the attorneys for the Executor Sylvia and Adriana are in fact working for contingent fees rather than fees based on hourly rates and billed currently and such enhancement is reasonable in light of the circumstances and demands of the litigation the complexity of the issues the amounts at stake the characteristics of the parties and the disparity of resources between the parties The litigation expenses incurred by counsel for the Executor in connection with this civil action are reasonable and were necessary Some of the legal services rendered to Shelby Longoria were unnecessary and unreasonable including but not limited to asserting meritless claim against Adriana for tortious interference with inheritance rights ii asserting meritless objections to discovery requests and meritless opposition to motion to compel discovery iii presenting to the Probate Court meritless motion to dismiss for forum non conveniens and iv presenting to the Court of Appeals and the Supreme Court of Texas meritless petitions for writ of mandamus Mr Holmes may be asked to render an opinion as to total amount that would be reasonable attorneys fee for the legal services rendered to the Executor for the prosecution of the claims asserted by her The total amount however cannot be determined until the time of trial FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 23 01681 Mr Holmes also may be asked to consider and to opine as to the validity of the expert testimony if any offered by Shelby Longoria in this civil action with regard to legal services rendered or litigation expenses incurred including legal services rendered or litigation expenses incurred on behalf of Shelby Longoria To date Shelby Longoria has not made proper disclosure of the that is offer in this case expert testimony if any Shelby Longoria planning to brief summary of the basis of these mental impressions and opinions is as follows the timing and content of the documents filed and/or served in the course of this proceeding Mr Holmess experience practicing law in Harris County Texas and elsewhere his knowledge of rates customarily charged by attorneys in Harris County Texas and elsewhere for the same or similar services and application of the factors listed in Texas Disciplinary Rule of Professional Conduct 1.04b Mr Holmes generates time records reflecting the specific amounts of time expended the scrvices rendered and the litigation expenses incurred The billing records may contain privileged information but it will be redacted prior to production in this case Mr Holmes is not relying on the redacted information as basis for any of his opinions The redacted billing records will be produced at least 30 days before trial or by such other date as may be ordered by the Court or as the parties may agree Mr Holmes is an attorney who has been engaged to represent the Executor Sylvia and Adriana in this case Mr Holmes has not been retained by the Executor Sylvia or Adriana to serve as an expert witness and he is not employed by or subject to the control of the Executor Sylvia or Adriana Fourth Designated Expert Witness Christopher Ticknor M.D Christopher Ticknor M.D 1202 Sonterra Boulevard Suite 202 San Antonio Texas 78258 Telephone 210 692 7775 The subject matter of the testimony of Dr Ticknor will include his education qualifications and experience in the fields of psychiatry and forensic psychiatry the tasks he has performed in reaching his conclusions in this case his opinions and mental impressions regarding the testamentary capacity of Dorothy Louise Longoria and his review of the qualifications opinions and/or testimony of any expert designated by Contestant on the issue of testamentary capacity FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF TIlE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 24 01682 The general substance of Dr Ticknors mental impressions and opinions include Dr Ticknors conclusion that based on reasonable medical Louise Longoria had as defined in probability Dorothy testamentary capacity Texas law on January 21 2010 Dr Ticknor may also testify as to the meaning and significance ofvarious medical records related to Dorothy Louise Longoria It is anticipated that Dr Ticknor will also testify that his and experience are more suitable for making determinations qualifications regarding testamentary capacity than those of George Glass M.D Dr Ticknor will also respond to the testimony if any of George Glass M.D and any of Dorothy Louise Longorias healthcare providers If Dr Ticknor is deposed his deposition testimony is incorporated herein by reference 4A The following items have been provided to reviewed by or prepared by or for the expert in anticipation of the experts testimony The definition of testamentary capacity Application for Probate of January 21 2010 Will and Issuance of Letters Testamentary dated June 28 2012 Preliminary Inventory Appraisement and List of Claims dated August 27 2013 Shelby Longorias Amended Contest of2OlO Will dated August 30 2013 Original Counterclaims of James Thomas Dorsey Independent Executor of the Estate of Dorothy Louise Longoria Deceased to Shelby Longorias Amended Contest of 2010 Will dated September 26 2013 Original Answer of James Thomas Dorsey Independent Executor of the Estate of Dorothy Longoria Deceased to Shelby Longorias Amended Contest of 2010 Will dated September 26 2013 Original Answer of Sylvia Rene Dorsey to Shelby Longorias Amended Contest of 2010 Will dated September 26 2013 Last Will and Testament of Dorothy Louise Longoria dated April 1988 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 25 01683 Last Will and Testament of Dorothy Louise dated Longoria December 112009 10 Last Will and Testament of Dorothy Louise Longoria dated January 82010 11 Last Will and Testament of Dorothy Louise Longoria dated January 21 2010 12 Last Will and Testament of Dorothy Louise Longoria purportedly signed in July of 2011 13 Directive to Physicians and Family or Surrogates Living Will signed on February 2010 14 Medical Power of Attorney dated February 2010 15 Inpatient Physician Orders No Cardiopulmonary Resuscitation Orders DNR dated November 2011 16 Records from M.D Anderson Cancer Center 17 Shelby Longorias Supplemental Response to Request for Disclosures 18 The CV of GeorgeS Glass M.D 19 Records from Daniela White M.D 20 Transcripts of the depositions of the following witnesses James Thomas Dorsey Sylvia Rene Longoria Dorsey Adriana Longoria three volumes Shelby Longoria Zachary Fertitta Elizabeth Dorsey Fertitta and Raymond Hart 21 Checks written and signed by Dorothy Longoria from November 2009 through July 2010 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 26 01684 22 The records of Micki Grimland Ph.D Bates labeled SWPA 0000001-S WPA 0000083 23 Affidavit of Dr George Glass and 24 copy of the handwritten journal of Dorothy Longoria Bates labeled DORSEY 003712 DORSEY 003751 Dr Ticknor may also review additional documents depositions medical records and other materials as this case progresses 4B Dr Ticknors current curriculum vitae was provided on January 15 2015 It is incorporated herein by reference Fifth Designated Expert Witness Holly Holmes M.D Holly Holmes M.D The University of Texas MD Anderson Cancer Center 1515 Holcombe Blvd Houston Texas 77030 713 792 2121 The subject matter of the testimony of Dr Holmes is her education and in the fields of internal and geriatric qualifications experience medicine her participation in the care and treatment of Dorothy Louise Longoria the medical conditions for which she treated Dorothy Louise her observations diagnoses and conclusions throughout their Longoria doctor-patient relationship and the mental status including the testamentary capacity of Dorothy Louise Longoria The general substance of the mental impressions and opinions of Dr Holmes are reflected in the medical records of Dorothy Louise Longoria including but not limited to the records form the University of Texas MD Anderson Cancer Center These medical records have previously been produced in this case It is anticipated that Dr Holmes will also testify that based on reasonable medical probability Dorothy Louise Longoria had testamentary capacity as defined in Texas law on January 21 2010 If Dr Holmes is deposed her deposition testimony is incorporated herein by reference Dr Holmes was not retained by employed by or otherwise subject to the control of the Executor FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 27 01685 Sixth Designated Expert Witness Cezar Iliescu M.D Cezar Iliescu M.D The University of Texas MD Anderson Cancer Center 1515 Holcombe Blvd Houston Texas 77030 713 792 2121 The subject matter of the testimony of Dr Iliescu is his education qualifications and experience in the field of cardiology his in the care and treatment of Dorothy Louise the participation Longoria medical conditions for which he treated Dorothy Louise his Longoria observations diagnoses and conclusions throughout their doctor- patient relationship and the mental status including the testamentary capacity of Dorothy Louise Longoria The general substance of the mental impressions and opinions of Dr Iliescu are reflected in the medical records of Louise Dorothy Longoria including but not limited to the records form the University of Texas MD Anderson Cancer Center These medical records have previously been produced in this case It is anticipated that Dr iliescu will also testify that based on reasonable medical probability Dorothy Louise had as defined Texas Longoria testamentary capacity in law on January 212010 If Dr Iliescu is deposed his deposition testimony is incorporated herein by reference Dr Iliescu was not retained by employed by or otherwise subject to the control of the Executor Seventh Designated Expert Witness Randal Weber M.D Randal Weber M.D The University of Texas MD Anderson Cancer Center 1515 Holcornbe Blvd Houston Texas 77030 713 792 2121 The subject matter of the testimony of Dr Weber is his education qualifications and experience in the field ofhead and neck surgery his participation in the care and treatment ofDorothy Louise Longoria the medical conditions for which he treated Dorothy Louise Longoria his FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 28 01686 observations diagnoses and conclusions throughout their doctor- relationship and the mental status including the testamentary patient capacity of Dorothy Louise Longoria The general substance of the mental impressions and opinions of Dr Weber are reflected in the medical records of Dorothy Louise Longoria including but not limited to the records form the University of Texas MD Anderson Cancer Center These medical records have previously been produced in this case It is anticipated that Dr Weber will also testify that based on reasonable medical probability Dorothy Louise Longoria had testamentary capacity as defined in Texas law on January 21 2010 If Dr Weber is deposed his deposition testimony is incorporated herein by reference Dr Weber was not retained by employed by or otherwise subject to the control of the Executor Reservation of Right To Call Experts Designated by Other Parties The Executor hereby cross-designates each and every person designated in the past or in the future by another party to this civil action to be testifying expert and the Executor reserves the right to elicit opinions from such experts on any subject matter for which they were designated to testify for any other party Reservation of Right To Call Rebuttal Experts In the event that Shelby designates one or more expert witnesses the Executor reserves the right to call one or more experts in same fields to critique and to rebut the expert testimony presented by Shelby Reservation ofRights To Designate and To Call Additional Expert Witnesses As of the time of this response it has not been decided whether or not other expert witnesses will be called to testify on behalf of the Executor The Executor reserves the rights to amend and to supplement this response as may be necessary Any witness statements described in Rule 192.3h Response The Executor refers to the depositions upon oral examination that have been taken in this case all of which were attended by at least one attorney of record for Shelby and the affidavits which have been filed in the record for this case FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 29 01687 Other than those depositions and affidavits the Executor does not have what he understands to be witness statement within the of RLIIC meaning 192.3h but he does have copies of letters ernails notes and other documents written by people who are likely to be called as witnesses in this case Al such items of which the Executor aware have already been is produced by the parties to this case the name address and telephone number of any person who may be designated as responsible third party Response Contestant has filed motions to James Thomas designate Dorsey Raymond Hart Sylvia Dorsey and Adriana Longoria as responsible parties The Executor does not believe that these four people as responsible third parties designating is proper and the Executor is not aware of any other person who may be properly designated as responsible third party RESERVATION OF RIGHTS TO AMEND AND TO SUPPLEMENT The Executor reserves the rights to amend and to supplement the foregoing disclosures or any part thereof in accordance with Texas law DATED June 2015 FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 30 01688 Respectfully submitted /s/Shannon L.K Welch James Austin Fisher State Bar of Texas Number 07051650 email jfisher@fisherwelch.com Shannon L.K Welch State Bar of Texas Number 90001699 email swelch@fisherwelch.com FISHER WELCH Professional Corporation Ross Tower Suite 2800 500 North Akard Street Dallas Texas 75201 Telephone 214.661.9400 Facsimile 214.661.9404 Wesley Holmes State Bar of Texas Number 09908495 email wes@wesholmes.com THE HOLMES LAW FIRM 10000 North Central Expressway Suite 400 Dallas Texas 75231 Telephone 214.890.9266 Facsimile 214890.9295 ATTORNEYS FOR ADRIANA LONGORIA SYLVIA DORSEY AND JAMES THOMAS DORSEY INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 31 01689 CERTIFICATE OF SERVICE hereby certify that on June 82015 true and correct copy of this document was served on Shelby Longoria through his attorneys of record named below in the manner indicated and in compliance with Texas law Johnny Carter Richard Hess and Kristen Schlemmer Susman Godfrey L.L.P 1000 Louisiana Street Suite 5100 Houston Texas 77002 BY EMAIL TOjcarter@susmangodfrey.com rliess@susrn angodfrey corn and ksch lernrn er@susrn angodfrey corn Robert Macintyre Jr Maclntyre McCulloch Stanfield Young 2900 Weslayan Suite 50 Houston Texas 77027 BYEMAIL TO macintyre@mrnlawtexas.com /s/Shannon Lii Welch Shannon L.K Welch FIRST AMENDED DISCLOSURES OF JAMES THOMAS DORSEY INDEPENDENT EXECUTOR OF THE ESTATE OF DOROTHY LOUISE LONGORIA DECEASED Page 32 01690 01691 BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 3/18/2005 $16928.84 0.0894966 $1515.07 4/15/2005 $15190.00 0.090185354 $1369.92 4/15/2005 $35860.00 0.090185354 $3234.05 4/20/2005 $16928.84 0.090394207 $1530.27 5/4/2005 $330188.68 0.091013652 $30051.68 5/5/2005 $451189.50 0.091334478 $41209.16 5/5/2005 $660377.36 0.091334478 $60315.22 5/5/2005 $566037.74 0.091334478 $51698.76 5/13/2005 $1210.00 0.090717504 $109.77 5/20/2005 $16928.84 0.09115308 $1543.12 5/27/2005 $660377.36 0.091859657 $60662.04 6/9/2005 $283018.86 0.091953116 $26024.47 6/21/2005 $16928.84 0.092677952 $1568.93 6/30/2005 $0.62 0.092820649 $0.06 6/30/2005 $0.06 0.092820649 $0.01 7/14/2005 $16928.84 0.094052247 $1592.20 8/18/2005 $16928.84 0.093857938 $1588.91 8/19/2005 $1782000.00 0.092943352 $165625.05 8/19/2005 $1637820.00 0.092943352 $152224.48 8/19/2005 $144180.00 0.092943352 $13400.57 8/30/2005 $343053.18 0.092267609 $31652.70 Page BANAMEX ACCOUNT NO Date Withdrawals Pesos Rate Withdrawals Exchange Dollars 8/30/2005 $85763.29 0.092267609 $7913.17 8/30/2005 $128644.94 0.092267609 $11869.76 8/30/2005 $325900.52 0.092267609 $30070.06 8/30/2005 $643224.70 0.092267609 $59348.80 8/30/2005 $171526.59 0.092267609 $15826.35 8/30/2005 $814751.29 0.092267609 $75175.15 8/30/2005 $600345.05 0.092267609 $55392.40 8/30/2005 $857632.93 0.092267609 $79131.74 9/19/2005 $16928.24 0.092098658 $1559.12 9/23/2005 $2000000.00 0.09223452 $184469.04 9/26/2005 $643224.70 0.092033449 $59198.19 9/26/2005 $814751.29 0.092033449 $74984.37 9/26/2005 $343053.17 0.092033449 $31572.37 9/26/2005 $85763.29 0.092033449 $7893.09 9/26/2005 $128644.94 0.092033449 $11839.64 9/27/2005 $325900.51 0.091869359 $29940.27 9/27/2005 $600343.05 0.091869359 $55153.13 9/28/2005 $3213.40 0.092187623 $296.24 9/28/2005 $857632.93 0.092187623 $79063.14 10/20/2005 $16928.84 0.092210049 $1561.01 10/28/2005 $3842195.53 0.092240886 $354407.52 10/31/2005 $857632.93 0.092684435 $79489.22 10/31/2005 $171526.59 0.092684435 $15897.85 10/31/2005 $600343.05 0.092684435 $55642.46 Page BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 10/31/2005 $814751.29 0.092684435 $75514.76 10/31/2005 $343053.17 0.092684435 $31795.69 10/31/2005 $85763.29 0.092684435 $7948.92 10/31/2005 $128644.94 0.092684435 $11923.38 10/31/2005 $325900.51 0.092684435 $30205.90 10/31/2005 $643224.70 0.092684435 $59616.92 11/1/2005 $814751.29 0.092858225 $75656.36 11/1/2005 $643224.70 0.092858225 $59728.70 11/1/2005 $857632.92 0.092858225 $79638.27 11/1/2005 $325900.51 0.092858225 $30262.54 11/1/2005 $600343.05 0.092858225 $55746.79 11/4/2005 $85763.29 0.09304409 $7979.77 11/4/2005 $128644.94 0.09304409 $11969.65 11/4/2005 $343053.17 0.09304409 $31919.07 11/9/2005 $293332.95 0.093317797 $27373.18 11/14/2005 $57177.13 0.093597791 $5351.65 11/21/2005 $16928.84 0.093990907 $1591.16 11/30/2005 $0.62 0.094546798 $0.06 11/30/2005 $0.06 0.094546798 $0.01 12/2/2005 $85763.28 0.095639135 $8202.33 12/2/2005 $343053.17 0.095639135 $32809.31 12/2/2005 $128644.94 0.095639135 $12303.49 12/2/2005 $85763.28 0.095639135 $8202.33 12/2/2005 $857632.82 0.095639135 $82023.26 Page BANAMEX ACCOUNT NO Date Withdrawals Pesos Rate Exchange Withdrawals Dollars 12/2/2005 $600343.05 0.095639135 $57416.29 12/2/2005 $814751.29 0.095639135 $77922.11 12/2/2005 $643224.70 0.095639135 $61517.45 12/7/2005 $857632.93 0.095651284 $82033.69 12/7/2005 $128644.94 0.095651284 $12305.05 12/7/2005 $85763.29 0.09565 1284 $8203.37 12/7/2005 $85763.29 0.095651284 $8203.37 12/7/2005 $343053.17 0.095651284 $32813.48 12/7/2005 $600343.05 0.095651284 $57423.58 12/7/2005 $643224.70 0.095651284 $61525.27 12/7/2005 $814751.29 0.095651284 $77932.01 12/9/2005 $502560.00 0.093992978 $47237.11 12/14/2005 $16928.84 0.09302667 $1574.83 12/19/2005 $140000.00 0.093294661 $13061.25 12/29/2005 $500000.00 0.093467862 $46733.93 12/29/2005 $400000.00 0.093467862 $37387.14 12/30/2005 $400000.00 0.094081982 $37632.79 12/30/2005 $382311.00 0.094081982 $35968.58 1/19/2006 $16928.84 0.094795319 $1604.77 2/8/2006 $750000.00 0.09497466 $71230.99 2/20/2006 $16928.84 0.09583901 $1622.44 2/22/2006 $400000.00 0.095348301 $38139.32 2/23/2006 $350000.00 0.095201724 $33320.60 Page BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 3/10/2006 $377358.49 0.093423046 $35253.98 3/10/2006 $16928.84 0.093423046 $1581.54 3/16/2006 $12000.00 0.094141488 $1129.70 3/17/2006 $1872.30 0.093466733 $175.00 3/17/2006 $16928.84 0.093466733 $1582.28 3/27/2006 $330188.67 0.091405861 $30181.18 4/6/2006 $150000.00 0.090259821 $13538.97 4/19/2006 $16928.84 0.090937984 $1539.47 4/21/2006 $760000.00 0090298815 $68627.10 4/21/2006 $2000008.20 0.090298815 $180598.37 4/24/2006 $1900000.00 0.090337174 $171640.63 4/27/2006 $11145.00 0.090116813 $1004.35 5/9/2006 $200000.00 0.091465839 $18293.17 5/9/2006 $1000.00 0.091465839 $91.47 5/18/2006 $16928.84 0.089091593 $1508.22 5/22/2006 $25000.00 0.088609071 $2215.23 5/23/2006 $10000.00 0.089417004 $894.17 5/25/2006 $66000.00 0.08937723 $5898.90 5/25/2006 $66000.00 0.089377236 $5898.90 Page BANAMEX ACCOUNT NO Date Wfthdrawals Pesos Exchange Rate Withdrawals bollarsj Missing daily transactions part of this statement Value is 0.088639888 estimated by monthly exchange rate instead of 6//2006 $46928.84 $4159.77 daily 7/21/2006 $16928.84 0.091660194 $1551.70 8/21/2006 $16928.84 0.092534045 $1566.49 9/11/2006 $4446.67 0.090366588 $401.83 9/19/2006 $16928.84 0.091414876 $1547.55 9/28/2006 $700000.00 0.09049115 $63343.81 9/28/2006 $170000.00 0.09049115 $15383.50 9/28/2006 $150000.00 0.09049115 $13573.67 9/28/2006 $200000.00 0.09049115 $18098.23 9/28/2006 $200000.00 0.09049115 $18098.23 9/28/2006 $250000.00 0.09049115 $22622.79 10/2/2006 $1000000.00 0.091161747 $91161.75 10/5/2006 $1050000.00 0.090773917 $95312.61 10/5/2006 $50000.00 0.090773917 $4538.70 10/18/2006 $16928.84 0.09241388 $1564.46 10/19/2006 $250000.00 0.092588597 $23147.15 10/20/2006 $1000000.00 0.09241108 $92411.08 Page BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 10/20/2006 $200000.00 0.09241108 $18482.22 10/20/2006 $700000.00 0.09241108 $64687.76 10/26/2006 $150000.00 0.093187031 $13978.05 10/30/2006 $5000.00 0.092924998 $464.62 10/31/2006 $0.62 0.092869876 $0.06 10/31/2006 $0.06 0.092869876 $0.01 11/7/2006 $1050000.00 0.092496987 $97121.84 11/7/2006 $170000.00 0.092496987 $15724.49 11/10/2006 $146874.38 0091606048 $13454.58 11/22/2006 $16928.84 0.091154124 $1543 13 11/22/2006 $300000.00 0.091154124 $27346.24 11/23/2006 $400000.00 0.091167481 $36466.99 11/23/2006 $500000.00 0.091167481 $45583.74 11/23/2006 $200000.00 0.091167481 $18233.50 11/23/2006 $1000000.00 0.091167481 $91167.48 11/23/2006 $700000.00 0.091167481 $63817.24 11/23/2006 $340000.00 0.091167481 $30996.94 11/24/2006 $700000.00 0.09070996 $63496.98 11/24/2006 $1000000.00 0.090709967 $90709.97 11/30/2006 $1.86 0.090926298 $0.17 11/30/2006 $o 18 0.090926298 $0.02 11/30/2006 $350000.00 0.090926298 $31824.20 12/5/2006 $2100000.00 0.091841997 $192868.19 12/20/2006 $16928.84 0.09247769 $1565.54 Page BANAMEXACCOLJNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 12/22/2006 $150000.00 0.092098006 $13814.70 12/22/2006 $350000.00 0.092098006 $32234.30 12/22/2006 $1050000.00 0.092098006 $96702.91 12/22/2006 $200000.00 0.092098006 $18419.60 12/22/2006 $340000.00 0.092098006 $31313.32 12/27/2006 $250000.00 0.091898939 $22974.73 12/27/2006 $400000.00 0.091898939 $36759.58 12/27/2006 $1000000.00 0.091898939 $91898.94 12/27/2006 $700000.00 0.091898939 $64329.26 12/27/2006 $25oooooo 0.091898939 $22974.73 12/27/2006 $150000.00 0.091898939 $13784.84 12/27/2006 $1000000.00 0.091898939 $91898.94 12/27/2006 $1050000.00 0.091898939 $96493.89 12/28/2006 $700000.00 0.091951508 $64366.06 12/29/2006 $3.10 0.092591641 $0.29 12/29/2006 $0.31 0.092591641 $0.03 1/12/2007 $34241.99 0.091076353 $3118.64 1/15/2007 $34000.00 0.091399775 $3107.59 2/9/2007 $9769.50 0.091278396 $891.74 2/14/2007 $2500000.00 0.091597187 $228992.97 2/14/2007 $51991.82 0.091597187 $4762.30 2/14/2007 $245779.00 0.091597187 $22604.25 2/14/2007 $295549.00 0.091597187 $27071.46 2/14/2007 $349076.40 0.091597187 $31974.42 Page BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 2/28/2007 $6.00 0.089626167 $0.54 2/28/2007 $0.60 0.089626167 $0.05 3/30/2007 $1.24 0.09053237 $0.11 3/30/2007 $0.12 0.09053237 $0.01 3/30/2007 $150.00 0.09053237 $13.58 3/30/2007 $15.00 0.09053237 $1.36 4/30/2007 $150.00 0.091515002 $13.73 4/30/2007 $15.00 0.091515002 $1.37 5/31/2007 $1.24 0.093122836 $0.12 5/31/2007 $0.12 0.093122836 $0.01 5/31/2007 $9200.00 0.093122836 $856.73 5/31/2007 $6.00 0.093122836 $0.56 5/31/2007 $0.60 0.093122836 $0.06 5/31/2007 $150.00 0.093122836 $13.97 5/31/2007 $15.00 0.093122836 $1.40 6/29/2007 $103.75 0.092667499 $9.61 6/29/2007 $10.37 0.092 667499 $0.96 7//07 STATEMENT MISSING 8//07 STATEMENT MISSING 9/5/2007 $444000.00 0.090187287 $40043.16 Page BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 9/5/2007 $322200.00 0.090187287 $29058.34 9/5/2007 $227325.00 0.090187287 $20501.83 9/5/2007 $317585.00 0.090187287 $28642.13 9/5/2007 $32814.00 0.090187287 $2959.41 9/5/2007 $332250.00 0.090187287 $29964.73 9/5/2007 $54200.00 0.090187287 $4888.15 9/7/2007 $1110834.65 0.089868318 $99828.84 9/10/2007 $12359.68 0.089698161 $1108.64 9/10/2007 $91650.00 0.089698161 $8220.84 9/10/2007 $4007.00 0.089698161 $359.42 9/19/2007 $2000000.00 0.091011842 $182023.68 9/24/2007 $2240000.00 0.091416951 $204773.97 9/24/2007 $2240000.00 0.091416951 $204773.97 10/31/2007 $3053070.00 0.093433513 $285259.05 10/31/2007 $3083802.00 0.093433513 $288130.45 10/31/2007 $4913207.00 0.093433513 $459058.19 10/31/2007 $4009800.00 0.093433513 $374649.70 Missing daily transactions part of this statement Value is estimated by monthly exchange rate instead of 11//07 $7729862.79 0.093737606 $724578.83 daily Page 10 BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 12/4/2007 $1200000.00 0.091675567 5110010.68 12/4/2007 $235049.05 0.091675567 $21548.25 12/4/2007 $1264150.94 0.091675567 $115891.75 12/4/2007 $603773.58 0.091675567 $55351.29 12/4/2007 $745283.02 0.091675567 $68324.24 12/5/2007 $306603.77 0.092137913 $28249.83 12/5/2007 $745283.02 0.092137913 $68668.82 12/5/2007 $235849.06 0.092137913 $21730.64 12/6/2007 $603773.58 0.092292979 $55724.06 12/6/2007 $236849.06 0.092292979 $21859.51 12/6/2007 $745283.02 0.092292979 $68784.39 12/6/2007 $632075.47 0.092292979 $58336.13 12/11/2007 $745283.02 0.092588392 $69004.56 12/14/2007 $306603.77 0.092368839 $28320.63 12118/2007 $3792452.83 0.092077484 $349199.51 12/18/2007 $1528301.89 0.092077484 $140722.19 12/18/2007 $1886792.45 0.092077484 $173731.10 12/18/2007 $943396.20 0.092077484 $86865.55 12/18/2007 51400000.00 0.092077484 $128908.48 12/18/2007 $2991132.04 0.092077484 $275415.91 12/18/2007 $2641509.40 0.092077484 $243223.54 12/19/2007 $951000.00 0.092196736 $87679.10 12/20/2007 $3000000.00 0.092237059 $276711.18 12/20/2007 51090000.00 0.092237059 $100538.39 12/20/2007 $1090000.00 0.092237059 $100538.39 12/20/2007 5857632.93 0.092237059 579105.54 Page 11 BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 12/20/2007 $1254150.94 0.092237059 $115679.19 12/20/2007 $910377.36 0.092237059 $83970.53 12/20/2007 $600000.00 0.092237059 $55342.24 12/20/2007 $745283.02 0.092237059 $68742.71 12/20/2007 $235649.06 0.092237059 $21735.58 12/24/2007 $1029159.51 0.092508646 $95206.15 1/30/2008 $745283.02 0.092296063 $68786.69 1/30/2008 $428816.47 0.092296063 $39578.07 1/30/200 $600000.00 0.092296063 $55377.64 1/30/2008 $1264150.94 0.092296063 $116676.15 1/30/2008 $235849.06 0.092296063 $21767.94 1/31/2008 $745283.02 0.092425223 $68882.95 1/31/2008 $428816.47 0.092425223 $39633.46 1/31/2008 $910377.36 0.092425223 $84141.83 21/OS $0.00 $0.00 31108 $0.00 $0.00 4/10/2008 $20000.00 0.094793655 $1895.87 4/16/2008 $180000.00 0.095578826 $17204.19 4/25/2008 $849056.60 0.095529704 $81110.13 4/30/2008 $1037735.85 0.095152532 $98743.19 5/2/2008 $377358.49 0.095646975 $36093.20 5/2/2008 $377358.49 0.095646975 $36093.20 5/2/2008 $1886792.45 0.095646975 $180465.99 Page 12 BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 5/2/2008 $943396.23 0.095646975 $90233.00 6/17/2008 $7566.00 0.096949296 $733.52 6/24/2008 $4000.00 0.097137584 $388.55 6/24/2008 $2500.00 0.097137584 $242.84 7//08 $0.00 $0.00 8/19/2008 $25000.00 0.098154035 $2453.85 8/28/2008 $77000.00 0.097999057 $7s4s.3 9/1/2008 $2215035.53 0.096643994 $214069.88 9/1/2008 $2200000.00 0.096643994 $212616.79 9/1/2008 $2220000.00 0.096643994 $214549.67 9/4/2008 $2000000.00 0.0955293 $191058.60 9/4/2008 $2002068.50 0.0955293 $191256.20 9/4/2008 $2000000.00 0.0955293 $191058.60 9/5/2008 $3600000.00 0.09528028 $343009.01 9/5/2008 $2000000.00 0.09528028 $190560.56 9/5/2008 $3600000.00 0.09528028 $343009.01 9/5/2008 $10825.78 0.09528028 $1031.48 9/10/2008 $50000.00 0.094388457 $4719.42 9/18/2008 $80000.00 0.09215 1537 $7372.12 10/31/2008 $1.86 0.078904629 $0.15 10/31/2008 $0.18 0.078904629 $0.01 Page 13 BANAMEX ACCOUNT NO Date Withdrawals Pesos Rate Withdrawals Exchange Dollars 111108 $0.00 $0.00 12/16/2008 $4802590.37 0.075665004 $363388.02 12/17/2008 $1647524.00 0.075937512 $125108.87 1/15/2009 $87000.00 0.070625161 $6144.39 21109 $0.00 $0.00 3/3/2009 $80000.00 0.065168528 $5213.48 3/31/2009 $0.62 0.070393833 $0.04 3/31/2009 $0.06 0.070393833 $0.00 4/30/2009 $o62 0.0724446 $0.04 4/30/2009 $0.06 0.0724446 $0.00 5//09 $0.00 $0.00 6//09 $0.00 $0.00 Missing daily transactions part of this statement Value is estimated by monthly exchange rate instead of 71109 $11152.24 0.076331754 $851.27 daily 8/31/2009 $1.24 0.074977588 $0.09 8/31/2009 $0.12 0.074977588 $0.01 8/31/2009 $14438.81 0.074977588 $1082.59 Page 14 BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 91109 $0.00 $0.00 10/30/2009 $0.62 0.076007132 $0.05 10/30/2009 $0.06 0.076007132 $0.00 11/30/2009 $2.48 0.077408228 $0.19 11/30/2009 $0.24 0.077408228 $0.02 Missing daily transactions part of this statement Value is estimated by monthly exchange rate instead of 12//09 $13212.30 0.077785256 $1027.72 daily 1//10 $0.00 $0.00 2/10/2010 $9275.00 0.076607076 $710.53 3/25/2010 $222.00 0.080039004 $17.77 3/31/2010 $10.00 0.081293487 $0.81 3/31/2010 $1.10 0.081293487 $0.09 41110 $0.00 $0.00 51110 $0.00 $0.00 6//10 $0.00 $0.00 7//10 $0.00 $0.00 Page 15 BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 81/lU STATEMENT MISSING STATEMENT MISSING 10//10 $0.00 $0.00 111/lU $0.00 $0.00 12/20/2010 $11276.56 0.080558385 $908.42 11111 $0.00 $0.00 2/11/2011 $2857142.85 0.082857639 $236736.11 2/14/2011 $952380.95 0.083018128 $79064.88 2/28/2011 $1.86 0.082549386 $0.15 2/28/2011 $0.20 0.082549386 $0.02 2/28/2011 $24.00 0.082549386 $1.98 2/28/2011 $2.64 0.082549386 $0.22 3//li $0.00 $0.00 47/il $0.00 $0.00 51/li $0.00 $0.00 61/li $0.00 $0.00 7//il $0.00 $0.00 81/il $0.00 $0.00 9/12/2011 $8486.00 0.078277219 $664.26 9/30/2011 $12.00 0.072619447 $0.87 9/30/2011 $1.32 0.072619447 $0.10 107/il $0.00 $0.00 111/li $0.00 $0.00 Page 16 BANAMEX ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 12/9/2011 $11975.69 0.073448392 $879.60 12/30/2011 $12.00 0.071662224 $0.86 12/30/2011 $1.32 0.071662224 $0.09 $0.00 1/23/2012 $79410.00 0.076053019 $6039.37 1/31/2012 $12.00 0.076682584 $0.92 1/31/2012 $1.32 0.076682584 $0.10 2/7/2012 $76050.00 1079161481 $6020.23 2/29/2012 $12.00 0.078150624 $0.94 2/29/2012 $1.32 0.078150624 $0.10 3/5/2012 $76920.00 0.077973108 $5997.69 3/5/2012 $1063.00 0.077973108 $82.89 3/30/2012 $24.00 0.078036978 $1.87 3/30/2012 $2.64 0.078036978 $0.21 4/9/2012 $77895.00 0.076971936 $5995.73 4/16/2012 $4235.79 0.075607558 $320.26 TOTALS $183452714.49 $16888823.95 Page 17 01709 BANAMEXACCOUNTNO Date Withdrawals Dollars Monthly Totals 12/6/1999 $3000.00 $3000.00 1/6/2000 $3000.00 $3000.00 2/7/2000 $3000.00 $3000.00 3/6/2000 $3000.00 3/24/2000 $2000.00 $5000.00 4/6/2000 $5000.00 4/6/2000 $3000.00 4/28/2000 $1417.00 $9417.00 5/4/2000 $3000.00 $3000.00 6/5/2000 $3000.00 $3000.00 7/3/2000 $3000.00 $3000.00 8/4/2000 $3000.00 $3000.00 9/5/2000 $3000.00 $3000.00 10/5/2000 $3000.00 $3000.00 11/6/2000 $3000.00 $3000.00 12/5/2000 $3000.00 $3000.00 1/4/2001 $3000.00 $3000.00 2//01 $0.00 $0.00 3/5/2001 $3000.00 3/20/2001 $2000.00 $5000.00 STATEM 41101 MISSING STATEM ENT 51/Ui MISSING STATEMENT 61/Ui MISSING Page 01710 BANAMEX ACCOUNT No Date Withdrawals Dollars Monthly Totals STATEMENT 71/Ui MISSING 8/5/2001 $3000.00 $3000.00 9/4/2001 $3000.00 $3000.00 10/4/2001 $3000.00 10/16/2001 $4000.00 $7000.00 11/5/2001 $3000.00 $3000.00 All rates exchange from this date forward were referenced from 12/6/2001 $3000.00 xe.com $3000.00 STATEM ENT 11102 MISSING 2/6/2002 $3000.00 2/26/2002 $600.00 $3600.00 3/5/2002 $3000.00 3/5/2002 $600.00 $3600.00 4/4/2002 $3000.00 4/4/2002 $600.00 4/16/2002 $1000.00 $4600.00 5/6/2002 $3600.00 $3600.00 STATEM ENT 6//02 MISSING 7/5/2002 $3600.00 $3600.00 8/5/2002 $3600.00 $3600.00 9/5/2002 $3600.00 9/17/2002 $10000.00 Page 01711 BANAMEX ACCOUNT Date Withdrawals Dollars Monthly Totals $13600.00 10/4/2002 $3600.00 $3600.00 11/5/2002 $3600.00 $3600.00 12/5/2002 $3600.00 12/24/2002 $10200.00 $13800.00 1/6/2003 $3600.00 $3600.00 2/4/2003 $3600.00 $3600.00 3/6/2003 $3600.00 $3600.00 4/4/2003 $3600.00 $3600.00 5/5/2003 $3600.00 $3600.00 61103 $0.00 $0.00 7/3/2003 $3600.00 $3600.00 8/6/2003 $3600.00 $3600.00 STATEM ENT 91103 MISSING 10/6/2003 $3600.00 $3600.00 11/6/2003 $3608.00 $3608.00 12/5/2003 $13608.00 $13608.00 1/5/2004 $3608.00 $3608.00 2/6/2004 $3608.00 2/13/2004 $658.00 2/20/2004 $10000.00 2/23/2004 $3608.00 $17874.00 3/5/2004 $3608.00 $3608.00 4/2/2004 $3608.00 Page 01712 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals $3608.00 5/6/2004 $3608.00 5/20/2004 $10000.00 $13608.00 6/7/2004 $3608.00 $3608.00 7/6/2004 $3600.00 7/23/2004 $10000.00 $13600.00 8/13/2004 $3600.00 8/26/2004 $1700.00 $5300.00 9/7/2004 $3600.00 $3600.00 10/6/2004 $3600.00 $3600.00 11/8/2004 $3600.00 $3600.00 12/7/2004 $3600.00 $3600.00 1/6/2005 $3600.00 $3600.00 2/4/2005 $3600.00 2/7/2005 $7500.00 2/7/2005 $4385.00 2/28/2005 $1075.95 $16560.95 3/2/2005 $11883.00 3/4/2005 $3608.00 3/4/2005 $4383.00 3/7/2005 $39595.19 3/8/2005 $22917.00 3/16/2005 $2715.50 3/17/2005 $40000.00 3/18/2005 $40000.00 3/29/2005 $3008.00 3/31/2005 $384.00 $168493.69 4/4/2005 $3608.00 4/4/2005 $5008.00 4/5/2005 $5683.60 4/5/2005 $14686.18 4/5/2005 $364.00 Page 01713 I3ANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 4/5/2005 $14618.19 4/5/2005 $23345.00 4/5/2005 $4405.00 4/8/2005 $14105.24 4/8/2005 $7958.00 4/11/2005 $1008.00 4/11/2005 $2917.00 4/12/2005 $1100.51 4/12/2005 $1008.00 4/14/2005 $3418.00 4/15/2005 $2008.00 4/15/2005 $5519.00 4/19/2005 $750.00 4/21/2005 $3758.00 4/25/2005 $508.00 4/25/2005 $27198.55 4/26/2005 $41100.00 4/26/2005 $2008.00 4/27/2005 $150.00 4/27/2005 $384.00 $186616.27 5/2/2005 $28020.00 5/2/2005 $5600.64 5/2/2005 $691.18 5/2/2005 $3608.00 5/2/2005 $4383.00 5/4/2005 $951.00 5/4/2005 $364.00 5/5/2005 $22686.88 5/6/2005 $14618.19 5/5/2005 $7530.00 5/6/2005 $15010.00 5/6/2005 $23425.00 5/5/2005 $19909.41 5/6/2005 $2917.00 5/9/2005 $74.66 5/9/2005 $15.93 5/9/2005 $3905.85 5/11/2005 $258.00 5/16/2005 $21711.00 5/27/2005 $5238.00 5/27/2005 $40000.00 5/31/2005 $29892.60 Page 01714 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals $250810.34 6/3/2005 $28020.00 6/3/2005 $691.18 6/3/2005 $5461.48 6/3/2005 $15010.00 6/3/2005 $6508.00 6/3/2005 $3608.00 6/7/2005 $38139.19 6/7/2005 $684.00 6/7/2005 $12233.44 6/9/2005 $100025.00 6/9/2005 $1108.00 6/10/2005 $508.00 6/14/2005 $5008.00 6/17/2005 $25912.00 6/20/2005 $2460.00 6/23/2005 $20000.00 6/23/2005 $2917.00 6/27/2005 $2681.50 6/28/2005 $3888.00 6/29/2005 $1000.00 $275862.79 7/1/2005 $608.00 7/4/2005 $15000.00 7/4/2005 $25000.00 7/5/2005 $1986.22 7/5/2005 $28020.00 7/5/2005 $691.18 7/5/2005 $7508.00 7/5/2005 $3608.00 7/8/2005 $3008.00 7/8/2005 $37689.19 7/11/2005 $2008.00 7/12/2005 $20000.00 7/12/2005 $2917.00 7/13/2005 $45.71 7/15/2005 $15000.00 7/15/2005 $30026.00 7/19/2005 $2608.00 7/29/2005 $4858.00 $200581.30 8/2/2005 $33348.98 8/2/2005 $608.00 Page 01715 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 8/2/2005 $12.00 8/3/2005 $691.18 8/3/2005 $19000.00 8/4/2005 $3608.00 8/8/2005 $7508.00 8/8/2005 $37738.19 8/9/2005 $20000.00 8/9/2005 $2917.00 8/12/2005 $180030.00 8/15/2005 $4008.00 8/15/2005 $10008.00 8/18/2005 $151675.00 8/30/2005 $4858.00 8/31/2005 $15010.00 $491020.35 9/1/2005 $19886.19 9/1/2005 $808.00 9/2/2005 $23027.52 9/2/2005 $28711.18 9/2/2005 $12000.00 9/2/2005 $3608.00 9/5/2005 $2352.00 9/6/2005 $15010.00 9/6/2005 $7969.00 9/6/2005 $22000.00 9/12/2005 $40000.00 9/20/2005 $5008.00 9/22/2005 $8008.00 9/22/2005 $2116.79 9/27/2005 $2508.00 9/28/2005 $1008.00 9/28/2005 $15.00 9/28/2005 $2.25 9/30/2005 $6068.00 9/30/2005 $1984.25 9/30/2005 $1008.00 $203098.18 10/3/2005 $28020.00 10/3/2005 $691.18 10/3/2005 $5446.32 10/3/2005 $808.00 10/3/2005 $6008.00 10/5/2005 $15210.00 Page 01716 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 10/5/2005 $2917.00 10/5/2005 $8350.00 10/5/2005 $7508.00 10/7/2005 $40638.19 10/7/2005 $208.00 10/11/2005 $3008.00 10/13/2005 $3608.00 10/18/2005 $5008.00 10/18/2005 $300.00 10/19/2005 $294.72 10/21/2005 $7308.00 10/24/2005 $6057.82 10/27/2005 $7008.00 10/27/2005 $100.00 10/28/2005 $6492.89 10/31/2005 $2219.52 10/31/2005 $60000.00 $217209.64 11/1/2005 $158350.00 11/1/2005 $808.00 11/1/2005 $691.18 11/1/2005 $5449.36 11/1/2005 $28020.00 11/2/2005 $56000.00 11/3/2005 $300.00 11/3/2005 $7508.00 11/3/2005 $3608.00 11/3/2005 $30000.00 11/4/2005 $888.00 11/4/2005 $40669.19 11/7/2005 $919.00 11/7/2005 $2000.00 11/7/2005 $13000.00 11/7/2005 $5008.00 11/17/2005 $70000.00 11/18/2005 $3008.00 11/21/2005 $2008.00 11/22/2005 $3908.00 11/22/2005 $7027.89 11/24/2005 $131.00 11/30/2005 $2219.52 $441521.14 12/1/2005 $691.18 Page 01717 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 12/1/2005 $5309.81 12/1/2005 $28020.00 12/1/2005 $408.00 12/2/2005 $18631.90 12/5/2005 $23046.00 12/6/2005 $17618.19 12/6/2005 $22.00 12/6/2005 $4608.00 12/6/2005 $7508.00 12/6/2005 $1855.00 12/7/2005 $20000.00 12/14/2005 $100000.00 12/14/2005 $28.00 12/14/2005 $3342.89 12/14/2005 $36000.00 12/14/2005 $10000.00 12/20/2005 $10360.00 12/20/2005 $2219.52 12/20/2005 $8.00 12/20/2005 $4000.00 $293676.49 1/3/2006 $4305.97 1/3/2006 $1404.70 1/3/2006 $5370.77 1/3/2006 $8.00 1/3/2006 $28020.00 1/6/2006 $3608.00 1/6/2006 $7508.00 1/9/2006 $37161.19 1/10/2006 $20000.00 1/10/2006 $1855.00 1/12/2006 $8.00 1/12/2006 $3000.00 1/20/2006 $15000.00 1/20/2006 $22000.00 1/26/2006 $40000.00 1/31/2006 $31016.00 1/31/2006 $2219.52 $222485.15 2/2/2006 $28020.00 2/2/2006 $591.18 2/2/2006 $2274.79 2/3/2006 $508.00 Page 01718 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 2/7/2006 $37161.19 2/7/2006 $5296.48 2/7/2006 $3608.00 2/8/2006 $20000.00 2/8/2006 $1763.00 2/10/2006 $4408.00 2/14/2006 $285.00 2/15/2006 $22852.47 2/15/2006 $30000.00 2/16/2006 $15013.00 2/28/2006 $2219.52 $174100.63 3/1/2006 $18631.90 3/1/2006 $1508.00 3/1/2006 $25583.53 3/1/2006 $508.00 3/1/2006 $691.18 3/2/2006 $5000.00 3/3/2006 $3608.00 3/6/2006 $39654.19 3/6/2006 $10008.00 3/6/2006 $6011.43 3/7/2006 $1721.00 3/7/2006 $20000.00 3/10/2006 $150020.00 3/13/2006 $44000.00 3/22/2006 $8008 00 3/23/2006 $60000.00 3/27/2006 $6008.00 3/30/2006 $2219.52 3/31/2006 $60000.00 $463180.75 4/3/2006 $5536.25 4/3/2006 $4426.80 4/3/2006 $28020.00 4/4/2006 $3608.00 4/4/2006 $5296.48 4/5/2006 $37060.19 4/5/2006 $1185.05 4/5/2006 $2278.94 4/6/2006 $20000.00 4/6/2006 $15000.00 4/7/2006 $3418.00 Page 10 01719 BANAMEX ACCOUNT No Date Withdrawals Dollars Monthly Totals 4/7/2006 $15010.00 4/7/2006 $6008.00 4/10/2006 $60000.00 4/11/2006 $1638.00 4/12/2006 $12.00 4/12/2006 $21000.00 4/18/2006 $1513.00 4/20/2006 $100025.00 4/26/2006 $100.00 4/27/2006 $3008.00 4/28/2006 $2219.52 4/28/2006 $100025.00 $436388.23 5/3/2006 $5615.10 5/3/2006 $691.18 5/3/2006 $28020.00 5/3/2006 $5296.48 5/3/2006 $3608.00 5/4/2006 $18180.19 5/5/2006 $21870.00 5/8/2006 $20000.00 5/8/2006 $1221.00 5/8/2006 $2008.00 5/8/2006 $15015.00 5/9/2006 $1000.00 5/9/2006 $300.00 5/12/2006 $6013.00 5/17/2006 $100.00 5/23/2006 $15000.00 5/30/2006 $2264.00 5/30/2006 $18633.90 $164835.85 6/1/2006 $19000.00 6/1/2006 $1185.00 6/1/2006 $15000.00 6/1/2006 $23020.00 6/1/2006 $567.18 6/2/2006 $5720.45 6/7/2006 $36381.19 6/7/2006 $10815.00 6/7/2006 $3808.00 6/7/2006 $5292.48 6/8/2006 $8008.00 Page 11 01720 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 6/9/2006 $2006.00 6/16/2006 $7000.00 6/16/2006 $8000.00 $145803.30 7/3/2006 $4006.00 7/3/2006 $6003.00 7/3/2006 $9645.68 7/3/2006 $11015.00 7/3/2006 $4427.27 7/3/2006 $28020.00 7/3/2006 $6008.00 7/3/2006 $3608.00 7/5/2006 $35281.19 7/6/2006 $1138.00 7/6/2006 $20000.00 7/11/2006 $50000.00 7/11/2006 $5006.00 7/14/2006 $2008.00 7/21/2006 $2284.00 7/21/2006 $1883.00 7/21/2006 $10000.00 7/27/2006 $100025.00 $300358.14 8/1/2006 $4008.00 8/1/2006 $8008.00 8/1/2006 $11015.00 8/1/2006 $5809.03 8/1/2006 $28020.00 8/1/2006 $587.27 8/1/2006 $3008.00 8/1/2006 $6008.00 8/2/2006 $10010.00 8/4/2006 $20000.00 8/4/2006 $1000.00 8/7/2006 $37770.19 8/15/2006 $50000.00 8/16/2006 $20000.00 8/21/2006 $100000.00 8/25/2006 $3008.00 8/28/2006 $38624.01 8/29/2006 $2284.00 8/29/2006 $18333.90 8/31/2006 $20000.00 Page 12 01721 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals $387493.40 9/1/2006 $567.27 9/1/2006 $28020.00 9/1/2006 $6008.00 9/1/2006 $3808.00 9/1/2006 $15015.00 9/1/2006 $5533.29 9/1/2006 $6008.00 9/4/2006 $1059.00 9/5/2006 $37616.19 9/13/2006 $958.00 9/13/2006 $2678.00 9/14/2006 $3008.00 9/19/2006 $5008.00 9/25/2006 $1300.00 9/28/2006 $2254.00 9/29/2006 $688.00 9/29/2006 $50000.00 $169528.75 10/2/2006 $6008.00 10/2/2006 $15015.00 10/2/2006 $28020.00 10/2/2006 $3608.00 10/2/2006 $10010.00 10/2/2006 $5597.74 10/2/2006 $4985.48 10/5/2006 $16628.19 10/5/2006 $20604.00 10/6/2006 $20879.00 10/17/2006 $68000.00 10/19/2006 $100000.00 10/25/2006 $1000.00 10/25/2006 $100000.00 10/27/2006 $2008.00 10/31/2006 $2264.00 $404627.41 11/1/2006 $6000.00 11/1/2006 $15000.00 11/1/2006 $6008.00 11/1/2006 $28020.00 11/1/2006 $786.30 11/1/2006 $5424.98 11/1/2006 $3608.00 Page 13 01722 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 11/6/2006 $20764.00 11/6/2006 $16618.19 11/6/2006 $22.00 11/7/2006 $20000.00 11/7/2006 $555.00 11/8/2006 $50000.00 11/9/2006 $2058.00 11/9/2006 $164.35 11/10/2006 $100000.00 11/14/2006 $2797.00 11/28/2006 $6008.00 11/29/2006 $2234.00 11/29/2006 $18633.90 $304701.72 12/4/2006 $6000.00 12/4/2006 $15000.00 12/4/2006 $3608.00 12/4/2006 $6008.00 12/4/2006 $28020.00 12/4/2006 $786.30 12/4/2006 $5568.61 12/6/2006 $10618.19 12/6/2006 $10.00 12/7/2006 $20000.00 12/7/2006 $513.00 12/7/2006 $20661.00 12/7/2006 $12.00 12/7/2006 $20661.00 12/11/2006 $30010.00 12/13/2006 $22602.00 12/15/2006 $161338.00 12/18/2006 $100015.00 12/18/2006 $4008.00 12/20/2006 $30047.47 12/21/2006 $2264.00 12/22/2006 $9208.00 $496958.57 STATEMENT IS 1/2/2007 $6008.00 INCOMPLETE STATEMENT IS 1/2/2007 $3608.00 INCOMPLETE STATEMENT IS 1/2/2007 $786.30 INCOMPLETE Page 14 01723 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals STATEMENT IS 1/2/2007 $28020.00 INCOMPLETE STATEMENT IS 1/5/2007 $16628.19 INCOMPLETE STATEMENT IS 1/8/2007 $20000.00 INCOMPLETE STATEMENT IS 1/9/2007 $30000.00 INCOMPLETE STATEMENT IS 1/23/2007 $7530.00 INCOMPLETE STATEMENT IS 1/24/2007 $3590.00 INCOMPLETE STATEMENT IS 1/30/2007 $2264.00 INCOMPLETE $118434.49 2/2/2007 $6008.00 2/2/2007 $28020.00 2/2/2007 $786.30 2/2/2007 $4459.69 2/2/2007 $3608.00 2/7/2007 $16628.19 2/8/2007 $20000.00 2/12/2007 $285.00 2/13/2007 $3000.00 2/16/2007 $30020.00 2/18/2007 $80000.00 2/23/2007 $10000.00 2/28/2007 $50000.00 2/28/2007 $50000.00 2/28/2007 $100000.00 2/28/2007 $18633.90 2/28/2007 $2264.00 $423713.08 3/1/2007 $6008.00 3/1/2007 $3608.00 3/1/2007 $786.30 3/1/2007 $28020.00 3/5/2007 $5134.98 3/5/2007 $15010.00 3/6/2007 $50000.00 3/8/2007 $50000.00 3/15/2007 $15000.00 3/16/2007 $15000.00 Page 15 01724 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 3/22/2007 $57020.00 3/23/2007 $672.45 3/27/2007 $3008.00 3/27/2007 $2264.00 $251531.73 4/2/2007 $15810.00 4/2/2007 $6008.00 4/2/2007 $3608.00 4/12/2007 $3418.00 4/17/2007 $1813.00 4/27/2007 $2264.00 $32921.00 5/2/2007 $15810.00 5/2/2007 $6008.00 5/2/2007 $3608.00 5/21/2007 $1008.00 5/30/2007 $18633.90 5/30/2007 $2264.00 5/31/2007 $850.00 $48181.90 6/1/2007 $15800.00 6/1/2007 $10.00 6/1/2007 $6008.00 6/1/2007 $3608.00 6/5/2007 $5008.00 6/13/2007 $2008.00 6/15/2007 $2158.00 6/26/2007 $2264.00 6/26/2007 $2008.00 $38872.00 7/5/2007 $15800.00 7/5/2007 $10.00 7/5/2007 $8008.00 7/5/2007 $3608.00 7/11/2007 $4337.20 7/31/2007 $2264.00 $34027.20 8/1/2007 $2000.00 8/1/2007 $2153.00 8/1/2007 $3008.00 8/1/2007 $15810.00 8/1/2007 $3608.00 8/1/2007 $8008.00 Page 16 01725 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 8/6/2007 $2000.00 8/8/2007 $5100.00 8/10/2007 $214.39 8/10/2007 $400.00 8/21/2007 $10000.00 8/30/2007 $19633.90 8/30/2007 $2264.00 $74199.29 STATEMENT IS 9/4/2007 $15800.00 INCOMPLETE STATEMENT IS 9/4/2007 $10.00 INCOMPLETE STATEMENT IS 9/4/2007 $3608.00 INCOMPLETE STATEMENT IS 9/4/2007 $8008.00 INCOMPLETE STATEMENT IS 9/4/2007 $1500.00 INCOMPLETE STATEMENT IS 9/5/2007 $28773.30 INCOMPLETE STATEMENT IS 9/5/2007 $28773.30 INCOMPLETE STATEMENT IS 9/5/2007 $28773.30 INCOMPLETE STATEMENT IS 9/5/2007 $12000.00 INCOMPLETE STATEMENT IS 9/5/2007 $12000.00 INCOMPLETE STATEMENT IS 9/5/2007 $1500.00 INCOMPLETE STATEMENT IS 9/5/2007 $12000.00 INCOMPLETE STATEMENT IS 9/12/2007 $295.00 INCOMPLETE STATEMENT IS 9/17/2007 $2879.00 INCOMPLETE STATEMENT IS 9/17/2007 $735.00 INCOMPLETE STATEMENT IS 9/17/2007 $3008.00 INCOMPLETE $159662.90 10/2/2007 $15810.00 10/2/2007 $3608.00 Page 17 01726 BANAMEX ACCOUNT NO Date Withdrawas Dollars Monthly Totals 10/2/2007 $8008.00 10/10/2007 $80000.00 10/15/2007 $12000.00 $119426.00 Missing daily transactions part of 11//2007 $120029.00 this statement $120029.00 12/3/2007 $8008.00 12/3/2007 $3608.00 12/3/2007 $15810.00 12/19/2007 $20012.00 12/19/2007 $2264.00 12/20/2007 $3408.00 12/20/2007 $7545.50 $60655.50 1/2/2008 $3608.00 1/2/2008 $8008.00 1/3/2008 $15800.00 1/3/2008 $10.00 1/4/2008 $3508.00 1/4/2008 $180025.00 1/11/2008 $2008.00 1/11/2008 $7545.50 1/22/2008 $1908.00 1/28/2008 $2008.00 1/28/2008 $2358.00 $226786.50 2/1/2008 $lsaio.oo 2/1/2008 $3608.00 2/1/2008 $8008.00 2/7/2008 $10008.00 2/11/2008 $8000.00 2/11/2008 $8.00 2/18/2008 $50000.00 2/29/2008 $18633.90 $114075.90 3/4/2008 $15810.00 3/4/2008 $3608.00 3/4/2008 $8008.00 3/13/2008 $60000.00 3/25/2008 $3008.00 3/27/2008 $25000.00 $115434.00 Page 18 01727 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 4/1/2008 $15810.00 4/1/2008 $3608.00 4/1/2008 $8008.00 4/1/2008 $95000.00 4/7/2008 $5006.00 4/17/2008 $3419.00 4/25/2008 $100000.00 4/29/2008 $633.00 4/29/2008 $2359.00 $233843.00 5/2/2008 $3608.00 5/2/2008 $8008.00 5/2/2008 $15810.00 5/7/2008 $7000.00 5/7/2008 $8300.00 5/14/2008 $7000.00 5/14/2008 $13825.00 5/19/2008 $3000.00 5/30/2008 $8000.00 5/30/2008 $18631.90 $93182.90 6/2/2008 $15810.00 6/2/2008 $8008.00 6/2/2008 $3608.00 6/5/2008 $17435.50 6/11/2008 $100025.00 6/16/2008 $1508.00 6/17/2008 $10008.00 $156402.50 7/1/2008 $15810.00 7/1/2008 $400.00 7/1/2008 $7608.00 7/1/2008 $3608.00 7/4/2008 $60000.00 7/14/2008 $7700.00 7/28/2008 $75000.00 $170126.00 8/4/2008 $15800.00 8/4/2008 $10.00 8/4/2008 $3608.00 8/4/2008 $7608.00 8/4/2008 $400.00 Page 19 01728 BANAMEXACCOUNTNO Date Withdrawals Dollars Monthly Totals 8/4/2008 $35000.00 8/13/2008 $14700.00 8/18/2008 $104020.00 8/19/2008 $35000.00 8/28/2008 $18633.90 $234779.90 9/1/2008 $161032.00 9/2/2008 $3608.00 9/2/2008 $7608.00 9/2/2008 $15810.00 9/2/2008 $400.00 9/5/2008 $1609.26 9/8/2008 $260.00 9/15/2008 $55000.00 9/24/2008 $2408.00 9/24/2008 $50000.00 9/30/2008 $383.00 $298118.26 10/1/2008 $15810.00 10/1/2008 $7608.00 10/1/2008 $3608.00 10/1/2008 $400.00 10/1/2008 $16350.00 10/3/2008 $5008.00 10/14/2008 $3930.00 10/16/2008 $5000.00 10/20/2008 $341.45 10/21/2008 $45000.00 10/23/2008 $651.50 10/30/2008 $4683.00 10/31/2008 $50000.00 $158389.95 11/3/2008 $15810.00 11/3/2008 $400.00 11/3/2008 $3608.00 11/3/2008 $7608.00 11/3/2008 $2008.00 11/14/2008 $3391.00 11/25/2008 $2092.00 11/26/2008 $18633.90 11/26/2008 $500.00 $54050.90 12/1/2008 $15810.00 Page 20 01729 BANAMEX ACCOUNT No Date Withdrawals Dollars Monthly Totals 12/1/2008 $400.00 12/1/2008 $7608.00 12/1/2008 $3608.00 12/8/2008 $20595.00 12/10/2008 $50000.00 12/15/2008 $3311.00 12/16/2008 $4032.00 12/22/2008 $34903.65 $140267.65 1/5/2009 $15810.00 1/5/2009 $400.00 1/5/2009 $7608.00 1/5/2009 $3608.00 1/14/2009 $35000.00 1127/2009 $3508.00 1/29/2009 $2468.00 1/29/2009 $990.00 1/30/2009 $9529.34 1/30/2009 $4571.29 $83492.63 2/3/2009 $3608.00 2/3/2009 $7608.00 2/3/2009 $400.00 2/3/2009 $15810.00 2/4/2009 $1008.00 2/5/2009 $8500.00 2/10/2009 $14241.98 2/19/2009 $38203.00 2/26/2009 $2468.00 2/26/2009 $18633.90 2/26/2009 $10000.00 $120480.88 3/2/2009 $3008.00 3/2/2009 $15810.00 3/2/2009 $400.00 3/2/2009 $3608.00 3/2/2009 $7608.00 3/19/2009 $4719.00 3/30/2009 $2468.00 $37621.00 4/1/2009 $15810.00 4/1/2009 $3608.00 4/1/2009 $7608.00 Page 21 01730 BANAMEX ACCOUNT No Date Withdrawals Dollars Monthly Totals 4/1/2009 $400.00 4/3/2009 $2000.00 4/13/2009 $24892.00 4/15/2009 $30000.00 4/17/2009 $3418.00 4/21/2009 $8879.00 4/29/2009 $2468.00 $99083.00 5/4/2009 $15810.00 5/4/2009 $3608.00 5/4/2009 $7608.00 5/4/2009 $400.00 5/22/2009 $4554.00 5/27/2009 $18633.90 5/27/2009 $2468.00 5/29/2009 $600.00 $53681.90 6/1/2009 $15800.00 6/1/2009 $10.00 6/1/2009 $400.00 6/1/2009 $7608.00 6/1/2009 $3608.00 6/9/2009 $2383.00 6/9/2009 $3983.00 6/25/2009 $2468.00 6/26/2009 $16000.00 6/26/2009 $2000.00 6/29/2009 $15800.00 $10.00 $70070.00 Missing daily transactions part of 7//2009 $19124.00 this statement 7/30/2009 $2468.00 7/31/2009 $20000.00 $41592.00 8/4/2009 $15800.00 8/4/2009 $10.00 8/4/2009 $7608.00 8/4/2009 $400.00 8/4/2009 $3608.00 8/28/2009 $900.00 8/28/2009 $21093.90 Page 22 01731 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 8/31/2009 $29000.00 $78419.90 9/1/2009 $260.00 9/1/2009 $15800.00 9/1/2009 $10.00 9/1/2009 $3608.00 9/1/2009 $7608.00 9/1/2009 $400.00 9/22/2009 $2515.00 9/30/2009 $2468.00 $32669.00 10/1/2009 $15800.00 10/1/2009 $10.00 10/1/2009 $7608.00 10/1/2009 $400.00 10/1/2009 $3608.00 10/7/2009 $50000.00 10/13/2009 $1051.00 10/19/2009 $15479.00 10/29/2009 $2468.00 $96424.00 11/3/2009 $15800.00 11/3/2009 $10.00 11/3/2009 $400.00 11/4/2009 $3608.00 11/4/2009 $7608.00 11/12/2009 $40000.00 11/17/2009 $1008.00 11/20/2009 $20000.00 11/20/2009 $12.00 11/26/2009 $1000.00 11/27/2009 $2468.00 11/27/2009 $15036.81 11/30/2009 $25000.00 $131950.81 12/2/2009 $7608.00 12/2/2009 $400.00 12/2/2009 $3608.00 12/3/2009 $15800.00 12/3/2009 $10.00 12/11/2009 $8381.58 12/16/2009 $226.30 12/18/2009 $2758.00 Page 23 01732 BANAMEXACCOUNTNO Date Withdrawals Dollars Monthly Totals 12/18/2009 $1027.00 12/18/2009 $2468.00 12/18/2009 $3983.00 12/18/2009 $34912.00 $81181.88 1/4/2010 $7608.00 1/4/2010 $3608.00 1/4/2010 $400.00 1/6/2010 $15810.00 1/6/2010 $10.00 1/14/2010 $1608.00 1/29/2010 $2468.00 $31512.00 2/2/2010 $3608.00 2/2/2010 $7608.00 2/2/2010 $400.00 2/2/2010 $15810.00 2/8/2010 $20010.00 2/9/2010 $800.00 2/10/2010 $10000.00 2/26/2010 $2558.00 $60794.00 3/1/2010 $7608.00 3/1/2010 $3608.00 3/1/2010 $400.00 3/8/2010 $15810.00 3/10/2010 $46000.00 3/12/2010 $300.00 3/26/2010 $20000.00 3/26/2010 $2558.00 $96284.00 4/5/2010 $400.00 4/5/2010 $15810.00 4/5/2010 $6841.00 4/5/2010 $3608.00 4/6/2010 $5000.00 4/9/2010 $1000.00 4/13/1940 $3410.00 4/14/2010 $50000.00 4/19/2010 $1200.00 4/28/2010 $2558.00 $89827.00 5/4/2010 $15810.00 Page 24 01733 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 5/4/2010 $400.00 5/4/2010 $7608.00 5/4/2010 $3608.00 5/5/2010 $24000.00 5/7/2010 $2008.00 5/11/2010 $4000.00 5/28/2010 $2608.00 $60042.00 6/1/2010 $15810.00 6/1/2010 $400.00 6/1/2010 $7608.00 6/1/2010 $3608.00 6/21/2010 $32000.00 $59426.00 7/1/2010 $3608.00 7/1/2010 $7608.00 7/1/2010 $400.00 7/5/2010 $15810.00 7/28/2010 $2608.00 $30034.00 8/2/2010 $15810.00 8/2/2010 $7608.00 8/2/2010 $3608.00 8/2/20 10 $400.00 8/18/2010 $66000.00 8/30/2010 $2608.00 $96034.00 9/1/2010 $7608.00 9/1/2010 $400.00 9/1/2010 $3608.00 9/6/2010 $500.00 9/7/2010 $15810.00 9/9/2010 $3692.31 9/10/2010 $41000.00 9/30/2010 $2608.00 $75226.31 10/1/2010 $3608.00 10/1/2010 $7608.00 10/1/2010 $400.00 10/27/2010 $2608.00 $14224.00 11/1/2010 $400.00 11/1/2010 $3608.00 Page 25 01734 BANAMEX ACCOUNT NO Date Withdrawals Dollars Monthly Totals 11/1/2010 $7608.00 11/1/2010 $600.00 11/4/2010 $70000.00 11/17/2010 $16285.00 11/18/2010 $50.00 11/18/2010 $2307.69 11/29/2010 $2608.00 $103466.69 12/1/2010 $3608.00 12/1/2010 $7608.00 12/1/2010 $400.00 12/3/2010 $1500.00 12/6/2010 $2258.00 12/6/2010 $3988.00 12/6/2010 $34912.00 12/17/2010 $1000.00 12/17/2010 $20000.00 12/17/2010 $275.00 12/20/2010 $2608.00 $78157.00 TOTAL $11875165.59 $11875165.59 Page 26 01735 01736 8ANREGIO ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 2/28/2007 $15.00 0.089626167 $1.34 2/28/2007 $1.50 0.089626167 $0.13 3/30/2007 $200.00 0.09053237 $18.11 3/30/2007 $20.00 0.09053237 $1.81 3/30/2007 $15.00 0.09053237 $1.36 3/30/2007 $1.50 0.09053237 $0.14 4/30/2007 $200.00 0.091515002 $18.30 4/30/2007 $20.00 0.091515002 $1.83 4/30/2007 $15.00 0.091515002 $1.37 4/30/2007 $1.50 0.091515002 $0.14 5/31/2007 $200.00 0.093122836 $18.62 5/31/2007 $20.00 0.093122836 $1.86 5/31/2007 $15.00 0.093122836 $1.40 5/31/2007 $1.50 0.093122836 $0.14 6/29/2007 $200.00 0.092667499 $18.53 6/29/2007 $20.00 0.092667499 $1.85 6/29/2007 $15.00 0.092667499 $1.39 6/29/2007 $1.50 0.092667499 $0.14 7//Q7 STATEMENT MISSING 8/30/2007 $5500.00 0.090199364 $496.10 Page BANREGIO ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 9/11/2007 $42831.25 0.090019825 $3855.66 9/11/2007 $17466.25 0.090019825 $1572.31 9/25/2007 $31305.08 0.091379949 $2860.66 9/27/2007 $24669.36 0.091512317 $2257.55 9/28/2007 $5500.00 0.091471989 $503.10 10/29/2007 $5500.00 0.093333548 $513.33 10/29/2007 $24240.72 0.093333548 $2262.47 11/15/2007 $5500.00 0.091567365 $503.62 11/27/2007 $24804.72 0.091117673 $2260.15 11/27/2007 $204747.79 0.091117673 $18656.14 12/14/2007 $5500.00 0.092368839 $508.03 12/14/2007 $50.00 0.092368839 $4.62 12/14/2007 $5.00 0.092368839 $0.46 12/17/2007 $50.00 0.092129131 $4.61 12/17/2007 $5.00 0.092129131 $0.46 12/17/2007 $31384.00 0.092129131 $2891.38 12/17/2007 $38402.00 0.092129131 $3537.94 12/17/2007 $46326.00 0.092129131 $4267.97 12/17/2007 $45490.00 0.092129131 $4190.95 12/19/2007 $93080.68 0.092196736 $8581.73 12/31/2007 $15.00 0.091594524 $1.37 12/31/2007 $1.50 0.09.1594524 $0.14 Page BANREGIO ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 1/31/2008 $15.00 0.092425223 $1.39 1/31/2008 $1.50 0.092425223 $0.14 1/31/2008 $5500.00 0.092425223 $508.34 1/31/2008 $9815.00 0.092425223 $907.15 2/18/2008 $17539.00 0.093172318 $1634.15 2/21/2008 $5500.00 0.09 2606633 $509.34 2/28/2008 $25156.75 0.09367407 $2356.54 2/28/2008 $1500 0.09367407 $1.41 2/28/2008 $1.50 0.09367407 $0.14 31108 STATEMENT MISSING 4/2/2008 $24839.50 0.093388121 $2319.71 4/11/2008 $5500.00 0.092583897 $509.21 4/17/2008 $17939.00 0.09274403 $1663.74 4/30/2008 $15.00 0.093506008 $1.40 4/30/2008 $1.50 0.093506008 $0.14 5/14/2008 $9539.00 0.095342972 $909.48 5/16/2008 $5500.00 0.0959003 27 $527.45 5/19/2008 $1210.00 0.096375589 $116.61 5/20/2008 $36000.00 0.09616552 $3461.96 5/30/2008 $15.00 0.096816649 $1.45 Page BAN REGIO ACCOUNT NO Date Withdrawals Pesos Rate Withdrawals Exchange Dollars 5/30/2008 $1.50 0.096816649 $0.15 5/30/2008 $24310.75 0.096816649 $2353.69 6/13/2008 $13739.00 0.096467006 $1325.36 6/30/2008 $5500.00 0.097046713 $533.76 6/30/2008 $15.00 0.097046713 $1.46 6/30/2008 $1.50 0.097046713 $0.15 7/10/2008 $13738.00 0.097057071 $1333.37 7/11/2008 $24287.25 0.097016537 $2356.26 7/17/2008 $5500.00 0.097765111 $537.71 7/29/2008 $23711.50 0.099451034 $2358.13 7/31/2008 $15.00 0.09959284 $1.49 7/31/2008 $1.50 0.09959284 $0.15 8/13/2008 $5500.00 0.09800645 $539.04 8/15/2008 $13740.00 0.097984901 $1346.31 8/28/2008 $23946.50 0.097999057 $2346.73 8/29/2008 $15.00 0.097093475 $1.46 8/29/2008 $1.50 0.097093475 $0.15 9/12/2008 $13739.00 0.094576737 $1299.39 9/18/2008 $5500.00 0.092151537 $506.83 9/25/2008 $25356.50 0.092851989 $2354.40 9/30/2008 $15.00 0.091119841 $1.37 9/30/2008 $1.50 0.091119841 $0.14 Page BAN REGIO ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 10/17/2008 $13739.00 0.077937694 $1070.79 10/22/2008 $5500.00 0.073557361 $404.57 10/29/2008 $30467.75 0.077388457 $2357.85 10/31/2008 $15.00 0.078904629 $1.18 10/31/2008 $1.50 0.078904629 $0.12 11/14/2008 $13739.00 0.0769487 $1057.20 11/25/2008 $5500.00 0.075334653 $414.34 11/26/2008 $31149.25 0.075627291 $2355.73 11/28/2008 $15.00 0.074666107 $1.12 11/28/2008 $1.50 0.074666107 $0.11 12/10/2008 $5500.00 0.074245405 $408.35 12/15/2008 $13739.00 0.075147692 $1032.45 12/16/2008 $15924.00 0.075665004 $1204.89 12/16/2008 $32551.31 0.075665004 $2462.99 12/31/2008 $15.00 0.072282233 $108 12/31/2008 $1.50 0.072282233 $0.11 1/15/2009 $85000.00 0.070625161 $6003.14 1/15/2009 $11.00 0.070625161 $0.78 1/15/2009 $1.10 0.070625161 $0.08 1/30/2009 $15.00 0.06979577 $1.05 1/30/2009 $1.50 0.06979577 $0.10 Page BAN REGIO ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 2/5/2009 $14049.00 0.069847645 $981.29 2/27/2009 $15.00 0.066259906 $099 2/27/2009 $1.50 0.066259906 $0.10 3/31/2009 $15.00 0.070393833 $1.06 3/31/2009 $1.50 0.070393833 $0.11 4/30/2009 $15.00 0.0724446 $1.09 4/30/2009 $1.50 0.0724446 $0.11 5/29/2009 $15.00 0.075825963 $1.14 5/29/2009 $1.50 0.075825963 $0.11 6/30/2009 $15.00 0.075919646 $1.14 6/30/2009 $1.50 0.075919646 $0.11 7/31/2009 $15.00 0.075703378 $1.14 7/31/2009 $1.50 0.075703378 $0.11 8/31/2009 $15.00 0.074977588 $1.12 8/31/2009 $1.50 0.074977588 $0.11 9/30/2009 $15.00 0.074170889 $1.11 9/30/2009 $1.50 0.074170889 $0.11 10/30/2009 $15.00 0.076007132 $1.14 Page BANREGIO ACCOUNT NO Date Withdrawals Pesos Exchange Rate Withdrawals Dollars 10/30/2009 $1.50 0.076007132 $0.11 11/30/2009 $15.00 0.077408228 $1.16 11/30/2009 $1.50 0.077408228 $0.12 12/31/2009 $15.00 0.076557568 $1.15 12/31/2009 $1.50 0.076557568 $0.11 1/29/2010 $15.00 0.076769436 $1.15 1/29/2010 $1.50 0.076769436 $0.12 2/26/2010 $15.00 0.078376193 $1.18 2/26/2010 $1.50 0.078376193 $0.12 3/31/2010 $20.00 0.081293487 $1.63 3/31/2010 $2.20 0.081293487 $0.18 4/30/2010 $50.00 0.081769228 $4.09 4/30/2010 $5.50 0.081769228 $0.45 5/31/2010 $30.00 0.077413066 $2.32 5/31/2010 $3.30 0.077413066 $0.26 6/30/2010 $30.00 0.077947941 $2.34 6/30/2010 $3.30 0.077947941 $0.26 Page BAN REGIO ACCOUNT NO Date Withdrawals Pesos Rate Exchange Withdrawas Dollars 7/30/2010 $30.00 0.079072507 $2.37 7/30/2010 $3.30 0.079072507 $0.26 8/31/2010 $30.00 0.075940725 $2.28 8/31/2010 $3.30 0.075940725 $0.25 9/30/2010 $30.00 0.07917369 $2.38 9/30/2010 $3.30 0.07917369 $0.26 10/29/2010 $30.00 0.081016027 $2.43 10/29/2010 $3.30 0.081016027 $0.27 11/30/2010 $30.00 0.080285916 $2.41 11/30/2010 $3.30 0.080285916 $0.26 11/30/2010 $200.00 0.080285916 $16.06 11/30/2010 $22.00 0.080285916 $1.77 12/31/2010 $30.00 0.081O1816 $2.43 12/31/2010 $3.30 0.081018186 $0.27 12/31/2010 $200.00 0.081018186 $16.20 12/31/2010 22.00 0.081018186 $1.78 TOTALS $1284014.61 $114284.99 Page